Common use of Restrictions on Transfer of Membership Interest Clause in Contracts

Restrictions on Transfer of Membership Interest. (a) No OP Member shall, during the Facility Lease Term, assign, convey or transfer any of its right, title or interest in the Membership Interest or cause the Owner Participant to issue additional membership interests without the prior written consent of Midwest and NRG and, for so long as the Lien of the Lease Indenture has not been terminated or discharged, the Lease Indenture Trustee and the Pass Through Trustee; provided, however, that an OP Member may assign, convey or transfer all or any part of its interest in the Membership Interest without such consent to a Person (the “Member Transferee”), if the Owner Participant Guaranty shall remain outstanding and in full force and effect or each of the following conditions shall have been satisfied: (b) the Member Transferee shall be either (A) an Affiliate of the Owner Participant which does not otherwise qualify under clause (B) below provided the Owner Participant Guaranty shall remain in full force and effect, or (B) a Person which guarantees all of the Owner Participant’s obligations under the Operative Documents pursuant to a guaranty substantially in the form of Exhibit Y to the Original Participation Agreement and meets the following criteria: (1) the tangible net worth of the Member Transferee is at least equal to $75 million calculated in accordance with GAAP; and (2) unless waived by Midwest and NRG, and so long as no Material Lease Default or Lease Event of Default shall have occurred and be continuing, such Member Transferee is not a Competitor (as defined in Section 10.1(e)) of, or in material litigation with, Midwest or any Affiliate of Midwest; (c) the total number of Unrelated Members, after giving effect to such transactions shall not exceed three; and (d) the Member Transferee agrees in the guaranty or in another written instrument reasonably acceptable to Midwest and, for so long as the Lien of the Lease Indenture has not been terminated or discharged, the Lease Indenture Trustee and the Pass Through Trustee to be bound by this Section 18.18 and by provisions of Section 18.19 of this Agreement. (e) Neither the Facility Lessee nor NRG shall not be responsible for any adverse tax consequence to the Owner Lessor, the Owner Participant or the Guarantor resulting from any transfer pursuant to this Section 18.18 and the Pricing Assumptions shall not be changed as a result of any such transfer. (f) The OP Member shall give the Owner Lessor, the Owner Trustee, the Lease Indenture Trustee, the Pass Through Trustee, Midwest and NRG thirty (30) days prior written notice of such transfer, or ten (10) days in the case of a transfer to an Affiliate of the Owner Participant, specifying the name and address of any proposed Member Transferee and such additional information as shall be necessary to determine whether the proposed transfer satisfies the requirements of this Section 18.18. If requested by the OP Member, the Owner Participant, the Lease Indenture Trustee or the Pass Through Trustee, Midwest or NRG shall acknowledge qualifying transfers. All reasonable fees, expenses and charges of the Lease Indenture Trustee, the Pass Through Trustee, Midwest and NRG (including reasonable attorneys’ fees and expenses in connection with any such transfer or proposed transfer), including any of the foregoing relating to any amendments to the Operative Documents required in connection therewith, shall be paid by the OP Member, without any right of indemnification from Midwest, NRG, the Lease Indenture Trustee, the Pass Through Trustee or any other Person; provided, however, that the OP Member shall have no obligation to pay fees, expenses or charges of Midwest and NRG as a result of any transfer while a Material Lease Default or a Lease Event of Default is continuing, in which case Midwest or NRG shall be obligated to pay such costs. (g) Upon any transfer to a Member Transferee specified in clause (a)(i)(B) of this Section 18.18 and compliance with all of the other provisions of this Section 18.18, (i) the Member Transferee shall, to the extent of the Membership Interest conveyed to the Member Transferee, be deemed an “OP Member” for purposes of this Section 18.18 and the Person executing the guaranty pursuant to such clause (a)(i)(B) shall be deemed a “OP Guarantor” for all purposes and each reference in this Agreement and each other Operative Document to the “OP Guarantor” shall thereafter be deemed to include such Member Transferee or the Person executing such guaranty, as the case may be, to the extent of the obligations expressly transferred to the Member Transferee and guaranteed by such Person, for all purposes and (ii) the existing OP Guarantor shall be released from all obligations under its Owner Participant Guaranty to the extent such obligations are expressly guaranteed by the Member Transferee or such Affiliate; provided, however, that in no event shall any such transfer waive or release the existing OP Guarantor from any liability existing immediately prior to or occurring simultaneously with such transfer. Except as expressly provided in the immediately preceding sentence, no transfer of any Membership Interest shall effect the obligations of the existing OP Guarantor under the Owner Participant Guaranty or any other OP Guarantor under its Owner Participant Guaranty. (h) Notwithstanding anything herein to the contrary, any transfer of Membership Interest pursuant to this Section 18.18 shall be subject to Midwest’s right of first offer and right of first refusal set forth in Sections 16.1 and 16.2 of this Agreement, respectfully, to the same extent as if such transfer were a transfer by the Owner Participant of its Beneficial Interest.

Restrictions on Transfer of Membership Interest. (a) No OP Member shall, during the Facility Lease Term, assign, convey or transfer any of its right, title or interest in the Membership Interest or cause the Owner Participant to issue additional membership interests without the prior written consent of Midwest and NRG EME and, for so long as the Lien of the Lease Indenture has not been terminated or discharged, the Lease Indenture Trustee and the Pass Through TrusteeTrustees; providedPROVIDED, howeverHOWEVER, that an OP Member may assign, convey or transfer all or any part of its interest in the Membership Interest without such consent to a Person (the “Member Transferee”"MEMBER TRANSFEREE"), if the Owner Participant Guaranty shall remain outstanding and in full force and effect or each of the following conditions shall have been satisfied: (bi) the Member Transferee shall be either (A) an Affiliate of the Owner Participant which does not otherwise qualify under clause (B) below provided the Owner Participant Guaranty shall remain in full force and effect, or (B) a Person which guarantees all of the Owner Participant’s 's obligations under the Operative Documents pursuant to a guaranty substantially in the form of Exhibit Y to the Original Participation Agreement hereto and meets the following criteria: (1) the tangible net worth of the Member Transferee is at least equal to $75 million calculated in accordance with GAAP; and (2) unless waived by Midwest and NRGEME, and so long as no Material Lease Default or Lease Event of Default shall have occurred and be continuing, such Member Transferee is not a Competitor (as defined in Section 10.1(eSECTION 12.1(b)) of, or in material litigation with, Midwest or any Affiliate of Midwest;; 104 (cii) the total number of Unrelated Members, after giving effect to such transactions shall not exceed three; and (diii) the Member Transferee agrees in the guaranty or in another written instrument reasonably acceptable to Midwest and, for so long as the Lien of the Lease Indenture has not been terminated or discharged, the Lease Indenture Trustee and the Pass Through Trustee Trustees to be bound by this Section SECTION 18.18 and by provisions of Section SECTION 18.19 of this Agreement. (eb) Neither the Facility Lessee nor NRG EME shall not be responsible for any adverse tax consequence to the Owner Lessor, the Owner Participant or the Guarantor resulting from any transfer pursuant to this Section SECTION 18.18 and the Pricing Assumptions shall not be changed as a result of any such transfer. (fc) The OP Member shall give the Owner Lessor, the Owner Trustee, the Lease Indenture Trustee, the Pass Through TrusteeTrustees, Midwest and NRG thirty (30) EME 30 days prior written notice of such transfer, or ten (10) 10 days in the case of a transfer to an Affiliate of the Owner Participant, specifying the name and address of any proposed Member Transferee and such additional information as shall be necessary to determine whether the proposed transfer satisfies the requirements of this Section SECTION 18.18. If requested by the OP Member, the Owner Participant, the Lease Indenture Trustee or the Pass Through TrusteeTrustees, Midwest or NRG EME shall acknowledge qualifying transfers. All reasonable fees, expenses and charges of the Lease Indenture Trustee, the Pass Through TrusteeTrustees, Midwest and NRG EME (including reasonable attorneys’ ' fees and expenses in connection with any such transfer or proposed transfer), including any of the foregoing relating to any amendments to the Operative Documents required in connection therewith, shall be paid by the OP Member, without any right of indemnification from Midwest, NRGEME, the Lease Indenture Trustee, the Pass Through Trustee Trustees or any other Person; providedPROVIDED, howeverHOWEVER, that the OP Member shall have no obligation to pay fees, expenses or charges of Midwest and NRG EME as a result of any transfer while a Material Lease Default or a Lease Event of Default is continuing, in which case Midwest or NRG EME shall be obligated to pay such costs.. 105 (gd) Upon any transfer to a Member Transferee specified in clause (a)(i)(B) of this Section SECTION 18.18 and compliance with all of the other provisions of this Section SECTION 18.18, (i) the Member Transferee shall, to the extent of the Membership Interest conveyed to the Member Transferee, be deemed an “"OP Member” " for purposes of this Section SECTION 18.18 and the Person executing the guaranty pursuant to such clause (a)(i)(B) shall be deemed a “"OP Guarantor” " for all purposes and each reference in this Agreement and each other Operative Document to the “"OP Guarantor” " shall thereafter be deemed to include such Member Transferee or the Person executing such guaranty, as the case may be, to the extent of the obligations expressly transferred to the Member Transferee and guaranteed by such Person, for all purposes and (ii) the existing OP Guarantor shall be released from all obligations under its Owner Participant Guaranty to the extent such obligations are expressly guaranteed by the Member Transferee or such Affiliate; providedPROVIDED, howeverHOWEVER, that in no event shall any such transfer waive or release the existing OP Guarantor from any liability existing immediately prior to or occurring simultaneously with such transfer. Except as expressly provided in the immediately preceding sentence, no transfer of any Membership Interest shall effect the obligations of the existing OP Guarantor under the Owner Participant Guaranty or any other OP Guarantor under its Owner Participant Guaranty. (he) Notwithstanding anything herein to the contrary, any transfer of Membership Interest pursuant to this Section SECTION 18.18 shall be subject to Midwest’s 's right of first offer and right of first refusal set forth in Sections SECTION 16.1 and 16.2 of this Agreement16.2, respectfully, to the same extent as if such transfer were a transfer by the Owner Participant of its Beneficial Interest.

Restrictions on Transfer of Membership Interest. (a) No OP Member shall, during the Facility Lease Term, assign, convey or transfer any of its right, title or interest in the Membership Interest or cause the Owner Participant to issue additional membership interests without the prior written consent of Midwest and NRG EME and, for so long as the Lien of the Lease Indenture has not been terminated or discharged, the Lease Indenture Trustee and the Pass Through TrusteeTrustees; providedPROVIDED, howeverHOWEVER, that an OP Member may assign, convey or transfer all or any part of its interest in the Membership Interest without such consent to a Person (the “Member Transferee”"MEMBER TRANSFEREE"), if the Owner Participant Guaranty shall remain outstanding and in full force and effect or each of the following conditions condi- tions shall have been satisfied: (bi) the Member Transferee shall be either (A) an Affiliate of the Owner Participant which does not otherwise qualify under clause (B) below provided the Owner Participant Guaranty shall remain in full force and effect, or (B) a Person which guarantees all of the Owner Participant’s 's obligations under the Operative Documents pursuant to a guaranty substantially in the form of Exhibit Y to the Original Participation Agreement hereto and meets the following criteria: (1) the tangible net worth of the Member Transferee is at least equal to $75 million calculated in accordance with GAAP; and (2) unless waived by Midwest and NRGEME, and so long as no Material Lease Default or Lease Event of Default shall have occurred and be continuing, such Member Transferee is not a Competitor (as defined in Section 10.1(eSECTION 12.1(b)) of, or in material litigation with, Midwest or any Affiliate of Midwest;; 104 (cii) the total number of Unrelated Members, after giving effect to such transactions shall not exceed three; and (diii) the Member Transferee agrees in the guaranty or in another written instrument reasonably acceptable to Midwest and, for so long as the Lien of the Lease Indenture has not been terminated or discharged, the Lease Indenture Trustee and the Pass Through Trustee Trustees to be bound by this Section SECTION 18.18 and by provisions of Section SECTION 18.19 of this Agreement. (eb) Neither the Facility Lessee nor NRG EME shall not be responsible for any adverse tax consequence to the Owner Lessor, the Owner Participant or the Guarantor resulting from any transfer pursuant to this Section SECTION 18.18 and the Pricing Assumptions shall not be changed as a result of any such transfer. (fc) The OP Member shall give the Owner Lessor, the Owner Trustee, the Lease Indenture Trustee, the Pass Through TrusteeTrustees, Midwest and NRG thirty (30) EME 30 days prior written notice of such transfer, or ten (10) 10 days in the case of a transfer to an Affiliate of the Owner Participant, specifying the name and address of any proposed Member Transferee and such additional information as shall be necessary to determine whether the proposed transfer satisfies the requirements of this Section SECTION 18.18. If requested by the OP Member, the Owner Participant, the Lease Indenture Trustee or the Pass Through TrusteeTrustees, Midwest or NRG EME shall acknowledge qualifying transfers. All reasonable fees, expenses and charges of the Lease Indenture Trustee, the Pass Through TrusteeTrustees, Midwest and NRG EME (including reasonable attorneys’ ' fees and expenses in connection with any such transfer or proposed transfer), including any of the foregoing relating to any amendments to the Operative Documents required in connection therewith, shall be paid by the OP Member, without any right of indemnification from Midwest, NRGEME, the Lease Indenture Trustee, the Pass Through Trustee Trustees or any other Person; providedPROVIDED, howeverHOWEVER, that the OP Member shall have no obligation to pay fees, expenses or charges of Midwest and NRG EME as a result of any transfer while a Material Lease Default or a Lease Event of Default is continuing, in which case Midwest or NRG EME shall be obligated to pay such costs.. 105 (gd) Upon any transfer to a Member Transferee specified in clause (a)(i)(B) of this Section SECTION 18.18 and compliance with all of the other provisions of this Section SECTION 18.18, (i) the Member Transferee shall, to the extent of the Membership Interest conveyed to the Member Transferee, be deemed an “"OP Member” " for purposes of this Section SECTION 18.18 and the Person executing the guaranty pursuant to such clause (a)(i)(B) shall be deemed a “"OP Guarantor” " for all purposes and each reference in this Agreement and each other Operative Document to the “"OP Guarantor” " shall thereafter be deemed to include such Member Transferee or the Person executing such guaranty, as the case may be, to the extent of the obligations expressly transferred to the Member Transferee and guaranteed by such Person, for all purposes and (ii) the existing OP Guarantor shall be released from all obligations under its Owner Participant Guaranty to the extent such obligations are expressly guaranteed by the Member Transferee or such Affiliate; providedPROVIDED, howeverHOWEVER, that in no event shall any such transfer waive or release the existing OP Guarantor from any liability existing immediately prior to or occurring simultaneously with such transfer. Except as expressly provided in the immediately preceding sentence, no transfer of any Membership Interest shall effect the obligations of the existing OP Guarantor under the Owner Participant Guaranty or any other OP Guarantor under its Owner Participant Guaranty. (he) Notwithstanding anything herein to the contrary, any transfer of Membership Interest pursuant to this Section SECTION 18.18 shall be subject to Midwest’s 's right of first offer and right of first refusal set forth in Sections SECTION 16.1 and 16.2 of this Agreement16.2, respectfully, to the same extent as if such transfer were a transfer by the Owner Participant of its Beneficial Interest.

Restrictions on Transfer of Membership Interest. (a) No OP Member shall, during the Facility Lease Term, assign, convey or transfer any of its right, title or interest in the Membership Interest or cause the Owner Participant to issue additional membership interests without the prior written consent of Midwest and NRG and, for so long as the Lien of the Lease Indenture has not been terminated or dischargedLessor Notes are outstanding, the Lease Indenture Trustee and the Pass Through TrusteeHolder Representative; providedPROVIDED, howeverHOWEVER, that an OP Member may assign, convey or transfer all or any part of its interest in the Membership Interest without such consent to a Person (the “Member Transferee”"MEMBER TRANSFEREE"), if the Owner Participant Guaranty shall remain outstanding and in full force and effect or each of the following conditions shall have been satisfied: (bi) the Member Transferee shall be either (A) an Affiliate of the Owner Participant which does not otherwise qualify under clause (B) below provided the Owner Participant Guaranty shall remain in full force and effect, or (B) a Person which guarantees all of the Owner Participant’s 's obligations under the Operative Documents pursuant to a guaranty substantially in the form of Exhibit Y to the Original Participation Agreement hereto and meets the following criteria: (1) the tangible net worth of the Member Transferee is at least equal to $75 million calculated in accordance with GAAP; and (2) unless waived by Midwest and NRGMidwest, and so long as no Material Lease Default or Lease Event of Default shall have occurred and be continuing, such Member Transferee is not a Competitor (as defined in Section 10.1(eSECTION 12.1(b)) of, or in material litigation with, Midwest or any Affiliate of Midwest; (cii) the total number of Unrelated Members, after giving effect to such transactions shall not exceed three; and (diii) the Member Transferee agrees in the guaranty or in another written instrument reasonably acceptable to Midwest and, for so long as the Lien of the Lease Indenture has not been terminated or dischargedLessor Notes are outstanding, the Lease Indenture Trustee and the Pass Through Trustee Holder Representative to be bound by this Section 18.18 and by provisions of Section 18.19 of this AgreementSECTION 22.18. (eb) Neither the Facility Lessee Lessee, nor NRG the Facility Sublessee shall not be responsible for any adverse tax consequence to the Owner Lessor, the Owner Participant or the Guarantor resulting from any transfer pursuant to this Section 18.18 SECTION 22.18 and the Pricing Assumptions shall not be changed as a result of any such transfer. (fc) The OP Member shall give the Owner Lessor, the Owner Trustee, the Lease Indenture TrusteeMidwest LC Issuer, the Pass Through Trustee, RCE LC Issuer and Midwest and NRG thirty (30) 30 days prior written notice of such transfer, or ten (10) 10 days in the case of a transfer to an Affiliate of the Owner Participant, specifying the name and address of any proposed Member Transferee and such additional information as shall be necessary to determine whether the proposed transfer satisfies the requirements of this Section 18.18SECTION 22.18. If requested by the OP Member, the Owner Participant, the Lease Indenture Trustee Midwest LC Issuer, the RCE LC Issuer or the Pass Through TrusteeHolder Representative, Midwest or NRG shall acknowledge qualifying transfers. All reasonable fees, expenses and charges of the Lease Indenture Trustee, the Pass Through Trustee, Holder Representative and Midwest and NRG (including reasonable attorneys’ ' fees and expenses in connection with any such transfer or proposed transfer), including any of the foregoing relating to any amendments to the Operative Documents required in connection therewith, shall be paid by the OP Member, without any right of indemnification from Midwest, NRG, the Lease Indenture Trustee, the Pass Through Trustee Midwest or any other Person; providedPROVIDED, howeverHOWEVER, that the OP Member shall have no obligation to pay fees, expenses or charges of Midwest and NRG as a result of any transfer while a Material Lease Default or a Lease Event of Default is continuing, in which case Midwest or NRG shall be obligated to pay such costs. (gd) Upon any transfer to a Member Transferee specified in clause (a)(i)(B) of this Section 18.18 SECTION 22.18 and compliance with all of the other provisions of this Section 18.18SECTION 22.18, (i) the Member Transferee shall, to the extent of the Membership Interest conveyed to the Member Transferee, be deemed an “"OP Member” " for purposes of this Section 18.18 SECTION 22.18 and the Person executing the guaranty pursuant to such clause (a)(i)(B) shall be deemed a “OP "Guarantor” " for all purposes and each reference in this Agreement and each other Operative Document to the “OP "Guarantor” " shall thereafter be deemed to include such Member Transferee or the Person executing such guaranty, as the case may be, to the extent of the obligations expressly transferred to the Member Transferee and guaranteed by such Person, for all purposes and (ii) the existing OP Guarantor shall be released from all obligations under its Owner Participant Guaranty to the extent such obligations are expressly guaranteed by the Member Transferee or such Affiliate; providedPROVIDED, howeverHOWEVER, that in no event shall any such transfer waive or release the existing OP Guarantor from any liability existing immediately prior to or occurring simultaneously with such transfer. Except as expressly provided in the immediately preceding sentence, no transfer of any Membership Interest shall effect the obligations of the existing OP Guarantor under the Owner Participant Guaranty or any other OP Guarantor under its Owner Participant Guaranty. (h) Notwithstanding anything herein to the contrary, any transfer of Membership Interest pursuant to this Section 18.18 shall be subject to Midwest’s right of first offer and right of first refusal set forth in Sections 16.1 and 16.2 of this Agreement, respectfully, to the same extent as if such transfer were a transfer by the Owner Participant of its Beneficial Interest.