Common use of Conditions to Transfers of Class A Membership Interests or Changes of Control of Managing Member Clause in Contracts

Conditions to Transfers of Class A Membership Interests or Changes of Control of Managing Member. Except as otherwise provided in this Article IX, all Transfers of Class A Membership Interests and all Transfers by Bloom of its interests in Clean Technologies must satisfy the following conditions: (a) The transferring Member must give written notice of the proposed Transfer to each of the Members not less than 10 days prior to the effective date of the proposed Transfer. (b) The transferring Member and the prospective transferee must each execute, acknowledge and deliver to the Company (as applicable) an assignment agreement substantially in the form of Exhibit D and such other instruments as the other Members may reasonably deem necessary or appropriate to confirm the transferor’s intention that the transferee become a Member in its place and the transferee’s undertaking to be bound by the terms of this Agreement and to assume the obligations of the transferor under this Agreement and, to the extent the transferor is to be released from such obligations, the ECCA. The prospective transferee shall make the representations and warranties and be bound by the covenants in Sections 3.11 and 3.12 as of the date of such Transfer; provided that, unless the transferee becomes the Managing Member the covenants in Sections 3.12(b), (c), (d), (g) and (h) shall not apply; (c) The Transfer will not violate any securities laws or any other applicable federal or state laws rules or regulations, or the order of any court or administrative body having jurisdiction over the Company or the Project Company or any of their assets or any material contract, lease, security, indenture or agreement binding on the Company or the Project Company or their respective assets; (d) The Transfer will not result in a termination of the Company or the Project Company under Section 708(b)(1)(B) of the Code, unless the transferor has indemnified the other Members against any adverse tax effects in a manner reasonably acceptable to the other Members; (e) The Transfer will not cause the Company or Project Company to become a Disqualified Person or cause the Systems, or any portion thereof, to be classified as “tax-exempt use property” for purposes of Section 168 of the Code; (f) The Transfer will not cause there to be more than two Class A Members; (g) The transferring Member and the prospective transferee shall pay any out-of-pocket expenses of the Company, the Project Company or the other Members resulting from the Transfer; (h) The transferring Member and the prospective transferee shall have all permits and consents required for such Transfer; (i) The Transfer will not affect the status of the Project Company as an Exempt Wholesale Generator nor will it cause a disqualification under the REPS Act or any of the Tariffs; (j) The Transfer will not require the Company to register as an investment company under the 1940 Investment Company Act; (k) If the Transfer would occur prior to the end of the Recapture Period with respect to any of the Systems, the Transfer will not be effective unless the transferring Member delivers a written opinion of a nationally-recognized law firm, in form and substance satisfactory to the non-transferring Members, that the Transfer will not cause a Class A Recapture Event; (l) Unless the Administrative Services Agreement will remain in place with the same Administrator thereunder following the Transfer (in which case the conditions in this clause (1) will be deemed to be met), the transferee must be recognized nationally as having substantial experience managing and operating fuel cell facilities or a Person that has engaged such an experienced and recognized company to manage the Company at substantially the same cost as under the Administrative Services Agreement, unless otherwise approved by Class B Members owning the majority of Class B Membership Interests; (m) The Transfer must not cause any adverse tax consequences to the Company, any other Member or the Project Company, in the written opinion of tax counsel reasonably acceptable to the Class B Member; (n) Prior to the Flip Date, the Transferee must be a Qualified Transferee and the Class B Member shall have consented to such Transfer, such consent not to be unreasonably withheld; and (o) The Transfer will not cause a breach of, or a default under, the Credit Documents.

Conditions to Transfers of Class A Membership Interests or Changes of Control of Managing Member. Except as otherwise provided in this Article IX, all Transfers of Class A Membership Interests and all Transfers by Bloom of its interests in Clean Technologies must satisfy the following conditions: (a) The transferring Member must give written notice of the proposed Transfer to each of the Members not less than 10 days prior to the effective date of the proposed Transfer. (b) The transferring Member and the prospective transferee must each execute, acknowledge and deliver to the Company (as applicable) an assignment agreement substantially in the form of Exhibit D and such other instruments as the other Members may reasonably deem necessary or appropriate to confirm the transferor’s intention that the transferee become a Member in its place and the transferee’s undertaking to be bound by the terms of this DM_US 159585344-17.085887.0029 Agreement and to assume the obligations of the transferor under this Agreement and, to the extent the transferor is to be released from such obligations, the ECCA. The prospective transferee shall make the representations and warranties and be bound by the covenants in Sections 3.11 and 3.12 as of the date of such Transfer; provided that, unless the transferee becomes the Managing Member the covenants in Sections 3.12(b), (c), (d), (g) and (h) shall not apply; (c) The Transfer will not violate any securities laws or any other applicable federal or state laws rules or regulations, or the order of any court or administrative body having jurisdiction over the Company or the Project Company or any of their assets or any material contract, lease, security, indenture or agreement binding on the Company or the Project Company or their respective assets; (d) The Transfer will not result in a termination of the Company or the Project Company under Section 708(b)(1)(B) of the Code, unless the transferor has indemnified the other Members against any adverse tax effects in a manner reasonably acceptable to the other Members; (e) The Transfer will not cause the Company or Project Company to become a Disqualified Person or cause the Systems, or any portion thereof, to be classified as “tax-exempt use property” for purposes of Section 168 of the Code; (f) The Transfer will not cause there to be more than two Class A Members; (g) The transferring Member and the prospective transferee shall pay any out-of-pocket expenses of the Company, the Project Company or the other Members resulting from the Transfer; (h) The transferring Member and the prospective transferee shall have all permits and consents required for such Transfer; (i) The Transfer will not affect the status of the Project Company as an Exempt Wholesale Generator nor will it cause a disqualification under the REPS Act or any of the Tariffs; (j) The Transfer will not require the Company to register as an investment company under the 1940 Investment Company Act; (k) If the Transfer would occur prior to the end of the Recapture Period with respect to any of the Existing Systems, the Transfer will not be effective unless the transferring Member delivers a written opinion of a nationally-recognized law firm, in form and substance satisfactory to the non-transferring Members, that the Transfer will not cause a Class A Recapture Event;; DM_US 159585344-17.085887.0029 (l) Unless the Administrative Services Agreement will remain in place with the same Administrator thereunder following the Transfer (in which case the conditions in this clause (1) will be deemed to be met), the The transferee must be recognized nationally as having substantial experience managing and operating fuel cell facilities or a Person that has engaged such an experienced and recognized company to manage the Company at substantially the same cost as under the Administrative Services Agreementfacilities, unless otherwise approved by Class B Members owning the majority of Class B Membership Interests; (m) The Transfer must not cause any adverse tax consequences to the Company, any other Member or the Project Company, in the written opinion of tax counsel reasonably acceptable to the Class B Member; (n) Prior to the Flip Date, the Transferee must be a Qualified Transferee and the Class B Member shall have consented to such Transfer, such consent not to be unreasonably withheld; and (o) The Transfer will not cause a breach of, or a default under, the Credit Documents.