Common use of Transfer of Member Interest Clause in Contracts

Transfer of Member Interest. The Owner Participant covenants and agrees that it shall not during the Facility Lease Term assign, convey or transfer any of its right, title or interest in the Member Interest without the prior written consent of the Facility Lessee and, so long as the Lien of the Collateral Trust Indenture has not been terminated or discharged, without the prior written consent of the Indenture Trustee; provided, however, that the Owner Participant may, subject to Section 7.6, assign, convey or transfer all or any part of its interest in the Member Interest without such consent to a Person (the "Transferee") which shall assume the duties and obligations of the Owner Participant under the Operative Documents with respect to the interest being transferred pursuant to an OP Assignment and Assumption Agreement substantially in the form of Exhibit J hereto, if each of the following conditions shall have been satisfied on or prior to such transfer: the Facility Lessee, the Indenture Trustee and the Pass Through Trustees shall have received an opinion(s) of counsel (including an opinion with respect to a guaranty pursuant to clause (iii) of this Section 7.1, if applicable), which opinion(s) and counsel are reasonably satisfactory to each such recipient and consistent in scope to the opinions delivered on behalf of the Owner Participant at the Closing, including that all regulatory approvals required in connection with such transfer or necessary to assume the Owner Participant's obligations under the Operative Documents shall have been obtained and that the proposed transfer of the Member Interest will not require registration under the Securities Act; the Transferee shall be a "United States person" within the meaning of Section 7701(a)(30) of the Code; the Transferee shall be either (A) an Affiliate of the transferor Owner Participant which does not otherwise qualify under clause (B) below (but in any event, such Affiliate shall not be a Competitor of Calpine); provided that all of the payment and performance obligations of the Transferee with respect to the interest being transferred under the Operative Documents shall be guaranteed by the transferor Owner Participant, or a Person then providing a guaranty of the transferor Owner Participant's obligations hereunder, pursuant to an OP Parent Guaranty or (B) a Person which meets, or the payment and performance obligations of which with respect to the interest being transferred under the Operative Documents are guaranteed (pursuant to a OP Parent Guaranty) by a Person (the transferor Owner Participant or such other guarantor, the "Transferee Guarantor") which meets, the following criteria: (1) the tangible net worth of the Transferee or Transferee Guarantor, is at least equal to $75 million calculated in accordance with GAAP; and (2) unless waived in writing by the Facility Lessee prior to such transfer, such Transferee is not a Competitor of Calpine or in material litigation against the Facility Lessee or any Affiliate of the Facility Lessee without the consent of the Facility Lessee; and upon consummation of such transfer, there shall not be more than four (4) Owner Participants for the Overall Transaction; provided that any related Owner Participants that shall have the same decision maker and vote their interest together as a single vote shall count as one for purposes of this clause (iv).

Transfer of Member Interest. The Owner Participant covenants and agrees that it shall not during the Facility Lease Term assign, convey or transfer any of its right, title or interest in the Member Interest without the prior written consent of the Facility Lessee and, so long as the Lien of the Collateral Trust Indenture has not been terminated or discharged, without the prior written consent of the Indenture Trustee; provided, however, that the Owner Participant may, subject to Section 7.6, assign, convey or transfer all or any part of its interest in the Member Interest without such consent to a Person (the "Transferee") which shall assume the duties and obligations of the Owner Participant under the Operative Documents with respect to the interest being transferred pursuant to an OP Assignment and Assumption Agreement substantially in the form of Exhibit J hereto, if each of the following conditions shall have been satisfied on or prior to such transfer: the Facility Lessee, the Indenture Trustee and the Pass Through Trustees shall have received an opinion(s) of counsel (including an opinion with respect to a guaranty pursuant to clause (iii) of this Section 7.1, if applicable), which opinion(s) and counsel are reasonably satisfactory to each such recipient and consistent in scope to the opinions delivered on behalf of the Owner Participant at the Closing, including that all regulatory approvals required in connection with such transfer or necessary to assume the Owner Participant's obligations under the Operative Documents shall have been obtained and that the proposed transfer of the Member Interest will not require registration under the Securities Act; the Transferee shall be a "United States person" within the meaning of Section 7701(a)(30) of the Code; the Transferee shall be either (A) an Affiliate of the transferor Owner Participant which does not otherwise qualify under clause (B) below (but in any event, such Affiliate shall not be a Competitor of Calpine); provided that all of the payment and performance obligations of the Transferee with respect to the interest being transferred under the Operative Documents shall be guaranteed by the transferor Owner Participant, or a Person then providing a guaranty of the transferor Owner Participant's obligations hereunder, pursuant to an OP Parent Guaranty or (B) a Person which meets, or the payment and performance obligations of which with respect to the interest being transferred under the Operative Documents are guaranteed (pursuant to a OP Parent Guaranty) by a Person (the transferor Owner Participant or such other guarantor, the "Transferee Guarantor") which meets, the following criteria: (1) the tangible net worth of the Transferee or Transferee Guarantor, is at least equal to $75 million calculated in accordance with GAAP; and (2) unless waived in writing by the Facility Lessee prior to such transfer, such Transferee is not a Competitor of Calpine or in material litigation against the Facility Lessee or any Affiliate of the Facility Lessee without the consent of the Facility Lessee; and upon consummation of such transfer, there shall not be more than four (4) Owner Participants for the Overall Transaction; provided that any related Owner Participants that shall have the same decision maker and vote their interest together as a single vote shall count as one for purposes of this clause (iv). Notwithstanding the foregoing, the restrictions set forth in Section 7.1 shall not inure to the benefit of the Facility Lessee if such transfer occurs during the continuance of a Significant Lease Default or Lease Event of Default.

Transfer of Member Interest. The Owner Participant covenants and agrees that it shall not during the Facility Lease Term assign, convey or transfer any of its right, title or interest in the Member Interest without the prior written consent of the Facility Lessee and, so long as the Lien of the Collateral Trust Indenture has not been terminated or discharged, without the prior written consent of the Indenture Trustee; provided, however, that the Owner Participant may, subject to Section 7.6, assign, convey or transfer all or any part of its interest in the Member Interest without such consent to a Person (the "Transferee") which shall assume the duties and obligations of the Owner Participant under the Operative Documents with respect to the interest being transferred pursuant to an OP Assignment and Assumption Agreement substantially in the form of Exhibit J hereto, if each of the following conditions shall have been satisfied on or prior to such transfer: the Facility Lessee, the Indenture Trustee and the Pass Through Trustees shall have received an opinion(s) of counsel (including an opinion with respect to a guaranty pursuant to clause (iii) of this Section 7.1, if applicable), which opinion(s) and counsel are reasonably satisfactory to each such recipient and consistent in scope to the opinions delivered on behalf of the Owner Participant at the Closing, including that all regulatory approvals required in connection with such transfer or necessary to assume the Owner Participant's obligations under the Operative Documents shall have been obtained and that the proposed transfer of the Member Interest will not require registration under the Securities Act; the Transferee shall be a "United States person" within the meaning of Section 7701(a)(30) of the Code; the Transferee shall be either (A) an Affiliate of the transferor Owner Participant which does not otherwise qualify under clause (B) below (but in any event, such Affiliate shall not be a Competitor of Calpine); provided that all of the payment and performance obligations of the Transferee with respect to the interest being transferred under the Operative Documents shall be guaranteed by the transferor Owner Participant, or a Person then providing a guaranty of the transferor Owner Participant's obligations hereunder, pursuant to an OP Parent Guaranty or (B) a Person which meets, or the payment and performance obligations of which with respect to the interest being transferred under the Operative Documents are guaranteed (pursuant to a OP Parent Guaranty) by a Person (the transferor Owner Participant or such other guarantor, the "Transferee Guarantor") which meets, the following criteria: (1) the tangible net worth of the Transferee or Transferee Guarantor, is at least equal to $75 million calculated in accordance with GAAP; and (2) unless waived in writing by the Facility Lessee prior to such transfer, such Transferee is not a Competitor of Calpine or in material litigation against the Facility Lessee or any Affiliate of the Facility Lessee without the consent of the Facility Lessee; and upon consummation of such transfer, there shall not be more than four (4) Owner Participants for the Overall Transaction; provided that any related Owner Participants that shall have the same decision maker and vote their interest together as a single vote shall count as one for purposes of this clause (iv). Notwithstanding the foregoing, the restrictions set forth in this Section 7.1 shall not inure to the benefit of the Facility Lessee if such transfer occurs during the continuance of a Significant Lease Default or Lease Event of Default.