RNGE 8-K
Range Impact, Inc. (RNGE)
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM
CURRENT REPORT
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Item 1.01 Entry into a Material Definitive Agreement.
JV Entity Operating Agreement
On July 1, 2026, Range Sky View Land, LLC (“Range Sky”), a wholly owned indirect subsidiary of Range Impact, Inc. (the “Company”) and Time Complexity WV, LLC, a West Virginia limited liability company (“Time Complexity WV”), entered into an Operating Agreement (the “Operating Agreement”) to form Time Complexity Appalachia, LLC, a West Virginia limited liability company (the “JV Entity”). Pursuant to the Operating Agreement, Range Sky and Time Complexity WV each own a fifty percent (50%) membership interest in the JV Entity. The JV Entity, directly or through one or more special purpose subsidiaries, intends to develop a power generation and data center facility at the Fola mine site in West Virginia (the “Project”).
Pursuant to the Operating Agreement, the JV Entity is managed by a three-person Board of Managers (the “Board of Managers”). Range Sky and Time Complexity WV are each entitled to appoint one manager, and the third manager is appointed by mutual agreement of Range Sky and Time Complexity WV. Except as otherwise provided in the Operating Agreement, actions of the Board of Managers require the approval of a majority of the managers then in office. Certain specified matters require the unanimous approval of all managers. In addition, certain fundamental actions -- including the commencement of bankruptcy or dissolution proceedings, the sale of all or substantially all of the JV Entity’s assets or business, and amendments to the Operating Agreement -- require the unanimous consent of the Board of Managers and the members of the JV Entity at the time of such amendment. Distributions, if any, shall be made to members on a pro rata basis in accordance with their respective membership interests. The Operating Agreement does not require members to make any initial cash capital contributions to the JV Entity. Any future capital requirements of the JV Entity may be funded through loans made by the members, on such terms as may be agreed upon from time to time in accordance with the Operating Agreement. Any such loans shall be secured by the assets of the JV Entity and will rank pari passu, with each lending member entitled to its pro rata share of the collateral and repayment proceeds.
The Operating Agreement contains other terms, covenants, representations and warranties that are customary for a transaction of this nature.
The foregoing description of the Operating Agreement does not purport to be complete and is qualified in its entirety by reference to the full text of the form of the Operating Agreement attached hereto as Exhibit 10.1.
Warrant
On July 1, 2026, in connection with the transactions referenced in this Current Report, the Company issued a Common Stock Purchase Warrant (“Warrant”) to Time Complexity WV pursuant to which Time Complexity WV, upon the terms and subject to the limitations on exercise and the conditions set forth therein, is entitled to purchase up to 14,500,000 shares of the Company’s common stock. The Warrant has a seven-year term. One-third of the Warrant shall vest upon the occurrence of each one of the following three (3) milestones: (i) the public announcement by the State of West Virginia of its support for the Project; (ii) the receipt by the JV Entity of a written report prepared by an independent party confirming that the Project is technically and commercially feasible; and (iii) the execution by the JV Entity (or any of its subsidiaries) of one or more binding agreements relating to the Project, including, without limitation, agreements with respect to engineering, development, financing, construction, operations, power supply, compute infrastructure, data center tenancy, or other commercialization (the “Commercialization Milestone”), in each case as more particularly described in the Warrant. If the Commercialization Milestone is achieved prior to the other milestones, the Warrant will vest in full. Time Complexity WV will have 120 days to exercise the vested Warrant following achievement of the applicable milestone(s). The exercise price per share of common stock under the Warrant is $0.40, subject to adjustments for stock dividends, splits, and other combinations. The Warrant and any underlying Warrant Shares that have not yet vested shall automatically fully vest upon the consummation of a Fundamental Transaction (as defined in the Warrant) or in the event of the liquidation, dissolution, or winding up of the Company during the Warrant’s term.
In addition to the above terms, the Warrant also contains customary representations, warranties, and covenants for a transaction of this nature.
The foregoing description of the Warrant does not purport to be complete and is qualified in its entirety by reference to the full text of the form of the Warrant attached hereto as Exhibit 10.2.
Option to Lease Agreement
On July 1, 2026, in connection with the foregoing transactions, Range Sky entered into an Option to Lease Agreement with the JV Entity (the “Option Agreement”) which includes as an exhibit a form Ground Lease Agreement (the “Lease”).
Pursuant to the Option Agreement, Range Sky has granted the JV Entity, for nominal consideration, an option to lease certain real property located in West Virginia for a term of five (5) years (the “Option Period”). The Option Period may be extended for an additional one (1) year period if the JV Entity is diligently pursuing the Project using good faith commercially reasonable efforts. The JV Entity may exercise the option by delivering written notice to Range Sky during the Option Period (the “Exercise Notice”) which notice shall include the following: (i) a detailed description and property map of the property that the JV Entity desires to lease (the “Leased Premises”) with reasonable specificity, (ii) the JV Entity’s intended use of the Leased Premises, and (iii) the name of any third-party user of the Leased Premises and the agreed upon terms for the use thereof (which may be in the form of a memorandum of understanding, letter of intent, term sheet, or similar document) with reasonably sufficient detail ((i) – (iii) collectively, “Lease Conditions”). Range Sky shall have no obligation to enter into a Lease with the JV Entity after receiving an Exercise Notice until the Lease Conditions have been satisfied in Range Sky’s sole discretion. The option is non-transferable, except in connection with a transaction involving the sale of all or substantially all of the JV Entity’s assets to any third-party entity or to any third-party entity into which the JV Entity may be merged or combined where the JV Entity is not the surviving entity.
The Lease will provide for nominal annual rent on a triple net basis, pursuant to which the JV Entity will be responsible for all costs and expenses relating to the Leased Premises including, without limitation, real estate taxes, insurance, maintenance, development, and construction. The Leased Premises will be delivered and accepted on an “as is” basis.
The initial term of the Lease will be twenty (20) years, with four (4) successive renewal options of five (5) years each. Subject to the satisfaction of specified conditions, including the procurement of financing and the JV Entity’s readiness to commence construction of the Project, the JV Entity will have an option to purchase the Leased Premises at a price of $10,000 per acre. Range Sky will retain approval rights with respect to construction plans.
The JV Entity will be prohibited from assigning the Lease or subletting the Leased Premises, except in connection with a transaction involving the sale of all or substantially all of its assets. The Lease will also include customary protections for mortgage lenders, including cure rights and certain rights in connection with termination of the Lease following a default by the JV Entity.
The foregoing descriptions of the Option Agreement and Lease do not purport to be complete and are qualified in their entirety by reference to the full text of the form of the Option Agreement attached hereto as Exhibit 10.3.
Item 3.02. Unregistered Sales of Equity Securities.
The information set forth in Item 1.01 above is hereby incorporated by reference into this Item 3.02 in its entirety.
On July 1, 2026, the Company issued Time Complexity WV a warrant to purchase up to 14,500,000 shares of the Company’s common stock. The Warrant has a seven-year term. One-third of the Warrant shall vest upon the occurrence of each of the following three (3) milestones: (i) the public announcement by the State of West Virginia of its support for the Project; (ii) the JV Entity obtaining a written report from an independent party confirming that the Project is technically and commercially feasible; and (iii) the execution by the JV Entity (or any of its subsidiaries) of one or more binding agreements relating to the Project, including, without limitation, agreements with respect to engineering, development, financing, construction, operations, power supply, compute infrastructure, data center tenancy, or other commercialization (the “Commercialization Milestone”), in each case as more particularly described in the Warrant. If the Commercialization Milestone is achieved prior to the other milestones, the Warrant will vest in full. Time Complexity WV will have 120 days to exercise the vested Warrant following achievement of the applicable milestone(s). The exercise price per share of common stock under the Warrant is $0.40, subject to adjustments for stock dividends, splits, and other combinations. The Warrant and any underlying Warrant Shares that have not yet vested shall automatically fully vest upon the consummation of a Fundamental Transaction (as defined in the Warrant) or in the event of the liquidation, dissolution, or winding up of the Company during the Warrant’s term.
The issuance of the Warrant is exempt from the registration requirements of the Securities Act of 1933, as amended (the “Securities Act”) as a transaction by an issuer not involving a public offering under Section 4(a)(2) of the Securities Act and under Rule 506 of Regulation D promulgated under the Securities Act (“Regulation D”). The Company made this determination based on the representations of Time Complexity WV in the Warrant, including, but not limited to, Time Complexity WV’s representation that it is an “accredited investor” within the meaning of Rule 501 of Regulation D and that it had access to full and complete information about the Company and its investment.
Item 8.01 Other Events.
Press Release
On July 1, 2026, the Company issued a press release disclosing the transactions reflected in this Current Report. A copy of the press release is attached to this Current Report as Exhibit 99.1 and is incorporated herein by reference.
The information in this Item 8.01 (including Exhibit 99.1) is furnished pursuant to Item 8.01 and shall not be deemed to be “filed” for the purpose of Section 18 of the Securities Exchange Act of 1934, as amended, or otherwise subject to the liabilities of that section. This Current Report will not be deemed an admission as to the materiality of any information in this Current Report that is required to be disclosed solely by Regulation FD.
Portions of this Current Report may constitute “forward-looking statements” within the meaning of the Private Securities Litigation Reform Act of 1995 that are subject to risks and uncertainties. Although the Company believes any such statements are based on reasonable assumptions, there is no assurance that the actual outcomes will not be materially different due to a number of factors. Any such statements are made in reliance on the “safe harbor” protections provided under the Private Securities Litigation Reform Act of 1995. Additional information about significant risks that may impact the Company is contained in the Company’s filings with the Securities and Exchange Commission and may be accessed at www.sec.gov. The Company is under no obligation, and expressly disclaims any obligation, to update or alter its forward-looking statements, whether as a result of new information, future events or otherwise.
Item 9.01 Financial Statements and Exhibits.
| Exhibit No. | Description | |
| 10.1 | Operating Agreement, dated July 1, 2026, by and among Range Sky View Land, LLC, Time Complexity WV, LLC, and Time Complexity Appalachia, LLC. | |
| 10.2 | Warrant, dated July 1, 2026, between Range Impact, Inc. and Time Complexity WV, LLC. | |
| 10.3 | Option to Lease Agreement, dated July 1, 2026, between Range Sky View Land, LLC and Time Complexity Appalachia, LLC. | |
| 99.1 | Press Release, dated July 1, 2026 | |
| 104 | Cover Page Interactive Data File (embedded within the Inline XBRL document) |
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, as amended, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| RANGE IMPACT, INC. | ||
| Dated: July 1, 2026 | By: | /s/ Michael Cavanaugh |
| Name: | Michael Cavanaugh | |
| Title: | Chief Executive Officer | |
EXHIBIT INDEX
| 10.1 | Operating Agreement, dated July 1, 2026, by and among, Range Sky View Land, LLC, Time Complexity WV, LLC, and Time Complexity Appalachia, LLC. | |
| 10.2 | Warrant, dated July 1, 2026, between Range Impact, Inc. and Time Complexity WV, LLC. | |
| 10.3 | Option to Lease Agreement, dated July 1, 2026, between Range Sky View Land, LLC and Time Complexity Appalachia, LLC. | |
| 99.1 | Press Release, dated July 1, 2026 | |
| 104 | Cover Page Interactive Data File (embedded within the Inline XBRL document) |
Exhibit 10.1
OPERATING AGREEMENT
OF
TIME COMPLEXITY APPALACHIA, LLC
THE INTERESTS CREATED BY THIS AGREEMENT HAVE NOT BEEN AND WILL NOT BE REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (“SECURITIES ACT”), OR WITH THE SECURITIES AUTHORITIES OF ANY STATE UNDER ANY STATE SECURITIES LAWS. AS A CONSEQUENCE, THE INTERESTS MAY NOT BE SOLD, ASSIGNED, CONVEYED, PLEDGED, HYPOTHECATED OR OTHERWISE TRANSFERRED BY A HOLDER THEREOF EXCEPT: (1) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT REGISTERING THE INTERESTS UNDER THE SECURITIES ACT AND UNDER APPLICABLE STATE SECURITIES LAWS, OR (2) PURSUANT TO AN OPINION OF COUNSEL WHICH HAS BEEN OBTAINED BY SUCH HOLDER AND WHICH IS SATISFACTORY TO THE MEMBERS OR PURSUANT TO SUCH OTHER EVIDENCE WHICH HAS BEEN OBTAINED BY THE HOLDER AND WHICH IS SATISFACTORY TO THE MEMBERS THAT SUCH REGISTRATION UNDER THE SECURITIES ACT AND UNDER APPLICABLE STATE SECURITIES LAWS IS NOT REQUIRED FOR SUCH HOLDER TO LAWFULLY EFFECT SUCH SUBSEQUENT SALE, ASSIGNMENT, CONVEYANCE, PLEDGE, HYPOTHECATION OR OTHER TRANSFER. INVESTORS SHOULD BE AWARE THAT THEY MAY BE REQUIRED TO BEAR THE FINANCIAL RISKS OF THIS INVESTMENT FOR AN INDEFINITE PERIOD OF TIME.
IN MAKING AN INVESTMENT DECISION INVESTORS MUST RELY ON THEIR OWN EXAMINATION OF THE COMPANY AND THE TERMS OF THE OFFERING, INCLUDING THE MERITS AND RISKS INVOLVED. THESE SECURITIES HAVE NOT BEEN RECOMMENDED BY ANY FEDERAL OR STATE SECURITIES COMMISSION OR REGULATORY AUTHORITY. FURTHERMORE, THE FOREGOING AUTHORITIES HAVE NOT CONFIRMED THE ACCURACY OR DETERMINED THE ADEQUACY OF THIS DOCUMENT. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
OPERATING AGREEMENT
OF
TIME COMPLEXITY APPALACHIA, LLC
THIS OPERATING AGREEMENT (“Agreement”) is made and entered into as of July 1, 2026 (“Effective Date”), by and among Time Complexity Appalachia, LLC, a West Virginia limited liability company (“Company”), and Range Sky View Land, LLC, an Ohio limited liability company (“Range”) and Time Complexity WV, LLC, a West Virginia limited liability company (“TCWV”), the undersigned Members of the Company.
WHEREAS, the Company has been formed as a limited liability company under the Act, and the parties hereto do hereby adopt this Agreement as the operating agreement of the Company.
NOW, THEREFORE, in consideration of the premises and the mutual agreements herein, receipt and sufficiency of which is hereby acknowledged, the Members agree as follows:
Article I.
DEFINITIONS
Section 1.1 Terms Defined Herein. As used herein, the following terms shall have the following meanings, unless the context otherwise specifies:
“Act” means the West Virginia Uniform Limited Liability Company Act, as may be amended.
“Adjusted Capital Account Deficit” means, with respect to any Member, the deficit balance, if any, in such Member’s Capital Account as of the end of the relevant fiscal year, after giving effect to the following adjustments: (i) increased for any amounts such Member is unconditionally obligated to restore and the amount of such Member’s share of Company Minimum Gain and Member Minimum Gain after taking into account any changes during such year; and (ii) reduced by the items described in Treasury Regulation § 1.704-1(b)(2)(ii)(d)(4), (5) and (6).
“Affiliate” means a Person that directly, or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, the Person specified. “Control” (including, with correlative meanings, the terms “controlled by” and “under common control with”) means the ownership or control of securities possessing at least 50% of the voting power of all outstanding voting securities of an entity or the power to otherwise direct or cause the direction of the management and policies of such entity, whether through the ownership of voting stock or similar rights. For the purposes of this definition, partnerships, joint ventures or similar entities, a majority-in-interest of whose partners, venturers or other owners is a party hereto and/or an Affiliate of a party hereto, shall be deemed to be Affiliates of such party.
“Articles” means the Articles of Organization for a Limited Liability Company of the Company filed with the West Virginia Secretary of State, as may be amended from time to time.
“Available Cash” means the funds determined to be available for distribution by the Board of Managers, in its sole and absolute discretion.
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“Bankruptcy” means the entry of an order for relief with respect to such Person under the Federal Bankruptcy Code or the insolvency of such Person under any state insolvency act.
“BBA Partnership Audit Rules” means Sections 6221 through 6241 of the Code, as amended by the Budget Act, including any other Code provisions with respect to the same subject matter as Sections 6221 through 6241 of the Code, and any regulations promulgated or proposed under any such Sections and any administrative guidance with respect thereto.
“Budget Act” means the Bipartisan Budget Act of 2015.
“Capital Account” means the separate account established and maintained by the Company for each Member and each Transferee pursuant to Section 3.3.
“Capital Contribution” means, with respect to a Member, the total amount of cash and the agreed upon net fair market value of property contributed by such Member (or such Member’s predecessor in interest) to the capital of the Company for such Member’s Interest.
“Class A Interests” means an Interest held by a Class A Member in the form of Class A Units. Class A Interests shall have the exclusive right to vote on or consent to all matters presented to the Members for approval or to participate in the management of the Company.
“Class A Units” means the Class A Units of Membership Interests in the Company.
“Code” means the Internal Revenue Code of 1986, as amended from time to time, or the corresponding provisions of future laws.
“Company Minimum Gain” has the same meaning as partnership minimum gain set forth in Treasury Regulation § 1.704-2(d)(1). Company Minimum Gain shall be determined, first, by computing for each Nonrecourse Debt any gain that the Company would realize if the Company disposed of the property subject to that liability for no consideration other than full satisfaction of such liability and, then, aggregating the separately computed gains. For purposes of computing gain, the Company shall use the basis of such property that is used for purposes of determining the amount of the Capital Accounts under Section 3.3 hereof. In any taxable year in which a Revaluation occurs, the net increase or decrease in Company Minimum Gain for such taxable year shall be determined by: (1) calculating the net decrease or increase in Company Minimum Gain using the current year’s book value and the prior year’s amount of Company Minimum Gain, and (2) adding back any decrease in Company Minimum Gain arising solely from the Revaluation.
“Distributions” means any distributions by the Company to the Members of Available Cash or Liquidation Proceeds or other amounts.
“Equity Securities” means any and all Interests of the Company and any securities of the Company convertible into, or exchangeable or exercisable for, such Membership Interests, and warrants or other rights to acquire Membership Interests.
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“Excluded Securities” means: (a) debt securities with no equity feature; (b) securities issued as a result of any Membership Interest split or Membership Interest distribution; (c) Membership Interests issued or issuable (1) in a bona fide, firmly underwritten public offering, or (2) upon exercise of warrants or rights granted to underwriters in connection with such a public offering; (d) securities issued to banks, equipment lessors or other financial institutions, or to real property lessors, pursuant to a debt financing, equipment leasing or real property leasing transaction approved by the Board of Managers (subject to the approval thresholds established in Section 5.4); (e) securities issued to vendors or to other suppliers of goods or services, in connection with the provision of such goods and services, in each case, as approved by the Board of Managers (subject to the approval thresholds established in Section 5.4); (f) securities expressly excluded by the unanimous vote of the Members; and (g) Membership Interests issued to service providers in accordance with an equity incentive plan approved by unanimous vote of the Board of Managers.
“Income” and “Loss” mean, respectively, for each fiscal year or other period, an amount equal to the Company’s taxable income or loss for such year or period, determined in accordance with Code § 703(a), except that for this purpose (i) all items of income, gain, deduction or loss required to be separately stated by Code § 703(a)(1) shall be included in taxable income or loss; (ii) tax exempt income shall be added to taxable income or loss; (iii) any expenditures described in Code § 705(a)(2)(B) (or treated as Code § 705(a)(2)(B) expenditures pursuant to Treasury Regulation § 1.704-1(b)(2)(iv)(i)) and not otherwise taken into account in computing taxable income or loss shall be subtracted; and (iv) taxable income or loss shall be adjusted to reflect any item of income or loss specifically allocated in Article IV.
“Interest” or “Membership Interest” means all of a Member’s rights and interests in the Company in such Member’s capacity as a Member, as provided in the Articles, this Agreement and the Act, including, without limitation, the Member’s interest in the Class A Units and in the related capital, income, gain, deductions, losses, and credits of the Company. Interests include Class A Interests, together with any other class or type of interest hereinafter authorized and issued pursuant to the terms of this Agreement.
“Investment” means (i) an ownership interest in any asset; (ii) a subscription, option, right of offer, right of refusal, or other contractual right to acquire an ownership interest in any asset; (iii) an ownership interest (or a subscription, option, right of offer, right of refusal, or other contractual right to acquire an ownership interest) in any Person, including preferred or common stock in a corporation, a membership interest in a limited liability company, a limited partnership interest in a limited partnership, a beneficial interest in a business trust, and a joint venture interest in a joint venture; (iv) an ownership interest, including a participation, in any of the foregoing. Without limiting the foregoing, an Investment includes one or more “special purpose vehicles” created or entered into by the Company from time to time, each of which may have its own governance, economics, and other terms.
“Involuntary Transfer” means any assignment, transfer or conveyance of an Interest which is either: (i) caused or precipitated by the death or adjudicated incompetence of the holder of the Interest, if the Member is an individual; (ii) ordered or decreed by a court of competent jurisdiction (including any such order or decree issued in connection with the divorce or dissolution of marriage (if the Member is an individual) or in connection with the bankruptcy, insolvency or judicial dissolution of the holder of the Interest); or (iii) otherwise effected by operation of law (including, without limitation, in connection with the merger, dissolution (and winding up) or termination of the existence of an entity which holds the Interest).
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“Liquidation Proceeds” means all Property at the time of liquidation of the Company and all proceeds thereof.
“Member” means each Person reflected on Exhibit A to this Agreement and each Person subsequently admitted to the Company as a Member pursuant to Article VII of this Agreement.
“Member Minimum Gain” has the same meaning as partner nonrecourse debt minimum gain as set forth in Treasury Regulation § 1.704-2(i)(3). With respect to each Member Nonrecourse Debt, Member Minimum Gain shall be determined by computing for each Member Nonrecourse Debt any gain that the Company would realize if the Company disposed of the property subject to that liability for no consideration other than full satisfaction of such liability. For purposes of computing gain, the Company shall use the basis of such property that is used for purposes of determining the amount of the Capital Accounts under Section 3.3 of this Agreement. In any taxable year in which a Revaluation occurs, the net increase or decrease in Member Minimum Gain for such taxable year shall be determined by: (1) calculating the net decrease or increase in Member Minimum Gain using the current year’s book value and the prior year’s amount of Member Minimum Gain, and (2) adding back any decrease in Member Minimum Gain arising solely from the Revaluation.
“Member Nonrecourse Debt” has the same meaning as partner nonrecourse debt set forth in Treasury Regulation § 1.704-2(b)(4).
“Member Nonrecourse Deductions” has the same meaning as partner nonrecourse deductions set forth in Treasury Regulation §1.704-2(i)(2). Generally, the amount of Member Nonrecourse Deductions with respect to a Member Nonrecourse Debt for a fiscal year equals the net increase during the year in the amount of the Member Minimum Gain (determined in accordance with Treasury Regulation §1.704-2(i)) reduced (but not below zero) by the aggregate Distributions made during the year of proceeds of Member Nonrecourse Debt and allocable to the increase in Member Minimum Gain determined according to the provisions of Treasury Regulation §1.704-2(i).
“Nonrecourse Debt” means a Company liability with respect to which no Member bears the economic risk of loss as determined under Treasury Regulation §§1.752-1(a)(2) and 1.752-2.
“Nonrecourse Deductions” has the same meaning as nonrecourse deductions set forth in Treasury Regulation §1.704-2(c). Generally, the amount of Nonrecourse Deductions for a fiscal year equals the net increase in the amount of Company Minimum Gain (determined in accordance with Treasury Regulation §1.704.2(d)) during such year reduced (but not below zero) by the aggregate Distributions made during the year of proceeds of a Nonrecourse Debt that are allocable to the increase in Company Minimum Gain, determined according to the provisions of Treasury Regulation §1.704-2(c) and (h).
“Percentage Interest” means, with respect to each Member, the percentage set forth on Exhibit A to this Agreement, as such percentage may be adjusted pursuant to this Agreement, which is equal to the quotient obtained by dividing the number of Class A Units owned by a Member with the total number of Class A Units owned by all of the Members.
“Person” means any individual, partnership, limited liability company, corporation, cooperative, trust or other entity.
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“Property” means all properties and assets that the Company may own or otherwise have an interest in from time to time.
“Reserves” means amounts set aside from time to time by the Board of Managers pursuant to Section 4.10 of this Agreement.
“Revaluation” means the occurrence of any event described in clause (x), (y) or (z) of Section 3.3(b) of this Agreement in which the book basis of Property is adjusted to its fair market value.
“Tax Distribution” means amounts distributed from time to time pursuant to Section 4.2.
“Transfer” means (i) as a verb, to give, sell, exchange, assign, transfer, pledge, hypothecate, bequeath, devise or otherwise dispose of or encumber, and (ii) as a noun, the nouns corresponding to such verbs, in either case voluntarily or involuntarily, by operation of law or otherwise.
“Treasury Regulations” means regulations promulgated by the Treasury Department with respect to the Code, as amended from time to time, or corresponding provisions of future regulations.
Section 1.2 Other Definitional Provisions. All other words hereinafter defined shall have the meanings ascribed thereto. As used in this Agreement, accounting terms not defined in this Agreement, and accounting terms partly defined to the extent not defined, shall have the respective meanings given to them under generally accepted accounting principles. The words “hereof,” “herein” and “hereunder” and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement, and section, subsection, schedule and exhibit references are to this Agreement unless otherwise specified. Words of the masculine gender shall be deemed to include the feminine or neuter genders, and vice versa, where applicable. Words of the singular number shall be deemed to include the plural number, and vice versa, where applicable.
Article II.
BUSINESS PURPOSES AND OFFICES
Section 2.1 Purpose; Powers. The Company is formed for the purposes of engaging in any lawful act or activity permitted by law and permitted under the Act. The Company has all legal powers to do all things necessary or convenient to carry out its business and affairs.
Section 2.2 Principal Office. The principal office of the Company shall be located at such place(s) as the Board of Managers may determine from time to time.
Section 2.3 Registered Office and Registered Agent. The location of the registered office and the name of the registered agent of the Company in the State of West Virginia shall be as stated in the Articles, which may be changed, from time to time, by the Manager.
Section 2.4 Formation. The Company was formed on July 1, 2026, upon the filing of the Articles. The rights, powers, duties, obligations, and liabilities of the Members shall be determined pursuant to the Act and this Agreement. To the extent that the rights, powers, duties, obligations, and liabilities of any Member are different because of any provision of this Agreement than they would be under the Act, this Agreement shall, to the extent permitted by the Act, control.
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Section 2.5 Amendment of the Articles. The Company shall amend the Articles at such time or times and in such manner as may be required by the Act and this Agreement.
Section 2.6 Liability of Members. No Member, Transferee or Manager, solely by reason of being a Member, Transferee or Manager, shall be liable, under a judgment, decree or order of a court, or in any other manner, for a debt, obligation or liability of the Company, whether arising in contract, tort or otherwise, or for the acts or omissions of any other Member, Transferee, Manager, agent, or employee of the Company. The failure of the Company to observe any formalities or requirements under this Agreement or the Act shall not be grounds for imposing liability on the Members, Transferees or Manager for the debts, obligations, or liabilities of the Company.
Section 2.7 Interest Not for Resale. Each Member hereby represents and warrants that: (a) each Member who is not a natural person is duly organized, validly existing, in good standing under the law of its state of organization and has the requisite power and authority to execute this Agreement and to perform its obligations hereunder; (b) it is acquiring an Interest for such Member’s own account as an investment and without an intent to distribute such Interest; and (c) the Interests have not been registered under the Securities Act of 1933 or any state securities laws, and such Member’s Interest may not be resold or transferred by the Member without appropriate registration or the availability of an exemption from such requirements.
Article III.
CAPITAL CONTRIBUTIONS AND LOANS
Section 3.1 Capital Contributions and Units. As a condition to each Member’s admission, each Member shall contribute to the Company such Member’s Capital Contribution as set forth on Exhibit A. The Membership Interests of the Company shall be denominated as Class A Units to reflect the relative ownership of Membership Interests by the Members. Subject to the terms of this Agreement, the Company, acting through the Board of Managers (with the requisite consents required under this Agreement, as applicable), hereby initially authorizes the issuance of 50,000 Class A Units issued to each Member (100,000 Class A Units in total) in the amounts reflected opposite such Member’s name in Exhibit A. The holders of the Class A Units (the “Class A Members”) will vote together as a single class on all matters submitted to a vote of the Members of the Company or required to be approved by the Members pursuant to the Act. Each Class A Unit shall have one (1) vote on all matters submitted generally to a vote of the Members of the Company.
Section 3.2 Additional Capital Contributions. Except as expressly provided in this Agreement, no Member shall be required to make additional Capital Contributions.
Section 3.3 Capital Accounts. A Capital Account shall be maintained for each Member and each Transferee. Each Member’s Capital Account shall be (a) increased by (i) the amount of money contributed by such Member, (ii) the fair market value of property contributed by such Member (net of liabilities secured by such contributed property that the Company is considered to assume or take subject to under Code Sec. 752), (iii) allocations to such Member pursuant to Article IV of Company income and gain (or items thereof), and (iv) to the extent not already netted out under clause (b)(ii) below, the amount of any Company liabilities assumed by such Member or which are secured by any property distributed to such Member; and (b) decreased by (i) the amount of money distributed to such Member, (ii) the fair market value of property distributed to such Member (net of liabilities secured by such distributed property that such Member is considered to assume or take subject to under Code Sec. 752), (iii) allocations to such Member, pursuant to Article IV, of Company loss and deductions (or items thereof), and (iv) to the extent not already netted out under clause (a)(ii) above, the amount of any liabilities of such Member assumed by the Company or which are secured by any property contributed by such Member to the Company.
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(a) In the event any Interest is transferred in accordance with the terms of this Agreement, the Transferee shall succeed to the Capital Account of the Transferor to the extent it relates to the transferred Interest, and the Capital Account of each Transferee shall be increased and decreased in the manner set forth above.
(b) In the event of (x) an additional Capital Contribution by a Member of more than a de minimis amount that results in a shift in Percentage Interests, (y) the Distributions by the Company to a Member of more than a de minimis amount of property as consideration for an Interest, or (z) the liquidation of the Company within the meaning of Treasury Regulation § 1.704-1(b)(2)(ii)(g), the book basis of the Property shall be adjusted to fair market value and the Capital Accounts of all the Members shall be adjusted simultaneously to reflect the aggregate net adjustment to book basis as if the Company recognized gain or loss equal to the amount of such aggregate net adjustment; provided, however, that the adjustments resulting from clause (x) or (y) above shall be made only if the Board of Managers determines that such adjustments are necessary or appropriate to reflect the relative economic interests of the Members.
(c) In the event that Property is subject to Code Sec. 704(c) or is revalued on the books of the Company in accordance with the preceding paragraph pursuant to Treasury Regulations §1.704-1(b)(2)(iv)(f), the Members’ Capital Accounts shall be adjusted in accordance with Treasury Regulations §1.704-1(b)(2)(iv)(g) for allocations to the Members of depreciation, amortization and gain or loss, as computed for book purposes (and not tax purposes) with respect to such Property.
(d) The foregoing provisions of this Section 3.3 and the other provisions of this Agreement relating to the maintenance of Capital Accounts are intended to comply with Treasury Regulation §§ 1.704-1(b) and 1.704-2 and shall be interpreted and applied in a manner consistent therewith. In the event it is determined by the Board of Managers that it is prudent or advisable to modify the manner in which the Capital Accounts, or any increases or decreases thereto, are computed in order to comply with such Treasury Regulations, the Board of Managers may cause such modification to be made provided that it is not likely to have a material effect on the amounts distributable to any Member upon the dissolution of the Company, and the Board of Managers is empowered to amend or modify this Agreement, notwithstanding any other provision of this Agreement.
Section 3.4 Capital Needs; Capital Calls; Intercreditor Provisions.
(a) Capital Needs and Capital Calls. If, at any time or from time to time, all of the Members determine there is a need for additional capital by the Company (“Capital Need”), the Board of Managers shall provide a written notice thereof (“Capital Call”) to the Members for their pro rata share of the amount of the Capital Need, which pro rata share of each Member shall be equal to the product of the Capital Need times such Member’s Percentage Interest, and each Member shall make loans to the Company (each, a “Capital Loan”) in the aggregate amount of each Member’s pro-rata share of the total Capital Need (each, a “Contributing Member”). Such Capital Loans shall be made on terms and conditions substantially in accordance with the form of loan agreement and promissory note set forth in Exhibit B, attached hereto and incorporated herein (“Note”) unless otherwise agreed by a unanimous vote of the Board of Managers and the Contributing Member. Capital Loans shall not be transferable except to the extent the Interest held by such holder is also transferable. Where a Capital Need has been duly requested, each Member shall make its Capital Loan not later than ten (10) business days after the receipt of such written notice. Proceeds of such capital shall be immediately released to the Company for it to apply such funds to the extent required to satisfy the Capital Need for which such funds were requested.
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(b) Intercreditor Provisions.
(i) Applicability. The provisions of this Section 3.4(b) shall apply solely during any period in which more than one Member has outstanding Capital Loans to the Company. For the avoidance of doubt, if only one Member has made a Capital Loan and such Capital Loan is outstanding, this Section 3.4(b) shall not apply. For purposes of this Section 3.4(b), “Member Lender(s)” means the Members from time to time holding Capital Loans, and “Loan Documents” shall mean the Note and the related Loan Agreement and Security Agreement.
(ii) Equal Priority. During the period in which this Section 3.4(b) applies, all Capital Loans shall be secured by the assets of the Company on a pari passu, equal priority basis. Each Member Lender agrees that its liens and security interests in the collateral of the Company shall be equal in priority to those of all other Member Lenders, regardless of the timing of funding, execution, attachment or perfection thereof.
(iii) Pro Rata Sharing of Payments and Proceeds. During the period in which this Section 3.4(b) applies, all payments, proceeds of collateral, and recoveries of any kind received by any Member Lender in respect of any Capital Loan or the collateral securing the same shall be applied and shared pro rata among all Member Lenders based upon the outstanding principal and accrued amounts owed to each such Member Lender when compared to the total loan and accrued amounts owed to all Member Lenders. If any Member Lender receives more than its pro rata share, such Member Lender shall hold such excess in trust for the benefit of the other Member Lenders and shall promptly remit such excess for redistribution in accordance with this Section 3.4(b).
(iv) Enforcement. All enforcement actions shall be undertaken for the benefit of all Member Lenders and all proceeds thereof shall be applied in accordance with Section 3.4(b)(ii) and (iii) above.
(v) Power of Attorney; Limitation. During the period in which this Section 3.4(b) applies, any power of attorney or similar rights granted to any Member Lender under any Security Agreement or other Loan Document shall be deemed granted for the benefit of all Member Lenders and may only be exercised in accordance with the provisions of this Section 3.4(b). No Member Lender shall exercise such rights in a manner that would result in a priority disproportionate to that of any other Member Lender or recovery other than on a pro rata, pari-passu basis as provided herein.
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(vi) No Interference; Preservation of Pro Rata / Pari Passu Treatment. Each Member Lender agrees that, during the period in which this Section 3.4(b) applies, it shall not take any action that would: (i) impair the equal priority of the liens securing the Capital Loans; (ii) interfere with the rights of any other Member Lender; or (iii) result in any Member Lender receiving payment or recovery other than on a pro rata, pari-passu basis as provided herein.
(vii) No Contest. Each Member Lender agrees not to contest the validity, enforceability, perfection or priority of any lien or security interest granted to any other Member Lender in connection with the Capital Loans.
(viii) Controlling Provision. During the period in which this Section 3.4(b) applies, in the event of any inconsistency between the terms of this Section and any Loan Document (including any Security Agreement), the provisions of this Section shall control as among the Members.
Section 3.5 Future Issuances of Equity and Related Pre-Emptive Rights.
(a) Subject to the provisions of Section 3.4 regarding satisfaction of Capital Needs of the Company by virtue of making Capital Loans, the Members hereby recite their intent for the Company’s funding needs to be financed, to the extent reasonably practicable, first by capital raised through operations and additional Capital Loans. The Members, however, acknowledge that such sources of financing may be unavailable, insufficient or, in the case of borrowings from Members or otherwise, too expensive or otherwise not feasible. Under such circumstances, upon the approval of unanimous vote of the Members, the Board of Managers may cause the Company to issue or sell additional units of Membership Interests, additional Class A Units or any other Equity Securities of an existing or a new class (together, such securities are referred to herein as the “New Securities”) to the Members or other third parties subject to the terms set forth below. Subject to the terms of this Section 3.5, Additional Persons may be admitted to the Company as Members and Interests may be created and issued to those Persons and to existing Members on such terms and conditions, in each case, as approved by the unanimous approval of the Members at the time of admission. The terms of admission or issuance must specify the Capital Contribution and Interest applicable thereto and may provide for the creation of different classes or groups of Members having different rights, powers and duties. Any such admission is effective only after the new Members have executed and delivered to the Board of Managers an addendum or amendment to this Agreement and after complying with (or the waiver of) the provisions of Section 3.5 of this Agreement.
(b) Except with respect to the issuance of Excluded Securities, in which case the terms of this Section 3.5 shall not apply, the Company hereby grants each Member the right to purchase its pro rata share of any New Securities that the Company may from time to time propose to issue or sell to any Person. As used in this Section 3.5, “pro rata share” means a Member’s Percentage Interest immediately prior to such issuance of New Securities. The Company shall give written notice (“Issuance Notice”) to the Members of any proposed issuance or sale described in this Section 3.5 following approval of any such issuance or sale by the Members in accordance with Section 3.5(a). The Issuance Notice shall, if applicable, be accompanied by a written offer from any prospective purchaser seeking to purchase New Securities (“Prospective Purchaser”) and shall set forth the material terms and conditions of the proposed issuance, including:
(i) the number and description of the New Securities proposed to be issued and the Membership Interest in the Company such issuance would represent;
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(ii) the proposed issuance date, which shall be at least ten (10) business days from the date of the Issuance Notice;
(iii) the proposed purchase price per unit of the New Securities; and
(iv) if the consideration to be paid by the Prospective Purchaser includes non-cash consideration, the Managers’ joint good-faith determination of the Fair Market Value thereof.
(c) Each Member shall, for a period of ten (10) business days following the receipt of an Issuance Notice (the “Exercise Period”), have the right to elect to purchase its pro rata share of the New Securities at the purchase price determined in accordance with the Issuance Notice by delivering a written notice to the Company (an “Acceptance Notice”). Delivery of an Acceptance Notice by a Member shall be a binding and irrevocable offer by such Member to purchase the New Securities described therein. The failure of a Member to deliver an Acceptance Notice by the end of the Exercise Period shall constitute a waiver of its rights under this Section 3.5 with respect to the purchase of such New Securities, but shall not affect its rights with respect to any future issuances or sales of New Securities.
(d) No later than five (5) days following the expiration of the Exercise Period, the Company shall notify each Member in writing of the number of New Securities that each Member has agreed to purchase (including, for the avoidance of doubt, where such number is zero) (the “Over-allotment Notice”). Each Member exercising its right to purchase its pro rata share of the New Securities in full (an “Exercising Member”) shall have a right of over-allotment such that if any other Member fails to exercise its rights under this Section 3.5 to purchase its pro rata share of the New Securities (“Non-Exercising Member”), such Exercising Member may purchase its pro rata share of such Non-Exercising Member’s allotment by giving written notice to the Company within five (5) days of receipt of the Over-allotment Notice (“Over-allotment Exercise Period”).
(d) Following the expiration of the Exercise Period and, if applicable, the Over-allotment Exercise Period, the Company shall be free to complete with the third party or Prospective Purchaser the proposed issuance or sale of New Securities described in the Issuance Notice with respect to which Members declined to exercise the pre-emptive right set forth in this Section 3.5 on terms no less favorable to the Company than those set forth in the Issuance Notice (except that the amount of New Securities to be issued or sold by the Company to the Prospective Purchaser must be reduced by the amount of New Securities that Exercising Members exercised their right to purchase pursuant to this Section 3.5); provided, that: (i) such issuance or sale is closed within twenty (20) business days after the expiration of the Over-allotment Exercise Period subject to the extension of such twenty (20) business day period for a reasonable time not to exceed an additional twenty (20) business days to the extent reasonably necessary to obtain any third-party approvals; and (ii) for the avoidance of doubt, the price at which the New Securities are sold to the Prospective Purchaser is at least equal to or higher than the purchase price described in the Issuance Notice. In the event the Company has not sold such New Securities within such time period, the Company shall not thereafter issue or sell any New Securities without first again offering such securities to the Members in accordance with the procedures set forth in this Section 3.5.
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(e) The closing of any purchase by any Exercising Member shall, if applicable, be consummated concurrently with the consummation of the issuance or sale described in the Issuance Notice or, if all of the New Securities are being issued to Exercising Members, as soon as is commercially reasonable following the expiration of the last Overallotment Exercise Period. Each Exercising Member shall deliver to the Company the purchase price for the New Securities purchased by it by wire transfer of immediately available funds. Each party to the purchase and sale of New Securities shall take all such other actions as may be reasonably necessary to consummate the purchase and sale, including, without limitation, entering into such additional agreements as may be necessary or appropriate.
Section 3.6 Capital Withdrawal Rights, Interest and Priority. Except as expressly provided in this Agreement, no Member shall be entitled to withdraw or reduce such Member’s Capital Account or to receive any Distributions. No Member shall be entitled to demand or receive any Distribution in any form other than in cash. No Member shall be entitled to receive or be credited with any interest on the balance in such Member’s Capital Account at any time. Except as may be otherwise expressly provided herein, no Member shall have any priority over any other Member as to the return of the balance in such Member’s Capital Account.
Section 3.7 Loans. Notwithstanding anything to the contrary set forth in this Agreement, in addition to the Capital Loans described in Section 3.4 hereof, any Member may make a loan to the Company in such amounts, at such times and on such terms and conditions as may be approved by a unanimous vote of the Board of Managers, on one side, and the lending Member on the other side.
Article IV.
ALLOCATIONS AND DISTRIBUTIONS
Section 4.1 Voluntary Distributions. Distributions shall be separately determined for each Investment. To the extent the Board of Managers determines in its reasonable discretion that Available Cash for Distributions exists from each Investment, the Board of Managers shall make non-liquidating Distributions of such Available Cash to the Members at such time and in such amounts as determined by the Board of Managers, one hundred percent (100%) to all Members, pro rata based on their respective Percentage Interests.
The Board of Managers anticipates that Distributions made pursuant to this Section 4.1 shall be made on a quarterly basis, beginning no sooner than two (2) calendar quarters after the Effective Date, and, in any event, no sooner than the Company has generated sufficient Available Cash to allow such Distributions, as determined by the Board of Managers in its sole discretion.
Section 4.2 Tax Distributions. Notwithstanding anything herein to the contrary, and prior to any Distributions made pursuant to Section 4.1 of this Agreement, the Board of Managers shall use commercially reasonable efforts to make quarterly Distributions of distributable cash to the Members each in an amount sufficient to allow Members to pay taxes on the income, if any, allocated to the Members pursuant to this Agreement. The calculation of taxes payable with respect to income allocated to a Member for purposes of this Section 4.2 shall be made by conclusively presuming that (i) all taxable income that is allocated to a Member will be taxed at the highest marginal combined federal, state and local income tax rates applicable to any Member in the calendar year that includes the last day of the fiscal year to which the calculation relates, (ii) deductions and credits for such fiscal year generate tax benefits at the same tax rates, and (iii) any allocated deductions and credits for such fiscal year can be fully utilized by the Members. This Section 4.2 shall apply to each Member notwithstanding that any given Member may not be subject to tax under the Code. The Board of Managers has the authority to apply this Section 4.2 in any reasonable manner, upon the advice of the Company’s counsel or tax accountants. Tax Distributions received by a Member pursuant to this Section 4.2 shall be treated as an advance of other distributions to which such Member is entitled under this Agreement and shall reduce, dollar-for-dollar, such other distributions.
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Section 4.3 Liquidating Distributions. Liquidation Proceeds shall be distributed as follows:
(a) First, to the payment of debts and liabilities of the Company (including, without limitation, to Members to the extent otherwise permitted by law) and the expenses of liquidation.
(b) Second, to the setting up of such reserves as the Board of Managers or other Person required or authorized by law to wind up the Company’s affairs may deem reasonably necessary or appropriate for any disputed, contingent or unforeseen liabilities or obligations of the Company, provided that any such reserves may be paid over by such Person, at such Person’s discretion, to an independent escrow agent, to be held by such agent or its successor for such period as such Person shall deem advisable for the purpose of applying such reserves to the payment of such liabilities or obligations and, at the expiration of such period, the balance of such reserves, if any, shall be distributed as hereinafter provided.
(c) Thereafter, the balance, if any, to the Members in accordance with the provisions of Section 4.1 above.
Section 4.4 Income, Losses and Distributive Shares of Tax Items. Income or Loss, as the case may be, for each fiscal year of the Company, as determined in accordance with such method of accounting as may be adopted for the Company pursuant to Article VI hereof, shall be allocated to the Members for both financial accounting and income tax purposes as set forth in this Article IV, except as otherwise provided for herein or unless agreed otherwise by all of the Members.
Section 4.5 Allocation of Income, Loss and Credits. After giving effect to the special allocations set forth in Section 4.6 below, Income, Loss and credits (and, if necessary, individual items of gross income or loss) shall be allocated for each fiscal year (and at such other times in which it is necessary to allocate Income or Loss) to the Members such that the applicable balance of each Member’s Capital Account, after adjusting such Capital Account for all Capital Contributions made by such Member and distributions to such Member and any special allocations required pursuant to this Agreement for the current and all prior years, shall equal, as nearly as possible, the excess of (A) the amount that would be distributed to such Member if on the last day of such fiscal year (or such other time in which it is necessary to allocate Income or Loss) (i) the Company were to sell all of the Company’s assets at book value, (ii) all liabilities of the Company were satisfied (limited with respect to each nonrecourse liability to the book values of the assets securing such liability), and (iii) the Company were to distribute the remaining assets then on hand to the Members in accordance with Section 4.1, over (B) such Member’s share of Company Minimum Gain and Member Minimum Gain. For purposes of this Section 4.5, “book value” shall mean book value as set forth in Treasury Regulation Section 1.703-1(b)(2)(iv). The Board of Managers shall make such other assumptions as it deems necessary or appropriate in its good faith reasonable judgment in order to effectuate the intended beneficial entitlements of the Members.
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Section 4.6 Special Rules Regarding Allocation of Tax Items. Notwithstanding the foregoing provisions of Article IV, the following shall apply in allocating tax items of the Company:
(a) Section 704(c) and Revaluation Allocations. In accordance with Code § 704(c) and the Treasury Regulations thereunder, income, gain, loss and deduction with respect to any property contributed to the capital of the Company shall, solely for tax purposes, be allocated among the Members so as to take account of any variation between the adjusted basis of such property to the Company for federal income tax purposes and its fair market value at the time of contribution. In the event of a Revaluation, subsequent allocations of income, gain, loss and deduction with respect to such property shall take account of any variation between the adjusted basis of such property to the Company for federal income tax purposes and its fair market value immediately after the adjustment in the same manner as under Code § 704(c) and the Treasury Regulations thereunder. Any elections or other decisions relating to such allocations shall be made by the Board of Managers in a manner that reasonably reflects the purpose and intention of this Agreement. Allocations pursuant to this Section 4.6(a) are solely for income tax purposes and shall not affect, or in any way be taken into account in computing, for book purposes, any Member’s Capital Account or share of Income or Loss, pursuant to any provision of this Agreement.
(b) Minimum Gain Chargeback. Notwithstanding any other provision of this Article IV, if there is a net decrease in Company Minimum Gain during a Company taxable year, each Member shall be allocated items of income and gain for such year (and, if necessary, for subsequent years) in an amount equal to that Member’s share of the net decrease in Company Minimum Gain during such year (hereinafter referred to as the “Minimum Gain Chargeback Requirement”). A Member’s share of the net decrease in Company Minimum Gain is the amount of the total decrease multiplied by the Member’s percentage share of the Company Minimum Gain at the end of the immediately preceding taxable year. A Member is not subject to the Minimum Gain Chargeback Requirement to the extent: (i) the Member’s share of the net decrease in Company Minimum Gain is caused by a guarantee, refinancing or other change in the debt instrument causing it to become partially or wholly recourse debt or a Member Nonrecourse Debt, and the Member bears the economic risk of loss for the newly guaranteed, refinanced or otherwise changed liability; (ii) the Member contributes capital to the Company that is used to repay the Nonrecourse Debt and the Member’s share of the net decrease in Company Minimum Gain results from the repayment; or (iii) the Minimum Gain Chargeback Requirement would cause a distortion and the Commissioner of the Internal Revenue Service waives such requirement. A Member’s share of Company Minimum Gain shall be computed in accordance with Treasury Regulation § 1.704-2(g) and as of the end of any Company taxable year shall equal: (1) the sum of the Nonrecourse Deductions allocated to that Member up to that time and the Distributions made to that Member up to that time of proceeds of a Nonrecourse Debt allocable to an increase of Company Minimum Gain, minus (2) the sum of that Member’s aggregate share of net decrease in Company Minimum Gain plus that Member’s aggregate share of decreases resulting from revaluations of Property subject to Nonrecourse Debts. In addition, a Member’s share of Company Minimum Gain shall be adjusted for the conversion of recourse and Member Nonrecourse Debts into Nonrecourse Debts in accordance with Treasury Regulation § 1.704-2(g)(3). In computing the above, amounts allocated or distributed to the Member’s predecessor in interest shall be taken into account.
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(c) Member Minimum Gain Chargeback. Notwithstanding any other provision of this Article IV other than Section 4.6(b), if there is a net decrease in Member Minimum Gain during a Company taxable year, each Member who has a share of the Member Minimum Gain (determined under Treasury Regulation § 1.704-2(i)(5) as of the beginning of the year) shall be allocated items of income and gain for such year (and, if necessary, for subsequent years) equal to that Member’s share of the net decrease in Member Minimum Gain. In accordance with Treasury Regulation § 1.704-2(i)(4), a Member is not subject to this Member Minimum Gain Chargeback requirement to the extent the net decrease in Member Minimum Gain arises because the liability ceases to be Member Nonrecourse Debt due to a conversion, refinancing or other change in the debt instrument that causes it to be partially or wholly a Nonrecourse Debt. The amount that would otherwise be subject to the Member Minimum Gain Chargeback requirement is added to the Member’s share of Company Minimum Gain.
(d) Qualified Income Offset. If any Member unexpectedly receives an adjustment, allocation or distribution described in Treasury Regulation § 1.704-1(b)(2)(ii)(d)(4), (5) or (6), that causes or increases such Member’s Adjusted Capital Account Deficit, items of Company income and gain shall be specially allocated to such Member in an amount and manner sufficient to eliminate such Adjusted Capital Account Deficit as quickly as possible, provided that an allocation under this Section 4.6(d) shall be made if and only to the extent such Member would have an Adjusted Capital Account Deficit after all other allocations under this Article IV have been made.
(e) Nonrecourse Deductions. Nonrecourse Deductions for any fiscal year or other period shall be allocated to the Members according to any reasonable methods determined by the Board of Managers.
(f) Member Nonrecourse Deductions. Any Member Nonrecourse Deductions shall be allocated to the Member who bears the risk of loss with respect to the loan to which such Member Nonrecourse Deductions are attributable in accordance with Treasury Regulation § 1.704-2(i).
(g) Curative Allocations. Any special allocations of items of income, gain, deduction or loss pursuant to Sections 4.6(b), (c), (d), (e) and (f) shall be taken into account in computing subsequent allocations of income and gain pursuant to this Article IV, so that the net amount of any items so allocated and all other items allocated to each Member pursuant to this Article IV shall, to the extent possible, be equal to the net amount that would have been allocated to each such Member pursuant to the provisions of this Article IV if such adjustments, allocations or distributions had not occurred. In addition, allocations pursuant to this Section 4.6(g) with respect to Nonrecourse Deductions in Section 4.6(c) and Member Nonrecourse Deductions in Section 4.6(f) shall be deferred to the extent the Members reasonably determine that such allocations are likely to be offset by subsequent allocations of Company Minimum Gain or Member Minimum Gain, respectively.
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(h) Loss Limitation. Notwithstanding the other provisions of this Article IV, unless otherwise agreed to by all of the Members, no Member shall be allocated Loss in any taxable year that would cause or increase an Adjusted Capital Account Deficit as of the end of such taxable year.
(i) Share of Nonrecourse Liabilities. Solely for purposes of determining a Member’s proportionate share of the “excess nonrecourse liabilities” of the Company within the meaning of Treasury Regulation § 1.752-3(a)(3), each Member’s interest in Company profits shall be determined according to a reasonable method determined by the Board of Managers.
(j) Compliance with Treasury Regulations. The foregoing provisions of this Section 4.6 are intended to comply with Treasury Regulation §§ 1.704-1(b), 1.704-2 and 1.752-1 through 1.752-5, and shall be interpreted and applied in a manner consistent with such Treasury Regulations. In the event it is determined by the Members that it is prudent or advisable to amend this Agreement in order comply with such Treasury Regulations, the Board of Managers, upon being so directed by the Members, are empowered to amend or modify this Agreement, notwithstanding any other provision of this Agreement.
(k) General Allocations. Except as otherwise provided in this Agreement, all items that are components of Income or Loss shall be divided among the Members in the same proportions as they share such Income or Loss, as the case may be, for the year. For purposes of determining the Income, Loss or any other items for any period, Income, Loss or any such other items shall be determined on a daily, monthly or other basis, as determined by the Board of Managers using any permissible method under Code § 706 and the Treasury Regulations thereunder.
Section 4.7 Withholding of Distributions. Notwithstanding anything herein to the contrary, the Board of Managers (or any Person required or authorized by law to wind up the Company’s affairs) may suspend, reduce or otherwise restrict Distributions of Available Cash and Liquidation Proceeds when, in their sole opinion, such action is in the best interests of the Company.
Section 4.8 No Priority. Except as expressly provided herein, no Member shall have priority over any other Member as to capital, income, gain, deductions, loss, credits or Distributions.
Section 4.9 Tax Withholding. Notwithstanding anything herein, the Board of Managers is authorized to take any action the Board of Managers determines to be necessary or appropriate to cause the Company to comply with any withholding requirements established under any federal, state or local tax law, including, without limitation, withholding on any Distribution to any Member. For purposes of this Article IV, any amount withheld on any Distribution and paid to the appropriate governmental body shall be treated as if such amount was distributed to the Member.
Section 4.10 Reserves. The Board of Managers may establish, maintain and expend Reserves to provide for working capital, for debt service, for future investments and for such other purposes as the Board of Managers may deem necessary or advisable in its sole discretion.
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Article V.
MANAGEMENT
Section 5.1 Management by Board of Managers. Except as limited or required by this Agreement or nonwaivable provisions of applicable Law, all of the business and affairs of the Company and the powers and privileges of the Company shall be vested in, exercised by, and conducted under the direction and supervision of the Board of Managers in its sole and exclusive discretion. No action taken by the Board of Managers shall require the consent or approval of any Member unless specifically provided for in this Agreement.
Section 5.2 Appointment of the Managers. The Board of Managers shall be comprised of three (3) managers (each, a “Manager”). The Persons identified on Exhibit C are hereby appointed as the Managers. Range and TCWV (each a “Founding Member” and together the “Founding Members”) shall each have the right to appoint one (1) Manager and the third Manager shall be appointed by the affirmative vote of both of the Founding Members. A Manager may resign at any time by providing written notice of such resignation to the Members. The resignation of a Manager who is also a Member or an Affiliate of a Member will not affect the Manager’s (or its Affiliate’s) rights as a Member. A Manager appointed by a certain Founding Member may not be removed or changed under any circumstance without the advance, express written consent of such Founding Member that appointed such Manager in the first place. The Manager appointed by both of the Founding Members (the “Independent Manager”) may be removed at any time and from time to time upon the unanimous approval of the Managers appointed by the Founding Members. To the extent that the Independent Manager resigns, dies or is otherwise incapable of discharging his or her duties as a Manager of the Company, then both of the Founding Members may remove, replace or fill the resulting vacancy (as applicable) with respect to the Independent Manager seat.
Section 5.3 Compensation of Manager. The Company shall pay to the Managers, and the Managers shall be entitled to receive from the Company, such compensation in such amounts and at such intervals as shall be approved by all of the Members. Subject to Section 5.10 hereof, nothing herein contained shall be construed to preclude the Manager, or any member or other Affiliate of the Manager, from serving the Company in any other capacity and receiving compensation therefor. Each Manager and/or its Affiliates and designees shall be reimbursed for all out-of-pocket expenses incurred in connection with their services to the Company.
Section 5.4 Authority of the Board of Managers.
(a) Major Decisions. The Board of Managers may take the following actions only with the approval of a majority of Managers (“Major Decisions”):
(i) entering into, making, and performing contracts, agreements, and other undertakings binding the Company that may be necessary, appropriate, or advisable in furtherance of the purposes of the Company, unless such act, contract, agreement or undertaking falls in one of the action items listed in Section 5.4(b), in which case the approval requirements of Section 5.4(b) shall apply;
(ii) determining the amount of Available Cash, if any, and determining whether to make any voluntary Distributions pursuant to Section 4.1 of this Agreement;
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(iii) determining any necessary reserves pursuant to Section 4.3(b) and Section 4.10 of this Agreement;
(iv) determining the principal office of the Company pursuant to Section 2.2 of this Agreement;
(v) opening and maintaining bank and investment accounts and arrangements, drawing checks and other orders for the payment of money, and designating individuals with authority to sign or give instructions with respect to those accounts and arrangements;
(vi) selecting, removing, or changing the authority and responsibility of the Company’s accountants, lawyers, and other advisers and consultants;
(vii) entering into or taking any action in connection with any contract, purchase agreement, employment agreement, lease or otherwise binding the Company to any obligation with a value or in an amount between $25,000 to $250,000;
(viii) calling a meeting of the Members pursuant to Section 5.6(b);
(ix) purchasing insurance contemplated by Section 5.8(f);
(x) causing the Company to exercise the option to lease certain land from Range pursuant to the terms of the Option to Lease Agreement referenced in Exhibit A, or amending or making any changes to such Option to Lease Agreement (subject to the amendment terms set forth in the Option to Lease Agreement); and
(xi) determining compensation for officers, contractors, or employees.
(b) Actions Requiring Unanimous Consent of the Board of Managers. Notwithstanding anything herein to the contrary, each of the following actions or decisions shall require the advance, written, unanimous consent of the Board of Managers:
(i) adjusting capital accounts as contemplated by Section 3.3(b) and Section 3.3(d);
(ii) issuing a Capital Call pursuant to Article III of this Agreement;
(iii) entering into a Capital Loan or other loan arrangement with a Member that is different from the terms provided for in the Note;
(iv) adopting any equity incentive plan for the purpose of issuing Membership Interests to key employees and service providers;
(v) borrowing money or otherwise committing the credit of the Company for Company activities and voluntary prepayments or extensions of debt;
(vi) issuing Interests or admitting additional Members not in accordance with Article III of this Agreement;
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(vii) amending the Articles of Organization of the Company or this Agreement in accordance with Section 10.8(b); provided, however, that any amendments to this Agreement pursuant to Section 10.8(a) shall require the unanimous consent or approval of all of the Managers and all the Members;
(viii) entering into or taking any action in connection with any contract, purchase agreement, employment agreement, lease or otherwise binding the Company to any obligation with a value or in an amount of $250,000 or greater;
(ix) incurring indebtedness by the Company secured by the assets of the Company, except as otherwise permitted in this Agreement;
(x) allocating profits or losses to Members not in accordance with the terms of this Agreement;
(xi) authorizing a transaction involving an actual or potential conflict of interest between a Member (or such Member’s Affiliate) and the Company;
(xii) changing the nature of the business of the Company;
(xiii) selling, leasing, exchanging, mortgaging, pledging, or otherwise transferring or disposing of all or substantially all of the property or assets of the Company, including creating, acquiring, or disposing of Investments and establishing the terms, management, and other rights and obligations thereof, and making all decisions and waivers thereunder;
(xiv) merging the Company with any other entity;
(xv) any prepayments of any amounts due to a Member under the Promissory Note and the Loan Agreement for a Capital Loan;
(xvi) authorizing any decisions of the Board of Managers under Sections 4.2, 4.5, 4.6, 6.4, and 6.5 of this Agreement;
(xvii) any Transfers of Membership Interests of the Company, subject to any exceptions set forth in Article VII; or
(xviii) commencing a voluntary bankruptcy case for the Company.
Section 5.5 Delegation. The Board of Managers may appoint certain officers of the Company and delegate certain of its duties to one or more officers, agents, or individuals, including the authority to execute contracts, agreements or other documents on behalf of the Company. Except as set forth above, no employee, Member or other representative of the Company shall, in any circumstance, hold himself out to the public, or otherwise present himself in any manner, as having authority to obligate, commit or execute agreements on behalf of the Company without prior approval of, or delegated authority from, the Board of Managers. The day-to-day duties of the officers, agents, or individuals may include the following:
(a) opening and maintaining bank and investment accounts and arrangements, drawing checks and other orders for the payment of money, and designating individuals with authority to sign or give instructions with respect to those accounts and arrangements;
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(b) maintaining the assets of the Company in good order;
(c) collecting sums due the Company;
(d) paying debts and obligations of the Company;
(e) obtaining insurance for the Company; and
(f) running all other day-to-day operations of the Company.
Section 5.6 Meetings of the Board and the Members.
(a) Meetings of the Board shall not be required but may be held for any purpose and may be called by any Manager. All Managers must be present at a meeting of the Managers for quorum to exist. Both physical attendance in the meeting and/or participation in the meeting via electronic means (such as a call, Microsoft Teams or Zoom meeting) where all parties can hear each other is acceptable.
(b) Meetings of the Members shall not be required but may be held for any purpose and may be called by the majority vote of the Board of Managers or any Member. All Members must be present at a meeting of the Members for a quorum to exist. Both physical attendance in the meeting and/or participation in the meeting via electronic means (such as a call, Microsoft Teams or Zoom meeting) where all parties can hear each other is acceptable.
Section 5.7 Action Without Meeting by the Board and the Members; Certain Decisions Requiring Unanimous Member Approval.
(a) Any action required or permitted to be taken by the Board of Managers pursuant to this Agreement may be taken without a meeting if a proposed written consent, setting forth the action so taken or to be taken, (i) is sent to all of the Managers, and (ii) is signed by all of the members of the Board of Managers.
(b) Any action required or permitted to be taken by the Members pursuant to this Agreement may be taken without a meeting if a proposed written consent, setting forth the action so taken or to be taken, (i) is sent to all of the Members, (ii) is signed by all of the Members entitled to vote on the action, and (iii) is delivered to the Board of Managers to be included in the Company’s records.
(c) Notwithstanding anything to the contrary in this Agreement, the following actions shall require the unanimous approval or consent of the Members, in addition to any other approvals of the Board set forth in this Agreement:
(i) commencing a voluntary bankruptcy case for the Company or any of its subsidiary entities that represent Investments;
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(ii) filing for dissolution of the Company or any of its subsidiary entities that represent Investments;
(iii) selling, leasing, exchanging, mortgaging, pledging, or otherwise transferring or disposing of all or substantially all of the property or assets of the Company;
(iv) merging the Company with any other entity;
(v) issuing New Securities pursuant to Section 3.5 and approving of any Excluded Securities (per clause (f) of such definition);
(vi) any decisions to be made by the Members pursuant to Sections 4.4, 4.6(h) and 5.3 of this Agreement; and
(vii) any amendments to the Articles of Organization of the Company and any changes or amendments to this Agreement in accordance with Section 10.8(a).
Section 5.8 Limitation of Liability; Indemnification.
(a) Limitation. No Person, nor any equity holder, shareholder, officer, director or employee of such Person, shall be liable to the Company or its Members for any loss, damage, liability or expense suffered by the Company or its Members on account of any action taken or omitted to be taken by such Person as a Manager of the Company or by such Person while serving at the request of the Company as a director, manager, officer or in any other comparable position of any Other Enterprise, if such Person discharges such Person’s duties in good faith. A Manager’s liability hereunder shall be limited only for those actions taken or omitted to be taken by such Manager in the discharge of such Manager’s obligations for the management of the business and affairs of the Company. The provisions of this subsection are not intended to limit the liability of any Manager for any obligations of such Manager undertaken in this Agreement in such Manager’s capacity as a Member. Each Member and each Manager hereby agree that no fiduciary standards shall apply between or among the Members or the Managers and the Members, and the Managers and/or the Members hereby unconditionally and irrevocably waive the same and agree that no Manager or Member shall have any liability for breach of fiduciary duty, duty of loyalty or other duties (other than contractual obligations under this Agreement, the duty of good faith and fair dealing and any other duties that cannot be waived under applicable law). Unless otherwise expressly prohibited by the express terms of this Agreement or the Act, any Member may act in its own best interests when taking any action hereunder without liability to any other Member.
(b) Right to Indemnification. The Company shall indemnify each Person, or any shareholder, officer, director or employee of such Person, who has been or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative, investigative or appellate (regardless of whether such action, suit or proceeding is by or in the right of the Company or by third parties) by reason of the fact that such Person is or was a Member or Manager of the Company, or is or was serving at the request of the Company as a director, officer or in any other comparable position of any Other Enterprise against all liabilities and expenses, including, without limitation, judgments, amounts paid in settlement, attorneys’ fees, excise taxes or penalties, fines and other expenses, actually and reasonably incurred by such Person in connection with such action, suit or proceeding (including, without limitation, the investigation, defense, settlement or appeal of such action, suit or proceeding); provided, however, that the Company shall not be required to indemnify or advance expenses to any Person from or on account of such Person’s conduct that was finally adjudged to have been knowingly fraudulent, deliberately dishonest or willful misconduct; provided, further, that the Company shall not be required to indemnify or advance expenses to any Person in connection with an action, suit or proceeding initiated by such Person unless the initiation of such action, suit or proceeding was authorized in advance by the Manager. The termination of any action, suit or proceeding by judgment, order, settlement, conviction or under a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that such Person’s conduct was finally adjudged to have been knowingly fraudulent, deliberately dishonest or willful misconduct.
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(c) Enforcement of Indemnification. In the event the Company refuses to indemnify any Person who may be entitled to be indemnified or to have expenses advanced under this Section 5.8, such Person shall have the right to maintain an action in any court of competent jurisdiction against the Company to determine whether or not such Person is entitled to such indemnification or advancement of expenses hereunder. If such court action is successful and the Person is determined to be entitled to such indemnification or advancement of expenses, such Person shall be reimbursed by the Company for all fees and expenses (including, without limitation, attorneys’ fees) actually and reasonably incurred in connection with any such action (including, without limitation, the investigation, defense, settlement or appeal of such action).
(d) Advancement of Expenses. Expenses (including, without limitation, attorneys’ fees) reasonably incurred in defending an action, suit or proceeding, whether civil, criminal, administrative, investigative or appellate, shall be paid by the Company or advanced to the indemnitee within thirty (30) days of the written submission therefor, which submission shall include reasonable detail and documentation of the indemnified expenses. In no event shall any advance be made in instances where the Manager or independent legal counsel reasonably determines that such Person would not be entitled to indemnification hereunder.
(e) Non-Exclusivity. The indemnification and the advancement of expenses provided by this Section 5.8 shall not be exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled under any statute, or any agreement, policy of insurance or otherwise, both as to action in their official capacity and as to action in another capacity while holding their respective offices, and shall not limit in any way any right that the Company may have to make additional indemnifications with respect to the same or different Persons or classes of Persons. The indemnification and advancement of expenses provided by, or granted pursuant to, this Section 5.8 shall continue as to a Person who has ceased to be a Member or Manager of the Company, and as to a Person who has ceased serving at the request of the Company as a director, manager, officer or in any other comparable position of any Other Enterprise and shall inure to the benefit of the heirs, executors and administrators of such Person.
(f) Insurance. Upon the approval of a majority vote of the Managers, the Company may purchase and maintain insurance on behalf of any Person who is or was a Member or Manager, or an agent or employee of the Company, or is or was serving at the request of the Company as a director, manager, officer or in any other comparable position of any Other Enterprise, against any liability asserted against such Person and incurred by such Person in any such capacity, or arising out of such Person’s status as such, whether or not the Company would have the power, or the obligation, to indemnify such Person against such liability under the provisions of this Section 5.8.
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(g) Amendment and Vesting of Rights. Notwithstanding any other provision of this Agreement, this Section 5.8 shall not be amended or repealed and the rights to indemnification and advancement of expenses created hereunder shall not be changed, altered or terminated except by the approval of all the Members. The rights granted or created hereby shall be vested in each Person entitled to indemnification hereunder as a bargained-for, contractual condition of such Person’s being or serving or having served as a Member or Manager of the Company or serving at the request of the Company as a director, manager, officer or in any other comparable position of any Other Enterprise and, while this Section 5.8 may be amended or repealed, no such amendment or repeal shall release, terminate or adversely affect the rights of such Person under this Section 5.8 with respect to any act taken or the failure to take any act by such Person prior to such amendment or repeal or with respect to any action, suit or proceeding with respect to such act or failure to act filed after such amendment or repeal.
(h) Definitions. For purposes of this Section 5.8, references to:
(i) The “Company” shall include, in addition to the resulting or surviving limited liability company (or other entity), any constituent limited liability company (or other entity) (including any constituent of a constituent) absorbed in a consolidation or merger so that any Person who is or was a member or manager of such constituent limited liability company (or other entity), or is or was serving at the request of such constituent limited liability company (or other entity) as a director, manager, officer or in any other comparable position of any Other Enterprise shall stand in the same position under the provisions of this Section 5.8 with respect to the resulting or surviving limited liability company (or other entity) as such Person would if such Person had served the resulting or surviving limited liability company (or other entity) in the same capacity;
(ii) “defense” shall include investigations of any threatened, pending or completed action, suit or proceeding as well as appeals thereof and shall also include any defensive assertion of a cross-claim or counterclaim;
(iii) “fines” shall include any excise taxes assessed against a person with respect to an employee benefit plan;
(iv) “Other Enterprises” shall include, without limitation, any other limited liability company, corporation, partnership, joint venture, trust or employee benefit plan; and
(v) “serving at the request of the Company” shall include any service as a director, officer or in any other comparable position that imposes duties on, or involves services by, a Person with respect to an employee benefit plan, its participants, or beneficiaries; and a Person who acted in good faith and in a manner such Person reasonably believed to be in the interest of the participants and beneficiaries of an employee benefit plan shall be deemed to have acted “in the best interest of the Company” as referred to in this Section 5.8.
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(i) Severability. If any provision of this Section 5.8 is held invalid, illegal or unenforceable for any reason whatsoever, the remaining provisions of this Section 5.8 and the application of such provision to other Persons or circumstances shall not be affected thereby and, to the fullest extent possible, the court finding such provision invalid, illegal or unenforceable shall modify and construe the provision so as to render it valid and enforceable as against all Persons and to give the maximum possible protection to Persons subject to indemnification hereby within the bounds of validity, legality and enforceability. Without limiting the generality of the foregoing, if any Member or Manager of the Company or any Person who is or was serving at the request of the Company as a director, manager, officer or in any other comparable position of any Other Enterprise, is entitled under any provision of this Section 5.8 to indemnification by the Company for some or a portion of the judgments, amounts paid in settlement, attorneys’ fees, ERISA excise taxes or penalties, fines or other expenses actually and reasonably incurred by any such Person in connection with any threatened, pending or completed action, suit or proceeding (including, without limitation, the investigation, defense, settlement or appeal of such action, suit or proceeding), whether civil, criminal, administrative, investigative or appellate, but not, however, for all of the total amount thereof, the Company shall nevertheless indemnify such Person for the portion thereof to which such Person is entitled.
Section 5.9 Contracts with Members, Manager, or Affiliates. No contract or transaction between the Company and its Members or Manager or between the Company and any Person in which one of its Members or Manager (or any Affiliate of such Member or Manager) is an owner, member, partner, manager, director or officer, or has a financial interest, shall be void or voidable solely for this reason if such contract or transaction is on commercially reasonable terms, the material facts as to such Member’s or Manager’s relationship are known to the Members, and the Board of Managers authorizes such contract or transaction by unanimous approval or consent.
Section 5.10 Other Business Ventures; No Exclusive Duty. Any Member or Manager may engage in, or possess an interest in, other business ventures of every nature and description, independently or with others. Any Manager acting in such capacity shall not be required to manage the Company as such Manager’s sole and exclusive function, and a Manager may have other business interests and may engage in other activities in addition to those relating to the Company. Neither the Company nor any Member shall have any right by virtue of this Agreement or the existence of the Company in and to such ventures or activities or to the income or profits derived therefrom, and a Manager and its affiliates shall have no duty or obligation to make any reports to the Members or the Company with respect to any such ventures or activities.
Section 5.11 Certain Provisions.
If a decision or action that requires unanimous vote of the Board of Managers and/or a unanimous vote of the Members pursuant to Sections 5.4(b) or 5.7(c) of this Agreement, respectively, cannot be taken because there was one (and only one) Person (either a Manager, in the case of a decision to be made by the Board, or a Member, in the case of a decision to be made by the Members), that did not approve or consent to such action being taken (this situation being herein defined as a “Trigger Event”), then the other Managers and/or Members, as the case may be, have the right to call for a special meeting of the Board or the Members, as appropriate, within ten (10) business days of the occurrence of the Trigger Event, where all parties (including the non-consenting Manager or Member) shall negotiate in good faith for a period of 30 days from the date of such meeting either the adoption of the initial action as proposed or any reasonable modifications to the initial proposed action that would facilitate the adoption or approval of such action (“Negotiation Period”). To the extent that a Trigger Event occurs, the parties call for a meeting within the aforementioned time frame, and the parties are not able to resolve their differences on the proposed action during the Negotiation Period, then the Members shall file for dissolution of the Company and start to wind up the affairs of the Company in a value maximizing manner, all in accordance with the provisions of Article VIII.
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Section 5.12 Act Superseded. The provisions of this Agreement regarding the management of the Company are intended to and shall, to the fullest extent permitted by law, supersede the provisions of the Act regarding the management of a limited liability company set forth in the Act.
Article VI.
ACCOUNTING AND BANK ACCOUNTS
Section 6.1 Fiscal Year. The fiscal year and taxable year of the Company shall end on December 31 of each year, unless a different year is required by the Code.
Section 6.2 Books and Records. At all times during the existence of the Company, the Company shall cause to be maintained full and accurate books of account, which shall reflect all Company transactions and be appropriate and adequate for the Company’s business. The books and records of the Company shall be maintained at the principal office of the Company.
Section 6.3 Financial and Tax Reports. (a) Within thirty (30) days of the end of each calendar month, the Company shall deliver financial reports (income statement, balance sheet and cash flow statements) to the Members and the Managers regarding the Company’s financial performance for the immediately preceding month, and (b) within ninety (90) days after the end of each fiscal year, there shall be prepared and delivered to each Member all information with respect to the Company necessary for the preparation of the Members’ federal and state income tax returns, together with regular updates on the Company’s operations and plans. In addition, the Company shall cooperate in good faith with the Members for purposes of furnishing to the Members (or their auditors) any information that they would need in order for such Member to comply with its respective disclosure obligations and related filings under the Securities Act of 1933, as amended, and the Securities Exchange Act of 1934, as amended. Without limiting the foregoing, the Company shall use commercially reasonable efforts to deliver to each Member, not later than thirty (30) days prior to the due date (taking into account applicable extensions) of the Company’s federal income tax return, a draft Schedule K-1 and such other draft tax information as is reasonably available at such time. The Company shall promptly provide each Member with copies of the Company’s Federal, state and local income tax returns upon filing. The Company shall promptly notify the Members of any written notice, examination, audit, claim or other material correspondence from any taxing authority relating to the Company, and shall provide copies thereof to the Members. The Company shall also provide the Members with reasonable advance notice of any material tax election proposed to be made by the Company and any material settlement or other proposed resolution of any tax audit or other tax proceeding involving the Company.
Section 6.4 Tax Returns and Elections; Partnership Representative.
(a) The Company shall cause to be prepared and timely filed all federal, state and local income tax returns or other returns or statements required by applicable law. The Company shall claim all deductions and make such elections for federal or state income tax purposes that the Board of Managers reasonably believes will produce the most favorable tax results for the Members.
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(b) Brian Cohen is hereby designated as the “partnership representative” as defined in Section 6223 of the Code, as amended by the Budget Act (“Partnership Representative”). The Partnership Representative is authorized and required to represent the Company (at the Company’s expense) in all disputes, controversies or proceedings with the Internal Revenue Service and shall act only as directed by the Board of Managers. The Partnership Representative is authorized to make any available election with respect to the BBA Partnership Audit Rules and take any action necessary or appropriate to comply with the requirements of the Code and to conduct the Company’s affairs with respect to the BBA Partnership Audit Rules, in each case only as directed by the Board of Managers. Each Member and former Member will cooperate fully with the Partnership Representative with respect to any such disputes, controversies or proceedings with the IRS, including providing the Partnership Representative with any information reasonably requested to comply with and make elections under the BBA Partnership Audit Rules. The Partnership Representative is hereby authorized to name the “designated individual” under Treas. Reg. §301.6223-1(b)(3)(i) (or comparable concept under other applicable law) for each of the Company’s taxable years, in each case only as directed by the Board of Managers.
(c) If directed by the Board of Managers, the Partnership Representative may (i) cause the Company to elect out of the BBA Partnership Audit Rules under Code Section 6221(b) (as amended by the Budget Act), (ii) cause the Company to push out the final partnership adjustments to the Members as described in Code Section 6226(a) (as amended by the Budget Act), or (iii) cause the liability to be paid at the Company level.
(d) The Company shall pay any tax liability (including related interest and penalties) imposed at the Company level in connection with a Company-level tax audit. Each Member and former Member agrees to reimburse the Company for such Member’s or former Member’s proportionate share of any such tax liability attributable to a taxable period during which such Person was a Member of the Company, regardless of whether such Person is a Member of the Company in the year in which such tax is actually imposed on the Company or becomes payable by the Company as a result of such audit. The Board of Managers shall reasonably determine each Member’s or former Member’s proportionate share of any such tax liability, taking into account the relevant facts and any information provided by such Member or former Member that would reduce such liability, and such determination shall be binding absent manifest error. The Partnership Representative shall have no personal liability for any such tax liability, interest, penalties, costs or expenses, and shall have no obligation to fund, advance or personally bear any such amounts, in each case to the extent acting as directed by the Board of Managers and absent bad faith, gross negligence or willful misconduct. The Company shall indemnify and hold harmless the Partnership Representative from and against any liabilities, costs or expenses incurred in connection with this Section 6.4(d), and the Company may enforce its reimbursement rights against the applicable Members and former Members. A Member’s and former Member’s cooperation and reimbursement obligations pursuant to this Section 6.4(d) shall survive the termination of such Person’s participation in the Company and the termination, dissolution and winding up of the Company.
(e) The Company and the Members specifically acknowledge, without limiting the general applicability of this Section, that the Partnership Representative, or the designated individual, if any, shall not be liable, responsible or accountable in damages or otherwise to the Company or any Member with respect to any action taken by him in this capacity and shall indemnify the Partnership Representative and the designated individual against any liabilities arising out of such service, as long as the Partnership Representative or the designated individual, as applicable, did not act in bad faith or gross negligence. All out of pocket expenses incurred by the Partnership Representative or the designated individual in this capacity shall be considered expenses of the Company for which the Partnership Representative, or the designated individual shall be entitled to full reimbursement.
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Section 6.5 Section 754 Election. In the event a distribution of Company assets occurs that satisfies the provisions of Section 734 of the Code or in the event a Transfer of an Interest occurs that satisfies the provisions of Section 743 of the Code, upon determination of the Board of Managers, the Company shall elect, pursuant to Section 754 of the Code, to adjust the basis of the Property to the extent allowed by such Section 734 or 743 and shall cause such adjustments to be made.
Section 6.6 Rights to Information. Within ten (10) days after Company’s receipt of a reasonable demand for information from a Member, which demand describes with reasonable particularity the information sought and the purpose for seeking such information, at a reasonable time during normal Company business hours, and the Board of Managers believes that such purpose is a proper purpose in its reasonable discretion, the Member requesting such information shall be entitled to (a) obtain Company information from the Company which is material to the Member’s rights and duties under this Agreement, (b) inspect and review any Company records which are material to the Member’s rights and duties under this Agreement, and (c) copy any Company records at such Member’s expense which are material to the Member’s rights and duties under this Agreement.
Article VII.
TRANSFERS OF INTERESTS, WITHDRAWAL AND REDEMPTION
Section 7.1 General Provisions. Subject to the provisions of Sections 7.2, 7.5 and 7.6 of this Article VII, no Member or holder of an Interest (“Transferor”) shall Transfer all or any portion or any interest or rights in its Interest to any Person except with the unanimous written consent of the Board of Managers. Upon a Transfer of all or any part of such Transferor’s Interest, the Person receiving such Interest from the Transferor (“Transferee”) shall become a Member in place of the Transferor (a “Substitute Member”) if and only to the extent that (i) the Transferor has expressly stated such intention in the instrument of assignment, (ii) the Transferee has executed an instrument accepting and adopting the terms of this Agreement, (iii) the Transferor or the Transferee has paid all expenses of the Company in connection with the admission of the Transferee as a Substitute Member, and (iv) the Board of Managers has approved by unanimous consent the admission of such Transferee as a Substitute Member, which may be withheld in its sole discretion.
Section 7.2 Permitted Transfers. The restrictions set forth in Section 7.1 above shall not apply to any Transfer by a Member to an Affiliate of the applicable Member (a “Permitted Transfer”).
Section 7.3 Effect of Admission as a Substitute Member. Unless and until admitted as a Substitute Member, a Transferee shall not be entitled to exercise any rights of a Member in the Company, including any right to vote, grant approvals or give consents with respect to such Interest, the right to require any information or accounting of the Company’s business or the right to inspect the Company’s books and records, but a Transferee shall only be entitled to receive, to the extent of the Interest transferred to such Transferee, Distributions and allocations of credits, Income and Losses to which the Transferor would be entitled. A Transferee who has become a Substitute Member has, to the extent of the Interest transferred to such Transferee, all the rights and powers of the Member for whom such Transferee is substituted and is subject to the restrictions and liabilities of a Member under this Agreement and the Act. Upon admission of a Transferee as a Substitute Member, the Transferor shall cease to be a Member of the Company to the extent of such Interest. A Person shall not cease to be a Member upon assignment of all of such Member’s Interest unless and until the Transferee becomes a Substitute Member.
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Section 7.4 Withdrawal. No Member shall have the right to withdraw any part of its Capital Account or receive any Distributions except in accordance with the terms of this Agreement.
Section 7.5 Rights of Refusal.
(a) Voluntary Transfers:
(i) If, from time to time or at any time, a Member receives a bona fide offer acceptable to it to purchase all or any part of the Interest now held or hereafter acquired by it (“Available Interest”), such Member (“Offeror Member”) shall give notice of such offer (“Offer Notice”) to the other Members (“Offeree Members”) and to the Company. The Offer Notice shall be an affidavit identifying and including a true and complete copy of the offer to purchase and setting forth the Percentage Interest represented by the Available Interest, the name and address of the proposed purchaser, the proposed purchase price (including the fair market value of all non-cash consideration), and all other terms of such offer. The Company shall have the prior right and option (“First Right of Refusal”) to purchase all, but not less than all, of the Available Interest.
(ii) The Company shall exercise its First Right of Refusal, if at all, by giving written notice of such exercise to the Offeror Member and the other Member(s) on or before the thirtieth (30th) day after receipt by the Company of the Offer Notice.
(iii) If the Company rejects or declines its First Right of Refusal to purchase all of the Available Interest, whether by giving written notice of such rejection or by failing to give written notice of exercise within the time period specified in Section 7.5(a)(ii), the Offeror Member shall promptly give written notice to that effect to the Offeree Member(s). Upon receipt of written notice by the Offeree Members pursuant to Section 7.5(a)(iii), the other Member(s) shall have the second prior right and option (“Second Right of Refusal”) to purchase all, but not less than all, of the Available Interest. Each Offeree Member shall have the right to purchase the Available Interest in a proportional amount of the Available Interest, equal to the Interest owned by each Offeree Member who desires to purchase divided by the total of all Interests owned by all Offeree Members who desire to purchase.
(iv) The Offeree Member(s) shall exercise their rights in respect of the Second Right of Refusal, if at all, by giving written notice of such exercise to the Offeror Member on or before the fifteenth (15th) day after receipt of the written notice pursuant to Section 7.5(a)(iii).
(v) The purchase price to be paid to the Offeror Member by the Company upon the exercise of the First Right of Refusal or by the Offeree Member(s) upon the exercise of the Second Right of Refusal shall be the price set forth in the offer to purchase in the Offer Notice and shall be payable on the same terms and conditions as are set forth in the Offer Notice; provided, however, that each Offeree Member or the Company so purchasing may, at its option, prepay any amounts due in connection with such purchase at any time without penalty; and provided further that the purchasers may pay in cash in lieu of any non-cash consideration offered therefor.
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(vi) A closing of the purchase of the Available Interest pursuant to this Section 7.5(a) shall take place, at the option of the purchaser(s), (A) within thirty (30) days following the date of receipt by the Offeror Member of notice of exercise of the First Right of Refusal or the Second Right of Refusal, as the case may be, or (B) at a later date permitted by the offer. At the closing, the Offeror Member shall deliver an assignment of the Available Interest, in form and substance satisfactory to the purchaser(s), conveying to each purchaser the Available Interest (or portion thereof) to each such purchaser free and clear of all liens, claims and encumbrances, along with all documents necessary or appropriate to transfer such Available Interest, and the Offeree Members or the Company, as the case may be, shall deliver the aggregate purchase price pursuant to the terms and conditions of the offer described in the Offer Notice, subject to the right to prepay any amounts due described in Section 7.5(a)(vi).
(vii) Subject to the provisions of this Section 7.5, if neither the First Right of Refusal nor the Second Right of Refusal shall have been exercised for the purchase of the Available Interest, then the Offeror Member shall have the right, for a period ending on the sixtieth (60th) day after expiration of the Second Right of Refusal, to sell all, but not less than all, of the Available Interest to, and only to, the proposed purchaser identified in the Offer Notice given to the Offeree Members and the Company, at the same price and otherwise upon the same terms described in the Offer Notice, subject to the other requirements of this Agreement. If the Available Interest is not sold to such proposed purchaser during such 60-day period, all the restrictions, conditions and obligations imposed by this Agreement shall again apply to the Offeror Member’s entire Interest.
(b) Involuntary Transfers:
(i) In the event of an Involuntary Transfer of a Member’s Interest, the Company shall purchase the Interest of the Member affected by such Involuntary Transfer (“Affected Member”) upon the terms and conditions hereinafter set forth. Within ninety (90) days after the Company receives notice of the Involuntary Transfer, the Company shall give written notice of its offer to purchase the Interest of the Affected Member to the Affected Member, or to the executor, personal representative, custodian, attorney- in-fact or trustee of or for the Affected Member, as the case may be (any and all of such Persons having any power or authority in respect of the Interest, along with the Affected Member, are, collectively, the “Representative”).
(ii) The purchase price to be paid for the Interest of an Affected Member purchased in accordance with this Section 7.5(b) shall be the amount which would be distributed in respect of the Affected Member’s Interest assuming hypothetically that the assets of the Company were sold for the Fair Market Value, as defined below, and the proceeds were distributed pursuant to Section 4.3 at the closing described in this Section 7.5(b). “Fair Market Value”, in respect of the option described in this Section 7.5(b) upon the Involuntary Transfer of an Affected Member’s Interest, means the Fair Market Value of the assets of the Company as of the end of the month preceding the month in which the Involuntary Transfer occurs, determined in accordance with Section 7.6(b)(iv).
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(iii) The Fair Market Value shall be determined using the following procedures:
(a) Within thirty (30) days after the delivery of a written notice of exercise in accordance with Section 7.5(b)(ii), the Company and the Representative shall simultaneously exchange proposals setting forth their opinions as to the Fair Market Value. The Company and the Representative shall negotiate in good faith for fifteen (15) business days after the exchange of proposals (“Negotiation Period”) to attempt to agree upon the Fair Market Value and, in the course of such negotiations, each party may from time to time submit modified proposals to the other. If the parties agree upon the Fair Market Value, whether such agreement is reached during the Negotiation Period, the Fair Market Value shall be as so agreed.
(b) If the parties cannot agree on the Fair Market Value, the parties shall agree on an appraiser to determine the Fair Market Value. If the parties cannot agree on an appraiser within ten (10) days following the Negotiation Period, the Representative shall appoint an appraiser to determine the Fair Market Value as of the offering date. With ten (10) days after the Representative appoints an appraiser, the prospective purchaser shall appoint a second appraiser. If the second appraiser is not appointed within ten (10) days, then the first appraiser shall proceed to make his appraisal, in which event his appraisal alone shall determine the Fair Market Value. If the second appraiser is timely appointed, then each appraiser shall proceed to make any independent appraisal of the Fair Market Value. Within thirty (30) days after the appointment of the second appraiser, the two appraisers shall attempt to agree on the Fair Market Value. If the higher of the two appraisal values is no more than five percent (5%) higher than the lower of the two appraisal values, then the Fair Market Value shall be the average of the two values. If the two appraisals are not within five percent (5%) of each other, then within ten (10) days of the expiration of such thirty (30) day period the appraisers shall jointly appoint a third appraiser, who shall make an independent appraisal of the Fair Market Value within twenty (20) days after his appointment. If the two appraisers shall fail to appoint or agree upon the third appraiser within such ten (10) day period, then the third appraiser shall be selected by a judge of the Court of Common Pleas in Cuyahoga County, Ohio. Upon the appointment of a third appraiser, the Fair Market Value shall be the fair market value as determined by the third appraiser; except that, if the value determined by the third appraiser is under both of the first two appraisals, then the Fair Market Value shall be the lower of the first two appraisals (i.e., the middle appraisal of the three appraisals), and, if the value determined by the third appraiser is higher than both of the first two appraisals, then the Fair Market Value shall be the higher of the first two appraisals (i.e., the middle of the three appraisals). All appraisers shall be disinterested persons who are members of a nationally recognized and accredited appraiser organization such as the America Society of Appraisers. The parties shall each pay the fees and expenses of the appraiser selected by or on his behalf, and any fees and expenses of the third appraiser shall be divided equally between them.
(iv) Payment Terms. The payment terms for any purchase pursuant to Section 7.5(b) shall be whatever terms are agreed to between the parties to the transaction. If the parties cannot agree, the payment terms shall be ten percent (10%) of the purchase price shall be paid in immediately available funds at the closing of the purchase of the Interest, and the balance, along with interest, shall be paid in seven (7) annual installments in accordance with a promissory note to be executed by the purchaser(s) of the Interest, the first installment being due and payable one year after the closing. Interest shall accrue at seven percent (7%) compounded annually. The Interest shall be transferred to the purchaser free and clear of any liens, options, judgments, and any other encumbrances whatsoever except to the extent created by this Agreement.
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Section 7.6 Tag-Along Rights.
(a) If the holders of the outstanding Membership Interests of the Company (the “Co-Sale Transferors”) propose to sell at least a majority of all of the issued and outstanding Interests of the Company to a prospective purchaser in an arm’s length transaction where such purchaser is not an Affiliate of any of the Co-Sale Transferors, and such Transfer has been approved by a unanimous consent of the Board of Managers, then the Co-Sale Transferors shall give notice to that effect to the other Members, including a description of the proposed purchaser and the terms of such sale.
(b) Each Member other than the Co-Sale Transferors shall have the option to have a pro rata share (based on the Members’ Percentage Interest) of such Member’s Interest purchased on the same terms and conditions upon which the Co-Sale Transferors sell their Interest. In the event that both (i) less than the entire Interest of the Member is subject to such option and (ii) the Member holds more than one class of Interests, then the portion of the Interest of the Member subject to such option shall include a pro rata share of each class of Interest held by the Member. To exercise such option, such Member shall give to the Co-Sale Transferors notice to that effect within seven (7) days of such Member’s receipt of the notice given by the Co-Sale Transferors pursuant to Section 7.6(a). Such exercise shall be irrevocable. If such notice is given, the Co-Sale Transferors shall not sell their Interest unless such Member’s Interest is purchased in accordance with this Section 7.6. In addition, to the extent that the remaining Members exercise their right of participation in accordance with the terms and conditions set forth herein, the number of units or Membership Interests that the Co-Sale Transferors sell to the proposed third party shall be correspondingly reduced, unless such third party agrees to increase the number of units or Membership Interests it shall purchase to accommodate the participating Co-Sale Transferors.
(c) At the closing of such a sale, each such Member shall effectively transfer to the order of the purchaser or the purchaser’s designee all (or the applicable portion) of such Member’s Interest, free and clear of all liens or encumbrances of any kind. At, and subsequent to, such closing, each Member and the Company shall execute, deliver and acknowledge any and all documents, agreements, and statements and certificates, and shall take or refrain from taking actions, as shall be commercially reasonable, necessary or appropriate in connection with the consummation of the transfers contemplated by this Section 7.6.
Section 7.7 Transfer Subject to Law and Loan Documents. No assignment, sale, Transfer, exchange or other disposition of any Interests may be made except in compliance with the applicable governmental laws and regulations, including state and federal securities laws, and, notwithstanding anything to the contrary set forth herein, under no circumstances shall any Member have the right to Transfer any Interests to the extent the Board of Managers determines that such Transfer could violate any laws applicable to the Transfer of such Interests, including without limitation state and federal securities laws, or could cause a default or event of default under any indebtedness or other material contract of the Company.
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Section 7.8 Act Superseded; Restrictions Reasonable. The provisions of this Agreement regarding the Transfer of an Interest shall, to the fullest extent permitted by law, supersede the provisions of the Act regarding the withdrawal of a member set forth in the Act, in respect of each Member. Each Member acknowledges and agrees that the restrictions on the Transfer of Interests imposed by this Agreement are imposed to accomplish legitimate purposes of the Company, and that such restrictions are not more restrictive than necessary to accomplish those purposes.
Article VIII.
DISSOLUTION AND TERMINATION
Section 8.1 Events Causing Dissolution. The Company shall be dissolved upon the first to occur of the following events:
(a) Upon the written approval of all of the Members;
(b) Upon the entry of a decree of dissolution with respect to the Company by a court of competent jurisdiction; or
(c) When the Company is not the surviving entity in a merger or consolidation.
Section 8.2 Effect of Dissolution. Except as otherwise provided in this Agreement, upon the dissolution of the Company, the Board of Managers shall take such actions as may be required pursuant to the Act and shall proceed to wind up, liquidate and terminate the business and affairs of the Company. In connection with such winding up, the Board of Managers shall have the authority to liquidate and reduce to cash (to the extent necessary or appropriate) the assets of the Company as promptly as is consistent with obtaining fair market value therefor, to apply and distribute the proceeds of such liquidation and any remaining assets in accordance with the provisions of Section 8.3, and to do any and all acts and things authorized by, and in accordance with, the Act and other applicable laws for the purpose of winding up and liquidation.
Section 8.3 Application of Proceeds. Upon dissolution and liquidation of the Company, the assets of the Company shall be applied and distributed in the order of priority in Section 4.3.
Article IX.
restrictive covenants.
The parties hereby agree that the restrictive covenants contained in this Article IX, as well as the enforcement procedures, shall be for the benefit of, and enforceable by, any Affiliates and wholly owned subsidiaries of the Company.
Section 9.1 Confidential Information.
(a) The Members recognize and acknowledge that they have access to certain information and that such information is confidential and constitutes valuable, special, and unique property of the Company. The Members hereby agree that the Company has a legitimate interest in protecting this Confidential Information, as defined below. The Members further agree that the Company is entitled to protection of its Confidential Information.
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(b) As used in this Agreement, “Confidential Information” means any proprietary or confidential information and shall include, but not be limited to: all plans, financial and operating information, customer lists, supplier arrangements, contracts, costs, prices, uses, and applications of products and services; the results of investigations, studies, and experiments owned or used by the Company; all apparatus, products, processes, compositions, samples and/or formulas; all computer programs and computer hardware and/or software and all components thereof; all servicing, marketing and/or manufacturing methods and techniques at any times used, developed, made, or sold by the Company. “Confidential Information” does not apply to information: which is or becomes publicly available through no fault of the Members; which is obtained from a source other than the Company without an obligation of confidentiality; which is required to be disclosed by law; provided that such Member shall cooperate with the Company and use all reasonable efforts to preserve the confidentiality of such information or quash such process.
(c) No Member shall at any time disclose to others, use, copy or permit to be copied any Confidential Information of the Company. The Members acknowledge and agree that the use or disclosure of such Confidential Information to any third party could cause substantial monetary loss and damages to the Company. The Members hereby covenant and agree not to disclose to any third Party any Confidential Information. The Members hereby further covenant and agree that, in the event of a violation of this Article IX, the Company shall be entitled to a recovery of damages from the responsible Member and/or injunctive relief against such Member for the breach or violation of this Article IX.
(d) Notwithstanding any provision to the contrary in this Agreement, the parties hereto acknowledge that Range is an indirect wholly owned subsidiary of a publicly traded company that is subject to securities disclosure and filing requirements imposed on such company by applicable securities laws and rules and regulations adopted by the Securities and Exchange Commission. Nothing herein shall prohibit Range and its parent company to comply with any such disclosure and filing obligations even if such disclosures or filing obligations involve disclosure of what would otherwise be considered Confidential Information under this Article IX; provided, however, that Range shall use reasonable efforts to limit the disclosure of Confidential Information to the extent possible.
Section 9.2 Return of Confidential Information. Immediately upon the termination of his employment with or service to the Company or the full redemption of his Interests, each Member shall deliver to the Company all correspondence, memoranda, notes, records, drawings, sketches, plans, customer lists, pricing and financial data, product compositions, and other documents and all copies thereof made, composed, or received by him or solely or jointly with others, in his possession, custody, or control and that are in any way related to the Company.
Section 9.3 Remedies. The Members hereby agree that: (a) all terms of this Article IX are material and confidential and gravely affect the effective and successful conduct of the Company, its business, goodwill, and reputation; (b) any breach of the terms of this Article IX shall constitute a material and irreparable breach of this Agreement and will subject the Company to immeasurable loss of revenue, business opportunities, and goodwill; (c) the restrictions set forth in this Article IX are reasonable and necessary; (d) in the event of a breach (or apparent breach) of this Article IX, in addition to any and all remedies available at law or in equity, the Company shall be entitled to immediate injunctive relief to restrain the violation of all or any part of this Article IX by such Person; and (e) the terms of this Article IX are supported by adequate and sufficient consideration.
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Article X.
MISCELLANEOUS
Section 10.1 Title to Assets. Title to the Property shall be held in the name of the Company or its subsidiaries as may be determined by the Board of Managers, and no Member shall individually have any ownership interest or rights therein, except indirectly by virtue of such Member’s ownership of an Interest. No Member shall have any right to seek or obtain a partition of any of the Company’s Property, nor shall any Member have the right to any specific assets of the Company upon the liquidation of or any Distributions from the Company.
Section 10.2 Nature of Interest. An Interest shall be personal property for all purposes.
Section 10.3 Organizational Expenses. Each Member shall pay its own expenses incurred in connection with the formation of the Company and review and negotiation of this Agreement.
Section 10.4 Notices. Any notice, demand, request or other communication (a “notice”) required or permitted to be given by this Agreement or the Act to the Company, any Member, or any other Person shall be sufficient if in writing and if delivered by a commercial delivery service that provides written evidence of delivery, mailed by registered or certified mail to the Company at its principal office or to a Member or any other Person at the address of such Member or such other Person as it appears on the records of the Company, sent by email transmission to the email address, if any, of the recipient as such email address appears on the records of the Company. All Notices that are mailed shall be deemed to be given when deposited in the United States mail, postage prepaid. All Notices that are delivered by commercial delivery service shall be deemed to be given upon delivery. All Notices that are given by email transmission shall be deemed to be given within three (3) business days from the date it was sent.
Section 10.5 Waiver of Default. No consent or waiver, express or implied, by the Company or a Member with respect to any breach or default by another Member hereunder shall be deemed or construed to be a consent or waiver with respect to any other breach or default by such Member of the same provision or any other provision of this Agreement. Failure or delay on the part of the Company or a Member to complain of any act or failure to act of another Member or to declare such other Member in default shall not be deemed or constitute a waiver by the Company or the Member of any rights hereunder.
Section 10.6 No Third Party Rights. None of the provisions contained in this Agreement shall be for the benefit of or enforceable by any third parties, including, but not limited to, creditors of the Company; provided, however, the Company may enforce any rights granted to the Company under the Act, the Articles, or this Agreement.
Section 10.7 Entire Agreement. This Agreement, together with the Articles, constitutes the entire agreement between the Members, in such capacity, relative to the formation, operation and continuation of the Company.
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Section 10.8 Amendments to this Agreement.
(a) Except as otherwise provided herein, this Agreement shall not be modified or amended in any manner other than by the unanimous written agreement of the Board of Managers and the Members at the time of such modification or amendment.
(b) Exhibit A of this Agreement may be amended by unanimous consent of the Board of Managers, without any execution of such amendment by the Members, in order to reflect the admission, removal, or Transfer of a Membership Interest, the issuance of an additional Interest or the admission of a Substitute Member; provided, however, that in each case, such amendment of Exhibit A by the Board of Managers shall be effective only if the foregoing underlying events have been approved by the appropriate Persons as provided in the relevant sections of this Agreement.
Section 10.9 Severability. In the event any provision of this Agreement is held to be illegal, invalid or unenforceable to any extent, the legality, validity and enforceability of the remainder of this Agreement shall not be affected thereby and shall remain in full force and effect and shall be enforced to the greatest extent permitted by law.
Section 10.10 Binding Agreement. Subject to the restrictions herein contained, the provisions of this Agreement shall be binding upon, and inure to the benefit of, the parties hereto and their respective heirs, personal representatives, successors and permitted assigns.
Section 10.11 Headings. The headings of this Agreement are for convenience only and shall not be considered in construing or interpreting any of the terms or provisions hereof.
Section 10.12 Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original and all of which shall constitute one agreement that is binding upon all of the parties hereto, notwithstanding that all parties are not signatories to the same counterpart.
Section 10.13 Governing Law. This Agreement shall be governed by, and construed in accordance with, the internal laws of the State of West Virginia, without regard to the conflict of laws provisions. Venue for any dispute regarding or arising out of the terms of this Agreement shall be in the state and federal courts located in Cleveland, Ohio.
Section 10.14 Remedies. In the event of a default by any party in the performance of any obligation undertaken in this Agreement, in addition to any other remedy available to the non-defaulting parties, the defaulting party shall pay to each of the non-defaulting parties all costs, damages, and expenses, including, without limitation, reasonable attorneys’ fees, incurred by the non-defaulting parties as a result of such default. In the event that any dispute arises with respect to the enforcement, interpretation, or application of this Agreement and court proceedings are instituted to resolve such dispute, the prevailing party in such court proceedings shall be entitled to recover from the non-prevailing party all costs and expenses, including, but not limited to, reasonable attorneys’ fees, incurred by the prevailing party in such court proceedings.
Section 10.15 Covenant. The Members hereby covenant and agree that no Member holding a majority of the Percentage Interests or the Board of Managers (or any Manager) shall take any action with respect to the Company that causes a disproportionate economic impact on any Member. Notwithstanding any contrary standard imposed by law, the Managers and Members agree to act in good faith; provided, however, that the foregoing shall in no event be interpreted to require any particular Manager or Member to vote with the other Members.
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Section 10.16 Additional Documents. The Members shall execute and deliver to the Company and each other such other and further documents and instruments as may be necessary to carry out the purposes of this Agreement and which are required by the Members, or any federal, state or local governmental agency having jurisdiction over the Company or its assets.
Section 10.17 Legal Representation. The Members acknowledge that the law firm of Hahn Loeser & Parks LLP (“HLP”) prepared this Operating Agreement of the Company on behalf of and in the course of its representation of the Company. Additionally, the Members have been advised and hereby acknowledged and agree that each of them understands that (i) a conflict could exist among their individual interests, (ii) they should consider seeking the advice of independent counsel and independent tax counsel, (iii) they have had an opportunity to seek the advice of independent counsel and independent tax counsel, (iv) they have received no individual advice from HLP regarding the effects of his Operating Agreement on their individual financial or tax situation, and (v) they have read this Agreement in full and understand its contents.
Section 10.18 Investment Representations. Each Member hereby represents and warrants to, and agrees with, the Manager, the other Members and the Company as follows:
(a) Preexisting Relationship or Experience. By reason of its business or financial experience, or by reason of the business or financial experience of its financial advisor who is unaffiliated with and who is not compensated, directly or indirectly, by the Company or any Affiliate or selling agent of the Company, it is capable of evaluating the risks and merits of an investment in Interest and of protecting its own interests in connection with this investment.
(b) Investment Intent. It is acquiring the Interest for investment purposes for its own account only and not with a view to or for sale in connection with any distribution of all or any part of such Interest. No other Person will have any direct or indirect beneficial interest in or right to such Interest except as otherwise disclosed.
(c) No Registration of Interests. It acknowledges that the Interest has not been registered under the Securities Act of 1933, as amended (“Securities Act”), or under any applicable blue sky laws in reliance, in part, upon its representations, warranties, and agreements herein.
(d) Restricted Securities. It understands that the Interest is a “restricted security” under the Securities Act in that such Interest will be acquired from the Company in a transaction not involving a public offering, and that the Interest may be resold without a registration under the Securities Act only in certain limited circumstances and that otherwise the Interest must be held indefinitely.
(e) No Obligations to Register. It understands that the Company and the Manager is under no obligation to register or qualify the Interest under the Securities Act or under any state securities law, or to assist it in complying with any exemption from registration and qualification.
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(f) No Disposition in Violation of Law. Without limiting anything contained elsewhere in this Agreement, it will not make any disposition of all or any part of its Interest which will result in violation by it or by the Company of the Securities Act, or any other applicable securities laws. Without limiting the foregoing, it agrees not to make any disposition of all or any part of its Interest unless and until it has notified the Company of the proposed disposition and has furnished the Company with a detailed statement of the circumstances surrounding the proposed disposition, and, if reasonably requested by the Manager, it has furnished the Company with a written opinion of counsel, reasonably satisfactory to the Company, that such disposition will not require registration of any securities under the Securities Act or the consent of or a permit from appropriate authorities under any applicable state securities laws.
(g) Investment Risk. It acknowledges that the Interest is a speculative investment which involves a substantial degree of risk of loss of its entire investment in the Company, that it understands and takes full cognizance of the risks related to the purchase of such Interest.
(h) Accredited Investor. Such Member is an “accredited investor” as that term is defined in Rule 501(a) of Regulation D under the Securities Act.
(i) Investment Experience. It is an experienced investor in unregistered securities of limited liability companies.
(j) Restrictions on Transferability. It acknowledges that there are substantial restrictions on the transferability of the Interest pursuant to this Agreement, that there is no public market for such Interest and that none is expected to develop, and that, accordingly, it may not be possible for it to liquidate its investment in the Company.
(k) Information Reviewed. It has received and reviewed this Agreement and the information it considers necessary or appropriate for deciding whether to purchase the Interest. It has relied only on the information contained in this Agreement in making its investment decision.
(l) No Advertising. It has not seen, received, been presented with, or been solicited by any leaflet, public promotional meeting, article or any other form of advertising or general solicitation with respect to the sale of the Interest.
[Remainder of page intentionally left blank; Signature Page Follows]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the date first written above.
| Members: | ||
Time Complexity WV, LLC | ||
| Name: | Brian Cohen | |
| Title: | Manager | |
Range Sky View Land, LLC | ||
| Name: | Michael Cavanaugh | |
| Title: | Chief Executive Officer | |
| Company: | |
| ____________________________________ | |
Brian Cohen, Manager ____________________________________ Michael Cavanaugh, Manager ____________________________________ Michael Simon, Manager |
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EXHIBIT A
| MEMBER NAME AND ADDRESS | CAPITAL CONTRIBUTION | NUMBER OF CLASS A UNITS | MEMBERSHIP INTEREST | PERCENTAGE INTEREST | ||||
Time Complexity WV, LLC a West Virgina limited liability company 33912 Calle Conejo San Juan Capistrano, CA 92675 Email: [email protected] |
$-0-; except that such Member may make Capital Loans to the Company as provided in the Operating Agreement |
50,000 Class A Units
|
50% Class A Interest |
50.00% | ||||
Range Sky View Land, LLC an Ohio limited liability company 200 Park Avenue, Suite 400, Orange Village, OH 44122 Email: [email protected] |
$-0-; except that (x) such Member may make Capital Loans to the Company as provided in the Operating Agreement, and (y) such Member shall provide an Option to Lease certain land to the Company. | 50,000 Class A Units | 50% Class A Interest |
50.00% | ||||
| TOTAL | See above | 100,000 | 100% | 100.00% |
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EXHIBIT B
LOAN AGREEMENT
THIS LOAN AGREEMENT (this “Agreement”) is made and entered into as of [●] (“Effective Date”) by and between Time Complexity Appalachia, a West Virginia limited liability company (“Borrower”), and [INSERT MEMBER NAME], a [_____________] limited liability company (“Lender”).
WHEREAS, Lender is an equity holder (“Member”) of the Borrower;
WHEREAS, in consideration for the terms set forth herein, Lender has agreed to lend certain funds to the Borrower to fund the Borrower’s operations;
WHEREAS, the Borrower has requested from the Lender, and the Lender is willing to provide, certain financing to the Borrower upon and subject the terms set forth herein.
NOW THEREFORE, for good and valuable consideration, receipt and sufficiency of which is hereby acknowledged, the parties hereto hereby agree as follows:
1. LOAN. Lender agrees to loan to the Borrower the principal amount of $[●] (“Loan”). The Loan is evidenced by one or more notes executed and delivered by the Borrower to the Lender (“Note”) in the form attached hereto as Exhibit A. The terms and provisions of the Note are hereby incorporated herein by reference. For the avoidance of doubt, the principal amount of the Loan under this Agreement shall be subject to an automatic adjustment and it will automatically increase each time the Lender makes a loan to the Borrower in compliance with the terms of the Operating Agreement of the Borrower. Therefore, the principal amount of the Loan shall represent the sum of all the funds documented by each Note that is signed when the Lender provides a loan to the Borrower. Also, for the avoidance of doubt, the parties hereto agree that they shall sign only one Loan Agreement and one Security Agreement (as defined below) to document the loan and security arrangements between them. However, each time the Lender makes a loan to the Borrower, the Borrower shall sign and deliver a new Note to the Lender for each separate loan and all of such loans shall be subject to the terms of this Agreement, the Security Agreement and the individual Notes.
2. ADVANCE AND REPAYMENT. The Loan shall be advanced to or for the account of the Borrower upon the execution hereof. Loan principal shall bear interest and shall be due and payable as set forth in the Note.
3. SECURITY. The Loan shall be secured by a security interest on the assets of the Borrower as documented in a security agreement in the form attached hereto as Exhibit B (the “Security Agreement”). If more than one Member loans funds to the Borrower under the terms of this Agreement and the Note (and the terms of the Operating Agreement of the Borrower), then each such Member shall execute a separate Security Agreement with the Borrower, it being understood that each such Member shall hold a security interest on the assets of the Borrower and they shall be treated as pari-passu secured creditors relative to each other in accordance with the terms of Section 3.4(b) of the Borrower’s Operating Agreement. In addition, in circumstances where more than one Member loans funds to the Borrower then any repayments of such Loans and related interest to such Members shall be made back on pro-rata basis to the Members in accordance with the terms of Section 3.4(b) of the Borrower’s Operating Agreement.
4. MISCELLANEOUS.
(a) Amendments and Waivers. No waiver hereunder or amendment hereto shall be effective unless in writing signed by the Borrower and/or the Lender, as applicable.
(b) Termination; Binding Effect. This Agreement will terminate when all obligations of the Borrower to the Lender under this Agreement, the Note and the other Loan Documents have been irrevocably paid or otherwise satisfied in full; the provisions hereof shall be binding on and inure to the benefit of the heirs, executors, successors, and assigns of the parties hereto, provided, however, that the Borrower may not assign any of its rights or delegate any of its duties hereunder without the prior written consent of the Lender.
(c) Governing Law. This Agreement shall be construed and interpreted in accordance with, and governed by, the laws of the State of Ohio.
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties hereto have signed this Loan Agreement on the Effective Date, intending to be legally bound.
| LENDER: | ||
| [Insert Member Name] | ||
| a(n) [______________] limited liability company | ||
| Name: | ||
| Title: | ||
| BORROWER: | ||
| TIME COMPLEXITY APPALACHIA, LLC | ||
| Name: | ||
| Title: | ||
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EXHIBIT A to Loan Agreement
Promissory Note
| $[●].00 | Effective: [●] |
FOR VALUE RECEIVED, Time Complexity Appalachia, LLC, a West Virginia limited liability company (“Borrower”), hereby promises to pay to [INSERT MEMBER NAME], a(n) _________ limited liability company, or its designee (“Holder”), the principal sum of [___________________ and 00/100 Dollars ($______.00)] (“Principal”), together with interest from the date hereof until paid at the rate set forth below.
1. Interest. Interest shall accrue on the Principal amount beginning as of the date hereof at the annual rate of _________ percent (___%) compounded monthly, which constitutes the long-term applicable federal rate as of the date hereof (the “Interest Rate”). For the avoidance of doubt, accrued interest is not due until the Maturity Date (as defined below), and lack of payment on the accrued interest amounts during the term of this Note shall not constitute an Event of Default.
2. Payment. The entire balance of principal and accrued but unpaid interest of this Promissory Note shall be paid in full on or before the nine (9)-year anniversary hereof (“Maturity Date”). All sums payable hereunder shall be payable to the Holder by wire transfer of immediately available funds at an account designated in writing by the Holder, or at such other place or places as the Holder may direct from time to time, in legal tender at the time of payment for the payment of public and private debts in the United States of America.
3. Prepayment. At any time or from time to time at the option of the Maker, Maker may prepay this Note, either in whole or in part, without premium or penalty. Each partial prepayment shall be applied first in payment of the interest accrued upon the principal balance hereof at the time outstanding and then in reduction of the principal balance hereof.
4. Events of Default. Each of the following, if not cured within thirty (30) days from Maker’s receipt of written notice thereof, shall constitute an “Event of Default”: (a) failure to pay when due any payment due under this Note; or (b) written admission by the Maker of the Maker’s inability to pay the Maker’s debts as they become due, an assignment by the Maker for the benefit of creditors, the institution of proceedings by the Maker under the Federal Bankruptcy Code or any state law relating to relief of debtors, or the institution of such proceedings by another party against the Maker which is not subsequently dismissed within 60 days of the filing of same.
5. General Provisions. Time shall be of the essence with respect to the terms of this Promissory Note. This Promissory Note cannot be changed or modified orally.
6. Governing Law. This Promissory Note was executed in the State of Ohio and shall be construed in accordance with and governed by the local laws of the State of Ohio, without regard to that state’s rules regarding choice of law.
[Signature Page Follows]
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EXECUTED to be effective as of the date first set forth above.
| Borrower: Time Complexity Appalachia LLC | ||
| By: | _____________________, its _________ | |
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EXHIBIT B to Loan Agreement
Security Agreement
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SECURITY AGREEMENT
THIS SECURITY AGREEMENT (this “Security Agreement”) is made effective as of ______, 2026 (the “Effective Date”) between Time Complexity Appalachia, LLC, a West Virginia limited liability company (“Borrower”), with an address at ___________, and ________________, a[n] ________ (“Lender”), with an address at _______________.
W I T N E S S E T H:
WHEREAS, Borrower has entered into that certain Loan Agreement with Lender pursuant to which Lender may make loans or advances (collectively, the “Loan”) to Borrower from time to time, each of which may be evidenced by one or more promissory notes (collectively, the “Notes”); and
WHEREAS, in order to induce Lender to enter into the Notes and to make the Loan, Borrower has agreed to grant further security to Lender.
NOW, THEREFORE, for and in consideration of the Loan, the parties hereto agree as follows:
| 1. | GRANT OF SECURITY INTEREST. Borrower hereby grants to Lender a continuing security interest in and to the Collateral described in Exhibit A attached hereto (the “Collateral”) to secure the payment and performance of all obligations, liabilities and indebtedness of Borrower to Lender of every kind and description, whether now existing or hereafter arising, whether direct or indirect, absolute or contingent, due or to become due, and whether evidenced by one or more promissory notes, loan agreements or otherwise (collectively, the “Liabilities”), including, without limitation: (i) all amounts owing under that certain Loan Agreement between Borrower and Lender, as the same may be amended, restated, supplemented or otherwise modified from time to time; (ii) all amounts evidenced by the Notes now or hereafter executed and delivered by Borrower to Lender; (iii) all future loans, advances or extensions of credit made by Lender to Borrower from time to time; (iv) all renewals, extensions, amendments, restatements, refinancings or replacements of any of the foregoing; and (v) all interest, fees, costs, expenses and other amounts (including, without limitation, reasonable attorneys’ fees) incurred in connection with any of the foregoing. This Security Agreement shall be and become effective when, and continue in effect so long as, any Liabilities are outstanding and unpaid. Borrower will not sell, assign, transfer, pledge, or otherwise dispose of or encumber any Collateral to any third party who is not also a “Founding Member” of the Borrower (as such term is defined in the Operating Agreement of Borrower) (such Founding Member shall be referred to herein as a “Co-Lender”) while this Security Agreement is in effect, except for the disposal of personal property in the ordinary course of business which is replaced by personal property of like kind and quality. Borrower may replace Collateral with other Collateral of equal or greater value in the ordinary course of business, in which event, such additional Collateral shall in all respects be subject to the provisions of this Security Agreement. |
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| 2. | PERFECTION OF SECURITY INTEREST. Borrower hereby irrevocably authorizes Lender to file financing statement(s) describing the Collateral in all public offices deemed necessary by Lender, and to take any and all actions, including, without limitation, filing all financing statements, continuation financing statements and all other documents that Lender may reasonably determine to be necessary to perfect and maintain Lender’s security interests in the Collateral. Borrower authorizes Lender to file financing statements containing the collateral description “All of Borrower’s assets, whether now owned or hereafter acquired” or such lesser amount of assets as Lender may determine, or Lender may, at its option, file financing statements containing any collateral description which reasonably describes the Collateral in which a security interest is granted under this Security Agreement. Borrower shall execute and deliver to Lender all other documents that Lender may reasonably request, in a form satisfactory to Lender, to perfect and maintain perfected Lender’s security interests in the Collateral. In order to fully consummate all of the transactions contemplated hereunder, Borrower shall make appropriate entries on its books and records relating to the Collateral, disclosing security interests created hereby. Subject to the terms of Section 3.4(b) of the Operating Agreement of Borrower, Lender is irrevocably appointed as the attorney-in-fact of Borrower and is otherwise hereby authorized to do all acts and things which Lender may deem necessary or advisable from time to time to preserve, perfect and continue perfected Lender’s security interest in the Collateral. |
| 3. | WARRANTIES. The Borrower warrants and agrees that: |
a. Borrower has full title to the Collateral and is and will be the lawful owner of all of the Collateral with right to subject same to the security interest hereunder;
b. Borrower shall not authorize or permit the filing of any financing statement covering the Collateral in favor of any other person other than a Co-Lender without Lender’s prior written consent;
c. Borrower shall not conduct business under any other name than that given above, nor change or reorganize the type of business entity under which it presently does business, except upon prior written approval of Lender;
d. Borrower shall at all times maintain the Collateral in good working condition and repair as warranted by good business practice for a project of this type; and
e. Borrower shall faithfully preserve and protect Lender’s first priority perfected security interest in the Collateral and will, at Borrower’s own cost and expense upon request by Lender, cause such security interest to be perfected and continue perfected, by whatever means Lender may elect, as a first priority security interest so long as any of the Obligations are outstanding, unpaid or executory. Without limiting the generality of the foregoing: (i) where Collateral is in the possession of a third party, Borrower shall provide to Lender, in a form acceptable to Lender, a writing duly executed by a bailee affirming bailee’s consent to and acknowledgment of Lender’s interest; (ii) where Collateral is of a type, such as investment property, deposit accounts, letter-of–credit-rights and electronic chattel paper, that it requires Lender to obtain control in order to perfect its interest or where Lender elects to obtain control of Collateral in order to perfect, Borrower shall provide to Lender, in a form acceptable to Lender, control agreements fully executed by all necessary parties; (iii) where the Collateral is of a type that it requires Lender to obtain possession in order to perfect its security interest or Lender elects to take possession in order to perfect, Borrower shall give Lender possession of such Collateral.
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| 4. | INSURANCE/TAXES. Borrower shall: |
a. pay promptly all taxes, levies, assessments, judgments, and charges of any kind upon or relating to the Collateral, to Borrower’s business, and to Borrower’s ownership or use of any of its assets, income, or gross receipts;
b. at its own expense, keep and maintain all of the Collateral fully insured against loss or damage by fire, theft, explosion and other risks; and
c. maintain at its own expense public liability, professional liability, and property damage insurance.
| 5. | DEFAULT/REMEDIES. The occurrence of any of the following events shall constitute an Event of Default (“Event of Default”): |
a. the failure to observe or perform any of the terms or conditions of this Security Agreement which is not cured within ten (10) days after written notice from Lender; or
b. the occurrence of an Event of Default under any Note, the Loan Agreement, or other document evidencing or relating to the Liabilities.
Whenever an Event of Default shall have occurred and shall exist, all the Liabilities may (notwithstanding any provisions thereof), at the option of Lender, and without demand or notice of any kind (absent an express notice and cure provision set forth in the Notes), be declared, and thereupon immediately shall become due and payable, and Lender may exercise from time to time any rights and remedies, including the right to immediate possession of the Collateral, available to it under the Loan Agreement, the Notes or applicable law. Lender shall have the right to hold any property then in or upon said Collateral at the time of repossession if Lender believes it is included under the provisions of this Security Agreement or until return is demanded in writing by Borrower. Borrower agrees, in case of the occurrence of an Event of Default, to assemble, at its expense, all of the Collateral at a convenient place acceptable to Lender and to pay all costs of Lender of collection of all the Liabilities, and enforcement of rights hereunder, including reasonable attorneys’ fees and legal expenses, including participation in bankruptcy proceedings, and the expenses of locating the Collateral and the expenses of any repairs to any realty or other property to which any of the Collateral may be affixed or be a part. If any notification of intended disposition of any of the Collateral is required by law, such notification, if mailed, shall be deemed reasonably and properly given if sent at least seven (7) days before such disposition, postage prepaid, addressed to Borrower either at the address set forth above, or at any other address of Borrower appearing on the records of Lender. Lender shall have, in addition to any other rights and remedies contained in this Agreement, and any other agreements, instruments and documents heretofore or at any time or times hereafter executed by Borrower and delivered to Lender, all of the rights and remedies of a secured party under the Ohio Commercial Code, all of which rights and remedies shall be cumulative, and non-exclusive, to the extent permitted by law.
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Subject to the terms of the Loan Agreement, the proceeds of any sale or other disposition of Collateral authorized by this Security Agreement shall be applied by Lender as follows: FIRST upon all expenses authorized by the Ohio Uniform Commercial Code (as the same may be amended or modified from time to time) and all reasonable attorneys’ fees and legal expenses incurred by Lender; SECOND to the payment of accrued and unpaid interest on the Liabilities; THIRD to the payment of principal on the Liabilities; and FOURTH, if any proceeds remain, to Borrower or to such other person(s) as may be entitled to it under applicable law. Borrower shall remain liable for any deficiency, which shall be due to Lender immediately upon demand. Borrower agrees that Lender shall be under no obligation to accept any noncash proceeds in connection with any sale or disposition of Collateral unless failure to do so would be commercially unreasonable. If Lender agrees in its sole discretion to accept noncash proceeds (unless the failure to do so would be commercially unreasonable), Lender may ascribe any commercially reasonable value to such proceeds. Without limiting the foregoing, Lender may also apply any discount factor in determining the present value of proceeds to be received in the future or may elect to apply proceeds to be received in the future only as and when such proceeds are actually received in cash by Lender.
BORROWER AGREES THAT LENDER SHALL, UPON THE OCCURRENCE OF ANY EVENT OF DEFAULT, HAVE THE RIGHT TO PEACEFULLY RETAKE ANY OF THE COLLATERAL. BORROWER WAIVES ANY RIGHT IT MAY HAVE, IN SUCH INSTANCE, TO A JUDICIAL HEARING PRIOR TO SUCH RETAKING.
| 6. | GENERAL. |
a. Time shall be deemed of the very essence of this Security Agreement.
b. Except as otherwise defined in the Loan Agreement, the Notes or this Security Agreement, all terms used herein shall have the meanings provided by the Ohio Uniform Commercial Code (as the same may be amended or modified from time to time).
c. Lender shall be deemed to have exercised reasonable care in the custody and preservation of any Collateral in its possession if it takes such action for that purpose as Borrower requests in writing, but failure of Lender to comply with any such request shall not of itself be deemed a failure to exercise reasonable care, and failure of Lender to preserve or protect any rights with respect to such Collateral against any prior parties or to do any act with respect to the preservation of such Collateral not so requested by Borrower shall not be deemed a failure to exercise reasonable care in the custody and preservation of such Collateral.
d. Any delay or failure on the part of Lender in exercising any power, privilege or right under this Security Agreement, the Loan Agreement, the Notes, or under any other instrument or document executed by Borrower to Lender in connection herewith shall not operate as a waiver thereof, and no single or partial exercise thereof, or the exercise of any other power, privilege or right shall preclude other or further exercise thereof, or the exercise of any other power, privilege or right. The waiver by Lender of any default by Borrower shall not constitute a waiver of any subsequent defaults, but shall be restricted to the default so waived.
e. If any part of this Security Agreement shall be contrary to any law which Lender might seek to apply or enforce, or should otherwise be defective, the other provisions of this Security Agreement shall not be affected thereby, but shall continue in full force and effect.
f. All rights, remedies and powers of Lender hereunder are irrevocable and cumulative, and not alternative or exclusive, and shall be in addition to all rights, remedies and powers given hereunder, under the Loan Agreement or the Notes or in or by any other instruments executed in connection herewith or by the Ohio Uniform Commercial Code (as the same may be amended or modified from time to time), or any other laws now existing or hereafter enacted.
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g. Whenever the singular shall be used hereunder, it shall be deemed to include the plural (and vice-versa) and reference to one gender shall be construed to include all other genders, including neuter, whenever the context of this Security Agreement so requires.
h. This Security Agreement has been delivered in the State of Ohio, and shall be construed in accordance with the laws of the State of Ohio. Whenever possible each provision of this Security Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Security Agreement shall be held by a court of competent jurisdiction as prohibited by or invalid under applicable law, such provision shall be ineffective to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Security Agreement.
i. BORROWER AND, BY ITS ACCEPTANCE HEREOF, LENDER MUTUALLY HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT TO A TRIAL BY JURY IN RESPECT OF ANY CLAIM BASED HEREON, ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS SECURITY AGREEMENT OR ANY COURSE OF CONDUCT, COURSE OF DEALINGS, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY PARTY, INCLUDING, WITHOUT LIMITATION, ANY COURSE OF CONDUCT, COURSE OF DEALINGS, STATEMENTS OR ACTIONS OF LENDER RELATING TO THE ADMINISTRATION OR ENFORCEMENT OF THIS SECURITY AGREEMENT OR THE LOAN DOCUMENTS. BORROWER WILL NOT SEEK TO CONSOLIDATE ANY ACTION IN WHICH A JURY TRIAL HAS BEEN WAIVED WITH ANY OTHER ACTION IN WHICH A JURY TRIAL CANNOT OR HAS NOT BEEN WAIVED.
j. The rights and privileges of Lender hereunder shall inure to the benefit of its successors and assigns and this Security Agreement shall be binding on all heirs, executors, administrators, assigns and successors of Borrower.
k. All rights and remedies of Lender hereunder are subject to Section 3.4(b) of the Operating Agreement of Borrower concerning intercreditor arrangements among the Members concerning Capital Loans, as acknowledged and agreed by Borrower, and each Member holding a Capital Loan is an intended third-party beneficiary of such Section for purposes of enforcing such intercreditor arrangements.
[Signature Page Follows]
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IN WITNESS WHEREOF, Borrower and Lender executed this Security Agreement as of the Effective Date.
| BORROWER: | ||
| Time Complexity Appalachia, LLC, | ||
| A West Virginia limited liability company | ||
| By: | ||
| Name: | ||
| Title: | ||
| LENDER: | ||
| [INSERT LENDER NAME] | ||
| By: | ||
| Name: | ||
| Title: | ||
EXHIBIT A
DESCRIPTION OF COLLATERAL
Description of Collateral:
| A. | Where the following defined terms are used in this Exhibit A: |
UCC - means the Uniform Commercial Code now or hereinafter in effect from time to time in the State of Ohio.
The following terms have the meanings assigned to them in Article 9 of the UCC: Accounts, Account Debtor, Chattel Paper (including Electronic Chattel Paper), Commercial Tort Claims, Deposit Accounts, Documents, Equipment, Fixtures, General Intangibles, Goods, Instruments, Inventory, Investment Property, Letter of Credit Rights, and Supporting Obligations.
| B. | The Collateral is described as any and all assets of Borrower, including without limitation: |
(a) all Accounts, Accounts Receivable, Inventory, Goods, Equipment, Fixtures, Chattel Paper, Commercial Tort Claims, Instruments (including promissory notes), Documents, Letter of Credit Rights and letters of credit (whether or not the letter of credit is evidenced by a writing), Investment Property, and General Intangibles (including payment intangibles);
(b) all bank or other Deposit Accounts and all present and future funds credited or deposited therein;
(c) all substitutes and replacements for, accessions, attachments, and other additions to, and tools, parts, and equipment used in connection with any of the above;
(d) all certificates of title and certificates of origin or manufacturer’s statements of origin relating to any of the foregoing;
(e) all returned or repossessed Inventory, Goods, Equipment and/or Fixtures arising from or relating to any Accounts;
(f) all Supporting Obligations for any of the foregoing;
(g) all bank account credits attributable to Borrower or its wholly-owned subsidiary entities and all points or other credit card benefits attributable to all credit cards in the Borrower’s or its wholly-owned subsidiary entities;
(h) to the extent not listed above as original collateral, all proceeds and products of any of the foregoing; and
(i) all recorded data of any type, including ledger sheets, files, books, records, documents, and instruments (including, but not limited to, computer records, disks, tapes and related electronic media) evidencing an interest in or relating to the above.
EXHIBIT C
Managers
Brian Cohen – representative of Time Complexity WV, LLC
Michael Cavanaugh – representative of Range Sky View Land, LLC
Michael Simon – Independent Manager
Exhibit 10.2
NEITHER THIS SECURITY NOR THE SECURITIES FOR WHICH THIS SECURITY IS EXERCISABLE HAVE BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS.
COMMON STOCK PURCHASE WARRANT
RANGE IMPACT, INC.
| Warrant Shares: 14,500,000 | Warrant Issuance Date: July 1, 2026 |
THIS COMMON STOCK PURCHASE WARRANT (the “Warrant”) certifies that, for value received, Time Complexity WV, LLC, a West Virginia limited liability company or its assigns (the “Holder”) is entitled, upon the terms and subject to the limitations on exercise and the conditions hereinafter set forth, at any time on or after the issuance date set forth above (the “Issuance Date”), and on or prior to the close of business on the seven (7) year anniversary of the Issuance Date (the “Termination Date,” such period from the Issuance Date to the Termination Date, the “Term”) but not thereafter, to subscribe for and purchase from Range Impact, Inc., a Nevada corporation (the “Company”), up to 14,500,000 shares (the “Total”) (as subject to adjustment hereunder, the “Warrant Shares”) of common stock, par value of $0.001 per share (“Common Stock”). The purchase price of one share of Common Stock under this Warrant shall be equal to the Exercise Price, as defined in Section 2(b). For background purposes, the parties hereto acknowledge that both the Holder and an indirect wholly-owned subsidiary of the Company are 50/50 partners and members in that certain joint venture entity called Time Complexity Appalachia, LLC, a West Virginia limited liability company (the “JV Entity”). The JV Entity, either itself or through special purpose entities, plans to engage in the project of constructing or building a power generation and data center facility in a certain location in West Virginia referred to as the Fola mine site (the “Project”).
Section 1. Vesting Milestones. Subject to Section 1(e), this Warrant, and the Holder’s rights to exercise the Warrant to receive Warrant Shares, shall vest in the tranches and amounts described below upon the successful achievement of each of these events (each such event is referred to herein as a “Milestone”):
(a) Government Support. This first Milestone (the “First Milestone”) shall be deemed to be successfully completed when the Office of the Governor of the State of West Virginia or the West Virginia Economic Development Authority issues a public announcement concerning the Project, such announcement specifically refers to the Company as a party involved in the Project and the Fola mine site as the location for the Project, and it also describes any approval authorizing any funding towards the Project, if applicable. One-Third (1/3) of the Warrant and the underlying Warrant Shares shall vest to the Holder upon the satisfaction of the First Milestone. If the First Milestone is satisfied, the Holder exercises such portion of the Warrant in whole within the time frame set forth in Section 2(a) and pays the corresponding Exercise Price set forth in Section 2(b), then the Holder shall be entitled to receive 4,833,334 shares of the Company’s Common Stock.
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(b) Feasibility. The JV Entity procures a written report prepared by an independent third party that the Project is technically and commercially feasible (the “Second Milestone”). Such written correspondence shall provide a Front-End Engineering and Design (“FEED”) report prepared by an independent engineering, procurement and construction company, and it shall also contain confirmation of the availability and estimated cost of natural gas supply, electrical power, water supply, and specialized contractors and service providers related to the Project. One-Third (1/3) of the Warrant and the underlying Warrant Shares shall vest to the Holder upon the satisfaction of the Second Milestone. If the Second Milestone is satisfied, the Holder exercises such portion of the Warrant in whole within the time frame set forth in Section 2(a) and pays the corresponding Exercise Price set forth in Section 2(b), then the Holder shall be entitled to receive 4,833,333 shares of the Company’s Common Stock.
(c) Commercialization. The JV Entity (or any of its subsidiaries) sign one or more binding agreements for the Project relating to engineering, development, financing, construction, operations, power supply, compute infrastructure, data center tenancy, and any other commercialization agreements related to the Project (the “Third Milestone”). One-Third (1/3) of the Warrant and the underlying Warrant Shares shall vest to the Holder upon the satisfaction of the Third Milestone. If the Third Milestone is satisfied, the Holder exercises such portion of the Warrant in whole within the time frame set forth in Section 2(a) and pays the corresponding Exercise Price set forth in Section 2(b), then the Holder shall be entitled to receive the remainder of the Total Warrant Shares not yet vested, regardless of the fulfillment of Milestone 1 and 2.
(d) General Terms. The date on which each Milestone is achieved hereunder is referred to as the “First Milestone Date”, “Second Milestone Date” and the “Third Milestone Date”, as the case may be, and each of such dates may be referred to herein as the “Applicable Milestone Date”.
(e) Impact of Fundamental Transaction, Liquidation, Dissolution, or Winding Up of the Company on Vesting of this Warrant. Notwithstanding anything to the contrary contained herein, this Warrant and all the underlying Warrant Shares that have not yet vested shall automatically vest 100% upon the consummation of a Fundamental Transaction or the liquidation, dissolution, or winding up of the Company during the Term of this Warrant.
Section 2. Exercise.
(a) Exercise of Warrant. Subject to the terms of Section 3(d) and Section 1(e), exercise of the vested purchase rights represented by this Warrant may be made in whole at any time once a Milestone has been achieved, and during a time period that is within One Hundred and Twenty (120) calendar days of the Applicable Milestone Date (the “Exercise Period”).
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(b) Subject to Section 3(d), this Warrant may be exercised only during the applicable Exercise Period and may not be exercised after the Termination Date. The exercise of this Warrant may be made during the applicable Exercise Period by delivery to the Company (or such other office or agency of the Company as it may designate by notice in writing to the registered Holder at the address of the Holder appearing on the books of the Company) of a duly executed e-mail attachment of the Notice of Exercise in the form annexed hereto as Exhibit A (the “Notice of Exercise”). Within three (3) business days following the Company’s receipt of the executed Notice of Exercise, which Notice of Exercise must be received by the Company prior to 5:00 p.m., New York, New York, time during the applicable Exercise Period to count as received on such date, the Holder shall deliver the aggregate Exercise Price for the shares specified in the applicable Notice of Exercise by wire transfer. No ink-original Notice of Exercise shall be required, nor shall any medallion guarantee (or other type of guarantee or notarization) of any Notice of Exercise form be required. Notwithstanding anything herein to the contrary, the Holder shall not be required to physically surrender this Warrant to the Company until the Holder has purchased all of the Warrant Shares available hereunder and the Warrant has been exercised in full, in which case, the Holder shall surrender this Warrant to the Company for cancellation within three (3) business days of the date the final Notice of Exercise is delivered to the Company. Partial exercises of this Warrant resulting in purchases of a portion of the total number of Warrant Shares available hereunder shall have the effect of lowering the outstanding number of Warrant Shares purchasable hereunder in an amount equal to the applicable number of Warrant Shares purchased. The Holder and the Company shall maintain records showing the number of Warrant Shares purchased and the date of such purchases. The Company shall deliver any objection to any Notice of Exercise within one (1) business day of receipt of such notice. The Holder and any assignee, by acceptance of this Warrant, acknowledge and agree that, by reason of the provisions of this paragraph, following the purchase of a portion of the Warrant Shares hereunder, the number of Warrant Shares available for purchase hereunder at any given time may be less than the amount stated on the face hereof.
(c) Exercise Price. The exercise price per share of the Common Stock under this Warrant shall be $0.40, subject to adjustment hereunder (the “Exercise Price”).
(d) Mechanics of Exercise.
i. Delivery of Warrant Shares Upon Exercise. Within three (3) business days of the Company receiving a Notice of Exercise as described in Section 2(a), the Company shall deliver to the Transfer Agent (with a copy to the Holder) irrevocable instructions instructing the Transfer Agent, on an expedited basis, to issue and hold in book entry the number of Warrant Shares being purchased by the Holder as set forth in the Notice of Exercise (such date, the “Warrant Share Delivery Date”). Such book entry shall bear appropriate legends referring to the fact that such Warrant Shares are restricted securities and they were sold in reliance upon an exemption from registration under the Securities Act of 1933, as amended (the “Securities Act”). The Warrant Shares shall be deemed to have been issued, and Holder or any other person so designated to be named therein shall be deemed to have become a holder of record of such shares for all purposes, as of the date the Warrant has been exercised, with payment to the Company of the Exercise Price and all taxes required to be paid by the Holder, if any, pursuant to Section 2(c)(vi) prior to the issuance of such shares, having been paid. “Transfer Agent” means the Securities Transfer Corporation, the current transfer agent of the Company, with a mailing address of 2901 North Dallas Parkway, Suite 380, Plano, Texas 75093, and any successor transfer agent of the Company.
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ii. Delivery of New Warrants Upon Exercise. If this Warrant shall have been exercised in part with respect to the satisfaction of Milestone 1 and/or Milestone 2, the Company shall, at the request of a Holder and upon surrender of this Warrant certificate, at the time of delivery of the Warrant Shares, deliver to the Holder a new Warrant evidencing the rights of the Holder to purchase the unpurchased Warrant Shares called for by this Warrant, which new Warrant shall in all other respects be identical with this Warrant.
iii. Rescission Rights. If the Company fails to cause the Transfer Agent to transmit to the Holder the Warrant Shares pursuant to Section 2(c)(i) by the Warrant Share Delivery Date, then the Holder will have the right to rescind such exercise.
iv. Method of Payment. Generally, a cashless exercise of this Warrant is not permitted; provided, however, in the event that the Warrant Exercise Period ends due to (A) the sale of all or substantially all of the assets or shares of the Company in one or more series of transactions to an un-Affiliated third-party Person, or (B) the liquidation, dissolution or winding up of the Company occurring, the Holder shall be entitled to a “Cash-less Exercise” and the Holder shall be provided with 30 business days advance written notice of any such transaction described in clauses (A) and (B) above.
In the event of any such “Cash-less Exercise” as set forth in the immediately preceding paragraph, the Holder shall exercise the Warrant by the surrender (which shall be evidenced by cancellation of the number of Warrants represented by any Warrant Certificate presented in connection with a Cashless Exercise, as defined below) of a Warrant or Warrants (represented by one or more relevant Warrant Certificates), and without the payment of the Exercise Price in cash, in an amount equal to (A) that amount representing the number of shares of Common Stock representing all Warrants to be exercised, minus (B) that number of shares of Common Stock equal to the quotient obtained by dividing (x) (1) the aggregate of the fair market value (as determined by the volume weighted average price on the trading market of the Company’s Common Stock) on the business day which immediately precedes the day of exercise of the Warrant (the “Market Price”) of all Warrants to be exercised, minus (2) the aggregate Exercise Price (assuming no Cashless Exercise) to be paid for all Warrants to be exercised by (y) the Market Price of one share of Common Stock; in accordance with the following illustration:
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FMV = Market Price per Warrant as of one day prior to the date of exercise.
EP = Exercise Price per Warrant at date of exercise.
N = Number of Warrants desired to be exercised.
X = Number of shares of Common Stock issued upon exercise.
S = Number of Warrants to be surrendered
S = N-X
X = (FMV)(N) - (EP)(N)
FMV
An exercise of a Warrant in accordance with the aforementioned paragraph is herein referred to as a “Cash-less Exercise.”
v. No Fractional Shares or Scrip. No fractional shares or scrip representing fractional shares shall be issued upon the exercise of this Warrant. As to any fraction of a share which the Holder would otherwise be entitled to purchase upon such exercise, the Company shall, at its election, either pay a cash adjustment in respect of such final fraction in an amount equal to such fraction multiplied by the Exercise Price or round up to the next whole share.
vi. Charges, Taxes and Expenses. Issuance of Warrant Shares shall be made without charge to the Holder for any issue or transfer tax or other incidental expense in respect of the issuance of Warrant Shares, all of which taxes and expenses shall be paid by the Company, and such Warrant Shares shall be issued in the name of the Holder or in such name or names as may be directed by the Holder; provided, however, that in the event that Warrant Shares are to be issued in a name other than the name of the Holder, this Warrant when surrendered for exercise shall be accompanied by the Assignment Form attached hereto as Exhibit B duly executed by the Holder and the Company may require, as a condition thereto, the payment of a sum sufficient to reimburse it for any transfer tax incidental thereto. The Company shall pay all Transfer Agent fees required for same-day processing of any Notice of Exercise.
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Section 3. Certain Adjustments; Fundamental Transaction; Notices.
(a) Stock Dividends, Splits, and Combinations. If the Company, at any time while this Warrant is outstanding: (i) pays a stock dividend or otherwise makes a distribution or distributions on shares of its Common Stock or any other equity or equity equivalent securities payable in shares of Common Stock (which, for avoidance of doubt, shall not include any shares of Common Stock issued by the Company upon exercise of this Warrant), (ii) subdivides outstanding shares of Common Stock into a larger number of shares, (iii) combines (including by way of reverse stock split) outstanding shares of Common Stock into a smaller number of shares or (iv) issues by reclassification of shares of the Common Stock any shares of capital stock of the Company, then in each case the Exercise Price shall be multiplied by a fraction of which the numerator shall be the number of shares of Common Stock (excluding treasury shares, if any) outstanding immediately before such event and of which the denominator shall be the number of shares of Common Stock outstanding immediately after such event, and the number of Warrant Shares issuable upon exercise of this Warrant shall be proportionately adjusted such that the aggregate Exercise Price of this Warrant shall remain unchanged. Any adjustment made pursuant to this Section 3(a) shall become effective immediately after the record date for the determination of stockholders entitled to receive such dividend or distribution and shall become effective immediately after the effective date in the case of a subdivision, combination or re-classification.
(b) Pro Rata Distributions. During such time as this Warrant is outstanding, and to the extent the Warrant Shares have vested, if the Company shall declare or make any dividend or other distribution of its assets (or rights to acquire its assets) to holders of shares of Common Stock, by way of return of capital or otherwise (including, without limitation, any distribution of cash, stock or other securities, property or options by way of a dividend, spin off, reclassification, corporate rearrangement, scheme of arrangement or other similar transaction) (a “Distribution”), at any time after the issuance of this Warrant and only with respect to the Warrant and Warrant Shares that have vested pursuant to Section 1(c) hereof, then, in each such case, the Holder shall be entitled to participate in such Distribution to the same extent that the Holder would have participated therein if the Holder had held the number of shares of Common Stock acquirable upon complete exercise of this Warrant (without regard to any limitations on exercise hereof) immediately before the date of which a record is taken for such Distribution, or, if no such record is taken, the date as of which the record holders of shares of Common Stock are to be determined for the participation in such Distribution.
(c) Calculations. All calculations under this Section 3 shall be made to the nearest cent or the nearest 1/100th of a share, as the case may be. For purposes of this Section 3, the number of shares of Common Stock deemed to be issued and outstanding as of a given date shall be the sum of the number of shares of Common Stock (excluding treasury shares, if any) issued and outstanding.
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(d) Fundamental Transaction. Subject to the terms of clause (A) in the first paragraph of Section 2(d)(iv), if the Company consummates a Fundamental Transaction during the Term of this Warrant, then all of the following shall apply: (i) the Holder shall exercise this Warrant in connection therewith for all the parts of the Warrant Shares that have not yet been exercised as of such date, (ii) the Holder shall pay the Exercise Price in connection with such exercise as provided for in this Warrant, (iii) the Company shall issue the corresponding number of Warrant Shares to the Holder so that such Warrant Shares are outstanding on and as of the closing of such transaction, (iv) the Holder shall receive the same securities, cash and/or other property upon the closing of the Fundamental Transaction that all the other holders of Common Stock of the Company would receive on a per share of Common Stock basis, and, (v) finally, this Warrant shall be deemed terminated thereafter. All of the transactions described in clauses (i) through (v) of this paragraph above shall be deemed to occur simultaneously and concurrently with the closing of the Fundamental Transaction. For purposes hereof, the term “Fundamental Transaction” means: (i) the Company, directly or indirectly, effects any sale, lease, license, assignment, transfer, conveyance or other disposition of all or substantially all of its assets in one or a series of related transactions, (ii) any, direct or indirect, purchase offer, tender offer or exchange offer is completed pursuant to which holders of Common Stock are permitted to sell, tender or exchange their shares for other securities, cash or property and has been accepted by the holders of 50% or more of the outstanding Common Stock, or (iii) the Company, directly or indirectly, in one or more related transactions consummates a stock or share purchase agreement, merger or other business combination (including, without limitation, a reorganization, recapitalization, spin-off or scheme of arrangement) with another Person or group of Persons whereby such other Person or group acquires more than 50% of the outstanding shares of Common Stock (not including any shares of Common Stock held by such other Person immediately prior to such transaction or business combination (each a “Fundamental Transaction”). For purposes of this Warrant, the term “Affiliate” means a Person that directly, or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, the Person specified. “Control” (including, with correlative meanings, the terms “controlled by” and “under common control with”) means the ownership or control of securities possessing at least 50% of the voting power of all outstanding voting securities of an entity or the power to otherwise direct or cause the direction of the management and policies of such entity, whether through the ownership of voting stock or similar rights. For the purposes of this definition, partnerships, joint ventures or similar entities, a majority-in-interest of whose partners, venturers or other owners is a party hereto and/or an Affiliate of a party hereto, shall be deemed to be Affiliates of such party. The term “Person” shall mean any individual, partnership, limited liability company, corporation, cooperative, trust or other entity.
(e) Notice to Holder.
i. Adjustment to Exercise Price. Whenever the Exercise Price is adjusted pursuant to any provision of this Section 3, the Company shall promptly mail to the Holder a notice setting forth the Exercise Price after such adjustment and any resulting adjustment to the number of Warrant Shares and setting forth a brief statement of the facts requiring such adjustment.
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ii. Notice to Allow Exercise by Holder. If (A) the Company consummates or decides to consummate any of the transactions described in Section 3(a) and Section 3(b), (B) the approval of any stockholders of the Company shall be required in connection with the consummation of a Fundamental Transaction or the liquidation, dissolution, or winding up of the Company, (C) this Warrant approaches its Termination Date and it has not yet fully vested or been fully exercised, or (D) the Company shall authorize the voluntary or involuntary dissolution, liquidation or winding up of the affairs of the Company, then, in each case, the Company shall cause to be mailed to the Holder at its last address as it shall appear upon the books and records of the Company, at least 30 business days prior to the applicable effective date hereinafter specified, a notice describing the transaction in question and stating the date on which such action is expected to become effective or close, and the date as of which it is expected that holders of the Common Stock of record shall be entitled to participate in such transaction; provided that the failure to mail such notice or any defect therein or in the mailing thereof shall not affect the validity of the corporate action required to be specified in such notice. To the extent that any notice provided hereunder constitutes, or contains, material, non-public information regarding the Company or any of its subsidiaries, the Company shall simultaneously disclose such information in compliance with applicable securities laws.
Section 4. Transfer of Warrant; Representations of Holder and Registration Rights
(a) Transferability. Subject to compliance with any applicable securities laws and the conditions set forth in Section 4(d) hereof, this Warrant and all rights hereunder are transferable, in whole or in part, upon surrender of this Warrant at the principal office of the Company or its designated agent, together with a written assignment of this Warrant substantially in the form attached hereto as Exhibit B duly executed by the Holder or its agent or attorney and funds sufficient to pay any transfer taxes payable upon the making of such transfer. Upon such surrender and, if required, such payment, the Company shall execute and deliver a new Warrant or Warrants in the name of the assignee or assignees, as applicable, and in the denomination or denominations specified in such instrument of assignment, and shall issue to the assignor a new Warrant evidencing the portion of this Warrant not so assigned, and this Warrant shall promptly be cancelled. Notwithstanding anything herein to the contrary, the Holder shall not be required to physically surrender this Warrant to the Company unless the Holder has assigned this Warrant in full, in which case, the Holder shall surrender this Warrant to the Company within three (3) business days of the date the Holder delivers an assignment form to the Company assigning this Warrant in full. The Warrant, if properly assigned in accordance herewith, may be exercised by a new holder for the purchase of Warrant Shares without having a new Warrant issued.
(b) New Warrants. This Warrant may be divided or combined with other Warrants upon presentation hereof at the aforesaid office of the Company, together with a written notice specifying the names and denominations in which new Warrants are to be issued, signed by the Holder or its agent or attorney. Subject to compliance with Section 4(a), as to any transfer which may be involved in such division or combination, the Company shall execute and deliver a new Warrant or Warrants in exchange for the Warrant or Warrants to be divided or combined in accordance with such notice. All Warrants issued on transfers or exchanges shall be dated the Initial Exercise Date and shall be identical with this Warrant except as to the number of Warrant Shares issuable pursuant thereto.
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(c) Warrant Register. The Company shall register this Warrant, upon records to be maintained by the Company for that purpose (the “Warrant Register”), in the name of the record Holder hereof from time to time. The Company may deem and treat the registered Holder of this Warrant as the absolute owner hereof for the purpose of any exercise hereof or any distribution to the Holder, and for all other purposes, absent actual notice to the contrary.
(d) Transfer Restrictions. After receipt by the Holder of the executed Warrant, the Holder may transfer all or a part of this Warrant to any of its Affiliates (the “Subsequent Holder”), by execution of an Assignment substantially in the form of Exhibit B. The Subsequent Holder shall have similar rights to transfer its interest in such Warrant to any of its Affiliates. Notwithstanding the foregoing, the Holder may not transfer or assign its rights under this Warrant to a party that is not an Affiliate of the Holder unless the Company consents in writing to such proposed transfer. This Warrant and the Warrant Shares issuable upon exercise of this Warrant (for so long as such Warrant Shares are not registered securities) may not be transferred or assigned in whole or in part without compliance with applicable federal and state securities laws by the transferor and the transferee (including, without limitation, the delivery of investment representation letters and legal opinions reasonably satisfactory to Company, as reasonably requested by the Company). The Company shall not require the Holder to provide an opinion of counsel if the transfer is to an Affiliate of Holder (provided such transferee is an “Accredited Investor”).
(e) Representation by the Holder. The Holder, by the acceptance hereof, represents and warrants that it is acquiring this Warrant and, upon any exercise hereof, will acquire the Warrant Shares issuable upon such exercise, for its own account and not with a view to or for distributing or reselling such Warrant Shares or any part thereof in violation of the Securities Act or any applicable state securities law, except pursuant to sales registered or exempted under the Securities Act. The Holder is an accredited investor as such term if defined in Rule 501(a) of Regulation D of the Securities Act (an “Accredited Investor”). The Holder understands that this Warrant and the Warrant Shares issuable upon exercise hereof have not been registered under the Securities Act in reliance upon a specific exemption therefrom, which exemption depends upon, among other things, the bona fide nature of the Holder’s investment intent as expressed herein. Holder understands that this Warrant and the Warrant Shares issued upon any exercise hereof must be held indefinitely unless subsequently registered under the Securities Act and qualified under applicable state securities laws, or unless exemption from such registration and qualification are otherwise available. The Holder is aware of the provisions of Rule 144 promulgated under the Securities Act. The Holder is aware of the Company’s business affairs and financial condition and has received or has had full access to all the information it considers necessary or appropriate to make an informed investment decision with respect to the acquisition of this Warrant and its underlying securities. The Holder understands that the purchase of this Warrant and its underlying securities involves substantial risk.
(f) Registration of the Warrant Shares. Once vested and exercised properly in accordance with the terms of this Warrant, the Holder may receive Warrant Shares. Such Warrant Shares are subject to the terms and benefits set forth in this Section 4(f).
(i) The Company shall exercise good faith and commercially reasonable efforts to file with the Commission, at its sole cost and expense, a registration statement on Form S-1 registering the resale of the Warrant Shares by the Holder (the “Registration Statement”), as soon as reasonably practicable, but in any event no later than ninety (90) calendar days following the Third Milestone Date. The Company shall use commercially reasonable efforts to have the Registration Statement declared effective as soon as practicable after such filing. The Company shall not be obligated to cause the Registration Statement to be declared effective by any specific date, and any time periods for effectiveness shall be subject to the Company’s compliance with applicable law and the rules and guidance of the Securities and Exchange Commission (the “Commission”).
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(ii) The Company shall use commercially reasonable efforts to provide the Holder with a draft of the Registration Statement for review a reasonable period prior to filing; provided, however, that the Company shall retain sole discretion with respect to the form, content and timing of such Registration Statement and shall not be required to delay the filing thereof as a result of any comments by the Holder. Notwithstanding the foregoing, if the Commission limits the number of Warrant Shares that may be included in the Registration Statement or requires that any portion of such shares not be registered, the Company shall include in such Registration Statement the maximum number of Warrant Shares permitted by the Commission.
(iii) The Company shall use commercially reasonable efforts to keep the Registration Statement effective with respect to the Holder until the latest to occur of (i) two (2) years from the effectiveness of the Registration Statement, (ii) the date on which all of the Warrant Shares covered thereby shall have been sold, and (iii) the date on which the Holder is able to sell all of its Warrant Shares pursuant to Rule 144 without restriction.
(iv) From and after such time as Rule 144 is available for resales of the Warrant Shares and for so long as the Holder holds such shares, the Company shall use commercially reasonable efforts to (i) file in a timely manner all reports required to be filed by it under the Exchange Act of 1934, as amended (to the extent that the Company is then subject to such reporting requirements) and (ii) maintain the availability of public information as required under Rule 144. Upon the Holder’s reasonable request, the Company shall furnish or make available copies of its publicly filed reports and, if reasonably available, a customary Rule 144 compliance statement.
Section 5. Miscellaneous.
(a) No Rights as Stockholder Until Exercise. This Warrant does not entitle the Holder to receive (i) notice of meetings, (ii) any voting or consent rights, (iii) dividends or (iv) any other rights as a stockholder of the Company prior to the exercise hereof as set forth in Section 2(c)(i), except as expressly set forth in Section 3.
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(b) Loss, Theft, Destruction or Mutilation of Warrant. The Company covenants that upon receipt by the Company of evidence reasonably satisfactory to it of the loss, theft, destruction or mutilation of this Warrant or any stock certificate relating to the Warrant Shares, and in case of loss, theft or destruction, of indemnity or security reasonably satisfactory to it (which, in the case of the Warrant, shall not include the posting of any bond), and upon surrender and cancellation of such Warrant or stock certificate, if mutilated, the Company will make and deliver a new Warrant or stock certificate of like tenor and dated as of such cancellation, in lieu of such Warrant or stock certificate.
(c) Business Day. If the last or appointed day for the taking of any action or the expiration of any right required or granted herein shall not be a Business Day, then, such action may be taken or such right may be exercised on the next succeeding Business Day.
(d) Authorized Shares.
(i) The Company covenants that, during the period the Warrant is outstanding, it will reserve from its authorized and unissued Common Stock a sufficient number of shares to provide for the issuance of the Warrant Shares upon the exercise of any purchase rights under this Warrant. The Company further covenants that its issuance of this Warrant shall constitute full authority to its officers who are charged with the duty of issuing the necessary Warrant Shares upon the exercise of the purchase rights under this Warrant. The Company will take all such reasonable action as may be necessary to assure that such Warrant Shares may be issued as provided herein without violation of any applicable law or regulation, or of any requirements of the trading market upon which the Common Stock may be listed. The Company covenants that all Warrant Shares which may be issued upon the exercise of the purchase rights represented by this Warrant will, upon exercise of the purchase rights represented by this Warrant and payment for such Warrant Shares in accordance herewith, be duly authorized, validly issued, fully paid and nonassessable and free from all taxes, liens and charges created by the Company in respect of the issue thereof (other than taxes in respect of any transfer occurring contemporaneously with such issue).
(ii) Except and to the extent as waived or consented to by the Holder, the Company shall not by any action, including, without limitation, amending its certificate of incorporation or through any reorganization, transfer of assets, consolidation, merger, dissolution, issue or sale of securities or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms of this Warrant, but will at all times in good faith assist in the carrying out of all such terms and in the taking of all such actions as may be necessary or appropriate to protect the rights of Holder as set forth in this Warrant against impairment. Without limiting the generality of the foregoing, the Company will (i) not increase the par value of any shares of Common Stock receivable upon the exercise of this Warrant above the Exercise Price then in effect, (ii) take all such action as may be necessary or appropriate in order that the Company may validly and legally issue fully paid and nonassessable Warrant Shares upon the exercise of this Warrant and (iii) use commercially reasonable efforts to obtain all such authorizations, exemptions or consents from any public regulatory body having jurisdiction thereof, as may be, necessary to enable the Company to perform its obligations under this Warrant.
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(iii) Before taking any action which would result in an adjustment in the number of Warrant Shares for which this Warrant is exercisable or in the Exercise Price, the Company shall obtain all such authorizations or exemptions thereof, or consents thereto, as may be necessary from any public regulatory body or bodies having jurisdiction thereof.
(e) Governing Law; Venue. All questions concerning the construction, validity, enforcement and interpretation of this Warrant shall be governed by and construed and enforced in accordance with the internal laws of the State of Ohio, without regard to the principles of conflicts of law thereof. Each party agrees that all legal proceedings concerning the interpretations, enforcement and defense of the transactions contemplated by this Warrant (whether brought against a party hereto or its respective affiliates, directors, officers, shareholders, partners, members, employees or agents) shall be commenced exclusively in the state and federal courts sitting in Cuyahoga County in the State of Ohio. Each party hereto hereby irrevocably submits to the exclusive jurisdiction of the state and federal courts sitting in Cuyahoga County in the State of Ohio for the adjudication of any dispute hereunder or in connection herewith or with any transaction contemplated hereby or discussed herein, and hereby irrevocably waives, and agrees not to assert in any action or proceeding, any claim that it is not personally subject to the jurisdiction of any such court, that such action or proceeding is improper or is an inconvenient venue for such proceeding.
(f) Notices. All notices and other communications from the Company to the Holder, or vice versa, shall be in writing and shall be deemed delivered and effective when given personally or mailed by first class registered or certified mail, postage prepaid, or by overnight courier, at such address as may have been furnished to the Company or Holder, as the case may be, in writing by the Company or such Holder from time to time.
(g) Limitation of Liability. No provision hereof, in the absence of any affirmative action by the Holder to exercise this Warrant to purchase Warrant Shares, and no enumeration herein of the rights or privileges of the Holder, shall give rise to any liability of the Holder for the purchase price of any Common Stock or as a stockholder of the Company, whether such liability is asserted by the Company or by creditors of the Company.
(h) Remedies. The Holder, in addition to being entitled to exercise all rights granted by law, including recovery of damages, will be entitled to specific performance of its rights under this Warrant. The Company agrees that monetary damages would not be adequate compensation for any loss incurred by reason of a breach by it of the provisions of this Warrant and hereby agrees to waive and not to assert the defense in any action for specific performance that a remedy at law would be adequate.
(i) Successors and Assigns. Subject to applicable securities laws, this Warrant and the rights and obligations evidenced hereby shall inure to the benefit of and be binding upon the successors and permitted assigns of the Company and the successors and assigns of Holder. The provisions of this Warrant are intended to be for the benefit of any Holder from time to time of this Warrant and shall be enforceable by the Holder or holder of Warrant Shares.
(j) Amendment. This Warrant may be modified or amended or the provisions hereof waived with the written consent of the Company and the Holder.
(k) Severability. Wherever possible, each provision of this Warrant shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Warrant shall be prohibited by or invalid under applicable law, such provision shall be ineffective to the extent of such prohibition or invalidity, without invalidating the remainder of such provisions or the remaining provisions of this Warrant.
(l) Headings. The headings used in this Warrant are for the convenience of reference only and shall not, for any purpose, be deemed a part of this Warrant.
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(Signature Page Follows)
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IN WITNESS WHEREOF, the undersigned have caused this Warrant to be executed by its officer thereunto duly authorized as of the date first above indicated.
| “COMPANY” | ||
| RANGE IMPACT, INC. | ||
| By: | ||
| Name: | Michael Cavanaugh | |
| Title: | Chief Executive Officer | |
| “HOLDER” | ||
| TIME COMPLEXITY WV, LLC | ||
| By: | ||
| Name: | Brian Cohen | |
| Title: | Manager | |
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EXHIBIT A
NOTICE OF EXERCISE
To: RANGE IMPACT, INC.
(1) The undersigned hereby elects to purchase ________ Warrant Shares of the Company pursuant to the terms of the attached Warrant (only if exercised in full), and tenders herewith payment of the Exercise Price in full, together with all applicable transfer taxes, if any.
(2) The undersigned’s payment of the cash Exercise Price shall be to the Company in the sum of $____________ in accordance with the terms of the Warrant.
(3) Please issue said Warrant Shares in the name of the undersigned as is specified below:
_______________________________
The Warrant Shares shall be delivered to the following DWAC Account Number:
_______________________________
_______________________________
_______________________________
[SIGNATURE OF HOLDER]
Name of Registered Holder: _____________________________________________________________________
Signature of Authorized Signatory of Registered Holder: ______________________________________________
Print Name of Authorized Signatory: ______________________________________________________________
Title of Authorized Signatory: ____________________________________________________________________
Date: ________________________________________________________________________________________
EXHIBIT B
ASSIGNMENT FORM
(To assign the foregoing Warrant, execute this form and supply required information. Do not use this form to purchase shares.)
FOR VALUE RECEIVED, the foregoing Warrant and all rights evidenced thereby are hereby assigned to
| Name: | |
| (Please Print) | |
| Address: | |
| (Please Print) | |
| Dated: _______________ __, ______ | |
| Holder’s Signature:_____________________ | |
| Holder’s Address:______________________ |
By its execution below, and for the benefit of the Company, [INSERT NAME OF TRANSFEREE] hereby makes to the Company each of the representations and warranties that the Holder was making to the Company in the Warrant (which are incorporated herein by reference), and agrees to be bound by all other terms of the Warrant, as if the undersigned was the original Holder of the Warrant.
[TO BE SIGNED BY TRANSFEREE IDENTIFIED ABOVE]
_________________________________
Name: __________________________
Title: ___________________________
Exhibit 10.3
OPTION TO LEASE REAL PROPERTY
Effective as of July 1, 2026 (the “Effective Date”), Range Sky View Land, LLC, an Ohio limited liability company (“Landlord”) hereby grants to Time Complexity Appalachia, LLC, a West Virginia limited liability company (“Tenant”) an option to lease portions of the Property (as defined below) upon the terms and conditions set forth in this Option to Lease Real Property (this “Agreement”). Each of Landlord and Tenant shall individually be referred to as a “Party” and together as the “Parties” to this Agreement.
RECITALS:
A. Landlord is the owner of the real property containing approximately 9,000 acres of contiguous surface at the Fola mine site in Clay and Nicholas Counties, West Virginia, less the Excluded Land (as defined below) (the “Property”). For clarification purposes, the definition of “Property” shall not include “Excluded Land”.
B. In consideration of the Option Fee (as defined below), Landlord desires to grant to Tenant the exclusive right and option to enter into a Lease Agreement in substantially the form as attached hereto as Exhibit A (the “Lease”) for the Leased Premises (as defined below), subject to the terms and conditions set forth in this Agreement.
NOW, THERFORE, in consideration of the above Recitals, which Recitals are incorporated herein, the covenants and agreements set forth hereafter, and other good and valuable consideration, including the Option Fee, the receipt and sufficiency of which is hereby acknowledged, Landlord and Tenant agree as follows:
| 1. | In consideration of $1.00 per year payable on July 1 of each year (the “Option Fee”), Tenant shall have the exclusive right and option to enter into a Lease (the “Option”) with Landlord for a portion of the Property described in the notice of exercise of the Option (the “Leased Premises”). Further, during the Option Period (as defined below), Tenant may, from time to time, exercise its Option to lease additional portions of the Property which shall be added to the Leased Premises. In each such case, the Lease shall be amended to account for the additional Leased Premises. | |
| 2. | The Option Period shall commence on the Effective Date and shall continue until July 1, 2031, unless earlier terminated in accordance with this Option (the “Option Period”) which Option Period shall be tolled for up to one (1) additional year so long as Tenant is diligently pursuing the Power-Compute Project (as hereinafter defined) using good faith commercially reasonable efforts, including but not limited to negotiations with third parties in furtherance thereof. In the event Tenant is dissolved, liquidated or its affairs are wound up pursuant to the terms of the Operating Agreement of Tenant, then such event shall cause an automatic termination of the Option Period and this Option, which shall be of no further force or effect, and any Lease entered into pursuant to this Option shall also terminate and be of no further force or effect; provided, however, that, notwithstanding the foregoing, in the case of the sale or other transfer of all or substantially all of the assets of the Tenant or the liquidation of Tenant in connection with any merger or other combination with a third-party entity where Tenant is not the surviving entity, the Option and Lease shall remain in full force and effect. |
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| 3. | Tenant may exercise the Option to lease the Leased Premises by delivering written notice to Landlord during the Option Period (the “Exercise Notice”) which notice shall include the following: (i) a detailed description and property map of the Leased Premises that Tenant desires to lease with reasonable specificity, (ii) Tenant’s intended use of the Leased Premises, and (iii) the name of any third-party user of the Leased Premises and the agreed upon terms for the use thereof (which may be in the form of a memorandum of understanding, letter of intent, term sheet, or similar document) with reasonably sufficient detail (collectively, “Lease Conditions”). Landlord shall have no obligation to enter into a Lease with Tenant after receiving an Exercise Notice from Tenant until the Lease Conditions have been satisfied in Landlord’s sole discretion. | |
| 4. | The Property does not include (i) land already leased to the Screaming Eagle Coal, LLC or its successors or assigns for a mining operation, (ii) land already leased to Savion Energy or its designee, successors or assigns for a solar development, (iii) land associated with the Surface Mine #5 mining permit (Article 3: S-2013-98), (iv) land associated with any mining permits issued in the name of WV Reclaim Co., LLC or Landlord existing at the time the Option is exercised (collectively, “Mining Permits”), (v) land not suitable for the development of an economically viable power generation and data center development project (“Power-Compute Project”), and (vi) land that has been deemed Inactive Land (as defined below) (collectively, the “Excluded Land”). The Property and the Excluded Land, which may be amended from time to time, is shown on Exhibit B attached hereto. | |
| 5. | If after performing due diligence on areas of the Property from time to time during the Option Period, Tenant determines in good faith that certain areas of the Property are not suitable for an economically viable Power-Compute Project, then Tenant shall promptly notify Landlord in writing of such determination, along with a detailed description and property map of the area, so that the applicable portion of the Property shall be deemed “Excluded Land” and therefore no longer Property subject to the Option. Further, Tenant acknowledges that the Leased Premises that has been leased pursuant to this Option but for which development has not started during the twelve (12) month period following the date of the applicable Exercise Notice (“Inactive Land”) shall be deemed inactive and automatically removed as Leased Premises under the Lease. In such case, the Lease shall be amended to remove the Inactive Land from the Leased Premises. | |
| 6. | The Property may not be leased by Tenant under any circumstance if the specific area of land is subject to a Mining Permit. Mining Permits must be released from the Property before any land underlying the applicable Mining Permits can be leased pursuant to this Option. |
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| 7. | During the Option Period, except with the prior written consent of Tenant, Landlord agrees not to sell, lease, sublease, license, market, encumber, or otherwise engage in negotiations with or enter into any contracts with any other person or entity with respect to the sale or lease or encumbrance of any portion of the Property. For the avoidance of doubt, this provision shall not apply to Excluded Land, which may be modified from time to time. | |
| 8. | During the Option Period, Tenant and its agents and third party contractors and consultants shall have the right to enter, investigate, study, and photograph the Property upon reasonable notice to Landlord, and to conduct, at Tenant’s sole cost and expense, such studies, reviews and investigations of the Property which Tenant, or its advisors, recommend or require in order to satisfy its inquiries. Landlord agrees to reasonably cooperate and assist with all such investigations, applications, studies, permits as may be requested or required by Tenant or its advisors. Tenant shall indemnify, defend and hold Landlord harmless from and against all claims, damages, costs and expenses related to Tenant’s (a) entry onto the Property for purposes of its inspections, (b) damage to persons or property on the Property arising from Tenant’s inspections, use or occupancy, and (c) mechanic liens, materialmen liens or other liens on the Property arising from the acts or omissions of Tenant. | |
| 9. | If Tenant exercises the Option, Tenant shall accept the Leased Premises in its AS-IS condition. Landlord does not warrant the boundary of the Property or Leased Premises, nor that the Property or Leased Premises is free and clear of all liens and encumbrances. | |
| 10. | Tenant hereby acknowledges and agrees that Landlord is a wholly owned subsidiary of Range Impact, Inc., a public company (“Range Impact”), and therefore the transactions and agreements contemplated by this Agreement may need to be publicly disclosed in one or more filings with the Securities and Exchange Commission. Each Party may also issue one or more press releases related to the transactions and agreements contemplated by this Agreement, which public announcements would be shared with the other Party in advance for its review and approval, which shall not be unreasonably withheld, conditioned or delayed. | |
| 11. | Any assignment or subletting of Tenant’s rights pursuant to the Option or the Lease shall be subject to Landlord’s consent in its sole discretion; provided, however that Tenant may, without the advance consent of Landlord but with reasonable advance notice, assign its rights pursuant to this Option or the Lease to any person or entity that acquires all or substantially all of the assets of Tenant or to any third-party entity into with Tenant may be merged or combined where Tenant is not the surviving entity. |
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| 12. | The Parties agree that neither Party has engaged the services of a real estate agent or broker to enter into any portion of the transactions set forth in this Agreement. | |
| 13. | This Agreement shall be governed by and construed in accordance with the laws of the State of Ohio, without regard to the principles of conflicts of laws thereof. The Parties hereby agree that any legal dispute shall be commenced exclusively in the state and federal courts sitting in Cuyahoga County in the State of Ohio. Each Party hereby irrevocably submits to the exclusive jurisdiction of the state and federal courts sitting in Cuyahoga County in the State of Ohio. | |
| 14. | In any action, suit, or proceeding in any jurisdiction brought by any Party against any other Party, the Parties each knowingly and intentionally, to the greatest extent permitted by applicable law, hereby absolutely, unconditionally, irrevocably and expressly waives forever trial by jury. | |
| 15. | If any term, provision, covenant, or restriction of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the terms, provisions, covenants, or restrictions set forth herein shall remain in full force and effect. It is hereby stipulated to be the intention of the Parties that they would have executed the remaining terms, provisions, covenants, or restrictions without including any of such language that may be hereafter declared invalid, illegal, void or unenforceable. | |
| 16. | This Agreement contains the entire understanding of the Parties with respect to the subject matter hereof and supersedes all prior agreements and understandings, oral or written, with respect to such matters, which the Parties acknowledge have been merged into this Agreement. | |
| 17. | This Agreement may be executed by the Parties hereto manually or by electronic signature in separate counterparts, each of which when so executed and delivered shall be an original, but all such counterparts together constitute one and the same instrument. |
[Signatures and Notary on Following Page]
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IN WITNESS WHEREOF, the Parties have executed this Agreement as of the Effective Date.
| RANGE SKY VIEW LAND, LLC, | ||
| an Ohio limited liability company | ||
| By: | ||
| Name: | Michael Cavanaugh | |
| Title: | Chief Executive Officer | |
| Time Complexity Appalachia, LLC, | ||
| a West Virginia limited liability company | ||
| By: | ||
| Name: | Brian Cohen | |
| Title: | Manager | |
State of Ohio
County of Cuyahoga
The foregoing instrument was acknowledged before me this July ___, 2026 by Michael Cavanaugh, Chief Executive Officer of Range Sky View Land, LLC, an Ohio limited liability company, on behalf of the limited liability company.
| Notary Public |
| State of _________________________________________ | |
| County of _______________________________________ |
The foregoing instrument was acknowledged before me this July ___, 2026 by Brian Cohen, Manager of Time Complexity Appalachia, LLC, a West Virginia limited liability company, on behalf of the limited liability company.
| _____________________________ | ||
| Notary Public |
Option to Lease Signature Page
EXHIBIT A
LEASE
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GROUND LEASE AGREEMENT
Landlord:
RANGE SKY VIEW LAND, LLC,
an Ohio limited liability company
Tenant:
TIME COMPLEXITY APPALACHIA, LLC,
a West Virginia limited liability company
Land:
Vacant Land
[Clay][Nicholas] County, West Virginia
Dated: As of __________, 20___
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GROUND LEASE AGREEMENT
This Ground Lease Agreement (“Ground Lease”) is made as of the ___ day of ________________, 20__ (the “Effective Date”), by and between Landlord and Tenant (as hereinafter defined).
ARTICLE I.
DEFINITIONS
1.1. As used herein, the words and phrases with the first letter of the word(s) capitalized in this Article and Ground Lease shall have the meaning or identity or represent the amount set forth after each word. Wherever in this Ground Lease additional defined words are created, the definitions thereof shall apply wherever the same are used with the first letter of the words capitalized.
(A) Applicable Laws: All codes, laws, order, ordinances, requirements, regulations, rules and statutes of governmental bodies and agencies (federal, state, county, local and otherwise), whether building, disability, environmental, fire, handicapped (including without limitation The Americans With Disabilities Act [42 U.S.C. 12101 et. seq.]), health, insurance, police, safety or otherwise, and whether now in force or hereafter enacted or adopted and including final decisions of courts of competent jurisdiction.
(B) Approvals: Defined in Section 35.1
(C) Closing Date: Defined in Section 35.4.
(D) Costs: All actual, documented and reasonable costs and expenses incurred by such Person or associated with such transaction, including without limitation, reasonable attorneys’ and paralegals’ fees and expenses, expert fees and expenses, court costs, brokerage fees, escrow fees, title insurance premiums, mortgage commitment fees, mortgage points and recording fees and transfer taxes, as the circumstances require. For all purposes of this Ground Lease, “attorneys’ fees and expenses” and similar statements include those incurred out of court, at trial, on appeal or in any bankruptcy proceeding.
(E) Deed: Defined in Section 35.2.
(F) Development: Defined in Section 4.2.
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(G) Environmental Laws: (i) whenever enacted or promulgated, any applicable federal, state, foreign or local law, statute, ordinance, rule, regulation, license, permit, authorization, approval, consent, court order, judgment, decree, injunction, code, requirement or agreement with any governmental entity, (x) relating to pollution (or the cleanup thereof), or the protection of any Environmental Media, air, water vapor, surface water, groundwater, drinking water supply, land (including land surface or subsurface), plant, aquatic and animal life from injury caused by a Hazardous Substance or (y) concerning exposure to, or the use, containment, storage, recycling, reclamation, reuse, treatment, generation, discharge, transportation, processing, handling, labeling, production, disposal or remediation of Hazardous Substances, Hazardous Conditions, Hazardous Activities or Environmental Violations, in each case as amended and as now or hereafter in effect, and (ii) any common law or equitable doctrine (including, without limitation, injunctive relief and tort doctrines such as negligence, nuisance, trespass and strict liability) that may impose liability or obligations or injuries or damages due to or threatened as a result of the presence of, exposure to, or ingestion of, any Hazardous Substance. The term “Environmental Law” includes, without limitation, the federal Comprehensive Environmental Response Compensation and Liability Act of 1980 (“CERCLA”), the Superfund Amendments and Reauthorization Act, the federal Water Pollution Control Act, the federal Clean Air Act, the federal Clean Water Act, the federal Resources Conservation and Recovery Act of 1976 (“RCRA”) (including the Hazardous and Solid Waste Amendments to RCRA), the federal Solid Waste Disposal Act, the federal Toxic Substances Control Act, the federal Insecticide, Fungicide and Rodenticide Act, the federal Occupational Safety and Health Act of 1970, the federal National Environmental Policy Act and the federal Hazardous Substances Transportation Act, each as amended and as now or hereafter in effect and any similar state or local law.
(H) Environmental Media: Soil, soil vapors, fill material, or other geologic materials at all depths, groundwater at all depths, surface water including storm water and sewerage, indoor and outdoor air, and all living organisms, including without limitation all animals and plants, whether such Environmental Media are located on or off the Leased Premises.
(I) Environmental Violation: Any one or more of the following, whether occurring prior to, on or after the date hereof: (a) any direct or indirect discharge, disposal, spillage, emission, escape, pumping, pouring, injection, leaching, Release, seepage, filtration or transporting of any Hazardous Substances at, upon, under, onto or within the Leased Premises or any Environmental Media, or from the Leased Premises to any Environmental Media, in violation of any Environmental Law, (b) any deposit, storage, dumping, placement or use of any Hazardous Substances at, upon, under or within the Leased Premises in violation of any Environmental Law, (c) the abandonment or discarding at the Leased Premises of any barrels, containers or other receptacles containing any Hazardous Substances in violation of any Environmental Laws, (d) any violation of or noncompliance with any Environmental Law in connection with the Leased Premises.
(J) Escrow Agent: Defined in Section 35.2.
(K) Event of Default: Defined in Section 22.1.
(L) Exercise Notice: The Exercise Notice from Tenant to Landlord dated [__________, 20__] pursuant to the Option to Lease.
(M) Expiration Date: The 20th anniversary of the last day of the month in which the Effective Date occurs, unless the Effective Date is the first day of a month, in which event, the Expiration Date shall be the last day of the month preceding the month in which such anniversary of the Effective Date occurs, subject to the Extension Terms and Article III below.
(N) Extension Terms: Four Extension Terms for five (5) years each defined in Article III.
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(O) Fixed Rent: $1.00 per year payable in accordance with Article VI hereof for the initial term.
(P) Hazardous Activity: Any activity, process, procedure or undertaking which directly or indirectly (i) procures, generates or creates any Hazardous Substance; (ii) causes or results in (or threatens to cause or result in) the Release, seepage, spill, leak, flow, discharge or emission of any Hazardous Substance into the environment (including the air, soil ground water, watercourses or water systems), (iii) involves the containment, storage or disposal of any Hazardous Substance; or (iv) would cause the Leased Premises or any portion thereof to become a hazardous waste treatment, recycling, reclamation, processing, storage or disposal facility within the meaning of any Environmental Law.
(Q) Hazardous Condition: Any condition which would require Remedial Activities under any Environmental Law.
(R) Hazardous Substance: (i) any substance, material, product, petroleum, petroleum product, derivative, compound or mixture, mineral (including asbestos), chemical, gas, medical waste, or other pollutant, in each case whether naturally occurring, man-made or the by-product of any process, that is toxic, harmful or hazardous or acutely hazardous to the environment or public health or safety, (ii) those materials included within the definitions of “hazardous substances,” “extremely hazardous substances,” “hazardous materials,” “toxic substances” “toxic pollutants,” “hazardous air pollutants” “toxic air contaminants,” “solid waste,” “hazardous waste,” “pollutants,” contaminants” or similar categories under any Environmental Laws, or (iii) any substance supporting a claim under any Environmental Law, whether or not defined as hazardous as such under any Environmental Law. Hazardous Substances include, without limitation, any toxic or hazardous waste, pollutant, contaminant, industrial waste, petroleum or petroleum-derived substances or waste, radon, radioactive materials, asbestos, asbestos containing materials, urea formaldehyde foam insulation, lead and polychlorinated biphenyls.
(S) Inactive Land: Defined in Section 2.1.
(T) Land: The parcel or parcels of land having an area of approximately [__] acres, the legal description of which is attached hereto marked Exhibit A, such parcel or parcels being outlined in red and crosshatched on the site plan marked Exhibit B (“Site Plan”).
(U) Landlord: Range Sky View Land, LLC, an Ohio limited liability company.
(V) Leased Premises: The Land and the Project. The parties acknowledge that the Leased Premises may be expanded pursuant to Tenant’s delivery of additional Exercise Notices for additional portions of the Property (as defined in the Option to Lease) and may be contracted pursuant to Article II below.
(W) Leasehold Mortgage: Defined in Section 33.1.
(X) Leasehold Mortgagee: Defined in Section 33.1.
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(Y) Lease Year: The first Lease Year shall commence on the Effective Date and end on the last day of the month in which the first anniversary of the Effective Date occurs, unless the Effective Date is the first day of a month, in which event the first Lease Year shall end on the last day of the month preceding the month in which the first anniversary of the Effective Date occurs. Thereafter a Lease Year shall consist of twelve (12) consecutive full calendar months commencing on the day following the close of the prior Lease Year.
(Z) Legal Requirements: The requirements of (a) all of Tenant’s insurance policies, and (b) all present and future laws (including but not limited to Environmental Laws, zoning and land use laws and laws relating to accessibility to, usability by, and discrimination against, disabled individuals) and all covenants, restrictions and conditions now or hereafter of record which may be applicable to Tenant and/or to any Property, or to the use, manner of use, occupancy, possession, operation, maintenance, alteration, repair or restoration of the Leased Premises.
(AA) Mechanic’s Liens: Defined in Section 4.5.
(BB) Mining Permits: Mining Permits means any permits for or related to the extraction, processing, loading, transportation or storage of coal or minerals from the Land issued by the West Virginia Department of Environmental Projection.
(CC) Option: Defined in Section 35.1.
(DD) Option to Lease: Option to Lease Real Property dated July 1, 2026.
(EE) Original Term: Twenty (20) years.
(FF) Person: shall mean an individual, partnership, association, corporation or other entity.
(GG) Project: The building(s) (and including, where appropriate for purposes of this Ground Lease, all other improvement(s) on the Land), including the economically viable power generation and data center development to be constructed on the Land and any alterations and additions thereto and replacements thereof from time to time.
(HH) Purchase Price: Defined in Section 35.1.
(II) Real Estate Taxes: All real estate taxes and assessments, general, special, or otherwise, and all other governmental charges or impositions of any kind whatsoever assessed or imposed upon, or payable during the Term with respect to the Leased Premises or Landlord’s ownership thereof, as may be imposed by any federal, state, or local governmental authority, or any other taxing authority. “Real Estate Taxes” shall also include all costs and expenses incurred by Landlord in negotiating, appealing, or contesting any taxes or assessments. Should the State of West Virginia, or any political subdivision thereof, or any governmental authority having jurisdiction thereover either (i) impose a tax or assessment of any kind or nature upon, against, measured by or with respect to the rentals payable by Tenant to Landlord or on the income of Landlord derived from the Leased Premises with respect to the Landlord’s ownership of the Land or Project presently or at any time during the term of this Ground Lease comprising the Leased Premises, either by way of substitution for all or any part of the taxes and assessments levied or assessed against such land and such buildings or in addition thereto, or (ii) impose a tax or surcharge of any kind or nature, upon, against or with respect to the parking areas or the number of parking spaces in the Leased Premises, then in either or both of such events, such tax, assessment or surcharge shall be deemed to constitute “Real Estate Taxes” for purposes of this Ground Lease.
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(JJ) Release: Defined in Section 11.2.
(KK) Remedial Activities: Any investigation, work plan preparation, removal, repair, cleanup, abatement, response action, remediation, monitored natural attenuation, natural resource damage assessment and restoration, closure, post-closure, detoxification or remedial activity of any kind whatsoever required under any Environmental Law to address any Release, any Environmental Violation and/or any Hazardous Condition.
(LL) Renewal Date: Defined in Article III.
(MM) Rent: Defined in Section 10.3.
(NN) Site Assessments: Defined in Section 11.4.
(OO) Site Plan: Defined in Section 1.1.
(PP) Site Reviewers: Defined in Section 11.4.
(QQ) Tenant: Time Complexity Appalachia, LLC, a West Virginia limited liability company.
(RR) Tenant’s Personal Property: All equipment, furniture, furnishings, floor coverings, contents, merchandise, inventory, stock-in-trade, trade fixtures, signs, accent or special effects light fixtures and other adornments and other personal property of Tenant at any time located in, on, under, or above the Leased Premises.
(SS) Tenant’s Work: Defined in Section 4.3.
(TT) Term: The Original Term and any extension or renewal (including any hold-over period) unless otherwise specified, but subject to termination as provided herein.
(UU) Title Policy: Defined in Section 35.2.
(VV) Use: Construction of the Project and thereafter operation of the Project.
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ARTICLE II.
GRANT OF LEASE
2.1. Landlord does lease and let unto Tenant, and Tenant does lease and take from Landlord, the Land for the Term and upon the agreements, conditions, and covenants hereof. Landlord shall deliver and Tenant shall accept possession of the Land on the Effective Date in its then “As Is,” “Where Is” and “With All Faults” condition. The Leased Premises may not be leased by Tenant under any circumstance if the specific area of land is subject to a Mining Permit. Mining Permits must be released from the Leased Premises before any land underlying the applicable Mining Permits can be added to the Leased Premises. Tenant acknowledges that the Leased Premises that has been leased pursuant to this Ground Lease but for which Development (as defined in Article IV below) has not started during the twelve (12) month period following the date of the applicable Exercise Notice (“Inactive Land”) shall be deemed inactive and automatically removed as Leased Premises under this Ground Lease. In such case, this Ground Lease shall be amended to remove the Inactive Land from the Leased Premises described on Exhibit A and shown on Exhibit B of this Ground Lease.
2.2. LANDLORD LEASES AND WILL LEASE AND TENANT TAKES AND WILL TAKE THE LEASED PREMISES AS IS. TENANT ACKNOWLEDGES THAT LANDLORD (WHETHER ACTING AS LANDLORD HEREUNDER OR IN ANY OTHER CAPACITY) AND THE INDEMNITEES HAVE NOT MADE AND WILL NOT MAKE, NOR SHALL LANDLORD OR ANY OF THE INDEMNITEES BE DEEMED TO HAVE MADE, ANY WARRANTY OR REPRESENTATION, EXPRESS OR IMPLIED, WITH RESPECT TO ANY OF THE LEASED PREMISES, INCLUDING ANY WARRANTY OR REPRESENTATION AS TO (i) ITS FITNESS, DESIGN OR CONDITION FOR ANY PARTICULAR USE OR PURPOSE, (ii) THE QUALITY OF THE MATERIAL OR WORKMANSHIP THEREIN, (iii) THE EXISTENCE OF ANY DEFECT, LATENT OR PATENT, (iv) [INTENTIONALLY DELETED], (v) VALUE, (vi) COMPLIANCE WITH SPECIFICATIONS, (vii) LOCATION, (viii) USE, (ix) CONDITION, (x) MERCHANTABILITY, (xi) QUALITY, (xii) DESCRIPTION, (xiii) DURABILITY, (xiv) OPERATION, INCOME, EXPENSES, ENTITLEMENTS OR ZONING, (xv) THE EXISTENCE OF ANY HAZARDOUS SUBSTANCE, ENVIRONMENTAL VIOLATION, RELEASE, HAZARDOUS CONDITION OR HAZARDOUS ACTIVITY OR (xvi) COMPLIANCE OF THE LEASED PREMISES WITH ANY LAW OR LEGAL REQUIREMENT; AND ALL RISKS INCIDENT THERETO ARE TO BE BORNE BY TENANT. TENANT ACKNOWLEDGES THAT THE LEASED PREMISES IS OF ITS SELECTION AND TO ITS SPECIFICATIONS AND THAT THE LEASED PREMISES HAS BEEN INSPECTED BY TENANT AND IS SATISFACTORY TO IT. IN THE EVENT OF ANY DEFECT OR DEFICIENCY IN ANY OF THE LEASED PREMISES OF ANY NATURE, WHETHER LATENT OR PATENT, LANDLORD AND ALL INDEMNITEES SHALL NOT HAVE ANY RESPONSIBILITY OR LIABILITY WITH RESPECT THERETO OR FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING STRICT LIABILITY IN TORT). THE PROVISIONS OF THIS SECTION 2.2 HAVE BEEN NEGOTIATED AND ARE INTENDED TO BE A COMPLETE EXCLUSION AND NEGATION OF ANY WARRANTIES BY LANDLORD OR ANY INDEMNITEE, EXPRESS OR IMPLIED, WITH RESPECT TO ANY OF THE LEASED PREMISES, ARISING PURSUANT TO THE UNIFORM COMMERCIAL CODE OR ANY OTHER LAW NOW OR HEREAFTER IN EFFECT OR ARISING OTHERWISE.
2.3. Landlord hereby represents and warrants to Tenant that (a) it has good and indefeasible fee simple title to the Leased Premises, (b) the existence or performance of this Lease does not and will not violate any law, restriction of record, or agreement to which the Leased Premises are subject, and (c) it has the power and authority to execute and deliver this Lease and to perform all of its obligations in connection therewith. Based upon the foregoing, Tenant acknowledges that fee simple title (both legal and equitable) is in Landlord and that Tenant has only the leasehold right of possession and use of the Leased Premises as provided herein.
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2.4. Tenant represents to Landlord that as of the date hereof (except as otherwise set forth below):
(A) To the actual knowledge of Tenant, without any investigation or inquiry being conducted or required, there are no suits, actions, proceedings or investigations pending, or threatened against or involving the Tenant.
(B) To the actual knowledge of Tenant, Tenant is not in default pursuant to or under any document, instrument or agreement to which the Leased Premises are subject to or bound by.
(C) The authorization, execution, delivery and performance of this Ground Lease by Tenant has been duly authorized by Tenant and will not result in any breach of or default under any document, instrument or agreement to which Tenant is a party or by which Tenant is subject or bound.
(D) Tenant shall obtain all permits required to construct the Project and has obtained (or will obtain in due course) all required licenses and permits to use and operate the Leased Premises for its intended use.
(E) The financial statements, all financial data and all other documents and information heretofore delivered by Tenant to Landlord with respect to Tenant’s financial condition is true, correct and complete in all material respects; and there has been no material change in the financial condition of Tenant since the date of any financial statement delivered to Landlord.
(F) Neither Tenant nor any subtenant, nor any Person who controls the day to day decision making of Tenant or any Person owning at least 20% of a direct or indirect interest in Tenant or a subtenant, is an individual or entity whose property or interests are subject to being blocked under any of the OFAC Laws or is otherwise in violation of any of the OFAC Laws; provided, however, that the representation contained in this sentence shall not apply to any Person to the extent such Person’s interest is in, or held through, a United States publicly traded entity. The representation in this subparagraph (F) shall be true and correct at all times during the Term.
(G) There is no contemplated, pending or threatened insolvency or bankruptcy proceedings, whether voluntary or, to Tenant’s knowledge, involuntary, affecting Tenant.
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ARTICLE III.
TERM, ORIGINAL AND EXTENDED
The Original Term of this Ground Lease shall commence on the Effective Date and end on the Expiration Date. If, on or prior to the Expiration Date or any other Renewal Date this Ground Lease shall not have been terminated, then on the Expiration Date and on the 5th, 10th and 15th anniversaries of the Expiration Date (the Expiration Date and the 25th, 30th, 35th and 40th anniversary date are each referred to herein as a “Renewal Date”), Tenant shall have the right to extend the then Term for an additional period of five (5) years each (each such extension period, an “Extension Term”). In order to extend the then Term for an Extension Term, Tenant shall notify Landlord at least six (6) months prior to each Renewal Date that Tenant desires to extend the then Term for an Extension Term. It is a condition to the extension of the Term of the Ground Lease at each Renewal Date that (a) no Event of Default shall have occurred and be continuing as of the date Tenant gives notice to Landlord of Tenant’s intention to so extend the Term for an additional five-year period, and (b) no Event of Default shall have occurred and be continuing as of each Renewal Date. Any such extension of the Term shall be subject to all the provisions of this Ground Lease, as the same may be amended, supplemented or modified (except that Tenant shall have no right to any additional renewal terms).
ARTICLE IV.
CONSTRUCTION
4.1. Landlord shall deliver possession of the Land to Tenant on or before the Effective Date provided that Tenant has satisfied the Lease Conditions (as defined in the Option to Lease).
4.2. Tenant acknowledges that Landlord has agreed to enter into this Ground Lease on the basis of Tenant fulfilling the Lease Conditions as defined in the Option to Lease. In this regard, the Tenant acknowledges that pursuant to the Option to Lease, Tenant has completed all due diligence necessary to investigate title, survey, zoning, environmental condition, soil condition and other basic due diligence of the Leased Premises pursuant to Tenant’s rights under the Option to Lease. Further, pursuant to the Option to Lease, Tenant has determined that the Project is economically feasible at the Leased Premises. During the Term of this Lease, Tenant shall, in furtherance of the Lease Conditions, diligently pursue Development of the Leased Premises. For purposes of this Ground Lease, “Development” shall mean: (i) refining and completing the designs, plans and specifications for the Project to be constructed on the Leased Premises, (ii) engaging the consultants and contractors hired to design, engineer, procure and construct the Project, (iii) obtaining all construction permits, environmental permits, variances and zoning changes necessary to complete the Project, (iv) contracting to bring utilities (including, data, water, sewer, electric, gas) and other services to the Leased Premises sufficient to support the Project, (v) obtaining loan commitments, grants, and other construction funding in order to construct the Project, (vi) developing agreements with potential end users of the Project, (vii) obtaining insurance coverage for the Project, (viii) pre-ordering long-lead items to be incorporated into the Project, (ix) otherwise getting the Leased Premises to be shovel ready for the construction, operation and maintenance of the Project, and (x) and all activities necessary, convenient, or in furtherance of the foregoing.
4.3. Tenant shall build or cause to be built the Project in accordance with plans and specifications as approved by Landlord pursuant to Section 4.2 above (“Tenant’s Work”). Notwithstanding the foregoing, the parties acknowledge that, in connection with Tenant’s Work, Tenant shall:
(A) obtain and pay for all permits necessary to perform Tenant’s Work,
(B) pay all costs, expenses and charges thereof,
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(C) perform the same in accordance with Applicable Laws and in a good and workmanlike manner,
(D) cause the same to be performed by a qualified contractor who shall not create any labor or other disturbance with construction on the Land while performing same,
(E) install all utilities from the property line to the Project, and
(F) indemnify and hold Landlord harmless from and against any and all damages, suits, liabilities, claims, and expenses (including attorney’s fees and costs) resulting from performance of Tenant’s Work.
4.4. It is the intention and agreement of the Parties that Landlord shall have no responsibility with respect to the construction of the Project or any alterations or additions thereto and replacements thereof, whether or not necessitated to comply with Applicable Laws.
4.5. Tenant shall not, directly or indirectly, create or permit to be created or to remain and shall promptly discharge or remove any lien, levy or encumbrance on the Leased Premises. If a lien, levy or encumbrance shall be imposed against the Leased Premises on account of work performed, or alleged to have been performed, for or on behalf of Tenant, Tenant shall, within 30 days after written notice of the imposition of such lien, levy or encumbrance, cause the Leased Premises to be released therefrom by the payment of the obligation secured thereby or by furnishing a bond or by any other method prescribed or permitted by law. For the duration of this Ground Lease, Tenant shall be responsible for all obligations of Landlord or Tenant with respect to any liens for labor, service or materials or claims to the same which are not of record in the public records (“Mechanic’s Liens”), and shall pay all costs and expenses associated with the Leased Premises resulting from any Mechanic’s Liens. Tenant shall defend, indemnify and save and hold Landlord harmless from and against any and all liabilities, obligations, losses, damages, injunctions, suits, actions, fines, penalties, claims, demands, costs and expenses of every kind or nature (except as may arise through the negligence or intentional acts of Landlord), including reasonable attorneys’ fees and court costs, incurred by Landlord, arising directly or indirectly from or out any Mechanic’s Liens. NOTICE IS HEREBY GIVEN THAT LANDLORD SHALL NOT BE LIABLE FOR ANY LABOR, SERVICES OR MATERIALS FURNISHED OR TO BE FURNISHED TO TENANT OR TO ANYONE HOLDING OR OCCUPYING ANY OF THE LEASED PREMISES THROUGH OR UNDER TENANT, AND THAT NO MECHANICS’ OR OTHER LIENS FOR ANY SUCH LABOR, SERVICES OR MATERIALS SHALL ATTACH TO OR AFFECT THE INTEREST OF LANDLORD IN AND TO ANY OF THE LEASED PREMISES. LANDLORD MAY AT ANY TIME, AND AT LANDLORD’S REQUEST TENANT SHALL PROMPTLY, POST ANY NOTICES ON THE LEASED PREMISES REGARDING SUCH NON-LIABILITY OF LANDLORD. ADDITIONALLY, LANDLORD SHALL HAVE THE RIGHT TO RECORD A NOTICE OF NON-RESPONSIBILITY (OR SUCH OTHER SIMILAR DOCUMENT) IN THE OFFICIAL RECORDS OF THE COUNTY WHERE THE PROPERTY IS LOCATED, REGARDING LANDLORD’S NON-LIABILITY FOR ANY LABOR, SERVICES OR MATERIALS FURNISHED OR TO BE FURNISHED TO TENANT OR TO ANYONE HOLDING OR OCCUPYING ANY OF THE LEASED PREMISES THROUGH OR UNDER TENANT. IN CONNECTION WITH THIS SECTION AND THIS GROUND LEASE, TENANT IS NOT LANDLORD’S AGENT, THE SOLE RELATIONSHIP BETWEEN THE PARTIES IS THAT OF LANDLORD AND TENANT, AND TENANT IS SOLELY RESPONSIBLE FOR PAYING FOR THE REPAIRS AND IMPROVEMENTS TO THE LEASED PREMISES.
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ARTICLE V.
USE
5.1. The Leased Premises shall be used for the Use, and for no other purpose. Tenant acknowledges that the covenant to use the Leased Premises as set forth herein is a material inducement for Landlord to enter into this Ground Lease. Upon any violation by Tenant of such restriction, Landlord shall have the right to immediately pursue all rights and remedies available, at law or in equity, to prevent such continued violation and to recover damages for the same, including the right of injunctive relief.
ARTICLE VI.
FIXED RENT
6.1. Tenant shall pay to Landlord the Fixed Rent once per year commencing on the Effective Date and annually thereafter on or before the anniversary of the Effective Date.
6.2. Notwithstanding any term or condition set forth in the Lease to the contrary, this Ground Lease shall operate as a triple net lease. Landlord and Tenant intend that to the greatest extent permitted by law, and except as otherwise provided in this Lease, Landlord has absolutely no obligations whatsoever to Tenant or with respect to the Leased Premises (except to the extent, if any, this Ground Lease expressly imposes on Landlord any obligations) and that payment to Landlord by Tenant of all Rent provided for herein be fully net of all costs of taxes, insurance, and any other charge or matter relating to the operation, use or maintenance of the Leased Premises and any improvements which may from time to time be built thereon.
ARTICLE VII.
TAXES
7.1. Tenant shall pay to Landlord the Real Estate Taxes that are due and payable during the Term for each calendar year commencing upon the Effective Date and continuing during the balance of the Term prior to the date that such will become delinquent. Payment of the Real Estate Taxes for the first and last Lease Years shall be prorated. Bills for the Leased Premises from the appropriate taxing authorities shall be conclusive of the amount of Real Estate Taxes. In the event a separate Real Estate Tax invoice is not available for the Leased Premises (or any portion thereof), the parties shall use good faith efforts to determine a pro rata calculation for the Real Estate Taxes based upon the square footage of the Leased Premises as a percentage of that tax parcel. In such case, Landlord shall pay the Real Estate Taxes to the taxing authority and Tenant shall reimburse Landlord within fifteen (15) days of the date of Landlord’s invoice.
7.2. Upon the request of Tenant and conditioned upon the deposit by Tenant with Landlord of an amount estimated to cover Landlord’s reasonable expenses in contesting the amount of any Real Estate Taxes, Landlord shall, at the expense of Tenant, contest the amount or validity thereof as instructed by Tenant using proper appellate procedure. Whether or not any proceedings contesting Real Estate Taxes initiated at the request of Tenant result in any reduction thereof, the expenses relating thereto shall be borne by Tenant and any deposit in excess of actual expenses shall be refunded to Tenant and any expenses in excess of the deposit shall be promptly paid by Tenant. With Landlord’s consent, Tenant may initiate and pursue any complaint relating to the Real Estate Taxes, at Tenant’s sole cost and expense, and Landlord shall cooperate therewith.
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7.3. Tenant shall pay all local, municipal, county, state, and federal taxes levied or assessed on or against Tenant’s Personal Property.
ARTICLE VIII.
UTILITIES
8.1. To the extent applicable, including any temporary utilities brought to the Leased Premises by Tenant, Tenant shall promptly pay all costs and expenses for all utility services provided to the Leased Premises, commencing from and after the Effective Date, and Tenant shall pay all deposits and other fees required to secure the availability of such utility services.
8.2. In no event shall Landlord be liable for any interruption in or failure of the supply of utilities to the Leased Premises, and no such interruption shall entitle Tenant to any abatement in rent and other charges due hereunder, provided such interruption in or failure of the supply of utilities to the premises is the result of fire, accident, riot, strike, act of God, or the making of necessary repairs or improvements or other causes beyond the control of Landlord.
8.3. Tenant shall perform all maintenance, additions, repairs and replacements of the gas, water, storm sewer, sanitary sewer and other such utility facilities on and serving the Leased Premises whether above, below or on ground level, including lines, pipes, wires and related equipment but excluding the exterior lighting facilities used for illumination of the Land.
ARTICLE IX.
SIGNS
9.1. Tenant may install, erect, maintain, or permit the installation, erection or maintaining of any sign or signs subject to Applicable Laws. Tenant shall, at Tenant’s own cost, maintain and operate all of Tenant’s signs in good condition and repair and shall comply with all Applicable Laws with respect to such signs. Tenant shall indemnify and hold Landlord harmless from all claims, suits, obligations, liabilities or expenses incurred by Landlord and arising from the erection, use, maintenance, or removal of Tenant’s signs. Upon the expiration or termination of this Ground Lease, or upon vacating the Leased Premises, Tenant shall, if requested by Landlord, remove all such signs and repair any damage caused thereby.
ARTICLE X.
RENT PAYMENT AND DEMAND, INTEREST AND LATE CHARGES
10.1. All payments of rent and other charges payable to Landlord shall be paid in current United States funds at Landlord’s address or such other place as Landlord may, from time to time, designate without, except as otherwise provided herein, any deduction, counterclaim, or set off whatsoever and without any prior demand. No payment by Tenant, or receipt by Landlord, of a lesser amount than the amount required to be paid by Tenant shall be deemed to be other than on account of the earliest stipulated sum payable by Tenant, nor shall any endorsement or statement on any check or any letter accompanying any check or payment be deemed an accord and satisfaction. Landlord may accept any such check or payment without prejudice to Landlord’s right to recover the balance of such rent or other sum, or to pursue any other right or remedy provided for in this Ground Lease or available by law or in equity.
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10.2. Any payment due from Tenant to Landlord, whether for rents, other charges or otherwise, not received by Landlord within ten (10) days after written notice the same is due shall bear interest at the rate of five percent (5%) per annum from the due date to the date of actual payment.
10.3. All sums required to be paid by Tenant to Landlord under this Ground Lease shall be deemed “Rent”, and upon any failure upon Tenant to pay the same when due hereunder, Landlord shall have the same rights and remedies as provided in this Ground Lease in the event of any failure of Tenant to pay Fixed Rent when due hereunder.
ARTICLE XI.
LEGAL COMPLIANCE/ENVIRONMENTAL LAWS
11.1. The Tenant shall not cause or permit any Hazardous Substances to be brought upon, kept, generated or used in or about the Leased Premises except in accordance with Applicable Laws.
11.2. Tenant shall report any release, spill, leak, discharge, disposal, pumping, pouring, emission, emptying, injecting, leaking, dumping or escaping or threat of release of any Hazardous Substances (“Release”) at the Leased Premises to Landlord as soon as Tenant is aware thereof. Tenant shall take all necessary precautions to avoid a Release.
11.3. Tenant (and not Landlord) shall, at Tenant’s sole cost and expense, comply with and conform to, and cause the Leased Premises and any other Person occupying any part or all of the Leased Premises to comply with and conform to, all Legal Requirements (including, without limitation, all applicable Environmental Laws), and all covenants, conditions and restrictions of record affecting the Leased Premises. Tenant shall not at any time (i) cause, permit or suffer to occur any Environmental Violation or (ii) permit any sublessee, assignee or other Person occupying the Leased Premises under or through Tenant to cause, permit or suffer to occur any Environmental Violation. Without limiting the foregoing, Tenant shall not use, store, transport, dispense, sell, Release or discharge any Hazardous Substances, except in compliance with all Environmental Laws.
11.4. Upon prior written notice from Landlord, Tenant shall permit such Persons as Landlord may designate (“Site Reviewers”) to visit the Leased Premises and perform environmental site investigations and assessments (“Site Assessments”) of the Leased Premises for the purpose of determining whether there exists at the Leased Premises any Environmental Violation or any condition which could result in any Environmental Violation. Such Site Assessments shall, except in the case of an emergency, be conducted upon reasonable notice and may include both above and below the ground testing for Environmental Violations and such other tests as may be necessary, in the opinion of the Site Reviewers, to conduct the Site Assessments; provided that Landlord and the Site Reviewers will use reasonable efforts to avoid unduly interrupting or interfering with the conduct of Tenant’s business. Tenant shall supply to the Site Reviewers such historical and operational information regarding the Leased Premises as may be reasonably requested by the Site Reviewers to facilitate the Site Assessments and shall make available for meetings with the Site Reviewers appropriate personnel having knowledge of such matters.
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11.5. If an Environmental Violation or Hazardous Condition occurs or is found to exist and, in Landlord’s reasonable judgment, the cost of remediation of the same is likely to exceed $250,000.00, Tenant shall provide to Landlord, within ten (10) days after Landlord’s request therefor, adequate financial assurances that Tenant will effect such remediation in accordance with applicable Environmental Laws. Such financial assurances shall be a bond or letter of credit reasonably satisfactory to Landlord in form and substance and in an amount equal to or greater than Landlord’s reasonable estimate, based upon a Site Assessment performed pursuant to Section 11.4, of the anticipated cost of such remedial action.
11.6. If any Environmental Violation or Hazardous Condition occurs or is found to exist (for example, without limitation, a detection of a leak in an underground tank or a petroleum spillage by a tanker), Tenant, at its sole expense, shall take any and all Remedial Activities and other actions as necessary to cure such Environmental Violation or Hazardous Condition to the extent required by Environmental Laws. Tenant shall be responsible for all reporting, investigation and/or remediation requirements under any Environmental Law with respect to any Environmental Violation or Hazardous Condition, all at Tenant’s sole cost and expense. If Tenant fails to correct any Environmental Violation or Hazardous Condition which occurs or is found to exist, Landlord shall have the right (but no obligation) to take any and all reasonable actions in order to cure such Environmental Violation or Hazardous Condition, all at Tenant’s sole cost and expense, and as Rent.
11.7. Tenant shall not use or store any Hazardous Substances at a Property. Tenant shall notify Landlord promptly after (1) becoming aware of any Environmental Violation or Hazardous Condition (or alleged Environmental Violation or Hazardous Condition); (2) any and all enforcement actions, initiation of Remedial Activities where no Remedial Activities are currently being conducted upon receipt of such notification, or other governmental or regulatory actions (excluding routine actions such as permit renewals) instituted, completed or threatened pursuant to any Environmental Laws affecting the Leased Premises; (3) all claims made or threatened by any third Person against Tenant or the Leased Premises relating in any way whatsoever to Hazardous Substances, Environmental Violations or Hazardous Conditions; (4) Tenant’s knowledge of any Release of Hazardous Substances at, on, in, under to or from the Leased Premises or on, in or under any adjoining property; or (5) Tenant’s noncompliance with any of the covenants contained in this Article XI, and Tenant shall forward to Landlord promptly upon receipt thereof copies of all orders, reports, notices, permits, applications or other communications relating to any such violation or noncompliance. Tenant shall provide Landlord with information reasonably requested by Landlord concerning Hazardous Substances in connection with the Leased Premises, regardless of whether there is an Environmental Violation.
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11.8. Tenant shall indemnify, defend (with counsel acceptable to Landlord), release and hold Landlord and all Indemnitees harmless from any and all claims, demands, judgments, damages, penalties, fines, Costs, liabilities or losses (including without limitation, claims for diminution in value of the Leased Premises, damages for the loss of or restriction on use of rentable or usable space or of any amenity of a Property, damages arising from any adverse impact on marketing a Property, and all sums paid in settlement of claims, and all reasonable attorneys’ fees and Costs, consultant fees and costs and expert fees and costs) which arise during or after the Term of this Lease as a result of Hazardous Substances placed by Tenant or any contractor, agent, invitee, licensee, customer or sublessee of Tenant, at, on or under the premises during or prior to the Term of this Lease, including but not limited to any pre-existing environmental condition, in violation of applicable environmental requirements. There shall be excluded from Tenant’s indemnity obligations under this Section any and all claims, demands, judgments, damages, penalties, fines, Costs, liabilities or losses to the extent caused by Landlord.
11.9. This Article XI shall survive the expiration, termination or rejection in bankruptcy of the Lease.
ARTICLE XII.
INSURANCE BY TENANT
12.1. From the Effective Date, Tenant shall, at its own expense, keep in full force and effect commercial general liability insurance with “personal injury,” contractual liability with minimum single limits of Two Million Dollars ($2,000,000.00) on account of bodily injuries to, or death of, one or more than one person as the result of any one accident or occurrence and on account of damage to property, which shall be written on an “occurrence” basis.
12.2. During the course of construction of Tenant’s Work and Tenant’s alterations, Tenant shall maintain (and shall cause its contractors and subcontractors to maintain) builder’s risk insurance.
12.3. All of Tenant’s liability and other insurance set forth above shall be with companies licensed in West Virginia and rated not less than A-VII by Best’s Insurance Rating Guide, and shall provide that said policies shall not be subject to cancellation, termination or change except after at least thirty (30) days prior written notice to Landlord. All of such Insurance shall name Landlord (and Landlord’s mortgagee if required by such mortgagee) as an additional insured. The policy or policies (or duly executed certificates for the same), together with satisfactory evidence of the payment of the premium thereof, shall be deposited with Landlord on the earlier to occur of the Effective Date or the date Tenant first enters the Leased Premises to perform work, fixture or otherwise and upon renewals of such policies not less than ten (10) days prior to the expiration of the term of existing coverage. If Tenant fails to comply with such requirements, Landlord may, but shall not be obligated to, obtain such insurance and keep the same in effect and Tenant shall pay to Landlord the premium cost thereof upon demand.
ARTICLE XIII.
INDEMNITY
13.1. Tenant’s Indemnity: Commencing upon the Effective Date, or the date upon which Tenant shall enter possession of the Leased Premises, whichever is earlier, and continuing during the Term, except to the extent caused by gross negligence or willful misconduct of Landlord, its agents or employees or a breach of this Ground Lease by Landlord, Tenant shall indemnify Landlord and save and hold Landlord (and Landlord’s mortgagee and agents) harmless from and against all actions, claims, damages, demands, expenses, fines, judgments, liabilities and penalties (and including reimbursement of attorneys’ fees and costs) in connection with damage, injury, death or loss to person or property resulting or occurring or arising wholly or in part by reason of (i) the use or occupancy of the Leased Premises or any part thereof by Tenant (ii) any negligence or act or failure to act of Tenant, (iii) any default by Tenant (under this Ground Lease, and (iv) the exercise of Tenant’s rights under this Ground Lease by Tenant.
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13.2. Landlord’s Indemnity: Commencing upon the Effective Date, or the date upon which Tenant shall enter possession of the Leased Premises, whichever is earlier, and continuing during the Term, except to the extent caused by the gross negligence or willful misconduct of Tenant, its agents or employees or a breach of this Ground Lease by Tenant, Landlord shall indemnify Tenant and save and hold Tenant harmless from and against all actions, claims, damages, demands, expenses, fines, judgments, liabilities and penalties (and including reimbursement of attorneys’ fees and costs) in connection with damage, injury, death or loss to person or property resulting or occurring or arising wholly or in part by reason of (i) the negligence or act or failure to act of Landlord, (ii) the default by Landlord under this Ground Lease, and (iii) the exercise of Landlord’s rights under this Ground Lease by Landlord (or Landlord’s agents, employees and contractors). The foregoing indemnity obligations shall survive the termination or expiration of this Ground Lease.
ARTICLE XIV.
MAINTENANCE BY TENANT
14.1. Tenant shall keep and maintain the Project. It is the intention and agreement of Parties that Landlord shall have no responsibility for the maintenance of the Land, Project, or Leased Premises and appurtenances thereto.
ARTICLE XV.
SURRENDER OF POSSESSION
15.1. Upon the termination of this Ground Lease, whether at the natural expiration of the Term or upon acceleration of the expiration date, Tenant shall deliver up and surrender to Landlord possession of the Leased Premises with any improvements thereon, if any, in good condition and repair, (loss by fire or other casualty included in standard extended insurance coverage endorsements and ordinary wear and decay only excepted) broom clean.
15.2. During the Term, except as provided in Article XIX hereof, and at the termination of this Ground Lease, Tenant shall have no right to remove the improvements or any alterations unless the same are replaced with improvements or alterations of equal or greater value and the Project, together with all fixtures attached thereto, shall become the Leased Premises of the Landlord.
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ARTICLE XVI.
ASSIGNMENT/SUBLEASE
16.1. Tenant may not assign or sublet the Leased Premises without the prior written consent of Landlord, which consent shall be in the Landlord’s sole and absolute discretion; provided, however that Tenant may, without the advance consent of Landlord but with reasonable advance notice, assign its rights pursuant to this Lease to any person or entity that acquires all or substantially all of the assets of Tenant or to any third-party entity into with Tenant may be merged or combined where Tenant is not the surviving entity. The parties acknowledge that Landlord is relying upon the skills and expertise of Tenant to develop the Project and that such restriction is reasonable in light of the circumstances and has been specifically bargained for as between Landlord and Tenant.
ARTICLE XVII.
HOLDING OVER
17.1. If Tenant remains in possession of the Leased Premises after the expiration of the tenancy created hereunder without the execution of a new lease, such holdover shall not be deemed a renewal of this Ground Lease, and Tenant shall be deemed to be occupying the Leased Premises as a tenant at will and subject to all of the rents and provisions of this Ground Lease in effect on the day before the expiration of the tenancy, except those relating to term and except that the Fixed Rent shall be Twenty-Five Thousand Dollars ($25,000.00) per month, without prejudice to any damages or other rights Landlord may have against Tenant for Tenant’s failure to vacate the Leased Premises on the date required hereunder. Said tenancy may be terminated by Landlord or Tenant by giving written notice to the other, in which event this Ground Lease shall terminate on the date set forth in such notice.
ARTICLE XVIII.
WAIVER OF SUBROGATION
18.1. Tenant hereby waives each and every claim which arises or may arise in its favor and against Landlord during the Term for any and all loss or damage covered by valid and collectible insurance policies carried by Tenant, to the extent that such loss or damage is recovered under such policies. Said waiver shall be in addition to, and not in limitation or derogation of, any other waiver or release contained in this Lease with respect to any loss or damage to the parties hereto. Inasmuch as such waivers preclude the bringing of suit and transfer of rights of recovery for any aforesaid claim by way of subrogation (or otherwise) to an insurance company, Tenant agrees each policy of insurance as required in this Lease shall contain a provision commonly referred to as a “waiver of subrogation” clause and, if necessary, Tenant will immediately give each insurance company which has issued to it policies of insurance pursuant hereto, written notice of the terms of said waiver, and will have such insurance policies properly endorsed, if necessary, to provide said waiver of subrogation and to prevent the invalidation of the insurance coverage by reason of said waiver.
18.2. Each insurance policy carried by Landlord or Tenant and insuring all or any part of the Leased Premises (including, without limitation, improvements in and to the Leased Premises made by either Landlord or Tenant and Tenant’s Personal Property therein) shall be written in a manner to provide that the insurance company waives all right of recovery by way of subrogation against Landlord or Tenant, as the case may be, in connection with any loss or damage to the Leased Premises caused by any of perils covered by such insurance.
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ARTICLE XIX.
DAMAGE TO OR DESTRUCTION OF PROJECT
19.1. In the event that any improvement constructed upon the Land is damaged or destroyed by fire or other casualty, whether or not covered by insurance, Tenant shall either (a) restore the Project to a habitable condition as soon as reasonably possible after such damage or destruction, or (b) terminate this Ground Lease by Notice to Landlord within sixty (60) days after such damage and Tenant shall surrender possession of the Leased Premises to Landlord within thirty (30) days thereafter. This Lease shall terminate on the date of Tenant’s surrender of possession of the Leased Premises with all buildings and components thereof removed and the ground leveled (unless Landlord directs Tenant to leave the Leased Premises in its “as is” condition), and thereupon both parties shall be released from any and all rights and obligations arising under this Ground Lease thereafter.
ARTICLE XX.
EMINENT DOMAIN
20.1. If the Leased Premises or any portion thereof shall be taken for any public or quasi public use by any authority having the right to exercise the power of eminent domain, or by deed in lieu thereof, the term of this Ground Lease, at Tenant’s option by Notice to Landlord given within ninety (90) days of the date of such taking (or purchase) if Tenant determines in good faith that the remaining Leased Premises is not suitable for the operation of Tenant’s Project, shall terminate and cease as of the date of taking (or purchase) and neither Party shall have any further rights or liabilities hereunder accruing thereafter, except as to such Party’s rights to a portion of the claim or award or payment thereof resulting from such proceeding.
20.2. Any claim for such taking shall be the property of Landlord; provided, however, that if possible, Landlord and Tenant shall amend this Ground Lease to replace the Leased Premises so taken with additional Leased Premises that are adjacent to the Leased Premises and suitable for the Project.
20.3. In the event the taking does not result in a termination of this Ground Lease, Fixed Rent and other charges payable hereunder shall be equitably apportioned by agreement or by arbitration if the Parties are unable to agree thereupon. The Parties shall equally share all costs of such arbitration; provided, however, each party shall pay their own attorney’s fees and costs.
ARTICLE XXI.
ESTOPPEL CERTIFICATE
21.1. Upon request by either party upon the other, or by any proposed mortgagee or purchaser of the Leased Premises, such other party shall execute and deliver to the requesting party (or to such mortgagee or purchaser) such estoppel certificates as may be required, which estoppel certificate shall certify the date of this Ground Lease and any amendments thereto, that the party has no knowledge of any default under this Ground Lease by the requesting party (or specifying any defaults), the date to which rent has been paid, and such other matters that the requesting party (or such mortgagee or purchaser) may reasonably request with respect to this Ground Lease, or the Leased Premises.
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ARTICLE XXII.
DEFAULT
22.1. The occurrence of any one or more of the following (after expiration of any applicable cure period as provided in Section 22.2 shall, at the sole option of Landlord, constitute an “Event of Default” under this Lease:
(A) a failure by Tenant to make any payment of any Rent on the due date hereof, regardless of the reason for such failure;
(B) a failure by Tenant duly to perform and observe, or a violation or breach of, any other provision of this Lease not otherwise specifically mentioned in this Section 22.1;
(C) any representation or warranty made by Tenant herein or in any certificate, demand or request made pursuant hereto proves to be incorrect when made, in any material respect which results in a material adverse effect on (a) the Leased Premises, including without limitation, the Development of the Project; (b) the contemplated business, condition, worth or operations of Tenant; (c) Tenant’s ability to perform its obligations under this Ground Lease; and (d) Landlord’s interests in the Leased Premises or this Ground Lease and such representation or warranty is not corrected within 30 days after Landlord shall have given Tenant written notice thereof; provided, however, that if any such representation or warranty cannot reasonably be corrected within such 30-day period, and Tenant is diligently pursuing such correction, then Tenant shall have a reasonable period to correct such representation or warranty, which shall in no event exceed 90 days after receiving notice of the false representation or warranty;
(D) a final, non appealable judgment or judgments for the payment of money in excess of $1,000,000 in the aggregate shall be rendered against Tenant and the same shall remain undischarged for a period of ninety (90) consecutive days;
(E) Tenant shall (1) voluntarily be adjudicated a bankrupt or insolvent, (2) seek or consent to the appointment of a receiver or trustee for itself or for the Leased Premises (or portion thereof), (3) file a petition seeking relief under the bankruptcy or other similar laws of the United States, any state or any jurisdiction, (4) make a general assignment for the benefit of creditors, or (5) be unable to pay its debts as they mature or shall admit in writing its inability to pay its debts when due;
(F) a court shall enter an order, judgment or decree appointing, without the consent of Tenant, a receiver or trustee for either Tenant or for the Leased Premises (or a portion thereof) or approving a petition filed against Tenant which seeks relief under the bankruptcy or other similar laws of the United States, any state or any jurisdiction, and such order, judgment or decree shall remain undischarged or unstayed ninety (90) days after it is entered;
(G) Tenant shall be liquidated or dissolved or shall begin proceedings towards its liquidation or dissolution (other than in connection with the sale of all or substantially all of the assets of Tenant or a merger or combination where Tenant is not the surviving entity); or
(H) the estate or interest of Tenant any portion of the Leased Premises shall be levied upon or attached in any proceeding and such estate or interest is about to be sold or transferred or such process shall not be vacated or discharged within ninety (90) days after it is made.
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22.2. No notice or cure period shall be required in any one or more of the following events: the occurrence of an Event of Default under clause (A) (except as otherwise set forth below), (C), (D), (E), (F), or (G) of Section 22.1. If the default consists of the failure to pay any Rent under clause (A), the applicable cure period shall be ten (10) days after receipt of notice thereof from Landlord, but Landlord shall not be obligated to give notice of, or allow any cure period for, any such default more than one (1) time within any Lease Year. If the default consists of a default under clause (B) of Section 22.1, the applicable cure period shall be thirty (30) days from the date on which notice is given or, if the default cannot be cured within such thirty (30) day period and delay in the exercise of a remedy would not (in Landlord’s reasonable judgment) cause any material adverse harm to Landlord or the Leased Premises, the cure period shall be extended for the period required to cure the default (but such cure period, including any extension, shall not in the aggregate exceed ninety (90) days), provided that Tenant shall commence to cure the default within the said thirty day period in a substantial and meaningful way and shall actively, diligently and in good faith proceed with and continue the curing of the default until it shall be fully cured.
22.3. If an Event of Default shall have occurred and is continuing, Landlord shall have the right, at its sole option, then or at any time thereafter, to exercise one or more of the following remedies, all in accordance with applicable law:
(A) to terminate this Lease, whereupon Tenant’s right to possession of the Leased Premises shall cease and this Lease, except as to Tenant’s liabilities, shall be terminated;
(B) to the extent not prohibited by applicable law, and without being deemed guilty in any manner of trespass or becoming liable for any loss or damage resulting therefrom, without resort to legal or judicial process (unless required by applicable law), procedure or action, and without terminating (or being deemed to terminate) this Ground Lease, to re-enter and take possession of the Leased Premises (or any part thereof), and, to the extent permissible, all permits and other rights or privileges of Tenant pertaining to the Project;
(C) to peaceably or pursuant to appropriate judicial process, procedure or action, expel Tenant from any part or all of the Leased Premises and those claiming under or through Tenant, without being deemed guilty in any manner of trespass or becoming liable for any loss or damage resulting therefrom. No notice from Landlord hereunder or under a forcible entry and detainer statute or similar law shall constitute an election by Landlord to terminate this Lease unless such notice specifically so states. If Tenant shall, after default, voluntarily give up possession of the Leased Premises to Landlord. Landlord reserves the right following any reentry and/or re-letting to exercise its right to terminate this Lease by giving Tenant written notice thereof, in which event this Lease will terminate;
(D) to bring an action against Tenant for any damages sustained by Landlord or any equitable relief available to Landlord (whether or not the Ground Lease is terminated) and to remove all or any portion of tenant’s personal property or fixtures and cause the same to be stored in a public warehouse or elsewhere at Tenant’s sole expense, without becoming liable for any loss or damage resulting therefrom and without resorting to legal or judicial process, procedure or action;
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(E) whether or not the Lease has been terminated, to re-let the Leased Premises or any part thereof for such term or terms (including a term which extends beyond the Term), at such rentals and upon such other terms as Landlord, in its sole discretion, may determine, with all proceeds received from such re-letting being applied to the Rent due from Tenant in such order as Landlord may, in its sole discretion, determine, including, without limitation, all repossession costs, brokerage commissions, reasonable attorneys’ fees and expenses, alteration, remodeling and repair costs and expenses of preparing for such re-letting. Except to the extent required by applicable law, Landlord shall have no obligation to re-let the Leased Premises or any part thereof and shall in no event be liable for refusal or failure to re-let the Leased Premises or any part thereof, or, in the event of any such re-letting, for refusal or failure to collect any rent due upon such re-letting, and no such refusal or failure shall operate to relieve Tenant of any liability under this Ground Lease or otherwise to affect any such liability. Landlord reserves the right following any reentry and/or re-letting to exercise its right to terminate this Ground Lease by giving Tenant written notice thereof, in which event this Ground Lease will terminate as specified in said notice;
(F) to recover from Tenant all Costs paid or incurred by Landlord as a result of such breach, regardless of whether or not legal proceedings are actually commenced;
(G) to immediately or at any time thereafter, and with or without notice, at Landlord’s sole option but without any obligation to do so, correct such breach or default and charge Tenant all Costs incurred by Landlord therein. Any sum or sums so paid by Landlord, together with interest at the rate of fifteen percent (15%) per year shall be immediately due from Tenant to Landlord. Any such acts by Landlord in correcting Tenant’s breaches or defaults hereunder shall not be deemed to cure said breaches or defaults or constitute any waiver of Landlord’s right to exercise any or all remedies set forth herein;
(H) to seek any equitable or injunctive relief available to Landlord, including, without limitation, the right of specific performance; and/or
(I) to collect Rent from any occupant of any part or all of the Leased Premises (including any subtenant or other tenant).
22.4. All powers and remedies given by Section 22.3 to Landlord, subject to applicable law, shall be cumulative and not exclusive of one another or of any other right or remedy or of any other powers and remedies available to Landlord under this Ground Lease, by judicial proceedings or otherwise, to enforce the performance or observance of the covenants and agreements of Tenant contained in this Ground Lease, and no delay or omission of Landlord to exercise any right or power accruing upon the occurrence of any Event of Default shall impair any other or subsequent Event of Default or impair any rights or remedies consequent thereto. Every power and remedy given by this Article XXII or by law to Landlord may be exercised from time to time, and as often as may be deemed expedient, by Landlord, subject at all times to Landlord’s right in its sole judgment to discontinue any work commenced by Landlord or change any course of action undertaken by Landlord.
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22.5. Notwithstanding anything to the contrary herein contained, in lieu of or in addition to any of the foregoing remedies and damages, Landlord may exercise any remedies and collect any damages available to it at law or in equity. If Landlord is unable to obtain full satisfaction pursuant to the exercise of any remedy, it may pursue any other remedy which it has hereunder or at law or in equity, it being understood that the remedies set forth herein are not exclusive and are cumulative in addition to any remedies allowed now or after the date hereof by applicable law.
22.6. THE PARTIES HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT EACH OF THEM MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS LEASE, AND ANY AGREEMENT CONTEMPLATED TO BE EXECUTED IN CONJUNCTION HEREWITH, OR THE COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY PARTY (INCLUDING, WITHOUT LIMITATION, ANY ACTION TO RESCIND OR CANCEL THIS LEASE AND ANY CLAIMS OR DEFENSES ASSERTING THAT THIS LEASE WAS FRAUDULENTLY INDUCED OR IS OTHERWISE VOID OR VOIDABLE). THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE UNDERSIGNED TO EXECUTE THIS LEASE.
22.7. No failure of Landlord (i) to insist at any time upon the strict performance of any provision of this Ground Lease or (ii) to exercise any option, right, power or remedy contained in this Ground Lease shall be construed as a waiver, modification or relinquishment thereof. A receipt by Landlord of any sum in satisfaction of any Rent with knowledge of the breach of any provision hereof shall not be deemed a waiver of such breach, and no waiver by Landlord of any provision hereof shall be deemed to have been made unless expressed in a writing signed by Landlord.
22.8. Tenant hereby waives and surrenders, for itself and all those claiming under it, including creditors of all kinds, (i) any right and privilege which it or any of them may have under any present or future law to redeem the Leased Premises or to have a continuance of this Ground Lease after termination of this Ground Lease or of Tenant’s right of occupancy or possession pursuant to any court order or any provision hereof, and (ii) the benefits of any present or future law which exempts property from liability for debt or for distress for rent.
ARTICLE XXIII.
LANDLORD’S LIABILITY LIMITED
23.1. In the event of a breach of any agreement, condition, or covenant on the part of Landlord to be observed or performed and, as a result thereof, Tenant shall obtain a judgment against Landlord therefor, such judgment shall be satisfied only out of the proceeds of sale(s) received upon execution and levy thereon against the right, title and interest of Landlord in the Leased Premises and the rents, profits and sales proceeds therefrom accruing thereafter. Neither Landlord, whether a limited liability company, partnership, limited partnership, corporation, person, or trust, nor the members of Landlord if a limited liability company, nor the officers, directors or shareholders of Landlord, if a corporation, nor the partners of Landlord, if a partnership or limited partnership, nor the trustees or beneficiaries of Landlord, if a trust, shall be liable therefor except to the extent aforesaid. Notwithstanding the foregoing, Landlord, at the time of any eminent domain proceedings, shall be liable to Tenant for payment of any award payable to Tenant but received by Landlord as a result of any condemnation of the Leased Premises.
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ARTICLE XXIV.
FORCE MAJEURE
24.1. If either Landlord or Tenant is prevented or hindered from timely satisfying any provisions set forth herein because of fire, casualties, acts of God, or any other cause beyond such Party’s reasonable control and which could not have been reasonably anticipated, said Party shall be permitted an extension of time of performance by the lesser of (i) the number of days during which such performance was prevented or hindered or (ii) 90 days from the date of such event; provided, however, that this Article shall not apply to the payment of Rent or other monies by either Party to the other Party, nor shall the provisions of this Article postpone the date that Rent is payable pursuant to this Ground Lease.
ARTICLE XXV.
NOTICES/CONSENTS
25.1. Any Notice or consent required to be given by or on behalf of either Party upon the other shall be given by mailing such Notice or consent by registered or certified mail addressed:
(A) to Landlord at: 200 Park Avenue, Suite 400, Orange Village, Ohio 44122, Attn: Michael Cavanaugh CEO, and
(B) to Tenant at: 200 Park Avenue, Suite 400, Orange Village, Ohio 44122, Attn: Michael Cavanaugh, Manager,
or at such other addresses as may be specified from time to time in writing delivered to the other Party.
25.2. Notices shall be deemed effective when deposited as certified or registered mail in the mail or delivered to a nationally recognized overnight carrier provided that the same is received or tendered for delivery in the ordinary course of business at the address to which the same is sent.
ARTICLE XXVI.
WAIVER
26.1. No waiver of any agreement, condition, or covenant shall be valid unless in writing signed by the Party to be charged nor shall the waiver of a breach of any agreement, condition or covenant be claimed or pleaded to excuse a future breach of the same agreement, condition or covenant or any other agreement, condition or covenant. Acceptance by Landlord of a lesser amount than the amount actually due hereunder, whether for rents or other charges, shall not prejudice Landlord’s right to collect the full amount due.
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ARTICLE XXVII.
ENTIRE AGREEMENT
27.1. This Lease and the Exhibits attached hereto and forming a part hereof set forth all the agreements, conditions, and covenants between Landlord and Tenant concerning the Leased Premises and there are no agreements, conditions and covenants, either oral or written, between them other than are herein set forth. Except as herein otherwise provided, no subsequent amendment, change, modification, or addition to this Ground Lease shall be binding upon Landlord or Tenant unless in writing and signed by them.
ARTICLE XXVIII.
QUIET ENJOYMENT
28.1. Landlord hereby covenants and agrees that if Tenant shall perform all the agreements, conditions and covenants herein stipulated to be performed on Tenant’s part, Tenant shall at all times during the Term have the peaceable and quiet enjoyment and possession of the Leased Premises without any hindrance or interruption from Landlord or any person or persons lawfully claiming the Leased Premises, subject only to the agreements, conditions and covenants of this Ground Lease.
ARTICLE XXIX.
APPLICABLE LAWS
29.1. This Lease and the agreements, conditions and covenants herein set forth shall be construed in accordance with and governed pursuant to the laws of the State of West Virginia.
ARTICLE XXX.
BENEFIT OF ASSIGNS
30.1. This Lease and all the agreements, conditions and covenants herein contained shall inure to the benefit of and be binding upon the heirs, personal representatives, successors and assigns, respectively, of the Parties, provided however, that no assignment by, from, through or under Tenant in violation of the provisions hereof shall vest in the assigns any right, title or interest whatever.
ARTICLE XXXI.
MEMORANDUM OF LEASE
31.1. This Lease shall not be recorded, but a Memorandum of Lease of even date herewith describing the Leased Premises, giving the Term and referring to this Ground Lease may be recorded by either Party.
ARTICLE XXXII.
PARTIAL INVALIDITY
32.1. If any agreement, condition or covenant of this Ground Lease or the application thereof to any person or circumstance shall, to any extent, be invalid or unenforceable, the remainder of this Ground Lease, or the application of such agreement, condition or covenant to persons or circumstances other than those as to which it is held invalid or unenforceable, shall not be affected thereby and each agreement, condition and covenant of this Ground Lease shall be valid and be enforced to the fullest extent permitted by law.
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ARTICLE XXXIII.
LEASEHOLD MORTGAGE
33.1. Tenant shall have the right, without the prior consent of Landlord, to mortgage this Ground Lease (herein called “Leasehold Mortgage”). Landlord hereby agrees not to encumber the fee simple interest of the Land other than in connection with the Leasehold Mortgage. A holder of a Leasehold Mortgage (a “Leasehold Mortgagee”) shall have the rights contained in this Article and the provisions of this Article shall be binding upon the Landlord.
33.2. If Tenant shall mortgage its Leasehold interest in and to this Ground Lease and the Leased Premises in compliance with the provisions of this Article, then so long as any Leasehold Mortgage shall remain unsatisfied the following provisions shall apply.
(A) If requested in writing by Leasehold Mortgagee, Landlord shall, simultaneous with giving any Notice of default pursuant to the terms of this Ground Lease to Tenant, also deliver a copy of such Notice to Leasehold Mortgagee at the last address of which Landlord is given by Leasehold Mortgagee.
(B) In the event that Tenant shall be in default hereunder, Leasehold Mortgagee, within the period and otherwise as herein provided and an additional thirty (30) days, shall have the right to remedy such default or cause the same to be remedied and Landlord shall accept such performance by or at the instance of Leasehold Mortgagee as if the same had been performed by Tenant. Leasehold Mortgagee, simultaneous therewith, shall give to Landlord Notice of such performance on behalf of Tenant.
(C) For the purposes of this Article, no default shall be deemed to exist under the terms of this Ground Lease regarding the observance or performance of the obligations incumbent upon Tenant hereunder if action shall be commenced and be diligently pursued to completion by or for the Leasehold Mortgagee within the time permitted under this Ground Lease for Tenant to cure the same and an additional thirty (30) days or such period of time as shall be reasonably required therefor (as to any action other than the payment of money).
(D) In the event of the termination of this Ground Lease prior to the expiration of the Term, other than due to destruction or eminent domain as provided herein, Landlord shall give Notice to Leasehold Mortgagee that this Ground Lease has been terminated together with a statement of any and all sums which would at that time be due under this Ground Lease but for such termination and all other Tenant defaults, if any, under this Ground Lease then known to Landlord. Leasehold Mortgagee shall thereupon have the right and option to enter into a new lease in accordance with and upon the following agreements, conditions, and covenants:
(i) Upon the written request of Leasehold Mortgagee within thirty (30) days after Notice from Landlord that this Ground Lease has been terminated, Landlord shall enter into a new lease of the Leased Premises with Leasehold Mortgagee (or any designee reasonably acceptable to Landlord) effective as of the date of termination of this Ground Lease for the remainder of the Term of this Ground Lease upon all of the agreements, conditions and covenants hereof (excluding however, any unexercised rights of renewal).
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(ii) As a condition to the execution and delivery of any such new lease by Landlord, any default of Tenant under this Ground Lease must be cured simultaneously therewith, and, in addition, all costs and expenses of Landlord incurred as a result of such default and termination, including, but not limited to, reasonable counsel fees, court costs, disbursements incurred by Landlord in connection with the recovery of possession of the Leased Premises and the preparation, execution and delivery of such new lease must be paid so that Landlord shall suffer no loss or cost as the result of such termination and delivery of such new lease.
(iii) Leasehold Mortgagee shall have the right to assign any such new lease with the consent of the Landlord, which consent shall not be deemed to be unreasonably withheld, if the assignee is not experienced in the operation of the Use.
(iv) In the event that the Leased Premises is not being used for the operation of the Use, Landlord shall have the right, prior to entering into any such new lease, to purchase from Leasehold Mortgagee all of Leasehold Mortgagee’s interest in and to the Leased Premises under the Leasehold Mortgage for a purchase price equal to the then balance due thereunder, payable in cash within ten (10) days after Notice from Landlord of such exercise of Landlord’s rights hereunder in exchange for the appropriate documentation to effectuate such assignment.
(v) Any Notice which Landlord shall desire or is required to give to or serve upon Leasehold Mortgagee under the provisions hereof shall be in writing and shall be addressed to Leasehold Mortgagee at the address as set forth in Leasehold Mortgage or in the last assignment thereof delivered to Landlord pursuant to this Article or at such other address as shall be designated by Leasehold Mortgagee by Notice given to Landlord. Any Notice which Leasehold Mortgagee shall desire or is required to give or serve upon Landlord shall be given in the same manner as other Notices are required to be given hereunder by Tenant to Landlord.
(vi) No union of the interests of Landlord and Tenant hereunder shall result in a merger of this Ground Lease in the fee interest.
(vii) Landlord and Tenant together shall not cancel, surrender, or modify this Ground Lease so long as any Leasehold Mortgage shall remain unsatisfied without the prior consent of Leasehold Mortgagee, which consent shall not be unreasonably withheld.
(viii) Nothing herein contained shall require the Leasehold Mortgagee to cure any default of tenant under Lease, except to the elective extent provided in this Article.
ARTICLE XXXIV.
BROKER
34.1. Landlord and Tenant each warrant to the other that neither Party has dealt with any real estate broker in connection with this Ground Lease. Each Party shall hold the other harmless from any and all claims, demands, and attorneys’ fees resulting from any other real estate brokers’ claims for real estate commission based upon dealing with such Party.
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ARTICLE XXXV.
PURCHASE OPTION
35.1. Notwithstanding anything contained in this Ground Lease to the contrary, but expressly conditioned, upon (a) Landlord or its permitted transferee owning certain of the issued and outstanding membership interests of Tenant, (b) the conveyance not violating any applicable zoning or subdivision ordinance or approval (collectively, the “Approvals”) applicable to the Leased Premises, and (c) Tenant having pursued Development materially in accordance with Section 4.2 of this Ground Lease such that not later than simultaneous with the transfer of the Leased Premises to Tenant, Tenant shall have received a binding contractual commitment for all financing necessary to commence construction of the Project and to complete the construction of the Project, Tenant shall have the option (the “Option”), exercisable by written notice to Landlord, to cause Landlord to sell, transfer and convey, at any time hereafter, fee title to the Leased Premises, for a purchase price of $10,000.00 per acre or such other purchase price as may be agreed upon, prorated for any partial acre (the “Purchase Price”), on terms and conditions mutually acceptable to Landlord and Tenant in their reasonable discretion consistent with the terms of this Article XXXV. Notwithstanding anything contained in this Section 35.1 to the contrary, the Option may only be exercised if (a) Landlord concludes, in its reasonable discretion, that the Approvals have been obtained; (b) Landlord shall from time to time consult with Tenant in advance of the submission of any written application to, or the commencement of any comparable process with any governmental authority with jurisdiction over the Leased Premises in order to obtain the Approvals; and (c) Tenant shall pay any and all costs, at its sole cost and expense, associated with obtaining, the Approvals.
35.2. In the event that Tenant exercises its Option, then, title to the Leased Premises shall be transferred to Tenant by limited warranty deed (the “Deed”) conveying title to the Leased Premises free and clear of all liens and encumbrances except easements, conditions, restrictions and reservations of record, taxes and assessments, both general and special, not yet due and payable, zoning and building ordinances and those liens and encumbrances, easements, restrictions and survey matters caused by the actions of Tenant. Prior to the Closing Date (defined below), Landlord shall deposit the Deed in escrow with First American Title Insurance Company (the “Escrow Agent”), and Tenant shall deposit in escrow the full amount of the Purchase Price on or prior to the Closing Date. The parties shall also deposit in escrow such other instruments and documents as may be reasonably requested hereunder, and if Tenant is unwilling to accept such title as Landlord shall in good faith be able to deliver, then the purchase option shall terminate, whereupon all funds and documents delivered or deposited hereunder shall be returned to the party depositing same; provided, however that the Ground Lease shall remain in full force and effect. For the avoidance of doubt, any exercise of the Option for part of the Leased Premises shall not preclude one or more subsequent exercises of the Option for additional parts of the Leased Premises, each of which may be exercised at any time and from time to time, and Tenant shall be afforded all rights pursuant to the Option at all times during the Term of this Lease. No actions or omissions by the Tenant shall be deemed a waiver of the Option or any part thereof.
35.3. At closing, Tenant may purchase at its sole cost an Owner’s ALTA Title Insurance Policy (the “Title Policy”) issued by the Escrow Agent, insuring that upon the filing of the Deed for record, fee simple title to the Leased Premises shall be in Tenant, free and clear of all liens and encumbrances except those allowed in the Deed as aforesaid. If Tenant desires to obtain a Title Policy, as soon as possible after the Tenant exercises the Option, Tenant, at its sole cost and expense, shall cause the Escrow Agent to deliver to Tenant a title commitment, together with legible copies of all exception documents, agreeing to issue the Title Policy so that Tenant may inspect the condition of title to the Leased Premises. Tenant shall pay for an updated survey in the event Tenant desires to remove the survey exception from the final Title Policy.
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35.4. The Option shall close, subject to the terms and conditions contained herein (the “Closing Date”) within ninety (90) days following Tenant’s exercise of the Option, or at such other time as is mutually agreed upon. On the Closing Date, all real estate taxes and assessments shall be prorated.
35.5. When the Escrow Agent is in a position to record the Deed and to issue the Title Policy in accordance with Section 35.3 above, and has received all funds and documents required to be deposited hereunder, the Escrow Agent shall, on the Closing Date:
(A) File the Deed for record and charge the cost of recording the same to Tenant;
(B) Pay all conveyance fees and transfer charges applicable to the Deed and charge the cost thereof to Landlord;
(C) Issue the Title Policy, charge the cost of the premium to Tenant;
(D) Charge the escrow fee to Tenant;
(E) Charge the Tenant any costs relating to any financing by Tenant;
(F) Deliver the Deed to Tenant after recording; and
(G) Deliver to Landlord the net proceeds of the transaction after satisfying the any liens and encumbrances in full.
35.6. A copy of this Lease shall serve as instructions to the Escrow Agent along with the Escrow Agent’s standard form of acceptance of escrow; provided that in the event any provisions of such standard form of acceptance are inconsistent with the provisions hereof, the provisions hereof shall prevail. In the event the Option is not exercised during the Term or any Extension Term, Tenant agrees to execute a termination in recordable form terminating the Option and to deliver the same to Landlord.
[signatures on the following page]
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IN WITNESS WHEREOF, The Parties have set their hands to this Ground Lease Agreement on the date and at the place first aforesaid.
| Landlord: | ||
| RANGE SKY VIEW LAND, LLC, | ||
| an Ohio limited liability company | ||
| By: | ||
| Print Name: | ||
| Its: | ||
| Tenant: | ||
| TIME COMPLEXITY APPALACHIA, LLC, a West Virginia limited liability company | ||
| By: | ||
| Print Name: | ||
| Its: | ||
| STATE OF OHIO | ) | |
| COUNTY OF CUYAHOGA | ) |
The foregoing instrument was acknowledged before me this ______________________, 2026 by _________________, _________________ of Range Sky View Land, LLC, an Ohio limited liability company, on behalf of the company.
| Notary Public |
| STATE OF OHIO | ) | |
| COUNTY OF CUYAHOGA | ) |
The foregoing instrument was acknowledged before me this ______________________, 2026 by _________________, _________________ of Time Complexity Appalachia, LLC, a West Virginia limited liability company, on behalf of the company.
| Notary Public |
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EXHIBIT A
Leased Premises Legal Description
| 31 |
EXHIBIT B
Site Plan
| 32 |
EXHIBIT B
PROPERTY AND EXCLUDED LAND
Exhibit 99.1
July 1, 2026
Range Impact and C2 Ventures Launch AI Infrastructure Platform on 9,000-Acre West Virginia Energy Corridor
Platform combines strategic land, power, water, and transportation infrastructure to support next-generation AI and hyperscale computing.
CLEVELAND, OHIO – July 1, 2026 – Range Impact, Inc. (OTCQB: RNGE) (“Range Impact” or the “Company”), a public company focused on acquiring, reclaiming, and repurposing strategic industrial assets throughout Appalachia, today announced the formation of a 50/50 joint venture with C2 Ventures, LLC, an AI infrastructure development firm focused on building next-generation energy, compute, and digital infrastructure platforms.
The joint venture, formed between Range Impact’s wholly owned subsidiary, Range Sky View Land, LLC, and Time Complexity WV, LLC, a portfolio company of C2 Ventures, will seek to develop an AI infrastructure platform on the Company’s approximately 9,000-acre Fola Mine Complex located in Clay and Nicholas Counties, West Virginia.
The site offers a unique combination of strategic infrastructure assets, including approximately 9,000 contiguous acres of land, over 100,000 acres of mineral interests, more than 100 miles of roads, a dedicated dual-served rail line, more than 650 million gallons of water in underground reservoirs, and access to multiple electrical transmission systems. Together, these assets provide a strong foundation for large-scale power generation and hyperscale-ready digital infrastructure.
Michael Cavanaugh, Chief Executive Officer of Range Impact, said:
“This joint venture represents an important milestone in our strategy to transform legacy industrial assets into infrastructure supporting America’s growing demand for energy and artificial intelligence. We are excited to partner with C2 Ventures to advance the redevelopment of the Fola Mine Complex and create long-term economic value for our shareholders and the surrounding communities.”
Brian Cohen, Managing Partner of C2 Ventures, said:
“Artificial intelligence is driving unprecedented demand for reliable power and digital infrastructure. The Fola platform brings together strategic land, energy potential, water resources, and transportation infrastructure in a single location, creating a compelling foundation for next-generation AI development.” Cohen added, “Our vision extends beyond a single project. Together with Range Impact, we are building an AI infrastructure platform designed to attract technology companies, engineering partners, energy providers, and long-term institutional capital. We believe strategic infrastructure will be one of the defining assets of the AI economy.”
About Range Impact, Inc.
Range Impact, Inc. (OTC: RNGE) acquires, reclaims, and repurposes former industrial and mining properties throughout Appalachia into strategic infrastructure and associated high-growth assets supporting long-term economic development, environmental stewardship, and shareholder value.
About C2 Ventures, LLC
C2 Ventures is an AI infrastructure development firm that creates strategic platforms supporting the future of artificial intelligence, advanced computing, and energy. Through its portfolio companies, C2 develops projects spanning power generation, hyperscale-ready digital infrastructure, industrial AI, advanced engineering systems, and technology commercialization. By integrating energy, compute, engineering, and long-term capital, C2 seeks to develop infrastructure that supports the next generation of the digital economy.
Notice Regarding Forward-Looking Statements
This press release contains “forward-looking statements” as that term is defined in Section 27(a) of the Securities Act of 1933, as amended and Section 21(e) of the Securities Exchange Act of 1934, as amended. Statements in this press release which are not purely historical are forward-looking statements and include any statements regarding beliefs, plans, expectations or intentions regarding the future. These forward-looking statements are made as of the date of this press release, and the Company assumes no obligation to update the forward-looking statements, or to update the reasons why actual results could differ from those projected in the forward-looking statements. Although the Company believes that any beliefs, plans, expectations and intentions contained in this press release are reasonable, there can be no assurance that any such beliefs, plans, expectations or intentions will prove to be accurate. Investors should consult all of the information set forth herein and should also refer to the risk factors disclosure outlined in the Company’s annual report on Form 10-K for the most recent fiscal year, our quarterly reports on Form 10-Q and other periodic reports filed from time-to-time with the Securities and Exchange Commission.
Range Impact, Inc.
Investor Relations
P: +1 (216) 304-6556
W: www.rangeimpact.com