Clinton (as Applicant) for NYSERDA (as Beneficiary); and (c) REC Letter of Credit S904273 for $1,375,127, dated March 20, 2007, issued by Citizens Bank of Connecticut, on behalf of Noble Ellenburg (as Applicant) for NYSERDA (as Beneficiary), as amended by Amendment to REC Letter of Credit S904273, increasing the amount by $687,563.64, dated January 9, 2008, issued by Citizens Bank of Connecticut, on behalf of Noble Ellenburg (as Applicant) for NYSERDA (as Beneficiary).

“Regulated Holder” means any holder of the Company’s Securities that is (or that is a Subsidiary of a bank holding company that is) subject to the various provisions of Regulation Y of the Board of Governors of the Federal Reserve Systems, 12 C.F.R., Part 225 (or any successor to Regulation Y).

“Regulatory Affiliate” means, with respect to any specified Person, any other Person directly or indirectly controlling, controlled by or under common control with such Person. The term “control” (including the terms “controlled by” or “under common control with”) means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through ownership, by contract, or otherwise.  Any Person shall be deemed a “Regulatory Affiliate” of any specified Person if such Person directly or indirectly owns or controls 5% or more of the voting securities of the specified Person, if the specified Person directly or indirectly owns or controls 5% or more of the voting securities of such Person, or if 5% or more of the voting securities of the specified Person and such Person are under common ownership or control, directly or indirectly.

“Regulatory Allocations” has the meaning set forth in Section 5.01(c).

“Regulatory Problem” means (a) any set of facts or circumstances wherein it has been asserted by any Governmental Authority (or a Member or the Managing Member reasonably believes based on advice of its counsel or regulators that there is a significant risk of such assertion) that such Person (or any bank holding company or other regulated bank entity that controls such Person) is not entitled to hold, or exercise any material right with respect to, all or any portion of the Securities of the Company which such Person holds or (b) such Person and its Regulatory Affiliates does or would own, control or have power (including voting rights) over a greater quantity of Securities of the Company than is permitted under any Applicable Law.

“Related Party” means at any time during the PTC Period, (a) any Person who is then purchasing electricity generated by any of the Wind Farms or (b) any Person related (within the meaning set forth in Code Section 45(e)(4) or any successor to such Section) to any Person who is then purchasing electricity generated by any of the Wind Farms; provided, any Person (or Person related to such Person) whose sole purchases of electricity generated by any of the Wind Farms are retail purchases from a Person other than the Company or any Project Company shall not be a “Related Party.”

“Relevant Damages” means, with respect to any specified Person, any damage, loss (including loss or disallowance of or failure to qualify for PTCs), cost or expense suffered or incurred by such Person, but excluding special, incidental, consequential and punitive damages.

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“Renewable Energy Certificates” means Renewable Energy Certificates issued by NYSERDA as mandated by the New York State 2004 Renewable Portfolio Standard.

“Required Voting Percentage” means, prior to the Flip Point, the Majority of all Members and, after the Flip Point, Members collectively holding at least 50.1% of all then outstanding Class B Units, provided such term shall continue to mean the Majority of all Members with respect to the following actions:

(a)           a change in the U.S. federal tax classification of the Company or any Project Company from a partnership or disregarded entity, as applicable, to a corporation;

(b)           the sale, assignment, lease or other transfer of all or substantially all of the assets of the Company or any Project Company to any Person (other than to an Affiliate of the Sponsor or the Class B Member, which transaction (if any) shall be governed solely by Section 6.03) in any transaction or series of transactions; provided, the Consent of Class A Member shall not be required if (i) a Majority of Class A Members or the Class B Member request an appraisal of the Fair Market Value of such assets (which request shall be made within thirty (30) Days of receipt of notice of the proposed transaction), (ii) a Qualified Appraiser mutually agreed upon by the Class B Member and the Class A Members determines that the proposed sales price is within the range of the Fair Market Values of such assets, or if not within such range, the Qualified Appraiser determines the range of Fair Market Values of such assets (which determinations shall be made within fifteen (15) Days following the appointment of the Qualified Appraiser), and (iii) the purchaser agrees in writing to purchase such assets for an amount within the range of the Fair Market Values determined by the Qualified Appraiser; provided further, for the avoidance of doubt, the Consent of Class A Member shall not be required for (A) sales of energy, capacity or ancillary services, (B) the transfer of any related environmental credits or (C) the transfer of an asset that is worn out, obsolete, or no longer necessary or useful for the operation of the Wind Farms;

(c)           a recapitalization of the Company or any Project Company, or the Company or any Project Company (i) entering into a joint venture with, merging into or consolidating with any Person (other than with an Affiliate of the Sponsor or the Class B Member, which transaction (if any) shall be governed solely by Section 6.03), or (ii) acquiring all or substantially all of the assets or stock of any class of any Person (other than of an Affiliate of the Sponsor or the Class B Member, which transaction (if any) shall be governed solely by Section 6.03), but only if such recapitalization, joint venture, merger, consolidation or acquisition would have a disproportionate adverse effect on the Class A Members;

(d)           a change in the legal form of the Company or any Project Company, or the liquidation (including any transaction or series of related transactions resulting in a liquidation), wind-up or dissolution of the Company or any Project Company, in each case except as permitted under this Agreement;

(e)           the sale or issuance of any interest, or any option, warrant or similar right to acquire any interest, of any kind in the Company (other than issuances of additional

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Units pursuant to Section 3.04) or any Project Company, but only if such sale or issuance would have a disproportionate adverse effect on the Class A Members;

(f)            the settlement of any claim or action, or the confession of any judgment, against the Company or any Project Company that includes any admission of criminal liability or for which the Class A Members are personally liable;

(g)           the amendment, modification, termination or expiration of any Governmental Approval not otherwise in the ordinary course of business required for the operation, ownership, management or maintenance of any of the Wind Farms or the sale or transmission of power therefrom in a manner that would have a Material Adverse Effect or puts the Wind Farms at risk of foreclosure under the Debt Financing Documents;

(h)           the Company or any Project Company taking or filing any action or instituting, or consenting to the institution of, any proceedings in Bankruptcy against the Company or a Project Company; and

(i)            the Company or any Project Company taking any actions or decisions that are reserved to the Class A Members after the Flip Point under the terms of this Agreement (unless directed to do so by the Members pursuant to this Agreement).

“SCADA” means supervisory control and data acquisition, as that term is applied to both equipment and operational practices under Appendix G to each Interconnection Agreement, and as referenced in the tariff of NYISO and that certain Order of FERC in Docket No. ER06-506 (March 17, 2006).

“Securities” means with respect to any Person, such Person’s capital stock or limited liability company interests or any options, warrants or other Securities which are directly or indirectly convertible into, or exercisable or exchangeable for, such Person’s capital stock or limited liability company interests (whether or not such derivative Securities are issued by the Company).  Whenever a reference herein to Securities refers to any derivative Securities, the rights of the Class A Equity Investors shall apply to such derivative Securities and all underlying Securities directly or indirectly issuable upon conversion, exchange or exercise of such derivative Securities.

“Special Event” has the meaning set forth in Section 9.01.

“Specified Revenues” has the meaning set forth in Section 5.09.

“Specified Vicinity” means, with respect to any Wind Farm, any area encompassed by a circle, the center of which is any Wind Turbine located on such Wind Farm and the radius of which is equal to twenty (20) times the diameter of the rotors of closest wind turbine which is part of any other wind-power generation facility.

“Sponsor” means Noble Environmental Power, LLC, a Delaware limited liability company.

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“Sponsor Guaranty” means the guaranty, dated as of June 22, 2007, made by Sponsor in favor of each Class A Member with respect to the obligations of the Initial Member under this Agreement and the Contribution Agreement, or any replacement guaranty permitted thereby or other replacement credit support approved by the Majority of Class A Members.

“Subsidiary” means with respect to any Person, any other Person of which the securities having a majority of the ordinary voting power in electing the board of directors (or other governing body), at the time as of which any determination is being made, are owned by such first Person either directly or through one or more of its Subsidiaries.

“Tag-Along Notice” has the meaning set forth in Section 3.03(e)(ii).

“Tax Benefits” means those tax benefits contemplated by Section 5.06(b)(iv).

“Tax Cost/Benefit Trigger Amount” has the meaning set forth in Section 5.06(b)(v)(A).

“Tax Costs” means those tax costs contemplated by Section 5.06(b)(iv).

“Tax Exempt Person” means (a) the United States, any state or political subdivision thereof, any possession of the United States, or any agency or instrumentality of any of the foregoing, (b) any organization which is exempt from tax imposed by the Code, (c) any Person who is not a “United States person” within the meaning of Code Section 7701(a)(30), and (d) any Indian tribal government described in Code Section 7701(a)(40).

“Tax Matters Member” has the meaning set forth in Section 7.03(a).

“Tax Payment Date” has the meaning set forth in Section 5.06(b)(iv)(C).

“Tax Return” has the meaning set forth in Section 7.01.

“Term” has the meaning set forth in Section 2.06.

“Terminated Member” has the meaning set forth in Section 10.03(e).

“Tracking Account” has the meaning set forth in the Hedge Facility Agreement.

“Tracking Model” has the meaning set forth in Section 5.06(a)(ii).

“Transaction” has the meaning set forth in Section 3.06(f).

“Treasury Regulation” means the federal income tax regulation (including temporary regulations) promulgated under the Code, as such regulation may be amended from time to time (including corresponding provisions of successor Treasury Regulations).

“Trigger Percentage” has the meaning set forth in Section 5.06(b)(v)(A).

“Turbine Substantial Completion” means, with respect to each Wind Turbine, that (a) such Wind Turbine has been physically completed and all components of such Wind Turbine necessary for such Wind Turbine’s regular production and monitoring through the SCADA of

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electricity have been installed, except “Punch List” items that do not interfere with safe and proper operation and regular production of electricity, (b) such Wind Turbine has successfully achieved “Mechanical Completion” as defined in the applicable EPC Contract, and the EPC Contractor has issued, for such Wind Turbine, the “Mechanical Completion Certificate” as set forth in the applicable EPC Contract, and such certificate has been approved and countersigned by the Independent Engineer, (c) the EPC Contractor has issued a “Certificate for Readiness of Testing” (as defined in the applicable EPC Contract) for such Wind Turbine and such certificate has been approved and countersigned by the Independent Engineer, (d) such Wind Turbine has successfully passed the testing requirements described in the applicable EPC Contract (including the “Acceptance Tests” and “Reliability Tests” (each as defined in the applicable EPC Contract)), has been synchronized to the grid, and is ready to produce energy for sale in commercial quantities on a regular and continuous basis and in a safe and lawful manner and more specifically as per the applicable Turbine Supply Agreement, the “Commercial Operation Certificate” has been issued and countersigned by the Independent Engineer, (e) interconnection agreements are validly in force so as to permit such Wind Turbine (when combined with each other Wind Turbine that has achieved Turbine Substantial Completion) to deliver all energy from such Wind Turbine to the “point of interconnection” specified in the applicable Interconnection Agreement, and such that the “In-Service Date” under each applicable Interconnection Agreement has occurred, and (f) such Wind Turbine has successfully achieved “Substantial Completion” (as defined in the applicable EPC Contract), the EPC Contractor has issued for such Wind Turbine the “Substantial Completion Certificate” (as defined in the applicable EPC Contract), and such certificate has been approved and countersigned by the Independent Engineer.

“Turbine Supply Agreements” has the meaning set forth in the Contribution Agreement.

“Uniform Commercial Code” means the Uniform Commercial Code as in effect from time to time in the State of New York.

“Units” means Class A Units and Class B Units.  Units shall be measured by reference to the Capital Accounts of each Member on the Effective Date, with each Member owning one Unit of the relevant class for each dollar in such Member’s Capital Account on the Effective Date.  Thereafter, the number of Units shall not change unless an additional Capital Contribution is made by any Member, whereupon such Member shall be entitled to one additional Unit for each additional dollar of capital so contributed; provided, however, no Class A Member shall be entitled to any additional Units for any Capital Contributions made by such Member pursuant to the PAYG Agreement.  Upon a Disposition by any Member in accordance with the provisions of this Agreement of any portion of such Member’s Membership Interest, the assignee shall receive from the Disposing Member a number of Units of the relevant class equal to the percentage of the Membership Interest so Disposed multiplied by the total number of Units owned by the Disposing Member immediately prior to the Disposition.

“Wind Farm Municipal Bonds” means (a) Financial Guarantee Bond No.  ###-###-####, dated February 22, 2007, among Noble Bliss, Safeco Insurance Company of America and the Town of Eagle; (b) the bond, fund, or letter of credit required by Section 6 of the License Agreement, dated as of November 9, 2006, between the Town of Eagle and Noble Bliss; (c) the

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financial security required by Section X.E. of the Host Community Agreement, dated as of August 21, 2006, between the Town of Clinton and Noble Clinton; (d) Road Use Bond No.  ###-###-####, dated as of November 21, 2006, among Noble Clinton, Safeco Insurance Company of America and the Town of Clinton; (e) the financial security required by Section X.E of the Host Community Agreement, dated as of August 21, 2006, between Noble Ellenburg and the Town of Ellenburg; and (f) Road Use Bond No.  ###-###-####, dated as of November 21, 2006, among Noble Ellenburg, Safeco Insurance Company of America and the Town of Ellenburg.

“Wind Farms” means the Noble Bliss Wind Farm, the Noble Clinton Wind Farm, and the Noble Ellenburg Wind Farm; and each of them is a “Wind Farm.”

“Wind Farm Sites” has the meaning set forth in the Contribution Agreement.

“Wind Turbines” means the one hundred eighty-eight (188) General Electric 1.5 MW SLE wind turbine generators contemplated to be sold to the Company pursuant to the Turbine Supply Agreements and to be used in the construction of all of the Wind Farms; and each of them is a “Wind Turbine.”

1.02        Construction.  Unless the context requires otherwise:  (a) the gender (or lack of gender) of all words used in this Agreement includes the masculine, feminine, and neuter; (b) words used or defined in the singular include the plural and vice versa; (c) references to Articles and Sections refer to Articles and Sections of this Agreement; (d) references to Exhibits refer to the Exhibits attached to this Agreement, each of which is made a part hereof for all purposes; (e) references to Applicable Laws refer to such laws as they may be amended from time to time, and references to particular provisions of an Applicable Law include any corresponding provisions of any succeeding Applicable Law; (f) terms defined in this Agreement are used throughout this Agreement and in any Exhibits hereto as so defined; (g) references to any agreement, contract or document shall mean such agreement, contract or document as the same may be amended, supplemented or otherwise modified from time to time in accordance with this Agreement; (h) the words “herein”, “hereof” and “hereunder” shall refer to this Agreement as a whole and not to any particular section or subsection of this Agreement; and (i) references to money refer to legal currency of the United States of America.

ARTICLE 2.
ORGANIZATION

2.01        Formation.  The Initial Member formed the Company as a Delaware limited liability company by the filing of a Certificate of Formation of Noble Environmental Power 2006 Hold Co, LLC (the “Delaware Certificate”), dated February 13, 2006 (the “Formation Date”), with the Secretary of State of Delaware pursuant to the Act.  Pursuant to this Agreement, the Parties hereto hereby provide for the admission to the Company of the Class A Equity Investors, effective upon the execution and delivery of this Agreement by all Parties.

2.02        Name.  The name of the Company is “Noble Environmental Power 2006 Hold Co, LLC” and all Company business must be conducted in that name or such other names that comply with Applicable Law as the Managing Member may select; provided, in the event of a

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change in name, the Managing Member shall notify the Members of such name change promptly thereafter.

2.03        Registered Office; Registered Agent; Principal Office.  The address of the registered office of the Company required by the Act to be maintained in the State of Delaware shall be 1209 Orange Street, Wilmington, Delaware 19801 or such other office (which need not be a place of business of the Company) as the Managing Member may designate in the manner provided by Applicable Law.  The registered agent of the Company in the State of Delaware shall be The Corporation Trust Company or such other Person or Persons as the Managing Member may designate in the manner provided by Applicable Law.  The principal office of the Company in the United States shall be at such place as the Managing Member may designate, which need not be in the State of Delaware, and the Company shall maintain records there or in such other place as the Managing Member shall designate. The Managing Member shall give prompt notice to each Member of any election or change in the principal office of the Company.

2.04        Purposes.

(a)           The purposes of the Company are limited to (i) being the sole member of each of the Project Companies, (ii) owning or Disposing of membership interests in any of the Project Companies, (iii) entering into, complying with, performing its obligations and enforcing its rights under, this Agreement, each Principal Project Document to which it is a party, each Hedge Financing Document, each Debt Financing Document to which it is a party, and any other agreements or contracts it has entered into with respect to business of the Company, (iv) causing each Project Company to (A) engage in the acquisition, construction, lease, ownership and sale, and the operation, management, maintenance, financing and refinancing of its Wind Farm, and (B) enter, into, comply with, and perform its obligations and enforce its right under, each Principal Project Document to which it is a party, and any other agreements and contracts it has entered into with respect to business of the Project Companies, and to purchase, own, use, transmit, market and sell any electricity output therefrom at wholesale, or any input, output or right associated therewith for the purpose of generating a profit, and (iv) all actions incidental, necessary or appropriate with respect to the matters covered in preceding clauses (i)–(iv) that may be engaged in by a limited liability company formed under the Act.

(b)           The Company shall exist for the purposes and business specified in Section 2.04(a) and this Agreement shall not be deemed to create a partnership, company, joint venture or other arrangement among the Members with respect to any activities whatsoever other than the purposes and business specified in Section 2.04(a) and the activities related thereto.

2.05        Foreign Qualification.  Prior to the Company’s conducting business in any jurisdiction other than Delaware, the Managing Member shall cause the Company to comply, with all requirements necessary to qualify the Company as a foreign limited liability company in that jurisdiction.  At the request of the Managing Member, each Member shall execute, acknowledge, swear to, and deliver all certificates and other instruments conforming with this Agreement that are necessary or appropriate to qualify, continue, and terminate the Company as a foreign limited liability company in all such jurisdictions in which the Company may conduct business.

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2.06        Term.  The period of existence of the Company (the “Term”) commenced on the Formation Date and shall end fifty (50) years from such date unless the Company is earlier dissolved in accordance with either the provisions of this Agreement or the Act.

2.07        No State-Law Partnership.  The Members intend that the Company not be a partnership (including a limited partnership) or joint venture, and that no Member be a partner or joint venturer of any other Member, for any purposes other than tax purposes, and this Agreement may not be construed to suggest otherwise.

2.08        Units; Certificates of Membership Interest; Applicability of Article 8 of UCC.  Membership Interests shall be represented by Units, divided into Class A Units (in the case of Class A Membership Interests) and Class B Units (in the case of Class B Membership Interests).  Each Unit shall represent a Capital Contribution in the amount of $1.  The Membership Interests represented by Class A Units and Class B Units shall have the respective rights, powers and preferences ascribed to Class A Units and Class B Units in this Agreement.  The class of Membership Interest of a Member shall be as provided in Exhibit B.  The Members hereby specify, acknowledge and agree that all Units (and the Membership Interests represented thereby) are securities governed by Article 8 and all other provisions of the Uniform Commercial Code, and pursuant to the terms of Section 8-103(c) of the Uniform Commercial Code, such interests shall be “securities” for all purposes under such Article 8 and under all other provisions of the Uniform Commercial Code.  All Units (and the Membership Interests represented thereby) shall be represented by certificates substantially in the form attached hereto as Exhibit A, shall be recorded in a register thereof maintained by the Company, and shall be subject to such rules for the issuance thereof in compliance with this Agreement, as the Managing Member may from time to time determine.

ARTICLE 3.
MEMBERSHIP; DISPOSITIONS OF INTERESTS

3.01        Members.  As of the date of this Agreement (a) the Class A Equity Investors listed on Exhibit B hereto are hereby admitted as Members of the Company, with the class designation and number of Units set forth on such Exhibit B; and (b) the Initial Member listed on Exhibit B hereto shall have the class designation and hold the Units set forth on such Exhibit B.

3.02        Representations, Warranties and Covenants.

(a)           Each Member severally but not jointly hereby represents and warrants and, with respect to Section 3.02(a)(iv), (v), (vii) and (viii), covenants to the Company and each other Member with respect to itself only, that the following statements are true and correct as of (x) with respect to the Class A Equity Investors and the Initial Member, the Effective Date, (y) with respect to any other Person hereafter admitted as a Member pursuant to this Agreement, the date such Person is so admitted as a Member, and (z) with respect to Sections 3.02(a)(iv), (v) and (vi), at all times that such Member is a Member:

(i)            such Member is duly incorporated, organized or formed (as applicable), validly existing, and (if applicable) in good standing under the Applicable Law of the jurisdiction of its incorporation, organization or formation;

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if required by Applicable Law, such Member is duly qualified and in good standing in the jurisdiction of its principal place of business, if different from its jurisdiction of incorporation, organization or formation; and such Member has full power and authority to execute and deliver this Agreement and to perform its obligations hereunder, and all necessary actions by the board of directors, shareholders, managers, members, partners, trustees, beneficiaries, or other applicable Persons necessary for the due authorization, execution, delivery, and performance of this Agreement by such Member have been duly taken;

(ii)           such Member has duly executed and delivered this Agreement and it constitutes the legal, valid and binding obligation of such Member enforceable against it in accordance with its terms (except as may be limited by bankruptcy, insolvency or similar Applicable Laws of general application and by the effect of general principles of equity, regardless of whether considered at law or in equity);

(iii)          such Member’s authorization, execution, delivery, and performance of this Agreement does not and will not (A) conflict with, or result in a breach, default or violation of, the organizational documents of such Member; (B) violate in any material respect, result in a material breach of, constitute (with due notice or lapse of time or both) a material default or cause any material obligation, material penalty, material premium, or any right of termination to arise or accrue under, any Principal Project Document or other material contract or agreement to which such Member is a party or is otherwise subject; (C) conflict with, or result in a breach, default or violation of any material aspect of any Applicable Law, order, judgment, decree, writ, injunction or arbitral award to which such Member is subject; or (D) require any consent, approval or authorization from, filing or registration with, or notice to, any Governmental Authority or other Person, unless such requirement has already been satisfied, except to the extent such failure to obtain such consent, approval or authorization could not reasonably be expected to cause a Material Adverse Effect;

(iv)          such Member (or if such Member is a disregarded entity, such Member’s owner) is and shall be a United States person not subject to withholding under Code Section 1446;

(v)           such Member is not and shall not be a Related Party;

(vi)          that either (i) no part of the aggregate Capital Contribution made by such Member and used by such Member to acquire any Units or Membership Interest, constitutes assets of any “employee benefit plan” within the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), or other “benefit plan investor” (as defined in U.S. Department of Labor Reg. §§2510.3-101 et seq., as modified by ERISA) or assets allocated to any insurance company separate account or general account in which any such employee benefit plan or benefit plan investor (or related trust) has any interest or (ii) the source of the funding used to pay the Capital Contribution made by such Member is an “insurance company general account” within the meaning

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of Department of Labor Prohibited Transaction Exemption 95-60, issued July 12, 1995, and there is no employee benefit plan, treating as a single plan all plans maintained by the same employer or employee organization, with respect to which the amount of the general account reserves and liabilities for all contracts held by or on behalf of such plan exceeds ten percent (10%) of the total reserves and liabilities of such general account (exclusive of separate account liabilities) plus surplus, as set forth in the National Association of Insurance Commissioners “Annual Statement” filed with such Member’s state of domicile;

(vii)         such Member shall provide the Managing Member with written notice not less than sixty (60) Business Days prior to the effective date of any proposed direct or indirect sale, assignment, transfer, conveyance, gift, exchange or other disposition of all or part of the Membership Interests held by such Member, whether such transaction is voluntary, involuntary or by operation of Applicable Law, including by means of upstream mergers or acquisitions.  Such notice shall identify the Member or Regulatory Affiliates of such Member seeking to directly or indirectly dispose of any or all of its Membership Interests, any Person that would directly or indirectly hold any Membership Interests as a result of the proposed transaction, and the total Membership Interests that shall be held directly or indirectly by such Person upon consummation of such proposed transaction.  Such notice shall include all the information necessary to file with FERC an application under Section 203 of the FPA in connection with such transaction, if such application were required.  Such Member, the Company and the Managing Member shall cooperate in order to make any filings with FERC that are reasonably necessary in order to ensure that the proposed transaction will not result in: (a) the Company or any Project Company being in violation of the FPA or any regulation or order of FERC under any of Sections 203, 204 or 205 thereof, or of the New York Public Service Law or any regulation or order of the New York Public Service Commission under Section 70 thereof, (b) the Company or any Project Company being in violation of the terms and conditions of its market-based rate authorization, or (c) the Company or any Project Company ceasing to be an “exempt wholesale generator” as defined in the Public Utility Holding Company Act of 2005 and FERC’s implementing regulations; and

(viii)        such Member shall provide written notice to the Managing Member promptly, and in any case, within fifteen (15) Days of such Member taking any action or becoming aware of any circumstance that would require any Project Company to make a report to FERC pursuant to 18 C.F.R. § 35.27.  Such Member, the Company, the Project Companies and the Managing Member shall cooperate in order to make any filings required under FERC’s rules and regulations to ensure that the Company and each of the Project Companies remain in compliance with the terms and conditions of its market-based rate authorization.

(b)           The Class B Member hereby further represents, warrants and covenants to the Class A Members as follows:

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(i)            the Class B Member shall notify the Class A Members within five (5) Business Days of becoming aware of a material breach by the Class B Member or the Company or any of their respective Affiliates under the Contribution Agreement, this Agreement, or any Principal Project Document;

(ii)           prior to the Flip Point, the Class B Member will not develop, construct or own, and will not in any way participate in (including directly or indirectly through the Company or an Affiliate of the Class B Member or the Company) the development, construction or ownership of, any other wind farm within the Specified Vicinity of any Wind Farm (other than the Noble Chateaugay Wind Farm and the Noble Bellmont Wind Farm for so long as the Chauteaugay/Bellmont Array Loss Agreement is in effect and otherwise subject to the terms therein) if such other wind farm could reasonably be expected to result in a 0.5% or greater reduction in net annual energy output generated by the Wind Farms, as determined by the Independent Engineer, unless the affected Project Company (or its designated payee) is compensated for such reduction in accordance with the applicable Affiliate Array Loss Agreement; provided, if the reduction in net annual energy output could reasonably be expected to be 2% or greater, then the consent of the Majority of Class A Members shall be required prior to such development, construction or ownership; provided further, for the avoidance of doubt, (A) none of the Company, the Project Companies or the Members shall be entitled to any compensation under this Section 3.02(b)(ii) with respect to any reduction in net annual energy output attributable to the Noble Chateaugay Wind Farm and the Noble Bellmont Wind Farm to the extent the affected Project Companies (or their designated payees) were compensated for such reduction pursuant to the Chauteaugay/Bellmont Array Loss Agreement and (B) in determining whether an affected Project Company is entitled to compensation under this Section 3.02(b)(ii) in connection with any modification of the Noble Chateaugay Wind Farm or the Noble Bellmont Wind Farm after the termination of the Chauteaugay/Bellmont Array Loss Agreement, there shall be taken into account only the incremental reduction in net annual energy output (if any) resulting from such modification and the amount of such compensation shall be determined without reference to the immediately preceding 0.5% threshold set forth in this Section 3.02(b)(ii).

(iii)          the Class B Member is not and will not become a Tax Exempt Person.

(c)           Each Class A Member, other than EFS Noble Holdings, hereby covenants to the Company and each other Member, that prior to the termination or expiration of the PAYG Agreement, (i) it shall qualify as an Approved Investor (as modified in this Section 3.02(c)) and (ii) if it fails to qualify as an Approved Investor (as modified in this Section 3.02(c)) at any time during such period, it shall provide within 15 Days a guarantee or other security that satisfies the requirements set forth in the definition of Approved Investor; provided, for purposes of the use of the term “Approved Investor” in this Section 3.02(c), the credit ratings set forth in clause (a) of the definition of “Approved Investor” shall be “BBB” for Standard & Poor’s and “Baa2” for Moody’s.

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(d)           EFS Noble Holdings and the Initial Member hereby further agree as follows:

(i)            From and after the Effective Date, the Company shall notify EFS Noble Holdings promptly after receiving Knowledge of (A) the occurrence of any event of default by the Company or any Project Company under any Real Property Document relating to any Wind Farm Site (other than those relating to Ancillary Border Parcels) or (B) any dispute between any Project Company and any counterparty to any such Real Property Document if the dispute could reasonably be expected to materially adversely affect the production or delivery of energy from any Wind Turbine (an “Estoppels Event”).  The Company shall promptly deliver to the Class B Member and EFS Noble Holdings copies of all notices given or received by the Company or any Project Company relating to any Estoppels Event and shall keep EFS Noble Holdings apprised of the status of the prosecution, defense, compromise or settlement of any Estoppels Event.

(ii)           If EFS Noble Holdings obtains Knowledge of an Estoppels Event prior to the Equity Capital Contribution Date relating to a Wind Turbine affected by the Estoppels Event and the Estoppels Event results in an impairment of the net annual energy output of the affected Wind Farm (whether in connection with a turbine, a substation, a transmission line, or otherwise), then the rights, remedies and obligations of the Company and the Members with respect to the Estoppels Event shall be governed solely by the terms of the Contribution Agreement and not this Agreement.

(iii)          If EFS Noble Holdings obtains Knowledge of an Estoppels Event after the Equity Capital Contribution Date relating to a Wind Turbine affected by the Estoppels Event and (A) the facts giving rise to such Estoppels Event occurred prior to such date and (B) the Estoppels Event results in an impairment of the net annual energy output of the affected Wind Farm (whether in connection with a turbine, a substation, a transmission line, or otherwise), then the Managing Member shall calculate the Relevant Damages, if any, sustained by EFS Noble Holdings as a result of such Estoppels Event.  The amount of such Relevant Damages shall be calculated by running the Base Case Model, and changing the assumptions solely to give effect to (X) the projected changes in cash, revenue and expense, and PTCs reasonably expected to be caused by the Estoppels Event, on a per turbine pro-rata basis for the amount of time a particular turbine or transmission line is, or is reasonably expected to be, shut down or negatively affected (as confirmed by the Independent Engineer), (Y) the projected timing of any distributions pursuant to Section 5.02(f), and (Z) any removal or relocation costs of the Company with respect to any Wind Turbine, while maintaining the Flip Date and the Class A Yield from the original Base Case Model. Notwithstanding the foregoing, to the extent a Wind Turbine can be relocated or an Estoppels Event otherwise can be resolved, the parties shall take such relocation or resolution and the timing thereof into account when calculating the Relevant Damages. Any Relevant Damages payable to EFS Noble Holdings pursuant to this Section 3.02(d)(iii) shall be paid by a distribution from the Company in priority to all other distributions pursuant to Section 5.02(f) until the

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amount of the Relevant Damages is paid in full.  If there is a Dispute with respect to an Estoppels Event, the provisions of Section 9.04 relating to the escrow of distributions shall apply.

(e)           EFS Noble Holdings and the Initial Member hereby further agree as follows:

(i)            From and after the Effective Date, the Company shall notify EFS Noble Holdings promptly after receiving Knowledge of any dispute between NYSEG and the Company or any Project Company if the dispute could reasonably be expected to materially adversely affect the production or delivery of energy from any Wind Turbine (a “NYSEG Event”).  The Company shall promptly deliver to the Class B Member and EFS Noble Holdings copies of all notices given or received by the Company or any Project Company relating to any NYSEG Event and shall keep EFS Noble Holdings apprised of the status of the prosecution, defense, compromise or settlement of any NYSEG Event.

(ii)           If EFS Noble Holdings obtains Knowledge of a NYSEG Event prior to the Equity Capital Contribution Date relating to a Wind Turbine affected by the NYSEG Event, and the NYSEG Event results in impairment of the net annual energy output of the affected Wind Farm (whether in connection with a turbine, a substation, a transmission line, or otherwise), then the rights, remedies and obligations of the Company and the Members with respect to the NYSEG Event shall be governed solely by the terms of the Contribution Agreement and not this Agreement.

(iii)          If EFS Noble Holdings obtains Knowledge of a NYSEG Event after the Equity Capital Contribution Date relating to a Wind Turbine affected by the NYSEG Event, and the NYSEG Event results in an impairment of the net annual energy output of the affected Wind Farm (whether in connection with a turbine, a substation, a transmission line or otherwise), then the Managing Member shall calculate the Relevant Damages, if any, sustained by EFS Noble Holdings as a result of such NYSEG Event.  The amount of such Relevant Damages shall be calculated by running the Base Case Model, and changing the assumptions solely to give effect to (X) the projected changes in cash, revenue and expense, and PTCs reasonably expected to be caused by the NYSEG Event, on a per turbine pro-rata basis for the amount of time a particular turbine or transmission line is, or is reasonably expected to be, shut down or negatively affected (as confirmed by the Independent Engineer), (Y) the projected timing of any distributions pursuant to Section 5.02(f) and (Z) any removal or relocation costs of the Company with respect to any Wind Turbine or transmission line, while maintaining the Flip Date and the Class A Yield from the original Base Case Model.  Notwithstanding the foregoing, to the extent a Wind Turbine or transmission line can be relocated or a NYSEG Event otherwise can be resolved, the parties shall take such relocation or resolution and the timing thereof into account when calculating the Relevant Damages.  Any Relevant Damages payable to EFS Noble Holdings pursuant to this Section 3.02(e)(iii) shall be paid by a distribution from the Company in priority to all other distributions pursuant

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to Section 5.02(f) until the amount of the Relevant Damages is paid in full.  If there is a Dispute with respect to a NYSEG Event, the provisions of Section 9.04 relating to the escrow of distributions shall apply.

(f)            It is expressly understood and agreed that all representations and warranties set forth in this Section 3.02 shall terminate ninety (90) Days after the liquidation or dissolution of the Company and shall inure to the benefit of the successors and assigns of each Member; provided, however, that any representations and warranties that relate to income taxes shall terminate ninety (90) Days after the expiration of the applicable statute of limitations (as may be extended).

3.03        Dispositions and Encumbrances of Membership Interests.

(a)           General Restriction.  A Member may not Dispose of or Encumber all or any portion of its Units or Membership Interest except in strict accordance with this Section 3.03.  (References in this Agreement to Dispositions or Encumbrances of a “Membership Interest” shall also refer to Dispositions or Encumbrances of the corresponding Units or a portion of a Membership Interest or the corresponding Units.  References in this Agreement to Dispositions or Encumbrances of “Units” shall also refer to Dispositions or Encumbrances of the corresponding Membership Interest represented by such Units.) Any attempted Disposition or Encumbrance of any Unit or Membership Interest, other than in strict accordance with this Section 3.03, shall be, and is hereby declared, null and void ab initio.  The Members agree that a breach of the provisions of this Section 3.03 may cause irreparable injury to the Company and to the other Members for which monetary damages (or other remedy at law) are inadequate in view of (i) the complexities and uncertainties in measuring the actual damages that would be sustained by reason of the failure of a Member to comply with such provision and (ii) the uniqueness of the Company’s business and the relationship among the Members.  Accordingly, the Members agree that the provisions of this Section 3.03 may be enforced by specific performance.

(b)           Dispositions of Membership Interests.

(i)            General Provision.  A Member may not Dispose of all or any portion of its Units except by complying with all of the following requirements:

(A)          Prior to the Flip Point.  Prior to the occurrence of the Flip Point, the following rules apply:

(I)            Disposition of more than forty-nine percent (49%) of the Class B Units held by a Class B Member (in one Disposition or cumulatively in a series of Dispositions after the Effective Date) (a) may be effected only upon the consent of the Majority of Class A Members and (b) may not be made to any Disqualified Transferee;

(II)           Disposition of up to forty-nine (49%) or less of the Class B Units held by a Class B Member (in one Disposition or cumulatively in a series of Dispositions after the Effective Date) (a) shall not require the consent of the Class A Members and (b) may not be made to any Disqualified Transferee; and

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(III)         Disposition of Class A Units (a) may not be made to a Disqualified Transferee, and (b) shall be made to an Approved Investor who has expressly assumed the duties and obligations of the Class A Members under the PAYG Agreement in proportion to the Class A Units Disposed to such Person.

(B)           After the Flip Point.  After the occurrence of the Flip Point, the following rules apply:

(I)            Disposition of Class B Units by a Class B Member shall not be subject to the consent of the Class A Members; and

(II)           Disposition of Class A Units by any Class A Member (a) may not be made to any Disqualified Transferee, and (b) shall be made to a Person who has expressly assumed the duties and obligations of such Class A Member, if any, under the PAYG Agreement in proportion to the Class A Units Disposed to such Person.

(C)           Compliance with Requirements.  Such Disposition must comply with the requirements of Section 3.03(b)(iii) and, if the Assignee is to be admitted as a Member, Section 3.03(b)(ii).

(D)          Permitted Disposition; Certain Other Dispositions.  Notwithstanding anything to the contrary in this Section 3.03, (1) the provisions of Sections 3.03(a), 3.03(b)(i) (other than with respect to this Section 3.03(b)(i)(D) and Section 3.03(b)(i)(C)), and 3.03(b)(iv) shall not apply to any Permitted Disposition, and (2) at any time following the PTC Period, where (a) the Flip Point shall not theretofore have occurred, and (b) the sum of all distributions under Section 5.02 to all Members is less than the sum of all cash contributions made to the Company by the Class A Members, Members holding Class A Units shall have the right to dispose of such Class A Units without restriction or application of the provisions of Sections 3.03(b)(i) (other than with respect to this Section 3.03(b)(i)(D) and Section 3.03(b)(i)(C)), 3.03(b)(iii)(F) or 3.03(b)(iv), and (3) the provisions of Sections 3.03(b)(i) (other than with respect to this Section 3.03(b)(i)(D) and Section 3.03(b)(i)(C)), 3.03(b)(iii)(C)(I), and 3.03(b)(iv) shall not apply to Dispositions pursuant to Section 3.03(b)(v); provided, nothing in this Section 3.03(b)(i)(D) shall permit the Disposition of a Member Interest to a Disqualified Transferee.

(ii)           Admission of Assignee as a Member.  An Assignee pursuant to a Permitted Disposition shall be admitted as a Member promptly upon its compliance with Section 3.03(b)(iii).  Any other Assignee has the right to be admitted to the Company as a Member, with the Membership Interest so transferred to such Assignee, only if (A) the Disposing Member making the Disposition has granted the Assignee the Disposing Member’s entire Membership Interest, or, in the case of Disposition of a part of such Member’s Membership Interest, the express right to be so admitted; and (B) such Disposition is effected in strict compliance with this Section 3.03.  Any Assignee that has acquired

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Class B Units from the Initial Member in connection with the Disposition of all (but not less than all) Class B Units then held by the Initial Member and which has the right to be admitted to the Company shall become the replacement Managing Member; provided, such an Assignee may only become the replacement Managing Member if approved by the Required Voting Percentage acting in their reasonable discretion.  For the avoidance of doubt, the Disposition of any of its Class B Units by the Managing Member as permitted by Section 3.03(b)(i)(A)(I), Section 3.03(b)(i)(A)(II) or Section 3.03(b)(i)(B)(I) shall not result in the replacement of the Managing Member other than as set forth in the immediately preceding sentence.

(iii)          Requirements Applicable to All Dispositions and Admissions.  In addition to the requirements set forth in Sections 3.03(b)(i) and 3.03(b)(ii), any Disposition of a Membership Interest and any admission of an Assignee as a Member shall also be subject to the following requirements, and such Disposition (and admission, if applicable) shall not be effective unless such requirements are complied with:

(A)          Disposition Documents.  The following documents must be delivered to the Managing Member, and in the case of Section 3.03(b)(iii)(A)(I), each other Member, and must be satisfactory, in form and substance, to the Managing Member:

(I)            Notice.  Written notice not less than fifteen (15) Business Days prior to the effective date of such Disposition.

(II)           Disposition Instrument.  An instrument implementing the Disposition in substantially the form of Exhibit E hereto or such other form reasonably acceptable to the Managing Member.

(III)         Ratification of this Agreement.  An instrument, executed by the Disposing Member and its Assignee, containing the following information and agreements, to the extent they are not contained in the instrument described in Section 3.03(b)(iii)(A)(II):  (1) the notice address of the Assignee; (2) if applicable, the Parent(s) of the Assignee and the guarantor of the Assignee’s obligations; (3) the percentage ownership of each class of Membership Interest of the Disposing Member after the Disposition by such Disposing Member (based on the number of Class A Units and Class B Units held by the Disposing Member after the Disposition as compared to all Class A Units and Class B Units held by all Members after the Disposition), and its Assignee (based on the number of Class A Units and Class B Units held by the Assignee after the Disposition, but excluding any Membership Interest already held by Assignee prior to the Disposition, as compared to all Class A Units and Class B Units held by all Members after the Disposition) (which percentage ownership of each class of Membership Interest of the Disposing Member and Assignee after the Disposition must total the percentage ownership of each class of Membership Interest of Disposing Member prior to the Disposition); (4) the Assignee’s ratification of and

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agreement to be bound by this Agreement and its confirmation that the representations and warranties in Section 3.02 hereof are true and correct with respect to it; (5) the Assignee’s ratification of the Company’s execution of the Principal Project Documents or other applicable documents; and (6) representations and warranties by the Disposing Member and its Assignee that (x) the Disposition and admission is being made in accordance with all Applicable Laws, and (y) the conditions set forth in Sections 3.03(b)(iii)(B) through (I) are true and correct.

(B)           Securities Laws.  Such Disposition does not violate any provision of Applicable Laws governing securities.

(C)           Tax Consequences.

(I)            Termination.  If such Disposition would occur prior to the later of (1) the occurrence of the Flip Point and (2) the end of the PTC Period, such Disposition will not result in a termination of the Company within the meaning of Code Section 708, or if such Disposition may result in such a termination, the Disposing Member shall agree to indemnify the Company and the other Members against any and all losses (including the cost, determined using a 9.26% discount rate, of any resulting deferral of a tax deductions or other tax benefit (e.g., depreciation)) in the event such Disposition results in the Company’s termination within the meaning of Code Section 708 pursuant to a written indemnification agreement in form and substance (including with respect to the creditworthiness of the indemnifying Person) satisfactory to the adversely affected Members.

(II)           Entity Classification.  Such Disposition will not cause the Company to be classified as an entity other than a partnership (or cause the Company to be treated as a publicly traded partnership taxable as a corporation) for purposes of the Code.

(III)         PTCs.  If such Disposition would occur prior to the end of the PTC Period, such Disposition will not result in the disallowance of the PTCs otherwise accruing to the Company; provided, if the Minority of Class A Members delivers to the Company not later than five (5) Business Days prior to the effective date of the Disposition (which effective date is prior to the occurrence of the end of the PTC Period), a written opinion of a nationally recognized law firm that there is substantial authority that such Disposition would result in the disallowance of the PTCs otherwise accruing to the Company, such Disposition shall nevertheless not be effective.

(D)          Payment of Expenses.  The Disposing Member and its Assignee shall pay, or reimburse the Company and each Member for, all reasonable costs and expenses incurred by the Company and the Members in connection with the Disposition and admission, on or before the tenth (10^th) Day

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after the receipt by that Person of the Company’s or such Member’s invoice for the amount due.

(E)           No Release.  No Disposition of a Membership Interest shall effect a release of the Disposing Member from any liabilities to the Company or the other Members arising from events occurring prior to or in connection with the Disposition.

(F)           Institutional Investor.  The transferee of any Class A Units pursuant to such Disposition shall be (x) an Institutional Investor or a Person whose obligations under this Agreement are guaranteed by an Institutional Investor and (y) prior to the expiration of the Forbearance Term (as defined in the Forbearance Agreement), an Approved Investor.

(G)           No Adverse Energy Regulatory Impact.  No Disposition of a Membership Interest shall result in: (a) the Company or any Project Company being in violation of Section 203 of the FPA or Section 70 of the New York Public Service Law; (b) any Project Company ceasing to be authorized by FERC to make sales of energy, capacity and ancillary services at market-based rates, being in violation of the terms and conditions of its market-based rate authorization, ceasing to hold any regulatory waiver or blanket authorization granted to it as part of its market-based rate authorization or otherwise being in violation of Section 205 of the FPA; or (c) a Project Company ceasing to be an “exempt wholesale generator” as defined in the Public Utility Holding Company Act of 2005 and FERC’s implementing regulations.

(H)          Investment Company Act.  Such Disposition does not require the Company to register as an “investment company” under the Investment Company Act of 1940, as amended.

(I)            Permits.  All permits, consents and licenses, including all necessary Governmental Approvals, with respect to such Disposition shall have been obtained.

(iv)          Change of Member Control.  Prior to the Flip Point, a Change of Member Control must also comply with the requirements of this Section 3.03.  Upon any Change of Member Control of the Class B Member, the Class B Member shall cause to be delivered to the Class A Members a valid and enforceable replacement or substitute of the Sponsor Guaranty (or other credit support from a Person that meets the requirements set forth in clauses (x) and (y) of Section 3.03(b)(iii)(F)), in substantially the same form as the original Sponsor Guaranty and from an entity reasonably satisfactory to the Majority of Class A Members.  Upon any Change of Member Control of a Class A Member, the Class A Member shall cause to be delivered to the Class B Member a valid and enforceable replacement or substitute of any guaranty in favor of the Company of such Class A Member’s obligations then required to be in effect, in substantially the same form as the then existing guaranty and from an entity reasonably

38

satisfactory to the Class B Member, or other credit support from a Person that meets the requirements set forth in clauses (x) and (y) of Section 3.03(b)(iii)(F).

(v)           Regulatory Compliance.

(A)          Regulatory Compliance Cooperation.  In the event that any Member or the Managing Member reasonably determines that such Member or the Company has or may in the future have a Regulatory Problem, the Company and the Managing Member agree at the sole cost and expense (including costs and expenses incurred by the Company and the Managing Member in relation to the resolution of the Regulatory Problem, to include the fees of attorneys or other advisors retained by the Company and the Managing Member, as well as a reasonable time and materials fee to cover the efforts of the staff of the Company and Managing Member) of the Member with or causing such Regulatory Problem to take all such actions as are reasonably requested by such Member or Managing Member in order (I) to effectuate and facilitate any transfer of any Securities of the Company then held by such Member to any Person designated by such Member; provided, Section 3.03(b)(iii) shall be complied with (other than Section 3.03(b)(iii)(C)(I)), (II) to permit such Member (or any of its Affiliates) to exchange all or any portion of the voting Securities then held by such Person on a share-for-share basis for shares of a Class of non-voting Securities of the Company, which non-voting Securities shall be identical in all respects to such voting Securities, except that such new Securities shall be non-voting and shall be convertible into voting Securities on such terms as are requested by such Member and reasonably acceptable to the Managing Member in light of regulatory considerations then prevailing, and (III) to continue and preserve the respective allocation of the voting interests with respect to the Company arising out of such Member’s ownership of voting Securities before the transfers and amendments referred to above (including entering into such additional agreements as are reasonably requested by such Member to permit any Person(s) designated by such Member to exercise any voting power which is relinquished by such Member upon any exchange of voting Securities for nonvoting Securities of the Company); and at the sole cost and expense of such Member, the Company shall enter into such additional agreements, adopt such amendments to this Agreement and other relevant agreements and take such additional actions, in each case as are reasonably requested by such Member in order to effectuate the intent of the foregoing; provided, any such additional agreements, amendments to this Agreement or other relevant agreements, or other actions shall not have an adverse impact on the Company or any other Member.  If any Member is, or elects to transfer Securities of the Company in order to avoid a Regulatory Problem to, a Regulated Holder, the Company and each of the Members agree at the request of such Member that the provisions of this Section 3.03(b)(v) shall be applicable to such Regulated Holder in order to assist such Regulated Holder in complying with Applicable Laws and regulations to which it is subject.  To the extent necessary to comply with such laws and regulations, such agreements may include restrictions on the redemption, repurchase or retirement of Securities of the Company that would result or be

39

reasonably expected to result in such Regulated Holder holding more voting securities or total securities (equity and debt) than it is permitted to hold under such laws and regulations.  In the event any Member has the right to acquire any of the Company’s Securities from the Company or any other Person (as the result of a preemptive offer, pro rata offer or otherwise), and such Member reasonably determines that it has a Regulatory Problem, at such Member’s request the Company at the sole cost and expense of such Member will offer to sell to such Member non-voting Securities (or, if the Company is not the proposed seller, will arrange for the exchange of any voting securities for non-voting securities immediately prior to or simultaneous with such sale) on the same terms as would have existed had such Member acquired the Securities so offered and immediately requested their exchange for non-voting Securities pursuant to this Section 3.03(b)(v)(A).

(B)           Related Covenants.

(I)            The Company shall provide at least fifteen (15) Days prior written notice to each Member of a proposal to distribute voting or equity securities to any Member or to repurchase voting or equity securities from any Member.

(II)           If, in connection with a Regulatory Problem, at any time as a result of any repurchase, redemption or conversion of Company Securities or otherwise, a Member shall hold in excess of 4.99% of any class of voting Securities of the Company, the portion of such Member’s Securities of each such class of Securities entitling such Member to in excess of 4.99% of the voting power of such class shall, without further action on the part of the Member or the Company, be deemed to be non-voting Securities.

(c)           Encumbrances of Membership Interest.  A Member may Encumber its Membership Interest if the instrument creating such Encumbrance provides that any Disposition upon foreclosure of such Encumbrance (or Disposition in lieu of such foreclosure) must comply with the requirements of Section 3.03(b)(iii).  Any such Encumbrance, and any Disposition upon foreclosure of such Encumbrance (or Disposition in lieu of such foreclosure) that complies with such requirements shall be a Permitted Disposition, subject to the proviso in the definition thereof.

(d)           Changes in Parent Ownership.

(i)            Subject to Section 3.03(d)(ii), in the case of a Member that is a partnership or disregarded entity for federal tax purposes, if any direct or indirect Disposition of interests in such Member’s Parent (a “Parent Ownership Change”) occurs prior to the later of (A) the occurrence of the Flip Point and (B) the end of the PTC Period, and such Parent Ownership Change results in the Company’s termination within the meaning of Code Section 708(b)(1)(B), such Member shall indemnify the Company and the other Members against any and all tax losses resulting from such termination (including the cost, determined using a

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***% discount rate, of any resulting deferral of a tax deductions or other tax benefit (e.g., depreciation)).

(ii)           The Initial Member or Sponsor may notify the Company and the Class A Members if the Sponsor reasonably contemplates any Parent Ownership Change that will result in a “sale or exchange” (within the meaning of Code Section 708(b)(1)(B)) of any Units or Membership Interests or any portion thereof during the following twelve (12) month period (an “NEP Disposition”).  If notice of an NEP Disposition is given pursuant to this Section 3.03(d)(ii) (an “NEP Disposition Notice”), the Class A Members and their Affiliates shall cooperate with the Initial Member, Sponsor and their Affiliates to avoid making any direct or indirect Disposition of their respective Units or Membership Interests or any portion thereof prior to the NEP Disposition that, taking into account the NEP Disposition, would result in a termination of the Company within the meaning of Code Section 708(b)(1)(B); provided, such obligation to cooperate shall not require any Class A Member and its Affiliates to refrain from making any direct or indirect Disposition of its Units or Membership Interests or any portion thereof.  If subsequent to and within months (12) months of an NEP Disposition Notice, (A) any Class A Members Dispose of any Units or Membership Interest or any portion thereof prior to the NEP Disposition or there is a Parent Ownership Change with respect to any Class A Member that results in a “sale or exchange” of any Units or Membership Interests or any portion thereof, (B) the NEP Disposition occurs within the six (6) month period following such Disposition(s) by the Class A Member(s), (C) the NEP Disposition occurs within twelve (12) months of the NEP Disposition Notice, (D) the NEP Disposition results in a termination of the Company within the meaning of Code Section 708(b)(1)(B), and (E) but for the Disposition by the Class A Members, the NEP Disposition would not have resulted in a termination of the Company within the meaning of Code Section 708(b)(1)(B), then notwithstanding anything in this Agreement to the contrary, the Initial Member and such Class A Member(s) shall indemnify the Company and the other Members, severally and in proportion to the respective transferred Membership Interests, against any and all losses resulting from such termination  (including the cost, determined using a ***% discount rate, of any resulting deferral of a tax deductions or other tax benefit (e.g., depreciation)); provided, notwithstanding the foregoing, any Dispositions made by EFS Noble Hoildings within the one month period following the Effective Date shall not be taken into account for purposes of applying this Section 3.03(d)(ii) to any NEP Disposition.  If an NEP Disposition Notice is given, but such NEP Disposition does not occur during the subsequent twelve (12) month period, no additional notice of an NEP Disposition may be given pursuant to this Section 3.03(d)(ii) until the date six (6) months following the end of such twelve (12) month period.

(e)           Drag-Along and Tag-Along Rights.

(i)            Notwithstanding anything to the contrary in this Agreement, after the Flip Point, if (A) the Class B Member has received a Bona Fide Offer from a Bona Fide Purchaser, (B) the Class B Member proposes to make a Disposition of

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all, but not less than all, of its Class B Units to such Bona Fide Purchaser pursuant to the terms of the Bona Fide Offer, and (C) the purchase price offered for the Class A Units is at least the lowest Fair Market Value within the range of Fair Market Values as determined pursuant to Section 3.03(e)(iii), the Class B Member may elect to require that all other Members Dispose of their respective Units to such Bona Fide Purchaser for such Fair Market Value pursuant to the terms of such Bona Fide Offer.  If the Class B Member elects to require the other Members to Dispose of their respective Units pursuant to this Section 3.03(e)(i), the Class B Member shall provide written notice of such proposed Disposition (the “Drag-Along Notice”) to all other Members not less than sixty (60) Days in advance of the proposed closing of such Disposition.  The Drag-Along Notice shall (i) set forth in reasonable detail the material terms and conditions of the proposed Disposition, including, without limitation, the proposed purchase price of the Class A Units and closing date, (ii) include a copy of the Bona Fide Offer, and (iii) include a certification that the Bona Fide Purchaser is not an Affiliate of the Class B Member or a Disqualified Transferee.  The other Members shall take any actions reasonable requested in writing by the Class B Member in connection with the consummation of the Disposition to the Bona Fide Purchaser pursuant to the Bona Fide Offer.

(ii)           Notwithstanding anything to the contrary in this Agreement, after the Flip Point, if (A) the Class B Member has received a Bona Fide Offer from a Bona Fide Purchaser, (B) the Class B Member proposes to make a Disposition of all, but not less than all, of its Class B Units to such Bona Fide Purchaser pursuant to the terms of the Bona Fide Offer, and (C) the purchase price offered for the Class A Units is at least the lowest Fair Market Value within a range of Fair Market Values as determined pursuant to Section 3.03(e)(iii), the Class A Members may elect (by vote of the Majority of Class A Members) to require that the Class B Member purchase, or cause the Bona Fide Purchaser to purchase, all other Members’ respective Units pursuant to the terms of such Bona Fide Offer or, at the election of the Class B Member, at such Fair Market Value if such Fair Market Value is determined by the Qualified Appraiser under Section 3.03(e)(iii) to be higher than the Bona Fide Offer.   If the Class A Members make such election pursuant to this Section 3.03(e)(ii), the Class A Members shall provide written notice of such proposed Disposition (the “Tag-Along Notice”) to all other Members not less than thirty (30) Days in advance of the proposed closing of such Disposition.  Upon receipt of the Tag-Along Notice, the Class B Member shall provide to all Members a reply notice which shall (i) set forth in reasonable detail the material terms and conditions of the proposed Disposition, including, without limitation, the proposed purchase price of the Class A Units and closing date, (ii) include a copy of the Bona Fide Offer, and (iii) include a certification that the Bona Fide Purchaser is not an Affiliate of the Class B Member or a Disqualified Transferee.  The other Members shall take any actions reasonable requested in writing by the Class B Member in connection with the consummation of the Disposition to the Bona Fide Purchaser pursuant to the Bona Fide Offer.

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(iii)          The Fair Market Value of the Units of the other Members subject to the drag-along and tag-along rights set forth in this Section 3.03(e) shall be as determined by the Bona Fide Purchaser except as otherwise provided in this Section 3.03(e)(iii).  Following the receipt of a Drag-Along Notice or the Class B Member’s reply notice required by Section 3.03(e)(ii), the other Members shall have the right, exercisable within thirty (30) Days of receipt of the applicable notice, to request an appraisal of the Fair Market Value of their Units by a Qualified Appraiser to be mutually agreed upon by the Class B Member and the other Members. Within fifteen (15) Days following the appointment of the Qualified Appraiser, such appraiser shall determine initially whether the purchase price offered by the Bona Fide Purchaser is within the range of the Fair Market Values of the Units 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 the Company, including any cash reserves that may be held by the Company; and if the purchase price offered by the Bona Fide Purchaser is not within such range, the Qualified Appraiser shall determine the range of Fair Market Values of the Units.  The decision of the Qualified Appraiser shall be binding and conclusive on the Parties absent manifest error.  If the lowest Fair Market Value of the range determined by the Qualified Appraiser is greater than the purchase price offered by the Bona Fide Purchaser, the other Members shall not be required to Dispose of their Units for less than such lowest Fair Market Value.  The Class B Member, on the one hand, and the other Members, on the other hand, shall each pay fifty percent (50%) of the fees and expenses of the Qualified Appraiser.

3.04        Creation of Additional Membership Interest.  Membership Interests additional to those in effect on the Effective Date may be created only with the prior written consent of the Required Voting Percentage so long as the creation of such additional Membership Interests does not disproportionately adversely impact the Class A Members.  If such creation and issuance has been so approved, such Membership Interest shall be issued to existing Members or to other Persons in each case as specified in such consent, and such other Persons may be admitted to the Company as Members at the time, and on such terms and conditions as may be specified in such consent.  The terms of admission or issuance pursuant to such written consent must specify the allocation of items of income, gain, loss, deduction or credit applicable thereto and may provide for the creation of different classes or groups of Members having different rights, powers, and duties.  The Managing Member shall reflect the creation of any such new class or group in an amendment to this Agreement indicating the different rights, powers, and duties.  Any such admission is effective only after the new Member has executed and delivered to the Members an instrument containing the notice address of the new Member, the Assignee’s ratification of this Agreement and agreement to be bound by it, and its confirmation that the representations and warranties in Section 3.02 hereof are true and correct with respect to it.  The provisions of this Section 3.04 shall not apply to Dispositions of Membership Interests or admissions of Assignees in connection therewith, such matters being governed by Section 3.03.