Common use of Collateral Agent’s Right to Cure Clause in Contracts

Collateral Agent’s Right to Cure. As long as any Financing Assignment of record created in accordance with this Article 6 shall remain unsatisfied and the Department has received the notices and documents specified in Section 6.02(g), the following provisions shall apply with respect to any such Financing Assignment and the related Lender or Lenders. (a) Should any event or condition occur which would either immediately or, following the applicable cure period or the giving of notice or both, enable the Department to terminate or suspend its obligations under this Agreement (a “Termination Event”), the Department shall not terminate this Agreement until it first gives written notice of such Termination Event to the Collateral Agent, and provides the Collateral Agent a reasonable opportunity to cure such Termination Event, as provided below: (i) If such Termination Event results from the Concessionaire’s failure to pay a monetary obligation, the Collateral Agent may cure such Termination Event by paying all amounts due within 30 days (such 30-day period to be in addition to any cure period provided to the Concessionaire herein) after receipt of written notice thereof from the Department to the Collateral Agent. (ii) If such Termination Event results from other than the Concessionaire’s failure to pay a monetary obligation, the Collateral Agent may, within 45 days (such 45-day period to be in addition to any cure period provided to the Concessionaire herein) after receipt of written notice thereof from the Department to the Collateral Agent, remedy such Termination Event or cause the same to be remedied by an entity to be designated by the Collateral Agent reasonably acceptable to the Department; provided, that if the Termination Event is such that it cannot be remedied within such 45-day period despite the exercise of diligent efforts commencing promptly after delivery of the written notice of the Termination Event, or if possession is necessary in order to effect such cure, such 45-day period shall be extended if the Collateral Agent shall have commenced a cure within such period or shall have commenced the appropriate legal or other action to foreclose the Liens of the relevant Financing Assignment so as to take possession of the Concessionaire’s Interest and shall thereafter diligently continue to pursue such remedy to completion, but in all events the cure period shall be not more than 180 days after written notice is provided pursuant to this Section 6.04(a); provided, further, that any failure to effect such cure shall not limit the rights of the Collateral Agent and the Lender to a New Agreement as provided in Section 6.05(c). If the Termination Event is peculiar to the Concessionaire and is not curable by the Collateral Agent, such as an insolvency, bankruptcy or a similar proceeding, or liquidation of the Concessionaire or its properties, then notwithstanding the Department’s right to terminate, the Collateral Agent shall not be required to cure such Termination Event but shall instead be entitled to exercise its rights under the relevant Financing Assignments and not inconsistent with this Article 6. (iii) If the Collateral Agent is prohibited by any process, stay or injunction issued by any court or by any bankruptcy or insolvency proceeding involving the Concessionaire from curing any Termination Event, the time specified above for curing any Termination Event shall be extended for the period of such prohibition, but not in excess of 180 days. (b) If the Collateral Agent’s right to cure a Termination Event has not expired, and the Collateral Agent is acting to cure such Termination Event in accordance with this Section 6.04, then the Department shall not exercise its right to terminate this Agreement by reason of such Termination Event. In furtherance of the foregoing, the Department shall permit the Collateral Agent and its Substituted Concessionaire the same access to the Project as is permitted to the Concessionaire hereunder. The Department shall accept any such performance by the Collateral Agent as though the same had been done or performed by the Concessionaire. (c) Any payment to be made or action to be taken by the Collateral Agent hereunder as a prerequisite to keeping this Agreement in effect shall be deemed properly to have been made or taken by the Collateral Agent if such payment is made or action is taken by a Substituted Concessionaire approved by the Department. The Department’s approval of a proposed Substituted Concessionaire may be withheld only if the Department reasonably determines that the proposed Substituted Concessionaire does not have the financial resources, qualifications or experience to timely perform the Concessionaire’s obligations under this Agreement and the other Project Agreements. To be qualified, the proposed Substituted Concessionaire and its Affiliates must not have been debarred or prohibited from participating in state or federally- funded projects, or indicted, convicted, pled guilty or nolo contendere to a violation of Law involving fraud, conspiracy, collusion, bribery, perjury, material misrepresentation, or any other violation that shows a similar lack of moral or ethical integrity. The Department will approve or disapprove a proposed Substituted Concessionaire within 30 days after it receives from the Collateral Agent a request for approval together with such information, evidence and supporting documentation concerning the financial resources, qualifications and experience of the proposed Substituted Concessionaire as the Department may request in good faith. (d) Any curing of any Termination Event by the Collateral Agent shall not be construed as an assumption by the Collateral Agent of any obligations, covenants or agreements of the Concessionaire under any Project Agreement, except with respect to the work, services or actions taken or performed by or on behalf of the Collateral Agent. (e) Notwithstanding the foregoing provisions of this Section 6.04, nothing in this Section 6.04 shall preclude or delay the Department from exercising (i) any remedies for a Concessionaire Default, other than termination of this Agreement, or (ii) its right to terminate this Agreement for failure to achieve Substantial Completion pursuant to Section 16.07.

Collateral Agent’s Right to Cure. As long as any Financing Assignment of record created in accordance with this Article 6 7 shall remain unsatisfied and the Department has received the notices and documents specified in Section 6.02(g7.03(f), the following provisions shall apply with respect to any such Financing Assignment and the related Lender or Lenders. (a) Should any event or condition occur which would either immediately or, following the applicable cure period or the giving of notice or both, enable the Department to terminate or suspend its obligations under this Agreement (a “Termination Event”), the Department shall not terminate this Agreement until it first gives written notice of such Termination Event to the Collateral Agent, and provides the Collateral Agent a reasonable opportunity to cure such Termination Event, as provided below: (i) If such Termination Event results from the Concessionaire’s failure to pay a monetary obligation, the Collateral Agent may cure such Termination Event by paying all amounts due within 30 days (such 30-day period to be in addition to any cure period provided to the Concessionaire herein) after receipt of written notice thereof from the Department to the Collateral Agent. (ii) If such Termination Event results from other than the Concessionaire’s failure to pay a monetary obligation, and is not a failure to achieve Substantial Completion by the Guaranteed Substantial Completion Date or Outside Substantial Completion Date, the Collateral Agent may, within 45 days (such 45-day period to be in addition to any cure period provided to the Concessionaire herein) after receipt of written notice thereof from the Department to the Collateral Agent, remedy such Termination Event or cause the same to be remedied by an entity to be designated by the Collateral Agent reasonably acceptable to the Department; provided, that if the Termination Event is such that it cannot be remedied within such 45-day period despite the exercise of diligent efforts commencing promptly after delivery of the written notice of the Termination Event, or if possession is necessary in order to effect such cure, such 45-day period shall be extended if the Collateral Agent shall have commenced a cure within such period or shall have commenced the appropriate legal or other action to foreclose the Liens of the relevant Financing Assignment so as to take possession of the Concessionaire’s Interest and shall thereafter diligently continue to pursue such remedy to completion, but in all events the cure period shall be not more than 180 days after written notice is provided pursuant to this Section 6.04(a7.05(a); provided, further, that any failure to effect such cure within such 180-day period where possession is necessary in order to do so and the Collateral Agent has diligently taken the foregoing actions shall not limit the rights of the Collateral Agent and the Lender Lenders to a New Agreement Agreements as provided in Section 6.05(c7.06(e). . (iii) If the Termination Event is peculiar to the Concessionaire and is not curable by the Collateral Agent, such as an insolvency, bankruptcy or a similar proceedingproceeding with respect to the Concessionaire, or liquidation of the Concessionaire or its properties, then notwithstanding the Department’s Department shall have the right to terminateterminate this Agreement without providing a cure period to any Lender, and the Lenders shall be entitled to New Agreements as provided in Section 7.06(e). (iv) If the Concessionaire fails to achieve Substantial Completion by the Guaranteed Substantial Completion Date, as the same may be extended pursuant to this Agreement, then the Collateral Agent shall have until the Outside Substantial Completion Date, as the same may be extended pursuant to this Agreement, to achieve or cause the Concessionaire to achieve Substantial Completion. If the Termination Event is failure to achieve Substantial Completion by the Outside Substantial Completion Date, as the same may be extended pursuant to this Agreement, then such failure shall constitute a material Concessionaire Default and the Department may proceed to terminate this Agreement and the Project Agreements to which it is a party without further notice to, or opportunity to cure by, the Collateral Agent shall not be required to cure such Termination Event but shall instead be entitled to exercise its rights under the relevant Financing Assignments and not inconsistent with this Article 6or any other Lender. (iiiv) If the Collateral Agent is prohibited by any process, stay or injunction issued by any court or by any bankruptcy or insolvency proceeding involving the Concessionaire from curing any Termination Eventcourt, the time specified above for curing any Termination Event shall be extended for the period of such prohibition, but not in excess of 180 days. The foregoing shall not apply to or result in any cure period or extension of cure period in connection with Section 7.05(a)(iii) or (iv). (b) If the Collateral Agent’s right to cure a Termination Event has not expired, and the Collateral Agent is acting to cure such Termination Event in accordance with this Section 6.047.05, then the Department shall not exercise its right to terminate this Agreement by reason of such Termination Event. In furtherance of the foregoing, the Department shall permit the Collateral Agent and its Substituted Concessionaire the same access to the Project as is permitted to the Concessionaire hereunder. The Department shall accept any such performance by the Collateral Agent as though the same had been done or performed by the Concessionaire. (c) Any payment to be made or action to be taken by the Collateral Agent hereunder as a prerequisite to keeping this Agreement in effect shall be deemed properly to have been made or taken by the Collateral Agent if such payment is made or action is taken by a Substituted Concessionaire approved by the Department. The Department’s approval of a proposed Substituted Concessionaire may be withheld only if the Department reasonably determines that the proposed Substituted Concessionaire does not have the financial resources, qualifications or experience to timely perform the Concessionaire’s obligations under this Agreement and the other Project Agreements. To be qualified, the proposed Substituted Concessionaire and its Affiliates must (i) shall not have been then be debarred or prohibited from participating in state or federally- funded projects, or (ii) shall not have been indicted, convicted, pled guilty or nolo contendere to a violation of Law involving fraud, conspiracy, collusion, bribery, perjury, material misrepresentation, or any other violation that shows a similar lack of moral or ethical integrity, and (iii) shall not then be barred or restricted from owning or operating the Project under applicable Law, including the Foreign Investment and National Security Act of 2007, 50 USC App. 2170 (HR556). The Department will approve or disapprove a proposed Substituted Concessionaire within 30 days after it receives from the Collateral Agent a request for approval together with such information, evidence and supporting documentation concerning the financial resources, qualifications and experience of the proposed Substituted Concessionaire as the Department may request in good faith. (d) Any curing of any Termination Event by the Collateral Agent shall not be construed as an assumption by the Collateral Agent of any obligations, covenants or agreements of the Concessionaire under any Project Agreement, except with respect to the work, services or actions taken or performed by or on behalf of the Collateral Agent. (e) Notwithstanding the foregoing provisions of this Section 6.047.05, nothing in this Section 6.04 7.05 shall preclude or delay the Department from exercising (i) any remedies for a Concessionaire Default, other than termination of this Agreement, or (ii) its right to terminate this Agreement for failure of the Concessionaire to achieve Substantial Completion by the Outside Substantial Completion Date, as it may be extended pursuant to Section 16.07this Agreement.

Collateral Agent’s Right to Cure. As long as any Financing Assignment (a) The State shall deliver to Collateral Agent copies of record created in accordance with this Article 6 shall remain unsatisfied and (1) all notices delivered by the Department has received the notices and documents specified in Section 6.02(g), the following provisions shall apply State to BREP with respect to (i) any such Financing Assignment and “default” or “event of default” (howsoever defined) by BREP under any Contract Document, or (ii) the related Lender or Lenders. (a) Should occurrence of any other event or condition occur which would either immediately or, following giving rise to the applicable cure period or suspension of performance by the giving State of notice or both, enable the Department to terminate or suspend its obligations under this Agreement (a “Termination Event”), the Department shall not terminate this Agreement until it first gives written notice of such Termination Event to the Collateral Agent, and provides the Collateral Agent a reasonable opportunity to cure such Termination Event, as provided below: (i) If such Termination Event results from the Concessionaire’s failure to pay a monetary obligation, the Collateral Agent may cure such Termination Event by paying all amounts due within 30 days (such 30-day period to be in addition to any cure period provided to the Concessionaire herein) after receipt of written notice thereof from the Department to the Collateral Agent. (ii) If such Termination Event results from other than the Concessionaire’s failure to pay a monetary obligation, the Collateral Agent may, within 45 days (such 45-day period to be in addition to any cure period provided to the Concessionaire herein) after receipt of written notice thereof from the Department to the Collateral Agent, remedy such Termination Event or cause the same to be remedied by an entity to be designated by the Collateral Agent reasonably acceptable to the Department; provided, that if the Termination Event is such that it cannot be remedied within such 45-day period despite the exercise of diligent efforts commencing promptly after delivery of the written notice of the Termination EventContract Documents, or if possession is necessary in order to effect such cure, such 45-day period shall be extended if the Collateral Agent shall have commenced a cure within such period or shall have commenced the appropriate legal or other action to foreclose the Liens of the relevant Financing Assignment so as to take possession of the Concessionaire’s Interest and shall thereafter diligently continue to pursue such remedy to completion, but in all events the cure period shall be not more than 180 days after written notice is provided pursuant to this Section 6.04(a); provided, further, that any failure to effect such cure shall not limit the rights of the Collateral Agent and the Lender to a New Agreement as provided in Section 6.05(c). If the Termination Event is peculiar to the Concessionaire and is not curable by the Collateral Agent, such as an insolvency, bankruptcy or a similar proceeding, or liquidation of the Concessionaire or its properties, then notwithstanding the Department’s right to terminate, the Collateral Agent shall not be required to cure such Termination Event but shall instead be entitled to exercise its rights under the relevant Financing Assignments and not inconsistent with this Article 6. (iii) If the occurrence of any other event which gives the State the right to terminate any Contract Document, and (2) any information reasonably requested by Collateral Agent is prohibited by relating to any process, stay or injunction issued by any court or by any bankruptcy or insolvency proceeding involving of the Concessionaire from curing any Termination Event, the time specified above for curing any Termination Event shall be extended for the period of such prohibition, but not in excess of 180 daysforegoing. (b) If The State shall not terminate the Collateral AgentContract Documents with respect to an event giving rise to the State’s right to cure a terminate the Contract Documents unless the State pays the BREP’s Financier the Termination Event has Fee due with respect to such termination. In addition, the State shall not expired, and terminate the Contract Documents without first affording Collateral Agent is acting to cure such Termination Event in accordance with this any rights BREP may have under Section 6.0410.3 of the CEA or that BREP may have under Section 3.3 of the Lease, then Section 10.3 of the Department shall not exercise its right to terminate this Thermal Services Agreement by reason or Section 21 of such Termination Eventthe Phase I Facility Optimization Services Agreement. In furtherance of the foregoing, the Department State shall permit the Collateral Agent and its Substituted Concessionaire Representatives (including a Keeper) the same access to the Project Contract Rights as is permitted to BREP under the Concessionaire hereunderContract Documents, subject to the same terms and conditions, and provided that the Collateral Agent, or its applicable Representative (including a Keeper), satisfies the criteria for an Acceptable Operator. The Department State shall accept any such performance by the Collateral Agent or any BREP Successor Party as though the same had been done or performed by BREP. Any exercise of Collateral Agent’s rights to cure hereunder shall not, by itself, result in the Concessionaireassumption by Collateral Agent of BREP’s obligations under the Contract Documents unless and until an Enforcement Transfer occurs or Collateral Agent otherwise gains management rights or control over the Contract Documents. Notwithstanding the foregoing, in the event the State seeks to terminate all or any Contract Document in contravention of this Section 7(b) and does not at that time pay the entirety of the Termination Fee, the State shall grant or cause to be granted to Collateral Agent and/or BREP’s Financier reasonable access to the Xxxx Center Plant, the Shaw Center Building and the Covered Facilities in order for Collateral Agent and/or BREP’s Financier to remove and take possession of all Equipment located therein. (c) Any payment Except as provided in Section 7(b), unless and until Collateral Agent (i) forecloses or has otherwise taken ownership of the BREP Property or (ii) has taken possession or control of the BREP Property, whether directly or by a Keeper, and the Keeper has taken possession or control of the BREP Property by reference to be made the Mortgage or action to be taken by the Collateral Agent hereunder as a prerequisite to keeping this Agreement in effect shall be deemed properly to have been made or taken by the Collateral Agent if such payment is made or action is taken by a Substituted Concessionaire approved by the Department. The Department’s approval of a proposed Substituted Concessionaire may be withheld only if the Department reasonably determines that the proposed Substituted Concessionaire does not have the financial resourcesSecurity Agreement, qualifications or experience to timely perform the Concessionaire’s obligations under this Agreement and the other Project Agreements. To be qualified, the proposed Substituted Concessionaire and its Affiliates must not have been debarred or prohibited from participating in state or federally- funded projects, or indicted, convicted, pled guilty or nolo contendere to a violation of Law involving fraud, conspiracy, collusion, bribery, perjury, material misrepresentation, or any other violation that shows a similar lack of moral or ethical integrity. The Department will approve or disapprove a proposed Substituted Concessionaire within 30 days after it receives from the Collateral Agent a request for approval together with such information, evidence and supporting documentation concerning the financial resources, qualifications and experience of the proposed Substituted Concessionaire as the Department may request in good faith. (d) Any curing of any Termination Event by the Collateral Agent shall not be construed as an assumption responsible for any of BREP’s obligations under the Contract Documents or be entitled to any of BREP’s rights and benefits contained in the Contract Documents, except by way of security. If Collateral Agent itself or by a Keeper is the owner, or is in control or possession of, the BREP Property, it shall be bound by and agrees to thereafter perform all obligations of BREP under the Contract Documents. Once the Collateral Agent goes out of possession or control of the BREP Property or transfers the BREP Property to another BREP Successor Party, the Collateral Agent shall cease to be responsible for performing any of BREP’s obligations under the Contract Documents accruing thereafter and shall cease to be entitled to any of BREP’s rights and benefits contained in the Contract Documents, except, if the BREP Financing Security remains outstanding, by way of security. Notwithstanding anything to the contrary contained in this NDA or the Contract Documents, failure of any obligationsBREP Successor Party to exercise any right to cure or to cure any default under the Contract Documents shall not in any way affect the State’s obligation to pay the Thermal Services Charge, covenants FOSA Charge or agreements the Termination Fee, provided that the State shall retain all other rights and remedies available to the State under the Contract Documents, including, subject to the provisions of Section 7(b) above, the right to terminate the Contract Documents in accordance with the terms thereof. (d) Notwithstanding anything to the contrary contained in this NDA, any Keeper in possession or control of any of the Concessionaire BREP Property must be an Acceptable Operator, or must have engaged and at all times be acting through an Acceptable Operator to perform the work and provide the services required of BREP under any Project Agreement, except with respect to the work, services or actions taken or performed by or on behalf of the Collateral AgentContract Documents. (e) Notwithstanding anything to the foregoing provisions of this Section 6.04, nothing contrary contained in this Section 6.04 NDA or any Contract Document, none of the Contract Document shall preclude terminate prior to the expiration of their scheduled terms without the payment of the Termination Fee to BREP’s Financier. (f) Notwithstanding anything to the contrary contained in this NDA, the liability of any BREP Successor Party shall be limited to its interest in the BREP Property, the Collateral and, subject to the limitations on offset set forth in the Contract Documents, any revenues or delay proceeds derived by the Department from exercising BREP Successor Party by virtue of the BREP Property or the BREP Group Documents (ifor ease of reference, collectively, the “BREP Successor Party Assets”); provided, however, that in no event shall the BREP Successor Party Assets include (x) any remedies for a Concessionaire Default, other than termination of this Agreement, the Termination Fee or (iiy) its right prior to terminate this Agreement BREP’s Financier having received all amounts owed to it by BREP and such BREP Successor Party, if any, the Thermal Services Charges and FOSA Charges. Any judgment in favor of the State or any party claiming by, through or under the State against any BREP Successor Party shall be collectible only out of such BREP Successor Party Assets, and in no event shall any judgment for failure to achieve Substantial Completion pursuant to Section 16.07damages be entered against such BREP Successor Party which is in excess of the value of such interest.

Collateral Agent’s Right to Cure. As long as any Financing Assignment (a) The State shall deliver to Collateral Agent copies of record created in accordance with this Article 6 shall remain unsatisfied and (1) all notices delivered by the Department has received the notices and documents specified in Section 6.02(g), the following provisions shall apply State to BREP with respect to (i) any such Financing Assignment and “default” or “event of default” (howsoever defined) by BREP under any Contract Document, or (ii) the related Lender or Lenders. (a) Should occurrence of any other event or condition occur which would either immediately or, following giving rise to the applicable cure period or suspension of performance by the giving State of notice or both, enable the Department to terminate or suspend its obligations under this Agreement (a “Termination Event”), the Department shall not terminate this Agreement until it first gives written notice of such Termination Event to the Collateral Agent, and provides the Collateral Agent a reasonable opportunity to cure such Termination Event, as provided below: (i) If such Termination Event results from the Concessionaire’s failure to pay a monetary obligation, the Collateral Agent may cure such Termination Event by paying all amounts due within 30 days (such 30-day period to be in addition to any cure period provided to the Concessionaire herein) after receipt of written notice thereof from the Department to the Collateral Agent. (ii) If such Termination Event results from other than the Concessionaire’s failure to pay a monetary obligation, the Collateral Agent may, within 45 days (such 45-day period to be in addition to any cure period provided to the Concessionaire herein) after receipt of written notice thereof from the Department to the Collateral Agent, remedy such Termination Event or cause the same to be remedied by an entity to be designated by the Collateral Agent reasonably acceptable to the Department; provided, that if the Termination Event is such that it cannot be remedied within such 45-day period despite the exercise of diligent efforts commencing promptly after delivery of the written notice of the Termination EventContract Documents, or if possession is necessary in order to effect such cure, such 45-day period shall be extended if the Collateral Agent shall have commenced a cure within such period or shall have commenced the appropriate legal or other action to foreclose the Liens of the relevant Financing Assignment so as to take possession of the Concessionaire’s Interest and shall thereafter diligently continue to pursue such remedy to completion, but in all events the cure period shall be not more than 180 days after written notice is provided pursuant to this Section 6.04(a); provided, further, that any failure to effect such cure shall not limit the rights of the Collateral Agent and the Lender to a New Agreement as provided in Section 6.05(c). If the Termination Event is peculiar to the Concessionaire and is not curable by the Collateral Agent, such as an insolvency, bankruptcy or a similar proceeding, or liquidation of the Concessionaire or its properties, then notwithstanding the Department’s right to terminate, the Collateral Agent shall not be required to cure such Termination Event but shall instead be entitled to exercise its rights under the relevant Financing Assignments and not inconsistent with this Article 6. (iii) If the occurrence of any other event which gives the State the right to terminate any Contract Document, and (2) any information reasonably requested by Collateral Agent is prohibited by relating to any process, stay or injunction issued by any court or by any bankruptcy or insolvency proceeding involving of the Concessionaire from curing any Termination Event, the time specified above for curing any Termination Event shall be extended for the period of such prohibition, but not in excess of 180 daysforegoing. (b) If The State shall not terminate the Collateral AgentContract Documents with respect to an event giving rise to the State’s right to cure a terminate the Contract Documents unless the State pays the BREP’s Financier the Termination Event has Fee due with respect to such termination. In addition, the State shall not expired, and terminate the Contract Documents without first affording Collateral Agent is acting to cure such Termination Event in accordance with this any rights BREP may have under Section 6.0410.3 of the CEA or that BREP may have under Section 3.3 of the Lease, then Section 10.3 of the Department shall not exercise its right to terminate this Thermal Services Agreement by reason or Section 21 of such Termination Eventthe Phase I Facility Optimization Services Agreement. In furtherance of the foregoing, the Department State shall permit the Collateral Agent and its Substituted Concessionaire Representatives (including a Keeper) the same access to the Project Contract Rights as is permitted to BREP under the Concessionaire hereunderContract Documents, subject to the same terms and conditions, and provided that the Collateral Agent, or its applicable Representative (including a Keeper), satisfies the criteria for an Acceptable Operator. The Department State shall accept any such performance by the Collateral Agent or any BREP Successor Party as though the same had been done or performed by BREP. Any exercise of Collateral Agent’s rights to cure hereunder shall not, by itself, result in the Concessionaireassumption by Collateral Agent of BREP’s obligations under the Contract Documents unless and until an Enforcement Transfer occurs or Collateral Agent otherwise gains management rights or control over the Contract Documents. Notwithstanding the foregoing, in the event the State seeks to terminate all or any Contract Document in contravention of this Section 7(b) and does not at that time pay the entirety of the Termination Fee, the State shall grant or cause to be granted to Collateral Agent and/or BREP’s Financier reasonable access to the Xxxx Center Plant, the Xxxx Center Building and the Covered Facilities in order for Collateral Agent and/or BREP’s Financier to remove and take possession of all Equipment located therein. (c) Any payment Except as provided in Section 7(b), unless and until Collateral Agent (i) forecloses or has otherwise taken ownership of the BREP Property or (ii) has taken possession or control of the BREP Property, whether directly or by a Keeper, and the Keeper has taken possession or control of the BREP Property by reference to be made the Mortgage or action to be taken by the Collateral Agent hereunder as a prerequisite to keeping this Agreement in effect shall be deemed properly to have been made or taken by the Collateral Agent if such payment is made or action is taken by a Substituted Concessionaire approved by the Department. The Department’s approval of a proposed Substituted Concessionaire may be withheld only if the Department reasonably determines that the proposed Substituted Concessionaire does not have the financial resourcesSecurity Agreement, qualifications or experience to timely perform the Concessionaire’s obligations under this Agreement and the other Project Agreements. To be qualified, the proposed Substituted Concessionaire and its Affiliates must not have been debarred or prohibited from participating in state or federally- funded projects, or indicted, convicted, pled guilty or nolo contendere to a violation of Law involving fraud, conspiracy, collusion, bribery, perjury, material misrepresentation, or any other violation that shows a similar lack of moral or ethical integrity. The Department will approve or disapprove a proposed Substituted Concessionaire within 30 days after it receives from the Collateral Agent a request for approval together with such information, evidence and supporting documentation concerning the financial resources, qualifications and experience of the proposed Substituted Concessionaire as the Department may request in good faith. (d) Any curing of any Termination Event by the Collateral Agent shall not be construed as an assumption responsible for any of BREP’s obligations under the Contract Documents or be entitled to any of BREP’s rights and benefits contained in the Contract Documents, except by way of security. If Collateral Agent itself or by a Keeper is the owner, or is in control or possession of, the BREP Property, it shall be bound by and agrees to thereafter perform all obligations of BREP under the Contract Documents. Once the Collateral Agent goes out of possession or control of the BREP Property or transfers the BREP Property to another BREP Successor Party, the Collateral Agent shall cease to be responsible for performing any of BREP’s obligations under the Contract Documents accruing thereafter and shall cease to be entitled to any of BREP’s rights and benefits contained in the Contract Documents, except, if the BREP Financing Security remains outstanding, by way of security. Notwithstanding anything to the contrary contained in this NDA or the Contract Documents, failure of any obligationsBREP Successor Party to exercise any right to cure or to cure any default under the Contract Documents shall not in any way affect the State’s obligation to pay the Thermal Services Charge, covenants FOSA Charge or agreements the Termination Fee, provided that the State shall retain all other rights and remedies available to the State under the Contract Documents, including, subject to the provisions of Section 7(b) above, the right to terminate the Contract Documents in accordance with the terms thereof. (d) Notwithstanding anything to the contrary contained in this NDA, any Keeper in possession or control of any of the Concessionaire BREP Property must be an Acceptable Operator, or must have engaged and at all times be acting through an Acceptable Operator to perform the work and provide the services required of BREP under any Project Agreement, except with respect to the work, services or actions taken or performed by or on behalf of the Collateral AgentContract Documents. (e) Notwithstanding anything to the foregoing provisions of this Section 6.04, nothing contrary contained in this Section 6.04 NDA or any Contract Document, none of the Contract Document shall preclude terminate prior to the expiration of their scheduled terms without the payment of the Termination Fee to BREP’s Financier. (f) Notwithstanding anything to the contrary contained in this NDA, the liability of any BREP Successor Party shall be limited to its interest in the BREP Property, the Collateral and, subject to the limitations on offset set forth in the Contract Documents, any revenues or delay proceeds derived by the Department from exercising BREP Successor Party by virtue of the BREP Property or the BREP Group Documents (ifor ease of reference, collectively, the “BREP Successor Party Assets”); provided, however, that in no event shall the BREP Successor Party Assets include (x) any remedies for a Concessionaire Default, other than termination of this Agreement, the Termination Fee or (iiy) its right prior to terminate this Agreement BREP’s Financier having received all amounts owed to it by BREP and such BREP Successor Party, if any, the Thermal Services Charges and FOSA Charges. Any judgment in favor of the State or any party claiming by, through or under the State against any BREP Successor Party shall be collectible only out of such BREP Successor Party Assets, and in no event shall any judgment for failure to achieve Substantial Completion pursuant to Section 16.07damages be entered against such BREP Successor Party which is in excess of the value of such interest.