Capital Xxxxx. Xxxxxxx Lease. Company represents that, as of the Execution Date, it is not required to treat this Agreement as a capital lease. If there is a change in circumstances during the Term that would trigger capital lease treatment as of the Execution Date, and such capital lease treatment is not attributable to Company's fault, then the Parties will take all commercially reasonable steps, includingwhich may include modification of the Agreement, to eliminate the capital lease treatment, while preserving the economic "benefit of the bargain" to both Parties., or, if the Parties are unable to eliminate the capital lease treatment by other means, effectuating a sale of the Facility to Company at (i) if the sale occurs before the end of the thirteenth (13th) Contract Year, the greater of the Make Whole Amount determined pursuant to Section 6 (Make Whole Amount) of Attachment P (Sale of Facility of Seller) or the fair market value determined pursuant to Section 3 (Procedure to Determine Fair Market Value of the Facility) of Attachment P (Sale of Facility by Seller) or (ii) if the sale occurs on or after the beginning of the fourteenth (14th) Contract Year, the fair market value determined pursuant to Section 3 (Procedure to Determine Fair Market Value of the Facility) of Attachment P (Sale of Facility by Seller), but not less than the Financial Termination Costs determined pursuant to Section 6 (Make Whole Amount) of Attachment P (Sale of Facility by Seller), in either case under a Purchase and Sale Agreement to be negotiated based on the terms and conditions set forth in Section 4 (Purchase and Sale Agreement) of Attachment P (Sale of Facility by Seller).
