Common use of BUYOUT EVENTS Clause in Contracts

BUYOUT EVENTS. (a) This Section 9.7 shall apply to any of the following events (each a “Buyout Event”): (i) a Member enters Bankruptcy; (ii) a Member dissolves and commences liquidation or winding up and such dissolution or liquidation is reasonably expected to have a Material Adverse Effect on the Company or a Material Adverse Effect on the Project or any other Member; or (iii) there occurs an event that makes it unlawful for the Member to continue to be a Member. Upon the occurrence of a Buyout Event, the Affected Member shall give written notice thereof to the Managing Member. Upon receipt of such written notice by the Managing Member, the Managing Member shall promptly give notice thereof to each other Member. (b) If a Buyout Event occurs, then each of the other Members shall have the option to acquire the Membership Interest of the Affected Member (or to cause it to be acquired by a third party designated by the other Members) (with the Members exercising such right being referred to herein as “Purchasing Members”) in such proportions as the Purchasing Members may agree or, if they cannot agree, in accordance with the number of Membership Interests held by each such Purchasing Member divided by the total number of Membership Interests held by all of the Purchasing Members together. Each Purchasing Member shall exercise its right to participate in the acquisition of the Affected Member’s Membership Interest by giving notice of such exercise to the Managing Member not more than 20 days following receipt by the Members of the notice from the Managing Member referred to in the final sentence of Section 9.7(a), which notice, if given by a Purchasing Member, shall be irrevocable. (c) The purchase price (the “Buyout Price”) for a Membership Interest being purchased pursuant to this Section 9.7 shall be the Fair Market Value of such Membership Interest as to which a Buyout Event specified in this Section 9.7 has occurred; less the aggregate amounts of any unpaid indemnification obligations owed by the Affected Member to the Purchasing Member under any Transaction Document divided by the number of Membership Interests being purchased by such Purchasing Member pursuant to this Section 9.7. (d) The Parties acknowledge and agree that the provisions of this Section 9.7(c) (including the provisions relating to the determination of the Buyout Price) are a material inducement to their entering into this Company LLC Agreement. (e) If an option to purchase is exercised under this Section 9.7, the closing on such purchase shall occur on the thirtieth day after the determination of the Buyout Price (or, in any event, if later, the 5th Business Day after the receipt of all applicable regulatory and governmental approvals to the purchase). Unless otherwise agreed among the Affected Member and the Purchasing Members, the Buyout Price shall be paid in cash at such closing (by wire transfer of immediately available United States Dollars to such United States bank accounts as the Purchasing Members shall designate in at least five days in advance in writing). The obligations of each Purchasing Member under this Section 9.7 shall be several and not joint. (f) Upon the occurrence of a closing under Section 9.7(d), the following provisions shall apply to the Affected Member (now a “Terminated Member”): (i) The Terminated Member shall cease to be a Member immediately upon the occurrence of the closing. (ii) The Terminated Member shall no longer be entitled to receive any distributions (including liquidating distributions) or allocations from the Company except as directed in Section 5.4, and it shall not be entitled to exercise any voting or consent rights or to receive any further information (or access to information) from the Company (other than any required tax information). (iii) The Terminated Member must pay to the Company all amounts owed to the Company by such Terminated Member. (iv) The Terminated Member shall remain obligated for all liabilities it may have under this Company LLC Agreement or otherwise with respect to the Company that accrue prior to the closing. (v) The Membership Interest, including the Capital Account balance attributable thereto, of the Terminated Member shall be allocated among the Purchasing Members in the proportion of the total Buyout Price paid by each Purchasing Member.

BUYOUT EVENTS. (a) This Section 9.7 10.03 shall apply to any of the following events (each a “Buyout Event”): (i) a Member enters Bankruptcybecomes Bankrupt; (ii) prior to the earlier to occur of the end of the PTC Period or the Flip Point, (A) a Class A Member dissolves fails to qualify as an Approved Investor; provided, for purposes of the use of the term “Approved Investor” in this clause, the credit ratings set forth in clause (a) of the definition of “Approved Investor” shall be “BBB” for Standard & Poor’s and commences liquidation or winding up “Baa2” for Xxxxx’x, (B) the Managing Member shall have notified such Class A Member of such failure to qualify, and (C) such dissolution or liquidation is reasonably expected failure continues for ninety (90) days after delivery of such notice to have a Material Adverse Effect on the Company or a Material Adverse Effect on the Project or any other such Class A Member; or (iii) there occurs an event that makes it unlawful for the Member to continue to be a Member. Upon In each case, the occurrence of Member with respect to whom a Buyout Event, Event has occurred is referred to herein as the Affected Member shall give written notice thereof to the Managing Member. Upon receipt of such written notice by the Managing Member, the Managing Member shall promptly give notice thereof to each other “Buyout Member.” (b) If (i) a Buyout Event occursoccurs and the Buyout Member is a Class A Member, then the other Class A Members shall first have the option to acquire the Membership Interest of the Buyout Member (or to cause it to be acquired by a third party designated by the such other Members) and, if such other Class A Members within fifteen (15) Days do not elect such option, then any other Member may elect such option, or (ii) a Buyout Event occurs and the Buyout Member is a Class B Member, then each of the other Members shall have the option to acquire the Membership Interest of the Affected Buyout Member (or to cause it to be acquired by a third party designated by the such other Members), in each case in accordance with procedures and requirements that are substantively equivalent to those set forth in Section 3.03(b)(iii) (and with the Members exercising such preferential right also being referred to herein as “Purchasing Members”) in such proportions as the Purchasing Members may agree or, if they cannot agree, in accordance with the number of Membership Interests held by each such Purchasing Member divided by the total number of Membership Interests held by all of the Purchasing Members together. Each Purchasing Member shall exercise its right to participate in the acquisition of the Affected Member’s Membership Interest by giving notice of such exercise to the Managing Member not more than 20 days following receipt by the Members of the notice from the Managing Member referred to in the final sentence of Section 9.7(a), which notice, if given by a Purchasing Member, shall be irrevocable. (c) The purchase price (the “Buyout Purchase Price”) for a Membership Interest being purchased pursuant to this Section 9.7 10.03 shall be the Fair Market Value of such Membership Interest as determined in the following manner: (i) Within thirty (30) Days following the occurrence of the Buyout Event, the Buyout Members and the Purchasing Members shall appoint a Qualified Appraiser. Within thirty (30) Days following the appointment of the Qualified Appraiser, such appraiser shall determine the Fair Market Value of the applicable Membership Interest utilizing valuation methods and practices commonly used in the independent electric generating industry, and taking into account all of the facts and circumstances relating to which the Company, including any cash reserves that may be held by the Company, but excluding cash withheld from distribution to the Buyout Member pursuant to Section 10.03(b). The decision of the Qualified Appraiser shall be binding and conclusive on the Parties absent manifest error. The Buyout Member on the one hand, and the Purchasing Members, on the other hand, shall each pay fifty percent (50%) of the fees and expenses of the Qualified Appraiser (other than a Buyout Event specified in this Section 9.7 has occurred; less the aggregate amounts of any unpaid indemnification obligations owed 10.03(a)(ii) not caused by the Affected Member to action or inaction of the Purchasing Member under any Transaction Document divided by the number of Membership Interests being purchased by such Purchasing Member pursuant to this Section 9.7Buyout Member). (dii) The Parties acknowledge and agree that the provisions of this Section 9.7(c10.03(c) (including the provisions relating to the determination of the Buyout Price) are fair and reasonable and are a material inducement to their entering into this Company LLC Agreement. (ed) If an option to purchase is exercised under in accordance with the provisions of this Section 9.710.03, the closing on of such purchase shall occur on the thirtieth day (30th) Day after the determination of the Buyout Price Fair Market Value pursuant to Section 10.03(c) (or, in any event, if later, the 5th fifth (5th) Business Day after the receipt of all applicable regulatory Governmental Approvals of such purchase), and governmental approvals to shall comply in all material respects with the purchaserequirements set forth in Section 3.03(b)(iii). Unless otherwise agreed among the Affected Buyout Member and the Purchasing Members, the Buyout Purchase Price shall be paid in cash at such closing (by wire transfer of immediately available United States Dollars to such United States bank accounts as the Purchasing Members shall designate in at least five days in advance in writing). The obligations of each Purchasing Member under this Section 9.7 shall be several and not jointclosing. (fe) Upon the occurrence of a closing under Section 9.7(d10.03(d), the following provisions shall apply to the Affected Buyout Member (now a “Terminated Member”): (i) The Terminated Member shall cease to be a Member immediately upon the occurrence of the closing. (ii) The Terminated Member shall no longer be entitled to receive any distributions (including liquidating distributions) or allocations from the Company except as directed in Section 5.4Company, and it shall not be entitled to exercise any voting or consent rights or to receive any further information (or access to information) from the Company (other than any required tax information). (iii) The Terminated Member must pay to the Company all amounts owed to the Company by such Terminated Member. (iv) The Terminated Member shall remain obligated for all liabilities it may have under this Company LLC Agreement or otherwise with respect to the Company that accrue prior to the closing. (v) The Membership Interest, including the Capital Account balance attributable thereto, of the Terminated Member shall be allocated among the Purchasing Members in the proportion of the total Buyout Purchase Price paid by each Purchasing Member.