Common use of Casualty Occurrence Clause in Contracts

Casualty Occurrence. a) For purposes of this Lease, a "Casualty Occurrence" shall mean any Item of Equipment destroyed, irreparably damaged, lost, stolen, unaccounted for, or taken or requisitioned by condemnation or otherwise during the term of this Lease. b) In the event that any Item of Equipment shall suffer a Casualty Occurrence, Lessee shall promptly and fully inform Lessor with respect thereto. Lessee shall pay to Lessor, on the first day of the month following the giving of such notice, an amount ("Casualty Loss Value") equal to the sum of: (i) the amount which will cause the Lessor to realize the same rate of return up to the date of the Casualty Occurrence that the Lessor would have realized had the Lease of the Equipment been in effect for the entire Lease Term; and (ii) all installments of rental then due with respect to that Item of Equipment. The total rental described in the Schedule A which contained an Item of Equipment for which a Casualty Loss Value was paid, shall be reduced by a percentage derived by dividing the Cost of the Item of Equipment experiencing the Casualty Occurrence by the Total Equipment Cost described in such Schedule A. Lessor shall be entitled to receive and retain any proceeds from any insurance with respect to such Item of Equipment up to the amount of the Casualty Loss Value. Provided an Event of Default has not occurred and is continuing, Lessor shall pay over such insurance proceeds to Lessee to the extent such amounts exceed the Casualty Loss Value or the entire insurance proceeds received if Lessee has previously paid the Lessor the Casualty Loss Value. Upon Lessor's receipt of such payment, Lessee shall be entitled to whatever interest Lessor may have in said Item of Equipment, in its then condition and location, without warranties, express or implied, and this Lease shall terminate with respect to such Item of Equipment.

Casualty Occurrence. a) For purposes of this Lease, a "Casualty Occurrence" shall mean any If an Item of Equipment destroyedis damaged to such an extent that the Lessee believes a Casualty has occurred, irreparably damagedthe Lessee shall forthwith (and in any event within 10 days after such occurrence) give the Lessor Trustee and the Agent written notice of such Casualty, lost, stolen, unaccounted for, or taken or requisitioned by condemnation or otherwise during the term of this Lease. b) In Agent in its sole discretion shall determine whether the event that any damage to the Item of Equipment shall suffer constitutes a Casualty, and within 20 days after the Casualty Occurrence, occurred the Lessee shall promptly give the Lessor Trustee and fully inform the Agent written notice of its election, subject to the terms hereof, to perform one of the following options (and if the Lessee fails to timely notify the Lessor with respect thereto. Trustee and the Agent of its election, the Lessee shall be deemed to have elected to perform the option set forth in the following clause (a)), provided that the Lessee shall not have the right to select the option set forth in clause (b) if a Default or Event of Default has occurred and is continuing when the Casualty occurs, or when the Lessee gives notice of its election, or when the Lessee is to convey the Replacement Equipment to the Lessor Trustee: (a) Except as otherwise provided in the immediately succeeding sentence, on the next Scheduled Payment Date which is at least 30 days after the occurrence of such Casualty (the "Loss Payment Date"), during which time the Lessee's obligation to pay Rent shall continue, the Lessee shall pay to Lessor, on the first day of the month following the giving of such notice, Lessor Trustee in immediately available funds an amount ("Casualty Loss Value") equal to the sum of: (i) the amount which will cause the Lessor to realize the same rate of return up to the date of the Casualty Occurrence that the Lessor would have realized had the Lease of the Equipment been in effect for the entire Lease Term; and (ii) all installments of rental then due with respect to that Item of Equipment. The total rental described in the Schedule A which contained an Item of Equipment for which a Casualty Stipulated Loss Value was paid, shall be reduced by a percentage derived by dividing the Cost of the Item of Equipment experiencing the Casualty Occurrence by the Total Equipment Cost described in such Schedule A. Lessor shall be entitled to receive and retain any proceeds from any insurance with respect to such Item of Equipment up as of such Loss Payment Date together with any Rent due and payable on or prior to the amount of the Casualty Loss Value. Provided an Event of Default has not occurred and is continuing, Lessor shall pay over such insurance proceeds to Lessee to the extent such amounts exceed the Casualty Loss Value or the entire insurance proceeds received if Lessee has previously paid the Lessor the Casualty Loss Value. Upon Lessor's receipt of such payment, Lessee shall be entitled to whatever interest Lessor may have in said Item of Equipment, in its then condition and location, without warranties, express or implied, and this Lease shall terminate Payment Date with respect to such Item of Equipment. (b) Within 30 days after the Casualty occurs, during which time the Lessee's obligation to pay Rent shall continue, the Lessee shall convey or cause to be conveyed to the Lessor Trustee in accordance with Section 14.2 hereof, to be leased by the Lessor Trustee to the Lessee hereunder in replacement of such Item of Equipment, title to Replacement Equipment, which must be free and clear of all Liens other than Permitted Liens and (as determined by the Agent in its sole discretion) must have a value, utility and remaining economic useful life at least equal to, and be in as good operating condition as, the replaced Item of Equipment (assuming it was of the value, remaining economic useful life and utility and in the condition and repair required by the terms of this Lease and had suffered no Casualty). The Lessee shall pay on the next Scheduled Payment Date an amount computed in the manner specified in clause (a) of this Section 14.1 if no such replacement occurs by the end of the 30-day period. The Lessee's obligation to pay Rent due and payable on or prior to a Loss Payment Date shall continue as to any Item of Equipment that has suffered a Casualty. In the event of a payment in full of the Stipulated Loss Value for an Item of Equipment and other Rent payable on or prior to the Loss Payment Date all as provided for in the clause (a) of this Section, (x) this Lease with respect to such Item of Equipment and the obligations of the Lessee with respect to such Item of Equipment to pay Periodic Rent and Supplemental Rent (except for Supplemental Rent obligations surviving pursuant to Section 6 of the Participation Agreement or which have otherwise accrued but not been paid as of the date of such payment) shall terminate; (y) if no Event of Default has occurred and is continuing, any insurance proceeds remaining in the Lessor Trustee's possession (other than proceeds of policies maintained by the Lessor Trustee for its own account), including any investment interest thereon, shall be promptly paid over to the Lessee; and (z) the Lessor Trustee shall convey to the Lessee, at the Lessee's cost and expense, all of the Lessor Trustee's right, title and interest, AS-IS, WHERE-IS, without recourse or warranty, express or implied except for a warranty against the Lessor's Liens in and to such Item of Equipment, including all claims for damage to such Item of Equipment against third persons arising from the subject Casualty (unless any insurance carrier requires that such claims be assigned to it).

Casualty Occurrence. a) For purposes of this Lease, a "“Casualty Occurrence" ” shall mean any Item of Equipment destroyed, irreparably damaged, lost, stolen, unaccounted for, or taken or requisitioned by condemnation or otherwise during the term of this Lease. b) In the event that any Item of Equipment shall suffer a Casualty Occurrence, Lessee shall promptly and fully inform Lessor with respect thereto. Lessee shall pay to Lessor, on the first day of the month following the giving of such notice, an amount ("“Casualty Loss Value"”) equal to the sum of: (i) the amount which will cause the Lessor to realize the same rate of return up to the date of the Casualty Occurrence that the Lessor would have realized had the Lease of the Equipment been in effect for the entire Lease Term; and (ii) all installments of rental then due with respect to that Item of Equipment. The total rental described in the Schedule A which contained an Item of Equipment for which a Casualty Loss Value was paid, shall be reduced by a percentage derived by dividing the Cost of the Item of Equipment experiencing the Casualty Occurrence by the Total Equipment Cost described in such Schedule A. Lessor shall be entitled to receive and retain any proceeds from any insurance with respect to such Item of Equipment up to the amount of the Casualty Loss Value. Provided an Event of Default has not occurred and is continuing, Lessor shall pay over such insurance proceeds to Lessee to the extent such amounts exceed the Casualty Loss Value or the entire insurance proceeds received if Lessee has previously paid the Lessor the Casualty Loss Value. Upon Lessor's ’s receipt of such payment, Lessee shall be entitled to whatever interest Lessor may have in said Item of Equipment, in its then condition and location, without warranties, express or implied, and this Lease shall terminate with respect to such Item of Equipment.

Casualty Occurrence. a) For purposes of this Lease, a "Casualty Occurrence" shall mean any Item of Equipment destroyed, irreparably damaged, lost, stolen, unaccounted for, or taken or requisitioned by condemnation or otherwise during the term of this Lease. b) In the event that any Item of Equipment shall suffer a Casualty Occurrence, the Lessee ------------------- shall promptly and fully inform Lessor with respect thereto. Lessee shall pay to Lessorthe Owner Trustee, the ClO2 Indenture Trustee and the Indenture Trustee in writing in regard thereto and shall, on the first day of Casualty Termination Date, pay to the month following Owner Trustee (or, so long as the giving of such noticeSecured Indebtedness shall not have been fully paid and satisfied, the Indenture Trustee) an amount ("Casualty Loss Value") equal to the sum of: of (i) the amount which will cause Casualty Value of the Lessor to realize the same rate of return up to the date Facility determined as of the Casualty Occurrence that the Lessor would have realized had the Lease of the Equipment been in effect for the entire Lease Term; and Termination Date, (ii) if the Casualty Termination Date is a Rent Payment Date, any Periodic Rent (other than Periodic Rent payable "in advance" on such date) and the Periodic Site Rent due on the Casualty Termination Date, and (iii) all installments other Supplemental Rent then due. Notwithstanding such Casualty Occurrence, the Lessee's obligation to pay Rent hereunder due and payable as to the Facility on or prior to the payment date of rental such Casualty Value shall continue. Upon receipt by the Owner Trustee (or, so long as the Secured Indebtedness shall not have been fully paid and satisfied, the Indenture Trustee) of such payments and all other sums then due with respect to that Item of Equipment. The total rental described in and payable by the Schedule A which contained an Item of Equipment for which a Casualty Loss Value was paid, shall be reduced by a percentage derived by dividing Lessee under this Lease and the Cost other Operative Agreements and release of the Item Lien of Equipment experiencing the Casualty Occurrence by Indenture pursuant to Section 9.01 thereof, this Lease shall terminate, and the Total Equipment Cost described in such Schedule A. Lessor shall be entitled to receive and retain any proceeds from any insurance with respect to such Item of Equipment up Owner Trustee will transfer to the amount of Lessee all the Casualty Loss Value. Provided an Event of Default has not occurred Owner Trustee's right, title and is continuinginterest, Lessor shall pay over such insurance proceeds to Lessee if any, in and to the extent such amounts exceed the Casualty Loss Value or the entire insurance proceeds received if Lessee has previously paid the Lessor the Casualty Loss Value. Upon Lessor's receipt of such paymentLeased Property on an "as-is", Lessee shall be entitled to whatever interest Lessor may have in said Item of Equipment, in its then condition and location"where-is" basis, without warrantiesrecourse or warranty, express or implied, and this Lease shall terminate with respect except for a warranty against Lessor's Liens attributable to such Item of Equipmentthe Owner Trustee or Wilmington Trust Company.

Casualty Occurrence. a) For purposes Lessee assumes, and shall at all times bear the entire risk of, any loss, theft, damage to, or destruction of this any Property from any cause whatsoever from the time such Property is shipped to Lessee until its return to Lessor or other disposition at the end of the Lease. Lessee shall promptly notify Lessor in writing if any Property shall be or become, a "Casualty Occurrence" shall mean any Item of Equipment lost, stolen, destroyed, irreparably damaged, lost, stolen, unaccounted for, or taken or requisitioned by condemnation or otherwise during permanently rendered unfit for use from any cause whatsoever (each a "Casualty Occurrence"). On the term of this Lease. b) In the event that any Item of Equipment shall suffer regular rent payment due date succeeding a Casualty OccurrenceOccurrence (the "Payment Date"), Lessee shall promptly and fully inform pay Lessor with respect thereto. Lessee shall pay to Lessor, on the first day of the month following the giving of such notice, an amount ("Casualty Loss Value") equal to the sum of: of (i) the amount which will cause Stipulated Loss Value of such Property calculated in accordance with the Lessor to realize the same rate of return up to the date applicable Schedule as of the Casualty Occurrence that the Lessor would have realized had the Lease of the Equipment been in effect for the entire Lease Term; Payment Date, and (ii) all installments of rental then Rent and other amounts which are due with respect to that Item of Equipment. The total rental described in the Schedule A which contained an Item of Equipment for which a Casualty Loss Value was paid, shall be reduced by a percentage derived by dividing the Cost hereunder as of the Item Payment Date. Upon payment of Equipment experiencing the Casualty Occurrence by the Total Equipment Cost described in such Schedule A. Lessor shall be entitled to receive and retain any proceeds from any insurance all sums due hereunder with respect to such Item Property, the obligation of Equipment Lessee to pay Rent and the term of this Lease with respect to such Property shall terminate. Following payment of any Stipulated Loss Value, and if no Event of Default has occurred and remains continuing, Lessor will then (a) transfer to Lessee the Lessor's rights to such Property "as is," "where is" and with all defects, without recourse and WITHOUT REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, other than a warranty that the Property is free and clear of any liens created by Lessor (the foregoing limitations herein called "Lessor's Transfer Limitations"); and (b) remit to Lessee any physical damage insurance proceeds received by Lessor arising out of such loss up to the amount of the Casualty Stipulated Loss ValueValue paid. Provided Sublease; Assignment. Without the prior written consent of Lessor, Lessee will not assign, transfer, sublease or dispose of any Property or any of its rights or obligations under the Lease Documents, or its leasehold or any other interest therein, or otherwise permit the Property to be operated or used by, or to come into or remain in the possession of, anyone but Lessee. Any unpermitted assignment, transfer, delegation or sublease by Lessee shall be void at inception. Notwithstanding the foregoing, however, so long as no Default then exists, Lessee may, upon first giving at least thirty days prior written notice to Lessor, assign (in whole, but not in part) its rights and interests hereunder or sublease (in whole, but not in part) the Property, to a subsidiary or affiliate of Lessee, provided, however, that: (i) notwithstanding any such assignment or sublease, Lessee shall be and remain primarily liable hereunder; (ii) the terms of any sublease must be substantially similar to the terms hereof, and in any event reviewed and approved by Lessor prior to inception of the sublease; (iii) the rights of any assignee or sublessee to any Property shall be subject, subordinate and inferior to the rights, title and interest of Lessor hereunder at all times; and (iv) Lessee shall assign all of its rights and claims against any assignee or sublessee to Lessor, and take such further actions as Lessor may reasonably request, to evidence, perfect or protect Lessor's interests as assignee thereof, including obtaining, at Lessee's expense, UCC filings, third party waivers, insurance certificates and opinions of counsel incident to such assignment or sublease. Lessee acknowledges and agrees that, subject in all respects to Lessee's rights therein, Lessor may sell, assign, grant a security interest in, or otherwise transfer all or any part of its rights, title interest and obligations in the Lease Documents and the Property without any necessity of first obtaining the consent of, or giving any notice to, the Lessee. Upon Lessor's written notice, Lessee shall, if requested, pay directly to such assignee without abatement, reduction, diminution, setoff, withholding, defense, counterclaim, or recoupment (collectively, "Defense") in respect of any such amount that becomes due hereunder. Lessee waives and agrees it will not assert any such Defense against any assignee. Such assignee shall have and be entitled to exercise any and all rights and remedies of Lessor hereunder, and all references herein to Lessor shall include Lessor's assignee. Lessee shall fail to pay when due any Rent or other amount owing or required to be paid under this Lease or any Additional Lease Documents, and any such failure shall continue for more than five (5) days after written notice thereof shall have been given by Lessor to Lessee; Lessee or any Guarantor shall default in the performance or observance of any covenant or agreement on its part to be performed or observed under any of the Lease Documents (not constituting an Event of Default has not occurred under any other clause of this Section), and such default shall continue unremedied for fifteen (15) days after written notice thereof shall have been given by Lessor to Lessee; Any representation or warranty made by Lessee, any Guarantor or any Broker representing Lessee, whether contained in any of the Lease Documents or otherwise, shall at any time prove to have been incorrect in any material respect when made; Lessee shall fail to maintain insurance on the Property in accordance with the Lease Documents; A default or event of default by Lessee or any Guarantor shall occur under the terms of any other agreement, instrument or document with or intended for the benefit of Lessor, or any of its affiliates, and any required notice shall have been given and/or required passage of time shall have elapsed; Any Bankruptcy Event shall occur; Any event shall occur which results in any monetary default of any agreement involving Lessee evidencing any indebtedness greater than $1,000,000.00 that continues beyond the earlier of the applicable cure period or 5 Business Days; Lessee ceases to do business as a going concern; Any direct or indirect sale, conveyance, assignment or other transfer of any ownership interest of Lessee or any Guarantor which results, in a change of "beneficial ownership" (as such term is continuingdefined in Rule 13(d)-3 and Rule 13(d)-5 under the Securities Exchange Act of 1934), Lessor shall pay over such insurance proceeds to directly or indirectly, of more than fifty percent (50%) of the total voting power of all classes of capital stock then outstanding of the Lessee entitled (without regard to the extent such amounts exceed the Casualty Loss Value occurrence of any contingency) to vote in elections of directors of Lessee; The Property shall be or the entire insurance proceeds received if Lessee has previously paid the Lessor the Casualty Loss Value. Upon Lessor's receipt of such paymentbecome subject to any material abuse or misuse, or any levy, attachment, seizure or confiscation which is not released within thirty (30) days; and Lessee shall be entitled fail to whatever interest provide Lessor may have with prompt written notification of any Default, or of any information which indicates that any financial statements provided to Lessor do not in said Item of Equipment, in its then any material respect present fairly the financial condition and location, without warranties, express or implied, and this Lease shall terminate with respect results of operations purported to be presented in such Item of Equipmentstatements.

Casualty Occurrence. aLessee shall promptly notify Lessor in writing if the Equipment (i) For purposes suffers damage or destruction resulting in an insurance settlement on the basis of this Leaseactual, a "Casualty Occurrence" shall mean any Item of Equipment destroyed, irreparably damaged, constructive or compromised total loss; (ii) suffers destruction or damage beyond repair; or (iii) becomes lost, stolen, unaccounted fordestroyed or suffers damage, which in the reasonable determination of Lessor, makes repair uneconomic or taken or requisitioned by condemnation or renders the Equipment permanently unfit for use from any cause whatsoever (including an Adverse Environmental Condition) (such occurrences being hereinafter called “Casualty Occurrences”). The parties hereby acknowledge and agree that all of the Equipment shall be under Lessee’s care and attention at all times, and that Lessee shall maintain and use the Equipment in accordance with the terms of this Agreement, and therefore, Lessee shall be responsible for any Casualty Occurrence. Unless otherwise expressly provided for in Section 10(g) hereof, if any of the events set forth in the proviso to clause (ii) of Section 10(g) have occurred, on the date set forth on Annex C to the Schedule during the term of this Lease. b) In the event that any Item of Equipment shall suffer first month next succeeding a Casualty Occurrence, Lessee shall promptly and fully inform Lessor with respect thereto. or if such date is not a Business Day, then on the next day that is a Business Day (the “Payment Date”), Lessee shall pay to Lessor, on Lessor the first day sum of (x) the Stipulated Loss Value of all Equipment calculated in accordance with Annex C of the month following the giving of Schedule; and (y) all Rent (including Basic Term Rent scheduled to be paid on such notice, an amount ("Casualty Loss Value"Payment Date) equal and other amounts which are due hereunder with respect to the sum of: Equipment as of the Payment Date; provided that Lessee shall not be required to make any payment in respect of a Casualty Occurrence if (iA) the amount Equipment affected by such Casualty Occurrence is not necessary to enable the Equipment to continue to be capable of operating at the capacity levels at which will cause the Lessor to realize Equipment was capable of operating as of the same rate of return up Basic Term Commencement Date with respect to the date of Equipment covered by the Casualty Occurrence that Schedule (reasonable wear and tear excepted) and (B) the Lessor would have realized had failure to repair or replace such Equipment does not diminish the Lease value, utility or remaining useful life of the Equipment been in effect for which remains subject to this Agreement from the entire Lease Term; value, utility and remaining useful life of all Equipment subject to this Agreement immediately prior to such Casualty Occurrence. Upon payment of all sums due hereunder, the obligation of Lessee to pay Rent and the Term of this Agreement as to the Equipment shall terminate, and (ii) all installments of rental then due with respect to that Item of Equipment. The total rental described except in the Schedule A which contained an Item of Equipment for which a Casualty Loss Value was paid, shall be reduced by a percentage derived by dividing the Cost case of the Item loss, theft or complete destruction of the Equipment experiencing ) Lessee may elect (by giving Lessor written notice) to receive from Lessor title to the Casualty Occurrence Equipment, on an AS IS, WHERE IS BASIS, free and clear of all Lessor’s Liens; provided that if Lessee elects to take title to the Equipment (in-place and in-use) and the Fair Market Value of the Equipment is greater than the applicable Stipulated Loss Value, then Lessee will pay Lessor as additional purchase price the amount by which such Fair Market Value exceeds such Stipulated Loss Value. Lessor shall apply any insurance proceeds received pursuant to any insurance policies maintained by the Total Equipment Cost described in such Schedule A. Lessor Lessee to the payment of Lessee’s obligations under this Section 8, and Lessee shall be entitled to receive and retain any proceeds from any insurance with respect to such Item of Equipment up to the amount of the Casualty Loss Value. Provided an Event of Default has not occurred and is continuing, Lessor shall pay over such insurance proceeds in excess of the proceeds necessary to Lessee to the extent such amounts exceed the Casualty Loss Value or the entire insurance proceeds received if Lessee has previously paid the pay Lessor the Casualty Loss Value. Upon Lessor's receipt of such payment, Lessee shall be entitled to whatever interest Lessor may have in said Item of Equipment, in its then condition and location, without warranties, express or implied, and this Lease shall terminate with respect to such Item of Equipment.amounts due under this

Casualty Occurrence. a) For purposes of this Lease, a "Casualty Occurrence" shall mean any Item of Equipment destroyed, irreparably damaged, lost, stolen, unaccounted for, or taken or requisitioned by condemnation or otherwise during the term of this Lease. b) In the event that any Item of Equipment shall suffer Following a Casualty OccurrenceOccurrence that results in a total loss of an item of Collateral, Lessee shall promptly and fully inform Lessor with respect thereto. Lessee shall pay to LessorBorrower shall, on the first day payment is due on each Note following the Casualty Occurrence or, if there is no such payment date, thirty (30) days after such Casualty Occurrence, prepay the principal of the month following the giving of such notice, an Notes on a pro rata basis (as provided below) in a total amount ("Casualty Loss Value") equal to the sum of: of (i1) the product of (x) the aggregate principal balance of the Notes then outstanding times (y) a fraction, the numerator of which shall be the Collateral Value (defined as the fair market value as of the date of this Security Agreement as determined by Lender in good faith) of the Collateral that suffered the Casualty Loss and the denominator of which shall be the aggregate Collateral Value (as so defined) of all the Collateral and (2) the amount which will cause of prepayment premium payable on such principal amount as provided for an optional prepayment under the Lessor Notes. Prepayments of principal following a Casualty Occurrence shall be allocated pro rata to realize each Note in the same rate percentage that the original principal amount of return up each Note bears to the date total original principal amount of all Notes. Upon the making of such payments, Lender shall release such item of Collateral from its lien hereunder. Notwithstanding the above, Borrower may replace any item of Collateral which has suffered a Casualty Occurrence with Collateral acceptable to Lender in its complete discretion and, in such event, the provisions of the Casualty Occurrence previous paragraph shall not apply. Borrower's tender of such Collateral shall constitute a representation and warranty that the Lessor would such Collateral is free of all liens, claims and encumbrances, and otherwise qualifies as Collateral under this Security Agreement. Following such tender, Lender shall have realized had the Lease of the Equipment been in effect for the entire Lease Term; and (ii) all installments of rental then due with respect to that Item of Equipment. The total rental described in the Schedule A which contained an Item of Equipment for which a Casualty Loss Value was paid, shall be reduced by a percentage derived by dividing the Cost of the Item of Equipment experiencing the Casualty Occurrence by the Total Equipment Cost described first security interest in such Schedule A. Lessor shall be entitled to receive and retain any proceeds from any insurance with respect to such Item of Equipment up to the amount of the Casualty Loss Value. Provided an Event of Default has not occurred and is continuing, Lessor shall pay over such insurance proceeds to Lessee to the extent such amounts exceed the Casualty Loss Value or the entire insurance proceeds received if Lessee has previously paid the Lessor the Casualty Loss Value. Upon Lessor's receipt of such payment, Lessee shall be entitled to whatever interest Lessor may have in said Item of Equipment, in its then condition and location, without warranties, express or implied, and this Lease shall terminate with respect to such Item of EquipmentCollateral.