Consent to Collateral Assignment. Subject to the provisions of this Section 9.05, Seller may (but is not obligated to) assign this Agreement as collateral to a Lender for any financing or refinancing of the Generating Facility, including a Sale-Leaseback Transaction or Equity Investment and, in connection therewith, Buyer shall in good faith work with Seller and Lender to agree upon a consent to a collateral assignment of this Agreement or to a Sale-Leaseback Transaction or Equity Investment, as applicable (“Collateral Assignment Agreement”). The Collateral Assignment Agreement shall be in form and substance reasonably agreed to by Xxxxx, Seller and Lender, and shall include, among others, the following provisions (together with such other commercially reasonable provisions required by any Lender that are reasonably acceptable to Buyer): Buyer shall give, to the Person(s) to be specified by Lender in the Collateral Assignment Agreement, simultaneously with the Notice to Seller and before exercising its right to terminate this Agreement, written Notice of any event or circumstance known to Buyer which would, if not cured within the applicable cure period specified in Article VI, constitute an Event of Default (an “Incipient Event of Default”); Lender shall have the right to cure an Incipient Event of Default or an Event of Default by Seller in accordance with the same provisions of this Agreement as apply to Seller; Following an Event of Default by Seller under this Agreement, Buyer may require Seller to (although Lender may, but shall have no obligation, subject to 9.05(g)) provide to Buyer a report concerning: The status of efforts by Seller or Lender to develop a plan to cure the Event of Default; Impediments to the cure plan or its development; If a cure plan has been adopted, the status of the cure plan’s implementation (including any modifications to the plan as well as the expected timeframe within which any cure is expected to be implemented); and Any other information which Buyer may reasonably require related to the development, implementation and timetable of the cure plan; Seller or Lender shall provide the report to Buyer within 10 Business Days after Notice from Buyer requesting the report. Buyer shall have no further right to require the report with respect to a particular Event of Default after that Event of Default has been cured; Lender shall have the right to cure an Event of Default or Incipient Event of Default on behalf of Seller, only if Xxxxxx sends a written notice to Buyer before the end of any cure period indicating Xxxxxx’s intention to cure. Lender may remedy or cure the Event of Default or Incipient Event of Default within the cure period under this Agreement. Such cure period for Lender shall be extended for each day Buyer does not provide the Notice to Lender referred to in Section 9.05(a). In addition, such cure period may, in Buyer’s reasonable discretion, be extended by no more than an additional 180 days. If possession of the Generating Facility is necessary to cure such Incipient Event of Default or Event of Default, Lender has commenced foreclosure proceedings within 60 days after receipt of such Notice from Buyer, and Lender is making diligent and consistent efforts to complete such foreclosure, take possession of the Generating Facility and promptly cure the Incipient Event of Default or Event of Default, Lender or its designee(s) or assignee(s) will be allowed a reasonable period of time to complete such foreclosure proceedings, take possession of the Generating Facility and cure such Incipient Event of Default or Event of Default, not to exceed 180 days after Xxxxxx’s commencement of foreclosure. Additionally, if Lender is prohibited from curing any Incipient Event of Default or Event of Default by any process, stay or injunction issued by a Governmental Authority or pursuant to any bankruptcy, insolvency or similar proceedings, then the time period for curing such Incipient Event of Default or Event of Default shall be extended for the period of the prohibition provided that Lender is exercising reasonable diligence in having such process, stay or injunction removed; Lender shall have the right to consent before any termination of this Agreement which does not arise out of an Event of Default or the end of the Term; Lender shall receive prior Notice of, and shall have the right to approve material amendments to this Agreement, which approval may not be unreasonably withheld, delayed or conditioned; In the event Lender, directly or indirectly, takes title to the Generating Facility (including title by foreclosure or deed in lieu of foreclosure), the Person taking title to the Generating Facility shall assume all of Seller’s obligations arising under this Agreement and all related agreements (subject to such limits on liability as are mutually agreed to by Seller, Buyer and Lender as set forth in the Collateral Assignment Agreement); provided, however, that Lender (or such Person) shall have no liability for any monetary obligations of Seller under this Agreement which are due and owing to Buyer as of the assumption date (but this provision may not be interpreted to limit Buyer’s rights to proceed against Seller as a result of an Event of Default) and Lender’s (or such Person’s) liability to Buyer after such assumption shall be limited to its interest in the Generating Facility; provided further, that before such assumption, if Buyer advises Lender (or such Person) that Buyer will require that Lender (or such Person) cure (or cause to be cured) one or more monetary or non-monetary Incipient Event(s) of Default or Event(s) of Default existing as of the date such Person takes title in order to avoid the exercise by Buyer (in its sole discretion) of Buyer’s right to terminate this Agreement with respect to such Incipient Event(s) of Default or Event(s) of Default, then Lender (or such Person) at its option and in its sole discretion may elect to either (i) cause such Incipient Event(s) of Default or Event of Default to be cured, or (ii) not assume this Agreement; If Lender has assumed this Agreement as provided in Section 9.05(h) and elects to sell or transfer the Generating Facility (after Lender directly or indirectly, takes title to the Generating Facility), or sale of the Generating Facility occurs through the actions of Lender or an agent of or representative of Lender (excluding any foreclosure sale where a third party other than Lender, Seller, an Related Entity of Lender or an Related Entity of Seller is the buyer), then Lender must cause the transferee or buyer to assume all of Seller’s obligations arising under this Agreement and all related agreements as a condition of the sale or transfer excluding, however, a foreclosure (unless the transferee or buyer is Lender, Seller, an Related Entity of Lender or an Related Entity of Seller). Lender shall be released from all further obligations under the Agreement and all related documents following such assumption. Such sale or transfer (excluding a foreclosure) may be made only to a Person reasonably acceptable to Buyer; and If this Agreement is rejected in Seller’s Bankruptcy or otherwise terminated in connection therewith and if Lender or its representative or designee, directly or indirectly, takes title to the Generating Facility, then, at the request of either Buyer or Lender, Buyer and Lender (or its designee or representative) shall promptly enter into a new agreement with Buyer having substantially the same terms as this Agreement for the term that would have been remaining under this Agreement, provided that Lender’s (or its designee’s or representative’s) liability under such new agreement shall be limited to its interest in the Generating Facility and neither Lender (or its designee or representative) nor Buyer shall have any personal liability to the other for any amounts owing and neither Buyer nor Lender (or its designee or representative) shall have any obligation to cure any defaults under the original Agreement that was rejected in, or otherwise terminated in connection with Seller’s Bankruptcy.
Appears in 8 contracts
Samples: Power Purchase and Sale Agreement, Power Purchase and Sale Agreement, Power Purchase and Sale Agreement
Consent to Collateral Assignment. Subject to the provisions of this Section 9.0510.05, Seller may (but is not obligated to) shall have the right to assign this Power Purchase Agreement as collateral to a Lender for any financing or refinancing of the Generating Facility. In connection with, including and as a Sale-Leaseback Transaction condition to, any financing or Equity Investment andrefinancing of the Generating Facility by Seller, in connection therewith, Buyer SCE shall in good faith work with Seller and Lender to agree upon a consent to a collateral assignment of this Power Purchase Agreement or to a Sale-Leaseback Transaction or Equity Investment, as applicable (“Collateral Assignment Agreement”). The Collateral Assignment Agreement shall be in form and substance reasonably agreed to by XxxxxSCE, Seller and Lender, and shall include, among othersother things, the following provisions (together with such other commercially reasonable provisions required by any Lender that are reasonably acceptable to Buyer): Buyer SCE):
(a) SCE shall give, give to the Person(sperson(s) to be specified by Lender in the Collateral Assignment Agreement, simultaneously with the Notice to Seller and before prior to exercising its right to terminate this Power Purchase Agreement, written Notice of any event or circumstance occurrence known to Buyer SCE which would, if not cured within with the applicable cure period as specified in Article VISection 6.01, constitute an Event of Default (an “Incipient Event of Default”); ;
(b) Lender shall have the right to cure an Incipient Event of Default or an Event of Default by Seller in accordance with the same provisions of this Power Purchase Agreement as apply to Seller; ;
(c) Following an Event of Default by Seller under this Power Purchase Agreement, Buyer SCE may require Seller to (although Lender may, but shall have no obligation, subject to 9.05(gSection 10.05(g), to perform) to provide to Buyer SCE a report concerning: :
(i) The status of efforts by Seller or Lender to develop a plan to cure the Event of Default; ;
(ii) Impediments to the cure plan or its development; ;
(iii) If a cure plan has been adopted, the status of the cure plan’s implementation (including any modifications to the plan as well as the expected timeframe within which any cure is expected to be implemented); and and
(iv) Any other information which Buyer SCE may reasonably require related to the development, implementation and timetable of the cure plan; . Seller or Lender shall provide the report to Buyer SCE within 10 ten (10) Business Days after of Notice from Buyer SCE requesting the report. Buyer SCE shall have no further right to require the report with respect to a particular Event of Default after that Event of Default has been cured; ;
(d) Lender shall have the right to cure an Incipient Event of Default or Incipient an Event of Default on behalf of Seller, only if Xxxxxx Lender sends a written notice to Buyer before SCE prior to the end of any cure period indicating XxxxxxLender’s intention to cure. Lender may remedy or cure the Incipient Event of Default or Incipient Event of Default within the cure period under this Power Purchase Agreement. Such cure period for Lender shall be extended for each day Buyer SCE does not provide the Notice to Lender referred to in Section 9.05(a10.05(a). In addition, such cure period may, in BuyerSCE’s reasonable discretion, be extended by no more than an additional 180 one hundred eighty (180) days. If possession of the Generating Facility is necessary to cure such Incipient Event of Default or Event of Default, Lender has commenced foreclosure proceedings within 60 sixty (60) days after receipt of such Notice from BuyerSCE, and Lender is making diligent and consistent efforts to complete such foreclosure, take possession of the Generating Facility and promptly cure the Incipient Event of Default or Event of Default, Lender or its designee(s) or assignee(s) will be allowed a reasonable period of time to complete such foreclosure proceedings, take possession of the Generating Facility and cure such Incipient Event of Default or Event of Default, not to exceed 180 one hundred eighty (180) days after XxxxxxLender’s commencement of foreclosure. Additionally, if Lender is prohibited from curing any Incipient Event of Default or Event of Default by any process, stay or injunction issued by a an Governmental Authority or pursuant to any bankruptcy, insolvency or similar proceedings, then the time period for curing such Incipient Event of Default or Event of Default shall be extended for the period of the prohibition provided that Lender is exercising reasonable diligence in having such process, stay or injunction removed; ;
(e) Lender shall have the right to consent before prior to any termination of this Power Purchase Agreement which does not arise out of an Event of Default or the end of the Facility Term; ;
(f) Lender shall receive prior Notice of, of and shall have the right to approve material amendments to this Power Purchase Agreement, which approval may shall not be unreasonably withheld, delayed or conditioned; ;
(g) In the event Lender, directly or indirectly, takes title to the Generating Facility (including title by foreclosure or deed in lieu of foreclosure), the Person entity taking title to the Generating Facility shall assume all of Seller’s obligations arising under this Power Purchase Agreement and all related agreements (subject to such limits on liability as are mutually agreed to by Seller, Buyer SCE and Lender as set forth in the Collateral Assignment Agreement); providedprovided that, however, that Lender (or such Personentity) shall have no liability for any monetary obligations of Seller under this Power Purchase Agreement which are due and owing to Buyer SCE as of the assumption date (but this provision may shall not be interpreted to limit BuyerSCE’s rights to proceed against Seller as a result of an Event of Default) and Lender’s (or such Personentity’s) liability to Buyer SCE after such assumption shall be limited to its interest in the Generating Facility; provided furtherprovided, however, that before prior to such assumption, if Buyer SCE advises Lender (or such Personentity) that Buyer SCE will require that Lender (or such Personentity) cure (or cause to be cured) one or more monetary or non-monetary Incipient Event(s) Event of Default or Event(s) Event of Default existing as of the date such Person entity takes title in order to avoid the exercise by Buyer SCE (in its sole discretion) of BuyerSCE’s right to terminate this Power Purchase Agreement with in respect of such Incipient Event of Default or Event of Default, then Lender (or such entity) at its option, and in its sole discretion, may elect to either:
(i) Cause such Incipient Event(s) of Default or Event(s) of Default, then Lender (or such Person) at its option and in its sole discretion may elect to either (i) cause such Incipient Event(s) of Default or Event of Default to be cured, or ; or
(ii) not Not assume this Power Purchase Agreement; .
(h) If Lender has assumed this Power Purchase Agreement as provided in Section 9.05(h10.05(g) and elects to sell or transfer the Generating Facility (after Lender directly or indirectly, takes title to the Generating Facility), or sale of the Generating Facility occurs through the actions of Lender or an agent of or representative of Lender (excluding any foreclosure sale where a third party other than Lender, Seller, an Related Entity Affiliate of Lender or an Related Entity Affiliate of Seller is the buyer), then Lender must cause the transferee or buyer to assume all of Seller’s obligations arising under this Power Purchase Agreement and all related agreements as a condition of the sale or transfer excluding, however, a foreclosure (unless the transferee or buyer is Lender, Seller, an Related Entity Affiliate of Lender or an Related Entity Affiliate of Seller). Lender shall be released from all further obligations under the Power Purchase Agreement and all related documents following such assumption. Such sale or transfer (excluding however, a foreclosure) may be made only to a Person Permitted Transferee or to an entity with financial qualifications and operating experience equivalent to Seller that is reasonably acceptable to Buyer; and SCE;
(i) If this Power Purchase Agreement is rejected in Seller’s Bankruptcy or otherwise terminated in connection therewith and if Lender or its representative or designee, directly or indirectly, takes title to the Generating Facility, then, at the request of either Buyer SCE or Lender, Buyer SCE and Lender (or its designee or representative) shall promptly enter into a new agreement with Buyer having substantially the same terms as this Power Purchase Agreement for the term that would have been remaining under this Power Purchase Agreement, provided that Lender’s (or its designee’s or representative’s) liability under such new agreement shall be limited to its interest in the Generating Facility and neither Lender (or its designee or representative) nor Buyer SCE shall have any personal liability to the other for any amounts owing and neither Buyer SCE nor Lender (or its designee or representative) shall have any obligation to cure any defaults under the original Power Purchase Agreement that was rejected in, or otherwise terminated in connection with Seller’s Bankruptcy.
Appears in 7 contracts
Samples: Power Purchase Agreement, Power Purchase Agreement, Power Purchase Agreement
Consent to Collateral Assignment. Subject to the provisions of this Section 9.059.06, Seller may (but is not obligated to) assign this Agreement as collateral to a Lender for any financing or refinancing of the Generating Facility, including a Sale-Leaseback Transaction or Equity Investment and, in connection therewith, Buyer shall in good faith work with Seller and Lender to agree upon a consent to a collateral assignment of this Agreement or to a Sale-Leaseback Transaction or Equity Investment, as applicable (“Collateral Assignment Agreement”). The Collateral Assignment Agreement shall be in form and substance reasonably agreed to by XxxxxBuyer, Seller and Lender, and shall include, among others, the following provisions (together with such other commercially reasonable provisions required by any Lender that are reasonably acceptable to Buyer): ):
(a) Buyer shall give, to the Person(s) to be specified by Lender in the Collateral Assignment Agreement, simultaneously with the Notice to Seller and before exercising its right to terminate this Agreement, written Notice of any event or circumstance known to Buyer which would, if not cured within the applicable cure period specified in Article VI, constitute an Event of Default (an “Incipient Event of Default”); ;
(b) Lender shall have the right to cure an Incipient Event of Default or an Event of Default by Seller in accordance with the same provisions of this Agreement as apply to Seller; ;
(c) Following an Event of Default by Seller under this Agreement, Buyer may require Seller to (although Lender may, but shall have no obligation, subject to 9.05(g9.06(g)) provide to Buyer a report concerning: :
(i) The status of efforts by Seller or Lender to develop a plan to cure the Event of Default; ;
(ii) Impediments to the cure plan or its development; ;
(iii) If a cure plan has been adopted, the status of the cure plan’s implementation (including any modifications to the plan as well as the expected timeframe within which any cure is expected to be implemented); and and
(iv) Any other information which Buyer may reasonably require related to the development, implementation and timetable of the cure plan; ;
(d) Seller or Lender shall provide the report to Buyer within 10 Business Days after Notice from Buyer requesting the report. Buyer shall have no further right to require the report with respect to a particular Event of Default after that Event of Default has been cured; ;
(e) Lender shall have the right to cure an Event of Default or Incipient Event of Default on behalf of Seller, only if Xxxxxx Lender sends a written notice to Buyer before the end of any cure period indicating XxxxxxLender’s intention to cure. Lender may remedy or cure the Event of Default or Incipient Event of Default within the cure period under this Agreement. Such cure period for Lender shall be extended for each day Buyer does not provide the Notice to Lender referred to in Section 9.05(a9.06(a). In addition, such cure period may, in Buyer’s reasonable discretion, be extended by no more than an additional 180 days. If possession of the Generating Facility is necessary to cure such Incipient Event of Default or Event of Default, Lender has commenced foreclosure proceedings within 60 days after receipt of such Notice from Buyer, and Lender is making diligent and consistent efforts to complete such foreclosure, take possession of the Generating Facility and promptly cure the Incipient Event of Default or Event of Default, Lender or its designee(s) or assignee(s) will be allowed a reasonable period of time to complete such foreclosure proceedings, take possession of the Generating Facility and cure such Incipient Event of Default or Event of Default, not to exceed 180 days after XxxxxxLender’s commencement of foreclosure. Additionally, if Lender is prohibited from curing any Incipient Event of Default or Event of Default by any process, stay or injunction issued by a Governmental Authority or pursuant to any bankruptcy, insolvency or similar proceedings, then the time period for curing such Incipient Event of Default or Event of Default shall be extended for the period of the prohibition provided that Lender is exercising reasonable diligence in having such process, stay or injunction removed; ;
(f) Lender shall have the right to consent before any termination of this Agreement which does not arise out of an Event of Default or the end of the Term; ;
(g) Lender shall receive prior Notice of, and shall have the right to approve material amendments to this Agreement, which approval may not be unreasonably withheld, delayed or conditioned; ;
(h) In the event Lender, directly or indirectly, takes title to the Generating Facility (including title by foreclosure or deed in lieu of foreclosure), the Person taking title to the Generating Facility shall assume all of Seller’s obligations arising under this Agreement and all related agreements (subject to such limits on liability as are mutually agreed to by Seller, Buyer and Lender as set forth in the Collateral Assignment Agreement); provided, however, that Lender (or such Person) shall have no liability for any monetary obligations of Seller under this Agreement which are due and owing to Buyer as of the assumption date (but this provision may not be interpreted to limit Buyer’s rights to proceed against Seller as a result of an Event of Default) and Lender’s (or such Person’s) liability to Buyer after such assumption shall be limited to its interest in the Generating Facility; provided further, that before such assumption, if Buyer advises Lender (or such Person) that Buyer will require that Lender (or such Person) cure (or cause to be cured) one or more monetary or non-monetary Incipient Event(s) of Default or Event(s) of Default existing as of the date such Person takes title in order to avoid the exercise by Buyer (in its sole discretion) of Buyer’s right to terminate this Agreement with respect to such Incipient Event(s) of Default or Event(s) of Default, then Lender (or such Person) at its option and in its sole discretion may elect to either (i) cause such Incipient Event(s) of Default or Event of Default to be cured, or (ii) not assume this Agreement; ;
(i) If Lender has assumed this Agreement as provided in Section 9.05(h9.06(h) and elects to sell or transfer the Generating Facility (after Lender directly or indirectly, takes title to the Generating Facility), or sale of the Generating Facility occurs through the actions of Lender or an agent of or representative of Lender (excluding any foreclosure sale where a third party other than Lender, Seller, an Related Entity of Lender or an Related Entity of Seller is the buyer), then Lender must cause the transferee or buyer to assume all of Seller’s obligations arising under this Agreement and all related agreements as a condition of the sale or transfer excluding, however, a foreclosure (unless the transferee or buyer is Lender, Seller, an Related Entity of Lender or an Related Entity of Seller). Lender shall be released from all further obligations under the Agreement and all related documents following such assumption. Such sale or transfer (excluding a foreclosure) may be made only to a Person reasonably acceptable to Buyer; and and
(j) If this Agreement is rejected in Seller’s Bankruptcy or otherwise terminated in connection therewith and if Lender or its representative or designee, directly or indirectly, takes title to the Generating Facility, then, at the request of either Buyer or Lender, Buyer and Lender (or its designee or representative) shall promptly enter into a new agreement with Buyer having substantially the same terms as this Agreement for the term that would have been remaining under this Agreement, provided that Lender’s (or its designee’s or representative’s) liability under such new agreement shall be limited to its interest in the Generating Facility and neither Lender (or its designee or representative) nor Buyer shall have any personal liability to the other for any amounts owing and neither Buyer nor Lender (or its designee or representative) shall have any obligation to cure any defaults under the original Agreement that was rejected in, or otherwise terminated in connection with Seller’s Bankruptcy.
Appears in 6 contracts
Samples: Power Purchase and Sale Agreement, Power Purchase and Sale Agreement, Power Purchase and Sale Agreement
Consent to Collateral Assignment. Subject The Contributor hereby consents to the provisions collateral assignment by the Company of this Section 9.05all of its right, Seller may (but is not obligated to) assign title and interest in, to and under this Agreement as collateral to a Lender the Collateral Agent (for any financing or refinancing the benefit of the Generating FacilitySecured Parties) pursuant to the Security Agreement. The Contributor and the Company agree that the Collateral Agent (or its designee or assignee) shall, including a Sale-Leaseback Transaction or Equity Investment andsubject to the Collateral Agency Agreement, in connection therewith, Buyer shall in good faith work with Seller and Lender be entitled to agree upon a consent to a collateral assignment of enforce this Agreement or in its own name and to a Sale-Leaseback Transaction or Equity Investment, as applicable (“Collateral Assignment Agreement”). The Collateral Assignment exercise any and all rights of the Company under this Agreement shall be in form and substance reasonably agreed to by Xxxxx, Seller and Lender, and shall include, among others, the following provisions (together with such other commercially reasonable provisions required by any Lender that are reasonably acceptable to Buyer): Buyer shall give, to the Person(s) to be specified by Lender in the Collateral Assignment Agreement, simultaneously with the Notice to Seller and before exercising its right to terminate this Agreement, written Notice of any event or circumstance known to Buyer which would, if not cured within the applicable cure period specified in Article VI, constitute an Event of Default (an “Incipient Event of Default”); Lender shall have the right to cure an Incipient Event of Default or an Event of Default by Seller in accordance with the same provisions of this Agreement as apply to Seller; Following an Event of Default by Seller under this Agreement, Buyer may require Seller to terms hereof (although Lender may, but shall have no obligation, subject to 9.05(g)) provide to Buyer a report concerning: The status of efforts by Seller either in its own name or Lender to develop a plan to cure in the Event of Default; Impediments to the cure plan or its development; If a cure plan has been adopted, the status name of the cure plan’s implementation (including any modifications to the plan as well Company, as the expected timeframe within which any cure is expected Collateral Agent may elect), and the Contributor and the Company agree to be implemented); comply and Any other information which Buyer may reasonably require related to cooperate in all respects with such exercise. Without limiting the development, implementation and timetable generality of the cure plan; Seller or Lender shall provide foregoing, upon the report to Buyer within 10 Business Days after Notice from Buyer requesting occurrence and during the report. Buyer shall have no further right to require the report with respect to a particular Event of Default after that Event of Default has been cured; Lender shall have the right to cure an Event of Default or Incipient Event of Default on behalf of Seller, only if Xxxxxx sends a written notice to Buyer before the end of any cure period indicating Xxxxxx’s intention to cure. Lender may remedy or cure the Event of Default or Incipient Event of Default within the cure period under this Agreement. Such cure period for Lender shall be extended for each day Buyer does not provide the Notice to Lender referred to in Section 9.05(a). In addition, such cure period may, in Buyer’s reasonable discretion, be extended by no more than an additional 180 days. If possession of the Generating Facility is necessary to cure such Incipient Event of Default or Event of Default, Lender has commenced foreclosure proceedings within 60 days after receipt of such Notice from Buyer, and Lender is making diligent and consistent efforts to complete such foreclosure, take possession of the Generating Facility and promptly cure the Incipient Event of Default or Event of Default, Lender or its designee(s) or assignee(s) will be allowed a reasonable period of time to complete such foreclosure proceedings, take possession of the Generating Facility and cure such Incipient Event of Default or Event of Default, not to exceed 180 days after Xxxxxx’s commencement of foreclosure. Additionally, if Lender is prohibited from curing any Incipient Event of Default or Event of Default by any process, stay or injunction issued by a Governmental Authority or pursuant to any bankruptcy, insolvency or similar proceedings, then the time period for curing such Incipient Event of Default or Event of Default shall be extended for the period of the prohibition provided that Lender is exercising reasonable diligence in having such process, stay or injunction removed; Lender shall have the right to consent before any termination of this Agreement which does not arise out continuance of an Event of Default or upon the end delivery to the Company of a Purchase Notice and the failure of the Term; Lender shall receive prior Notice of, and shall have Contributor to make the right to approve material amendments to this Agreement, which approval may not be unreasonably withheld, delayed or conditioned; In Required Equity Contribution within the event Lender, directly or indirectly, takes title to the Generating Facility (including title by foreclosure or deed period specified in lieu of foreclosure)Section 2.2, the Person taking title to the Generating Facility shall assume all of Seller’s obligations arising under this Agreement and all related agreements (subject to such limits on liability as are mutually agreed to by Seller, Buyer and Lender as set forth in the Collateral Assignment Agreement); provided, however, that Lender (or such Person) shall have no liability for any monetary obligations of Seller under this Agreement which are due and owing to Buyer as of the assumption date (but this provision may not be interpreted to limit Buyer’s rights to proceed against Seller as a result of an Event of Default) and Lender’s (or such Person’s) liability to Buyer after such assumption shall be limited to its interest in the Generating Facility; provided further, that before such assumption, if Buyer advises Lender (or such Person) that Buyer will require that Lender (or such Person) cure (or cause to be cured) one or more monetary or non-monetary Incipient Event(s) of Default or Event(s) of Default existing as of the date such Person takes title in order to avoid the exercise by Buyer (in its sole discretion) of Buyer’s right to terminate this Agreement with respect to such Incipient Event(s) of Default or Event(s) of Default, then Lender (or such Person) at its option and in its sole discretion may elect to either (i) cause such Incipient Event(s) of Default or Event of Default to be cured, or (ii) not assume this Agreement; If Lender has assumed this Agreement as provided in Section 9.05(h) and elects to sell or transfer the Generating Facility (after Lender directly or indirectly, takes title to the Generating Facility), or sale of the Generating Facility occurs through the actions of Lender or an agent of or representative of Lender (excluding any foreclosure sale where a third party other than Lender, Seller, an Related Entity of Lender or an Related Entity of Seller is the buyer), then Lender must cause the transferee or buyer to assume all of Seller’s obligations arising under this Agreement and all related agreements as a condition of the sale or transfer excluding, however, a foreclosure (unless the transferee or buyer is Lender, Seller, an Related Entity of Lender or an Related Entity of Seller). Lender shall be released from all further obligations under the Agreement and all related documents following such assumption. Such sale or transfer (excluding a foreclosure) may be made only to a Person reasonably acceptable to Buyer; and If this Agreement is rejected in Seller’s Bankruptcy or otherwise terminated in connection therewith and if Lender or its representative or designee, directly or indirectly, takes title to the Generating Facility, then, at the request of either Buyer or Lender, Buyer and Lender Agent (or its designee or representativeassignee), subject to the Collateral Agency Agreement, shall have the full right and power to enforce directly against the Contributor all obligations of the Contributor under this Agreement and otherwise to exercise all remedies available to the Company hereunder, and to make all demands and give all notices and make all requests (either in its own name or in the name of the Company, as the Collateral Agent may elect) required or permitted to be made or given by the Company under this Agreement (including the right to make demand for payment of Equity Contributions in accordance with Section 2.2), and the Contributor acknowledges and agrees that any such action taken by the Collateral Agent shall promptly enter into a new agreement with Buyer having substantially be deemed effective for all purposes of this Agreement to the same terms extent as if such action had been taken directly by the Company. If the Contributor shall receive inconsistent directions under this Agreement for from the term that would have been remaining under Company and the Collateral Agent, the directions of the Collateral Agent shall be deemed the superseding directions (so long as such directions are consistent with the provisions of this Agreement, provided that Lender’s (or its designee’s or representative’s) liability under and the Contributor shall accordingly comply with such new agreement shall be limited to its interest in directions of the Generating Facility and neither Lender (or its designee or representative) nor Buyer shall have any personal liability to the other for any amounts owing and neither Buyer nor Lender (or its designee or representative) shall have any obligation to cure any defaults under the original Agreement that was rejected in, or otherwise terminated in connection with Seller’s BankruptcyCollateral Agent.
Appears in 6 contracts
Samples: Equity Contribution Agreement (Bloom Energy Corp), Equity Contribution Agreement, Equity Contribution Agreement (Bloom Energy Corp)
Consent to Collateral Assignment. Subject to the provisions of this Section 9.05, Seller may (but is not obligated to) assign this Agreement as collateral to a Lender for any financing or refinancing of the Generating Facility, including a Sale-Leaseback Transaction or Equity Investment and, in connection therewith, Buyer shall in good faith work with Seller and Lender to agree upon a consent to a collateral assignment of this Agreement or to a Sale-Leaseback Transaction or Equity Investment, as applicable (“Collateral Assignment Agreement”). The Collateral Assignment Agreement shall be in form and substance reasonably agreed to by XxxxxBuyer, Seller and Lender, and shall include, among others, the following provisions (together with such other commercially reasonable provisions required by any Lender that are reasonably acceptable to Buyer): ):
(a) Buyer shall give, to the Person(s) to be specified by Lender in the Collateral Assignment Agreement, simultaneously with the Notice to Seller and before exercising its right to terminate this Agreement, written Notice of any event or circumstance known to Buyer which would, if not cured within the applicable cure period specified in Article VI, constitute an Event of Default (an “Incipient Event of Default”); ;
(b) Lender shall have the right to cure an Incipient Event of Default or an Event of Default by Seller in accordance with the same provisions of this Agreement as apply to Seller; ;
(c) Following an Event of Default by Seller under this Agreement, Buyer may require Seller to (although Lender may, but shall have no obligation, subject to 9.05(g)) provide to Buyer a report concerning: :
(i) The status of efforts by Seller or Lender to develop a plan to cure the Event of Default; ;
(ii) Impediments to the cure plan or its development; ;
(iii) If a cure plan has been adopted, the status of the cure plan’s implementation (including any modifications to the plan as well as the expected timeframe within which any cure is expected to be implemented); and and
(iv) Any other information which Buyer may reasonably require related to the development, implementation and timetable of the cure plan; ;
(d) Seller or Lender shall provide the report to Buyer within 10 Business Days after Notice from Buyer requesting the report. Buyer shall have no further right to require the report with respect to a particular Event of Default after that Event of Default has been cured; ;
(e) Lender shall have the right to cure an Event of Default or Incipient Event of Default on behalf of Seller, only if Xxxxxx Lender sends a written notice to Buyer before the end of any cure period indicating XxxxxxLender’s intention to cure. Lender may remedy or cure the Event of Default or Incipient Event of Default within the cure period under this Agreement. Such cure period for Lender shall be extended for each day Buyer does not provide the Notice to Lender referred to in Section 9.05(a). In addition, such cure period may, in Buyer’s reasonable discretion, be extended by no more than an additional 180 days. If possession of the Generating Facility is necessary to cure such Incipient Event of Default or Event of Default, Lender has commenced foreclosure proceedings within 60 days after receipt of such Notice from Buyer, and Lender is making diligent and consistent efforts to complete such foreclosure, take possession of the Generating Facility and promptly cure the Incipient Event of Default or Event of Default, Lender or its designee(s) or assignee(s) will be allowed a reasonable period of time to complete such foreclosure proceedings, take possession of the Generating Facility and cure such Incipient Event of Default or Event of Default, not to exceed 180 days after XxxxxxLender’s commencement of foreclosure. Additionally, if Lender is prohibited from curing any Incipient Event of Default or Event of Default by any process, stay or injunction issued by a Governmental Authority or pursuant to any bankruptcy, insolvency or similar proceedings, then the time period for curing such Incipient Event of Default or Event of Default shall be extended for the period of the prohibition provided that Lender is exercising reasonable diligence in having such process, stay or injunction removed; ;
(f) Lender shall have the right to consent before any termination of this Agreement which does not arise out of an Event of Default or the end of the Term; ;
(g) Lender shall receive prior Notice of, and shall have the right to approve material amendments to this Agreement, which approval may not be unreasonably withheld, delayed or conditioned; ;
(h) In the event Lender, directly or indirectly, takes title to the Generating Facility (including title by foreclosure or deed in lieu of foreclosure), the Person taking title to the Generating Facility shall assume all of Seller’s obligations arising under this Agreement and all related agreements (subject to such limits on liability as are mutually agreed to by Seller, Buyer and Lender as set forth in the Collateral Assignment Agreement); provided, however, that Lender (or such Person) shall have no liability for any monetary obligations of Seller under this Agreement which are due and owing to Buyer as of the assumption date (but this provision may not be interpreted to limit Buyer’s rights to proceed against Seller as a result of an Event of Default) and Lender’s (or such Person’s) liability to Buyer after such assumption shall be limited to its interest in the Generating Facility; provided further, that before such assumption, if Buyer advises Lender (or such Person) that Buyer will require that Lender (or such Person) cure (or cause to be cured) one or more monetary or non-monetary Incipient Event(s) of Default or Event(s) of Default existing as of the date such Person takes title in order to avoid the exercise by Buyer (in its sole discretion) of Buyer’s right to terminate this Agreement with respect to such Incipient Event(s) of Default or Event(s) of Default, then Lender (or such Person) at its option and in its sole discretion may elect to either (i) cause such Incipient Event(s) of Default or Event of Default to be cured, or (ii) not assume this Agreement; ;
(i) If Lender has assumed this Agreement as provided in Section 9.05(h) and elects to sell or transfer the Generating Facility (after Lender directly or indirectly, takes title to the Generating Facility), or sale of the Generating Facility occurs through the actions of Lender or an agent of or representative of Lender (excluding any foreclosure sale where a third party other than Lender, Seller, an Related Entity of Lender or an Related Entity of Seller is the buyer), then Lender must cause the transferee or buyer to assume all of Seller’s obligations arising under this Agreement and all related agreements as a condition of the sale or transfer excluding, however, a foreclosure (unless the transferee or buyer is Lender, Seller, an Related Entity of Lender or an Related Entity of Seller). Lender shall be released from all further obligations under the Agreement and all related documents following such assumption. Such sale or transfer (excluding a foreclosure) may be made only to a Person reasonably acceptable to Buyer; and and
(j) If this Agreement is rejected in Seller’s Bankruptcy or otherwise terminated in connection therewith and if Lender or its representative or designee, directly or indirectly, takes title to the Generating Facility, then, at the request of either Buyer or Lender, Buyer and Lender (or its designee or representative) shall promptly enter into a new agreement with Buyer having substantially the same terms as this Agreement for the term that would have been remaining under this Agreement, provided that Lender’s (or its designee’s or representative’s) liability under such new agreement shall be limited to its interest in the Generating Facility and neither Lender (or its designee or representative) nor Buyer shall have any personal liability to the other for any amounts owing and neither Buyer nor Lender (or its designee or representative) shall have any obligation to cure any defaults under the original Agreement that was rejected in, or otherwise terminated in connection with Seller’s Bankruptcy.
Appears in 6 contracts
Samples: Power Purchase and Sale Agreement, Power Purchase and Sale Agreement, Power Purchase and Sale Agreement
Consent to Collateral Assignment. Subject to the provisions of this Section 9.05, Seller may (but is not obligated to) assign this Agreement as collateral to a Lender for any financing or refinancing of the Generating Facility, including a Sale-Leaseback Transaction or Equity Investment and, in connection therewith, Buyer shall in good faith work with Seller and Lender to agree upon a consent to a collateral assignment of this Agreement or to a Sale-Leaseback Transaction or Equity Investment, as applicable (“Collateral Assignment Agreement”). The Collateral Assignment Agreement shall be in form and substance reasonably agreed to by Xxxxx, Seller and Lender, and shall include, among others, the following provisions (together with such other commercially reasonable provisions required by any Lender that are reasonably acceptable to Buyer): ):
(a) Buyer shall give, to the Person(s) to be specified by Lender in the Collateral Assignment Agreement, simultaneously with the Notice to Seller and before exercising its right to terminate this Agreement, written Notice of any event or circumstance known to Buyer which would, if not cured within the applicable cure period specified in Article VI, constitute an Event of Default (an “Incipient Event of Default”); ;
(b) Lender shall have the right to cure an Incipient Event of Default or an Event of Default by Seller in accordance with the same provisions of this Agreement as apply to Seller; ;
(c) Following an Event of Default by Seller under this Agreement, Buyer may require Seller to (although Lender may, but shall have no obligation, subject to 9.05(g)) provide to Buyer a report concerning: :
(i) The status of efforts by Seller or Lender to develop a plan to cure the Event of Default; ;
(ii) Impediments to the cure plan or its development; ;
(iii) If a cure plan has been adopted, the status of the cure plan’s implementation (including any modifications to the plan as well as the expected timeframe within which any cure is expected to be implemented); and and
(iv) Any other information which Buyer may reasonably require related to the development, implementation and timetable of the cure plan; ;
(d) Seller or Lender shall provide the report to Buyer within 10 Business Days after Notice from Buyer requesting the report. Buyer shall have no further right to require the report with respect to a particular Event of Default after that Event of Default has been cured; ;
(e) Lender shall have the right to cure an Event of Default or Incipient Event of Default on behalf of Seller, only if Xxxxxx sends a written notice to Buyer before the end of any cure period indicating Xxxxxx’s intention to cure. Lender may remedy or cure the Event of Default or Incipient Event of Default within the cure period under this Agreement. Such cure period for Lender shall be extended for each day Buyer does not provide the Notice to Lender referred to in Section 9.05(a). In addition, such cure period may, in Buyer’s reasonable discretion, be extended by no more than an additional 180 days. If possession of the Generating Facility is necessary to cure such Incipient Event of Default or Event of Default, Lender has commenced foreclosure proceedings within 60 days after receipt of such Notice from Buyer, and Lender is making diligent and consistent efforts to complete such foreclosure, take possession of the Generating Facility and promptly cure the Incipient Event of Default or Event of Default, Lender or its designee(s) or assignee(s) will be allowed a reasonable period of time to complete such foreclosure proceedings, take possession of the Generating Facility and cure such Incipient Event of Default or Event of Default, not to exceed 180 days after Xxxxxx’s commencement of foreclosure. Additionally, if Lender is prohibited from curing any Incipient Event of Default or Event of Default by any process, stay or injunction issued by a Governmental Authority or pursuant to any bankruptcy, insolvency or similar proceedings, then the time period for curing such Incipient Event of Default or Event of Default shall be extended for the period of the prohibition provided that Lender is exercising reasonable diligence in having such process, stay or injunction removed; ;
(f) Lender shall have the right to consent before any termination of this Agreement which does not arise out of an Event of Default or the end of the Term; ;
(g) Lender shall receive prior Notice of, and shall have the right to approve material amendments to this Agreement, which approval may not be unreasonably withheld, delayed or conditioned; ;
(h) In the event Lender, directly or indirectly, takes title to the Generating Facility (including title by foreclosure or deed in lieu of foreclosure), the Person taking title to the Generating Facility shall assume all of Seller’s obligations arising under this Agreement and all related agreements (subject to such limits on liability as are mutually agreed to by Seller, Buyer and Lender as set forth in the Collateral Assignment Agreement); provided, however, that Lender (or such Person) shall have no liability for any monetary obligations of Seller under this Agreement which are due and owing to Buyer as of the assumption date (but this provision may not be interpreted to limit Buyer’s rights to proceed against Seller as a result of an Event of Default) and Lender’s (or such Person’s) liability to Buyer after such assumption shall be limited to its interest in the Generating Facility; provided further, that before such assumption, if Buyer advises Lender (or such Person) that Buyer will require that Lender (or such Person) cure (or cause to be cured) one or more monetary or non-monetary Incipient Event(s) of Default or Event(s) of Default existing as of the date such Person takes title in order to avoid the exercise by Buyer (in its sole discretion) of Buyer’s right to terminate this Agreement with respect to such Incipient Event(s) of Default or Event(s) of Default, then Lender (or such Person) at its option and in its sole discretion may elect to either (i) cause such Incipient Event(s) of Default or Event of Default to be cured, or (ii) not assume this Agreement; ;
(i) If Lender has assumed this Agreement as provided in Section 9.05(h) and elects to sell or transfer the Generating Facility (after Lender directly or indirectly, takes title to the Generating Facility), or sale of the Generating Facility occurs through the actions of Lender or an agent of or representative of Lender (excluding any foreclosure sale where a third party other than Lender, Seller, an Related Entity of Lender or an Related Entity of Seller is the buyer), then Lender must cause the transferee or buyer to assume all of Seller’s obligations arising under this Agreement and all related agreements as a condition of the sale or transfer excluding, however, a foreclosure (unless the transferee or buyer is Lender, Seller, an Related Entity of Lender or an Related Entity of Seller). Lender shall be released from all further obligations under the Agreement and all related documents following such assumption. Such sale or transfer (excluding a foreclosure) may be made only to a Person reasonably acceptable to Buyer; and and
(j) If this Agreement is rejected in Seller’s Bankruptcy or otherwise terminated in connection therewith and if Lender or its representative or designee, directly or indirectly, takes title to the Generating Facility, then, at the request of either Buyer or Lender, Buyer and Lender (or its designee or representative) shall promptly enter into a new agreement with Buyer having substantially the same terms as this Agreement for the term that would have been remaining under this Agreement, provided that Lender’s (or its designee’s or representative’s) liability under such new agreement shall be limited to its interest in the Generating Facility and neither Lender (or its designee or representative) nor Buyer shall have any personal liability to the other for any amounts owing and neither Buyer nor Lender (or its designee or representative) shall have any obligation to cure any defaults under the original Agreement that was rejected in, or otherwise terminated in connection with Seller’s Bankruptcy.
Appears in 4 contracts
Samples: Power Purchase and Sale Agreement, Power Purchase and Sale Agreement, Power Purchase and Sale Agreement
Consent to Collateral Assignment. Subject to the provisions of this Section 9.0510.05, Seller may (but is not obligated to) has the right to assign this Agreement as collateral to a Lender for any financing or refinancing of the Generating Facility; provided, Seller shall be responsible for SCE’s reasonable costs associated with the preparation, review, execution and delivery of documents in connection with any such assignment, including a Sale-Leaseback Transaction without limitation attorneys’ fees. In connection with any financing or Equity Investment andrefinancing of the Generating Facility by Seller, in connection therewith, Buyer SCE shall in good faith work with Seller and Lender to agree upon a consent to a collateral assignment of this Agreement or to a Sale-Leaseback Transaction or Equity Investment, as applicable (“Collateral Assignment Agreement”). The Collateral Assignment Agreement shall must be in form and substance reasonably agreed to by XxxxxSCE, Seller and Lender, and shall must include, among others, the following provisions provisions:
(together with such other commercially reasonable provisions required a) SCE shall give Notice of an Event of Default by any Lender that are reasonably acceptable to Buyer): Buyer shall giveSeller, to the Person(sperson(s) to be specified by Lender in the Collateral Assignment Agreement, simultaneously with the Notice to Seller and before exercising its right to terminate this Agreement, written Notice Agreement as a result of any event or circumstance known to Buyer which would, if not cured within the applicable cure period specified in Article VI, constitute an Event of Default (an “Incipient such Event of Default”); Lender shall have the right to cure an Incipient Event of Default or an Event of Default by Seller in accordance with the same provisions of this Agreement as apply to Seller; ;
(b) Following an Event of Default by Seller under this Agreement, Buyer SCE may require Seller or Lender to (although Lender may, but shall have no obligation, subject to 9.05(g)) provide to Buyer SCE a report concerning: :
(i) The status of efforts by Seller or Lender to develop a plan to cure the Event of Default; ;
(ii) Impediments to the cure plan or its development; ;
(iii) If a cure plan has been adopted, the status of the cure plan’s implementation (including any modifications to the plan as well as the expected timeframe within which any cure is expected to be implemented); and and
(iv) Any other information which Buyer SCE may reasonably require related to the development, implementation and timetable of the cure plan; . Seller or Lender shall must provide the report to Buyer SCE within 10 ten (10) Business Days after Notice from Buyer SCE requesting the report. Buyer shall SCE will have no further right to require the report with respect to a particular Event of Default after that Event of Default has been cured; ;
(c) Lender shall will have the right to cure an Event of Default or Incipient Event of Default on behalf of Seller, only if Xxxxxx Lender sends a written notice to Buyer SCE before the end of any cure period indicating XxxxxxLender’s intention to cure. Lender may must remedy or cure the Event of Default or Incipient Event of Default within the cure period under this Agreement. Such cure period for Lender shall be extended for each day Buyer does not provide the Notice to Lender referred to in Section 9.05(a). In addition; provided, such cure period may, in BuyerSCE’s reasonable sole discretion, be extended by no more than an additional 180 one hundred eighty (180) days. If possession of the Generating Facility is necessary to cure such Incipient Event of Default or Event of Default, ;
(d) Lender has commenced foreclosure proceedings within 60 days after receipt of such Notice from Buyer, and Lender is making diligent and consistent efforts to complete such foreclosure, take possession of the Generating Facility and promptly cure the Incipient Event of Default or Event of Default, Lender or its designee(s) or assignee(s) will be allowed a reasonable period of time to complete such foreclosure proceedings, take possession of the Generating Facility and cure such Incipient Event of Default or Event of Default, not to exceed 180 days after Xxxxxx’s commencement of foreclosure. Additionally, if Lender is prohibited from curing any Incipient Event of Default or Event of Default by any process, stay or injunction issued by a Governmental Authority or pursuant to any bankruptcy, insolvency or similar proceedings, then the time period for curing such Incipient Event of Default or Event of Default shall be extended for the period of the prohibition provided that Lender is exercising reasonable diligence in having such process, stay or injunction removed; Lender shall have the right to consent before any termination of this Agreement which does not arise out of an Event of Default or the end of the Term; Default;
(e) Lender shall will receive prior Notice of, of and shall have the right to approve material amendments to this Agreement, which approval may will not be unreasonably withheld, delayed or conditioned; In the event ;
(f) If Lender, directly or indirectly, takes possession of, or title to the Generating Facility (including possession by a receiver or title by foreclosure or deed in lieu of foreclosure), the Person taking title to the Generating Facility shall Lender must assume all of Seller’s obligations arising under this Agreement and all related agreements (subject to such limits on liability as are mutually agreed to by Seller, Buyer SCE and Lender as set forth in the Collateral Assignment Agreement); provided, however, that Lender (or such Person) shall have no liability for any monetary obligations of Seller under this Agreement which are due and owing to Buyer as of the assumption date (but this provision may not be interpreted to limit Buyer’s rights to proceed against Seller as a result of an Event of Default) and Lender’s (or such Person’s) liability to Buyer after such assumption shall be limited to its interest in the Generating Facility; provided further, that before such assumption, if Buyer SCE advises Lender (or such Person) that Buyer SCE will require that Lender (or such Person) cure (or cause to be cured) one or more monetary or non-monetary Incipient Event(s) of Default or Event(s) any Event of Default existing as of the possession date such Person takes title in order to avoid the exercise by Buyer SCE (in its sole discretion) of BuyerSCE’s right to terminate this Agreement with respect to such Incipient Event(s) of Default or Event(s) Event of Default, then Lender (or such Person) at its option option, and in its sole discretion discretion, may elect to either either:
(i) cause Cause such Incipient Event(s) of Default or Event of Default to be cured, or or
(ii) not Not assume this Agreement; ;
(g) If Lender has assumed this Agreement as provided in Section 9.05(h) and elects to sell or transfer the Generating Facility (after Lender directly or indirectly, takes possession of, or title to the Generating Facility), or sale of the Generating Facility occurs through the actions of Lender or an agent of or representative of Lender (excluding any for example, a foreclosure sale where a third party other than Lender, Seller, an Related Entity of Lender or an Related Entity of Seller is the buyer, or otherwise), then Lender must cause the transferee or buyer to assume all of Seller’s obligations arising under this Agreement and all related agreements as a condition of the sale or transfer excluding, however, a foreclosure (unless the transferee or buyer is Lender, Seller, an Related Entity of Lender or an Related Entity of Seller). Lender shall be released from all further obligations under the Agreement and all related documents following such assumptiontransfer. Such sale or transfer (excluding a foreclosure) may be made only to an entity with a Person reasonably acceptable to Buyertangible net worth of at least Thirty Million dollars ($30,000,000) and at least three (3) years of experience operating a generating plant of similar technology and similar size; and and
(h) If this Agreement is rejected in Seller’s Bankruptcy or otherwise terminated in connection therewith and if Lender or its representative or designee, directly or indirectly, takes possession of, or title to to, the Generating FacilityFacility (including possession by a receiver or title by foreclosure or deed in lieu of foreclosure), then, at the request of either Buyer Lender must itself or Lender, Buyer and Lender (or must cause its designee or representative) shall to promptly enter into a new agreement with Buyer SCE having substantially the same terms as this Agreement for the term that would have been remaining under this Agreement, provided that Lender’s (or its designee’s or representative’s) liability under such new agreement shall be limited to its interest in the Generating Facility and neither Lender (or its designee or representative) nor Buyer shall have any personal liability to the other for any amounts owing and neither Buyer nor Lender (or its designee or representative) shall have any obligation to cure any defaults under the original Agreement that was rejected in, or otherwise terminated in connection with Seller’s Bankruptcy.
Appears in 4 contracts
Samples: Renewable Power Purchase and Sale Agreement, Renewable Power Purchase and Sale Agreement, Renewable Power Purchase and Sale Agreement
Consent to Collateral Assignment. Subject to the provisions of this Section 9.0510.05, Seller may (but is not obligated to) has the right to assign this Agreement as collateral to a Lender for any financing or refinancing of the Generating Facility; provided, Seller shall be responsible for SCE’s reasonable costs associated with the preparation, review, execution and delivery of documents in connection with any such assignment, including a Sale-Leaseback Transaction without limitation attorneys’ fees. In connection with any financing or Equity Investment andrefinancing of the Generating Facility by Seller, in connection therewith, Buyer SCE shall in good faith work with Seller and Lender to agree upon a consent to a collateral assignment of this Agreement or to a Sale-Leaseback Transaction or Equity Investment, as applicable (“Collateral Assignment Agreement”). The Collateral Assignment Agreement shall must be in form and substance reasonably agreed to by XxxxxSCE, Seller and Lender, and shall must include, among others, the following provisions provisions:
(together with such other commercially reasonable provisions required a) SCE shall give Notice of an Event of Default by any Lender that are reasonably acceptable to Buyer): Buyer shall giveSeller, to the Person(sperson(s) to be specified by Lender in the Collateral Assignment Agreement, simultaneously with the Notice to Seller and before exercising its right to terminate this Agreement, written Notice Agreement as a result of any event or circumstance known to Buyer which would, if not cured within the applicable cure period specified in Article VI, constitute an Event of Default (an “Incipient such Event of Default”); Lender shall have the right to cure an Incipient Event of Default or an Event of Default by Seller in accordance with the same provisions of this Agreement as apply to Seller; ;
(b) Following an Event of Default by Seller under this Agreement, Buyer SCE may require Seller or Lender to (although Lender may, but shall have no obligation, subject to 9.05(g)) provide to Buyer SCE a report concerning: :
(i) The status of efforts by Seller or Lender to develop a plan to cure the Event of Default; ;
(ii) Impediments to the cure plan or its development; ;
(iii) If a cure plan has been adopted, the status of the cure plan’s implementation (including any modifications to the plan as well as the expected timeframe within which any cure is expected to be implemented); and and
(iv) Any other information which Buyer SCE may reasonably require related to the development, implementation and timetable of the cure plan; . Seller or Lender shall must provide the report to Buyer SCE within 10 ten (10) Business Days after Notice from Buyer SCE requesting the report. Buyer shall SCE will have no further right to require the report with respect to a particular Event of Default after that Event of Default has been cured; Lender shall have the right to cure an Event of Default or Incipient Event of Default on behalf of Seller, only if Xxxxxx sends a written notice to Buyer before the end of any cure period indicating Xxxxxx’s intention to cure. Lender may remedy or cure the Event of Default or Incipient Event of Default within the cure period under this Agreement. Such cure period for Lender shall be extended for each day Buyer does not provide the Notice to Lender referred to in Section 9.05(a). In addition, such cure period may, in Buyer’s reasonable discretion, be extended by no more than an additional 180 days. If possession of the Generating Facility is necessary to cure such Incipient Event of Default or Event of Default, Lender has commenced foreclosure proceedings within 60 days after receipt of such Notice from Buyer, and Lender is making diligent and consistent efforts to complete such foreclosure, take possession of the Generating Facility and promptly cure the Incipient Event of Default or Event of Default, Lender or its designee(s) or assignee(s) will be allowed a reasonable period of time to complete such foreclosure proceedings, take possession of the Generating Facility and cure such Incipient Event of Default or Event of Default, not to exceed 180 days after Xxxxxx’s commencement of foreclosure. Additionally, if Lender is prohibited from curing any Incipient Event of Default or Event of Default by any process, stay or injunction issued by a Governmental Authority or pursuant to any bankruptcy, insolvency or similar proceedings, then the time period for curing such Incipient Event of Default or Event of Default shall be extended for the period of the prohibition provided that Lender is exercising reasonable diligence in having such process, stay or injunction removed; Lender shall have the right to consent before any termination of this Agreement which does not arise out of an Event of Default or the end of the Term; Lender shall receive prior Notice of, and shall have the right to approve material amendments to this Agreement, which approval may not be unreasonably withheld, delayed or conditioned; In the event Lender, directly or indirectly, takes title to the Generating Facility (including title by foreclosure or deed in lieu of foreclosure), the Person taking title to the Generating Facility shall assume all of Seller’s obligations arising under this Agreement and all related agreements (subject to such limits on liability as are mutually agreed to by Seller, Buyer and Lender as set forth in the Collateral Assignment Agreement); provided, however, that Lender (or such Person) shall have no liability for any monetary obligations of Seller under this Agreement which are due and owing to Buyer as of the assumption date (but this provision may not be interpreted to limit Buyer’s rights to proceed against Seller as a result of an Event of Default) and Lender’s (or such Person’s) liability to Buyer after such assumption shall be limited to its interest in the Generating Facility; provided further, that before such assumption, if Buyer advises Lender (or such Person) that Buyer will require that Lender (or such Person) cure (or cause to be cured) one or more monetary or non-monetary Incipient Event(s) of Default or Event(s) of Default existing as of the date such Person takes title in order to avoid the exercise by Buyer (in its sole discretion) of Buyer’s right to terminate this Agreement with respect to such Incipient Event(s) of Default or Event(s) of Default, then Lender (or such Person) at its option and in its sole discretion may elect to either (i) cause such Incipient Event(s) of Default or Event of Default to be cured, or (ii) not assume this Agreement; If Lender has assumed this Agreement as provided in Section 9.05(h) and elects to sell or transfer the Generating Facility (after Lender directly or indirectly, takes title to the Generating Facility), or sale of the Generating Facility occurs through the actions of Lender or an agent of or representative of Lender (excluding any foreclosure sale where a third party other than Lender, Seller, an Related Entity of Lender or an Related Entity of Seller is the buyer), then Lender must cause the transferee or buyer to assume all of Seller’s obligations arising under this Agreement and all related agreements as a condition of the sale or transfer excluding, however, a foreclosure (unless the transferee or buyer is Lender, Seller, an Related Entity of Lender or an Related Entity of Seller). Lender shall be released from all further obligations under the Agreement and all related documents following such assumption. Such sale or transfer (excluding a foreclosure) may be made only to a Person reasonably acceptable to Buyer; and If this Agreement is rejected in Seller’s Bankruptcy or otherwise terminated in connection therewith and if Lender or its representative or designee, directly or indirectly, takes title to the Generating Facility, then, at the request of either Buyer or Lender, Buyer and Lender (or its designee or representative) shall promptly enter into a new agreement with Buyer having substantially the same terms as this Agreement for the term that would have been remaining under this Agreement, provided that Lender’s (or its designee’s or representative’s) liability under such new agreement shall be limited to its interest in the Generating Facility and neither Lender (or its designee or representative) nor Buyer shall have any personal liability to the other for any amounts owing and neither Buyer nor Lender (or its designee or representative) shall have any obligation to cure any defaults under the original Agreement that was rejected in, or otherwise terminated in connection with Seller’s Bankruptcy.;
Appears in 3 contracts
Samples: Renewable Power Purchase and Sale Agreement, Renewable Power Purchase and Sale Agreement, Renewable Power Purchase and Sale Agreement
Consent to Collateral Assignment. Subject to the provisions of this Section 9.0510.05, Seller may (but is not obligated to) has the right to assign this Agreement as collateral to a Lender for any financing or refinancing of the Generating Facility. In connection with any financing or refinancing of the Generating Facility by Seller, including a Sale-Leaseback Transaction or Equity Investment and, in connection therewith, Buyer SCE shall in good faith work with Seller and Lender Xxxxxx to agree upon a consent to a collateral assignment of this Agreement or to a Sale-Leaseback Transaction or Equity Investment, as applicable (“Collateral Assignment Agreement”). The Collateral Assignment Agreement shall must be in form and substance reasonably agreed to by XxxxxSCE, Seller and Lender, and shall must include, among others, the following provisions provisions:
(together with such other commercially reasonable provisions required a) SCE shall give Notice of an Event of Default by any Lender that are reasonably acceptable to Buyer): Buyer shall giveSeller, to the Person(sperson(s) to be specified by Lender in the Collateral Assignment Agreement, simultaneously with the Notice to Seller and before exercising its right to terminate this Agreement, written Notice Agreement as a result of any event or circumstance known to Buyer which would, if not cured within the applicable cure period specified in Article VI, constitute an Event of Default (an “Incipient such Event of Default”); Lender shall have the right to cure an Incipient Event of Default or an Event of Default by Seller in accordance with the same provisions of this Agreement as apply to Seller; ;
(b) Following an Event of Default by Seller under this Agreement, Buyer SCE may require Seller or Lender to (although Lender may, but shall have no obligation, subject to 9.05(g)) provide to Buyer SCE a report concerning: :
(i) The status of efforts by Seller or Lender to develop a plan to cure the Event of Default; ;
(ii) Impediments to the cure plan or its development; ;
(iii) If a cure plan has been adopted, the status of the cure plan’s implementation (including any modifications to the plan as well as the expected timeframe within which any cure is expected to be implemented); and and
(iv) Any other information which Buyer SCE may reasonably require related to the development, implementation and timetable of the cure plan; . Seller or Lender shall must provide the report to Buyer SCE within 10 ten (10) Business Days after Notice from Buyer SCE requesting the report. Buyer shall SCE will have no further right to require the report with respect to a particular Event of Default after that Event of Default has been cured; ;
(c) Lender shall will have the right to cure an Event of Default or Incipient Event of Default on behalf of Seller, only if Xxxxxx sends a written notice to Buyer SCE before the end of any cure period indicating Xxxxxx’s intention to cure. Lender may must remedy or cure the Event of Default or Incipient Event of Default within the cure period under this Agreement. Such cure period for Lender shall be extended for each day Buyer does not provide the Notice to Lender referred to in Section 9.05(a). In addition; provided, such cure period may, in BuyerSCE’s reasonable sole discretion, be extended by no more than an additional 180 one hundred eighty (180) days. If possession of the Generating Facility is necessary to cure such Incipient Event of Default or Event of Default, ;
(d) Lender has commenced foreclosure proceedings within 60 days after receipt of such Notice from Buyer, and Lender is making diligent and consistent efforts to complete such foreclosure, take possession of the Generating Facility and promptly cure the Incipient Event of Default or Event of Default, Lender or its designee(s) or assignee(s) will be allowed a reasonable period of time to complete such foreclosure proceedings, take possession of the Generating Facility and cure such Incipient Event of Default or Event of Default, not to exceed 180 days after Xxxxxx’s commencement of foreclosure. Additionally, if Lender is prohibited from curing any Incipient Event of Default or Event of Default by any process, stay or injunction issued by a Governmental Authority or pursuant to any bankruptcy, insolvency or similar proceedings, then the time period for curing such Incipient Event of Default or Event of Default shall be extended for the period of the prohibition provided that Lender is exercising reasonable diligence in having such process, stay or injunction removed; Lender shall have the right to consent before any termination of this Agreement which does not arise out of an Event of Default or the end of the Term; Default;
(e) Lender shall will receive prior Notice of, of and shall have the right to approve material amendments to this Agreement, which approval may will not be unreasonably withheld, delayed or conditioned; In the event ;
(f) If Lender, directly or indirectly, takes possession of, or title to the Generating Facility (including possession by a receiver or title by foreclosure or deed in lieu of foreclosure), the Person taking title to the Generating Facility shall Lender must assume all of Seller’s obligations arising under this Agreement and all related agreements (subject to such limits on liability as are mutually agreed to by Seller, Buyer SCE and Lender as set forth in the Collateral Assignment Agreement); providedprovided that, however, that Lender (or such Person) shall Xxxxxx will have no personal liability for any monetary obligations of Seller under this Agreement which are due and owing to Buyer SCE as of the assumption date (but this provision may not be interpreted to limit Buyer’s rights to proceed against Seller as a result of an Event of Default) and Lender’s (or such Person’s) liability to Buyer after such assumption shall be limited to its interest in the Generating Facilitydate; provided furtherprovided, however, that before such assumption, if Buyer SCE advises Lender (or such Person) that Buyer SCE will require that Lender (or such Person) cure (or cause to be cured) one or more monetary or non-monetary Incipient Event(s) of Default or Event(s) any Event of Default existing as of the possession date such Person takes title in order to avoid the exercise by Buyer SCE (in its sole discretion) of BuyerSCE’s right to terminate this Agreement with respect to such Incipient Event(s) of Default or Event(s) Event of Default, then Lender (or such Person) at its option option, and in its sole discretion discretion, may elect to either either:
(i) cause Cause such Incipient Event(s) of Default or Event of Default to be cured, or or
(ii) not Not assume this Agreement; ;
(g) If Lender has assumed this Agreement as provided in Section 9.05(h) and elects to sell or transfer the Generating Facility (after Lender directly or indirectly, takes possession of, or title to the Generating Facility), or sale of the Generating Facility occurs through the actions of Lender or an agent of or representative of Lender (excluding any for example, a foreclosure sale where a third party other than Lender, Seller, an Related Entity of Lender or an Related Entity of Seller is the buyer, or otherwise), then Lender must cause the transferee or buyer to assume all of Seller’s obligations arising under this Agreement and all related agreements as a condition of the sale or transfer excluding, however, a foreclosure (unless the transferee or buyer is Lender, Seller, an Related Entity of Lender or an Related Entity of Seller). Lender shall be released from all further obligations under the Agreement and all related documents following such assumptiontransfer. Such sale or transfer (excluding a foreclosure) may be made only to a Person reasonably acceptable an entity with financial qualifications (including collateral support and any other additional security as may be required by SCE) and Operating experience equivalent to Buyerthat of Seller [SCE Comment: SCE to insert appropriate experience level (e.g., “and its Affiliates” if Seller or its Affiliates have experience as generator owners)] as of the Effective Date satisfactory to SCE in its sole discretion; and and
(h) If this Agreement is rejected in Seller’s Bankruptcy or otherwise terminated in connection therewith and if Lender or its representative or designee, directly or indirectly, takes possession of, or title to to, the Generating FacilityFacility (including possession by a receiver or title by foreclosure or deed in lieu of foreclosure), then, at the request of either Buyer Lender must itself or Lender, Buyer and Lender (or must cause its designee or representative) shall to promptly enter into a new agreement with Buyer SCE having substantially the same terms as this Agreement for the term that would have been remaining under this Agreement, provided that Lender’s (or its designee’s or representative’s) liability under such new agreement shall be limited to its interest in the Generating Facility and neither Lender (or its designee or representative) nor Buyer shall have any personal liability to the other for any amounts owing and neither Buyer nor Lender (or its designee or representative) shall have any obligation to cure any defaults under the original Agreement that was rejected in, or otherwise terminated in connection with Seller’s Bankruptcy.
Appears in 3 contracts
Samples: Renewable Power Purchase and Sale Agreement, Renewable Power Purchase and Sale Agreement, Renewable Power Purchase and Sale Agreement
Consent to Collateral Assignment. Subject to the provisions of this Section 9.0510.05, Seller may (but is not obligated to) has the right to assign this Agreement as collateral to a Lender for any financing or refinancing of the Generating Facility. In connection with any financing or refinancing of the Generating Facility by Seller, including a Sale-Leaseback Transaction or Equity Investment and, in connection therewith, Buyer Anaheim shall in good faith work with Seller and Lender to agree upon a consent to a collateral assignment of this Agreement or to a Sale-Leaseback Transaction or Equity Investment, as applicable (“Collateral Assignment Agreement”). The Collateral Assignment Agreement shall must be in form and substance reasonably agreed to by XxxxxAnaheim, Seller Seller, and Lender, and shall must include, among others, the following provisions provisions:
(together with such other commercially reasonable provisions required a) Anaheim shall give Notice of an Event of Default by any Lender that are reasonably acceptable to Buyer): Buyer shall giveSeller, to the Person(sperson(s) to be specified by Lender in the Collateral Assignment Agreement, simultaneously with the Notice to Seller and before exercising its right to terminate this Agreement, written Notice Agreement as a result of any event or circumstance known to Buyer which would, if not cured within the applicable cure period specified in Article VI, constitute an Event of Default (an “Incipient such Event of Default”); Lender shall have the right to cure an Incipient Event of Default or an Event of Default by Seller in accordance with the same provisions of this Agreement as apply to Seller; ;
(b) Following an Event of Default by Seller under this Agreement, Buyer Anaheim may require Seller or Lender to (although Lender may, but shall have no obligation, subject to 9.05(g)) provide to Buyer Anaheim a report concerning: :
(i) The status of efforts by Seller or Lender to develop a plan to cure the Event of Default; ;
(ii) Impediments to the cure plan or its development; ;
(iii) If a cure plan has been adopted, the status of the cure plan’s implementation (including any modifications to the plan as well as the expected timeframe within which any cure is expected to be implemented); and and
(iv) Any other information which Buyer Anaheim may reasonably require related to the development, implementation implementation, and timetable of the cure plan; . Seller or Lender shall must provide the report to Buyer Anaheim within 10 ten (10) Business Days after Notice from Buyer Anaheim requesting the report. Buyer shall Anaheim will have no further right to require the report with respect to a particular Event of Default after that Event of Default has been cured; Lender shall have the right to cure an Event of Default or Incipient Event of Default on behalf of Seller, only if Xxxxxx sends a written notice to Buyer before the end of any cure period indicating Xxxxxx’s intention to cure. Lender may remedy or cure the Event of Default or Incipient Event of Default within the cure period under this Agreement. Such cure period for Lender shall be extended for each day Buyer does not provide the Notice to Lender referred to in Section 9.05(a). In addition, such cure period may, in Buyer’s reasonable discretion, be extended by no more than an additional 180 days. If possession of the Generating Facility is necessary to cure such Incipient Event of Default or Event of Default, Lender has commenced foreclosure proceedings within 60 days after receipt of such Notice from Buyer, and Lender is making diligent and consistent efforts to complete such foreclosure, take possession of the Generating Facility and promptly cure the Incipient Event of Default or Event of Default, Lender or its designee(s) or assignee(s) will be allowed a reasonable period of time to complete such foreclosure proceedings, take possession of the Generating Facility and cure such Incipient Event of Default or Event of Default, not to exceed 180 days after Xxxxxx’s commencement of foreclosure. Additionally, if Lender is prohibited from curing any Incipient Event of Default or Event of Default by any process, stay or injunction issued by a Governmental Authority or pursuant to any bankruptcy, insolvency or similar proceedings, then the time period for curing such Incipient Event of Default or Event of Default shall be extended for the period of the prohibition provided that Lender is exercising reasonable diligence in having such process, stay or injunction removed; Lender shall have the right to consent before any termination of this Agreement which does not arise out of an Event of Default or the end of the Term; Lender shall receive prior Notice of, and shall have the right to approve material amendments to this Agreement, which approval may not be unreasonably withheld, delayed or conditioned; In the event Lender, directly or indirectly, takes title to the Generating Facility (including title by foreclosure or deed in lieu of foreclosure), the Person taking title to the Generating Facility shall assume all of Seller’s obligations arising under this Agreement and all related agreements (subject to such limits on liability as are mutually agreed to by Seller, Buyer and Lender as set forth in the Collateral Assignment Agreement); provided, however, that Lender (or such Person) shall have no liability for any monetary obligations of Seller under this Agreement which are due and owing to Buyer as of the assumption date (but this provision may not be interpreted to limit Buyer’s rights to proceed against Seller as a result of an Event of Default) and Lender’s (or such Person’s) liability to Buyer after such assumption shall be limited to its interest in the Generating Facility; provided further, that before such assumption, if Buyer advises Lender (or such Person) that Buyer will require that Lender (or such Person) cure (or cause to be cured) one or more monetary or non-monetary Incipient Event(s) of Default or Event(s) of Default existing as of the date such Person takes title in order to avoid the exercise by Buyer (in its sole discretion) of Buyer’s right to terminate this Agreement with respect to such Incipient Event(s) of Default or Event(s) of Default, then Lender (or such Person) at its option and in its sole discretion may elect to either (i) cause such Incipient Event(s) of Default or Event of Default to be cured, or (ii) not assume this Agreement; If Lender has assumed this Agreement as provided in Section 9.05(h) and elects to sell or transfer the Generating Facility (after Lender directly or indirectly, takes title to the Generating Facility), or sale of the Generating Facility occurs through the actions of Lender or an agent of or representative of Lender (excluding any foreclosure sale where a third party other than Lender, Seller, an Related Entity of Lender or an Related Entity of Seller is the buyer), then Lender must cause the transferee or buyer to assume all of Seller’s obligations arising under this Agreement and all related agreements as a condition of the sale or transfer excluding, however, a foreclosure (unless the transferee or buyer is Lender, Seller, an Related Entity of Lender or an Related Entity of Seller). Lender shall be released from all further obligations under the Agreement and all related documents following such assumption. Such sale or transfer (excluding a foreclosure) may be made only to a Person reasonably acceptable to Buyer; and If this Agreement is rejected in Seller’s Bankruptcy or otherwise terminated in connection therewith and if Lender or its representative or designee, directly or indirectly, takes title to the Generating Facility, then, at the request of either Buyer or Lender, Buyer and Lender (or its designee or representative) shall promptly enter into a new agreement with Buyer having substantially the same terms as this Agreement for the term that would have been remaining under this Agreement, provided that Lender’s (or its designee’s or representative’s) liability under such new agreement shall be limited to its interest in the Generating Facility and neither Lender (or its designee or representative) nor Buyer shall have any personal liability to the other for any amounts owing and neither Buyer nor Lender (or its designee or representative) shall have any obligation to cure any defaults under the original Agreement that was rejected in, or otherwise terminated in connection with Seller’s Bankruptcy.;
Appears in 2 contracts
Samples: Renewable Power Purchase and Sale Agreement, Renewable Power Purchase and Sale Agreement
Consent to Collateral Assignment. Subject to the provisions of this Section 9.0510.05, Seller may (but is not obligated to) shall have the right to assign this Agreement as collateral to a Lender for any financing or refinancing of the Generating Facility. In connection with any financing or refinancing of the Generating Facility by Seller, including a Sale-Leaseback Transaction or Equity Investment and, in connection therewith, Buyer SCE and Seller shall in good faith work with Seller and Lender to agree upon a consent to a collateral assignment of this Agreement or to a Sale-Leaseback Transaction or Equity Investment, as applicable (“Collateral Assignment Agreement”). The Collateral Assignment Agreement shall be in form and substance reasonably agreed to by XxxxxSCE, Seller and Lender, and shall include, among others, the following provisions provisions:
(together with such other commercially reasonable provisions required a) SCE shall give Notice of an Event of Default by any Lender that are reasonably acceptable to Buyer): Buyer shall giveSeller, to the Person(sperson(s) to be specified by Lender in the Collateral Assignment Agreement, simultaneously with the Notice prior to Seller and before exercising its right to terminate this Agreement, written Notice the Agreement as a result of any event or circumstance known to Buyer which would, if not cured within the applicable cure period specified in Article VI, constitute an Event of Default (an “Incipient such Event of Default”); ;
(b) Lender shall have the right to cure an Incipient Event of Default or an Event of Default by Seller in accordance with the same provisions of this Agreement as apply to Seller; the Agreement;
(c) Following an Event of Default by Seller under this Agreement, Buyer SCE may require Seller or Lender to (although Lender may, but shall have no obligation, subject to 9.05(g)) provide to Buyer SCE a report concerning: :
(i) The status of efforts by Seller or Lender to develop a plan to cure the Event of Default; Impediments to the cure plan or its development; ;
(ii) If a cure plan has been adopted, the status of the cure plan’s implementation (including any modifications to the plan as well as the expected timeframe within which any cure is expected to be implemented); and and
(iii) Any other information which Buyer SCE may reasonably require related to the development, implementation and timetable of the cure plan; . Seller or Lender shall provide the report to Buyer SCE within 10 ten (10) Business Days after Notice from Buyer SCE requesting the report. Buyer SCE shall have no further right to require the report with respect to a particular Event of Default after that Event of Default has been cured; ;
(d) Lender shall have the right to cure an Event of Default or Incipient Event of Default on behalf of Seller, only if Xxxxxx Lender sends a written notice to Buyer before SCE prior to the end of any cure period indicating XxxxxxLender’s intention to cure. Lender may must remedy or cure the Event of Default or Incipient Event of Default within the cure period under this the Agreement. Such cure period for Lender shall be extended for each day Buyer does not provide the Notice to Lender referred to in Section 9.05(a). In addition, such cure period may, in Buyer’s reasonable discretion, be extended by no more than an additional 180 days. If possession of the Generating Facility is necessary to cure such Incipient Event of Default or Event of Default, Lender has commenced foreclosure proceedings within 60 days after receipt of such Notice from Buyer, and Lender is making diligent and consistent efforts to complete such foreclosure, take possession of the Generating Facility and promptly cure the Incipient Event of Default or Event of Default, Lender or its designee(s) or assignee(s) will be allowed a reasonable period of time to complete such foreclosure proceedings, take possession of the Generating Facility and cure such Incipient Event of Default or Event of Default, not to exceed 180 days after Xxxxxx’s commencement of foreclosure. Additionally, if Lender is prohibited from curing any Incipient Event of Default or Event of Default by any process, stay or injunction issued by a Governmental Authority or pursuant to any bankruptcy, insolvency or similar proceedings, then the time period for curing such Incipient Event of Default or Event of Default shall be extended for the period of the prohibition provided that Lender is exercising reasonable diligence in having such process, stay or injunction removed; Lender shall have the right to consent before any termination of this Agreement which does not arise out of an Event of Default or the end of the Term; Lender shall receive prior Notice of, and shall have the right to approve material amendments to this Agreement, which approval may not be unreasonably withheld, delayed or conditioned; In the event Lender, directly or indirectly, takes title to the Generating Facility (including title by foreclosure or deed in lieu of foreclosure), the Person taking title to the Generating Facility shall assume all of Seller’s obligations arising under this Agreement and all related agreements (subject to such limits on liability as are mutually agreed to by Seller, Buyer and Lender as set forth in the Collateral Assignment Agreement); provided, however, that Lender (or such Person) shall have no liability for any monetary obligations of Seller under this Agreement which are due and owing to Buyer as of the assumption date (but this provision may not be interpreted to limit Buyer’s rights to proceed against Seller as a result of an Event of Default) and Lender’s (or such Person’s) liability to Buyer after such assumption shall be limited to its interest in the Generating Facility; provided further, that before such assumption, if Buyer advises Lender (or such Person) that Buyer will require that Lender (or such Person) cure (or cause to be cured) one or more monetary or non-monetary Incipient Event(s) of Default or Event(s) of Default existing as of the date such Person takes title in order to avoid the exercise by Buyer (in its sole discretion) of Buyer’s right to terminate this Agreement with respect to such Incipient Event(s) of Default or Event(s) of Default, then Lender (or such Person) at its option and in its sole discretion may elect to either (i) cause such Incipient Event(s) of Default or Event of Default to be cured, or (ii) not assume this Agreement; If Lender has assumed this Agreement as provided in Section 9.05(h) and elects to sell or transfer the Generating Facility (after Lender directly or indirectly, takes title to the Generating Facility), or sale of the Generating Facility occurs through the actions of Lender or an agent of or representative of Lender (excluding any foreclosure sale where a third party other than Lender, Seller, an Related Entity of Lender or an Related Entity of Seller is the buyer), then Lender must cause the transferee or buyer to assume all of Seller’s obligations arising under this Agreement and all related agreements as a condition of the sale or transfer excluding, however, a foreclosure (unless the transferee or buyer is Lender, Seller, an Related Entity of Lender or an Related Entity of Seller). Lender shall be released from all further obligations under the Agreement and all related documents following such assumption. Such sale or transfer (excluding a foreclosure) may be made only to a Person reasonably acceptable to Buyer; and If this Agreement is rejected in Seller’s Bankruptcy or otherwise terminated in connection therewith and if Lender or its representative or designee, directly or indirectly, takes title to the Generating Facility, then, at the request of either Buyer or Lender, Buyer and Lender (or its designee or representative) shall promptly enter into a new agreement with Buyer having substantially the same terms as this Agreement for the term that would have been remaining under this Agreement, provided that Lender’s (or its designee’s or representative’s) liability under such new agreement shall be limited to its interest in the Generating Facility and neither Lender (or its designee or representative) nor Buyer shall have any personal liability to the other for any amounts owing and neither Buyer nor Lender (or its designee or representative) shall have any obligation to cure any defaults under the original Agreement that was rejected in, or otherwise terminated in connection with Seller’s Bankruptcy.;
Appears in 2 contracts
Samples: Renewable Power Purchase and Sale Agreement, Renewable Power Purchase and Sale Agreement
Consent to Collateral Assignment. Subject to the provisions of this Section 9.059.06, Seller may (but is not obligated to) assign this Agreement as collateral to a Lender for any financing or refinancing of the Generating Facility, including a Sale-Leaseback Transaction or Equity Investment and, in connection therewith, Buyer shall in good faith work with Seller and Lender to agree upon a consent to a collateral assignment of this Agreement or to a Sale-Leaseback Transaction or Equity Investment, as applicable (“Collateral Assignment Agreement”). Agreement”). The Collateral Assignment Agreement shall be in form and substance reasonably agreed to by Xxxxx, Seller and Lender, and shall include, among others, the following provisions (together with such other commercially reasonable provisions required by any Lender that are reasonably acceptable to Buyer): ):
(a) Buyer shall give, to the Person(s) to be specified by Lender in the Collateral Assignment Agreement, simultaneously with the Notice to Seller and before exercising its right to terminate this Agreement, written Notice of any event or circumstance known to Buyer which would, if not cured within the applicable cure period specified in Article VI, constitute an Event of Default (an “Incipient Event of Default”); ;
(b) Lender shall have the right to cure an Incipient Event of Default or an Event of Default by Seller in accordance with the same provisions of this Agreement as apply to Seller; ;
(c) Following an Event of Default by Seller under this Agreement, Buyer may require Seller to (although Lender may, but shall have no obligation, subject to 9.05(g9.06(g)) provide to Buyer a report concerning: :
(i) The status of efforts by Seller or Lender to develop a plan to cure the Event of Default; ;
(ii) Impediments to the cure plan or its development; ;
(iii) If a cure plan has been adopted, the status of the cure plan’s implementation (including any modifications to the plan as well as the expected timeframe within which any cure is expected to be implemented); and and
(iv) Any other information which Buyer may reasonably require related to the development, implementation and timetable of the cure plan; ;
(d) Seller or Lender shall provide the report to Buyer within 10 Business Days after Notice from Buyer requesting the report. Buyer shall have no further right to require the report with respect to a particular Event of Default after that Event of Default has been cured; ;
(e) Lender shall have the right to cure an Event of Default or Incipient Event of Default on behalf of Seller, only if Xxxxxx sends a written notice to Buyer before the end of any cure period indicating Xxxxxx’s intention to cure. Lender may remedy or cure the Event of Default or Incipient Event of Default within the cure period under this Agreement. Such cure period for Lender shall be extended for each day Buyer does not provide the Notice to Lender referred to in Section 9.05(a9.06(a). In addition, such cure period may, in Buyer’s reasonable discretion, be extended by no more than an additional 180 days. If possession of the Generating Facility is necessary to cure such Incipient Event of Default or Event of Default, Lender has commenced foreclosure proceedings within 60 days after receipt of such Notice from Buyer, and Lender is making diligent and consistent efforts to complete such foreclosure, take possession of the Generating Facility and promptly cure the Incipient Event of Default or Event of Default, Lender or its designee(s) or assignee(s) will be allowed a reasonable period of time to complete such foreclosure proceedings, take possession of the Generating Facility and cure such Incipient Event of Default or Event of Default, not to exceed 180 days after Xxxxxx’s commencement of foreclosure. Additionally, if Lender is prohibited from curing any Incipient Event of Default or Event of Default by any process, stay or injunction issued by a Governmental Authority or pursuant to any bankruptcy, insolvency or similar proceedings, then the time period for curing such Incipient Event of Default or Event of Default shall be extended for the period of the prohibition provided that Lender is exercising reasonable diligence in having such process, stay or injunction removed; ;
(f) Lender shall have the right to consent before any termination of this Agreement which does not arise out of an Event of Default or the end of the Term; ;
(g) Lender shall receive prior Notice of, and shall have the right to approve material amendments to this Agreement, which approval may not be unreasonably withheld, delayed or conditioned; ;
(h) In the event Lender, directly or indirectly, takes title to the Generating Facility (including title by foreclosure or deed in lieu of foreclosure), the Person taking title to the Generating Facility shall assume all of Seller’s obligations arising under this Agreement and all related agreements (subject to such limits on liability as are mutually agreed to by Seller, Buyer and Lender as set forth in the Collateral Assignment Agreement); provided, however, that Lender (or such Person) shall have no liability for any monetary obligations of Seller under this Agreement which are due and owing to Buyer as of the assumption date (but this provision may not be interpreted to limit Buyer’s rights to proceed against Seller as a result of an Event of Default) and Lender’s (or such Person’s) liability to Buyer after such assumption shall be limited to its interest in the Generating Facility; provided further, that before such assumption, if Buyer advises Lender (or such Person) that Buyer will require that Lender (or such Person) cure (or cause to be cured) one or more monetary or non-monetary Incipient Event(s) of Default or Event(s) of Default existing as of the date such Person takes title in order to avoid the exercise by Buyer (in its sole discretion) of Buyer’s right to terminate this Agreement with respect to such Incipient Event(s) of Default or Event(s) of Default, then Lender (or such Person) at its option and in its sole discretion may elect to either (i) cause such Incipient Event(s) of Default or Event of Default to be cured, or (ii) not assume this Agreement; ;
(i) If Lender has assumed this Agreement as provided in Section 9.05(h9.06(h) and elects to sell or transfer the Generating Facility (after Lender directly or indirectly, takes title to the Generating Facility), or sale of the Generating Facility occurs through the actions of Lender or an agent of or representative of Lender (excluding any foreclosure sale where a third party other than Lender, Seller, an Related Entity of Lender or an Related Entity of Seller is the buyer), then Lender must cause the transferee or buyer to assume all of Seller’s obligations arising under this Agreement and all related agreements as a condition of the sale or transfer excluding, however, a foreclosure (unless the transferee or buyer is Lender, Seller, an Related Entity of Lender or an Related Entity of Seller). Lender shall be released from all further obligations under the Agreement and all related documents following such assumption. Such sale or transfer (excluding a foreclosure) may be made only to a Person reasonably acceptable to Buyer; and and
(j) If this Agreement is rejected in Seller’s Bankruptcy or otherwise terminated in connection therewith and if Lender or its representative or designee, directly or indirectly, takes title to the Generating Facility, then, at the request of either Buyer or Lender, Buyer and Lender (or its designee or representative) shall promptly enter into a new agreement with Buyer having substantially the same terms as this Agreement for the term that would have been remaining under this Agreement, provided that Lender’s (or its designee’s or representative’s) liability under such new agreement shall be limited to its interest in the Generating Facility and neither Lender (or its designee or representative) nor Buyer shall have any personal liability to the other for any amounts owing and neither Buyer nor Lender (or its designee or representative) shall have any obligation to cure any defaults under the original Agreement that was rejected in, or otherwise terminated in connection with Seller’s Bankruptcy.
Appears in 2 contracts
Samples: Power Purchase and Sale Agreement, Power Purchase and Sale Agreement
Consent to Collateral Assignment. Subject to the provisions of this Section 9.0510.05, Seller may (but is not obligated to) has the right to assign this Agreement as collateral to a Lender for any financing or refinancing of the Generating Facility; provided, Seller shall be responsible for SCE’s reasonable costs associated with the preparation, review, execution and delivery of documents in connection with any such assignment, including a Sale-Leaseback Transaction without limitation attorneys’ fees. In connection with any financing or Equity Investment andrefinancing of the Generating Facility by Seller, in connection therewith, Buyer SCE shall in good faith work with Seller and Lender to agree upon a consent to a collateral assignment of this Agreement or to a Sale-Leaseback Transaction or Equity Investment, as applicable (“Collateral Assignment Agreement”). The Collateral Assignment Agreement shall must be in form and substance reasonably agreed to by XxxxxSCE, Seller and Lender, and shall and, unless otherwise agreed, must include, among others, the following provisions provisions:
(together with such other commercially reasonable provisions required a) SCE shall give Notice of an Event of Default by any Lender that are reasonably acceptable to Buyer): Buyer shall giveSeller, to the Person(sperson(s) to be specified by Lender in the Collateral Assignment Agreement, simultaneously with the Notice to Seller and before exercising its right to terminate this Agreement, written Notice Agreement as a result of any event or circumstance known to Buyer which would, if not cured within the applicable cure period specified in Article VI, constitute an Event of Default (an “Incipient such Event of Default”); Lender shall have the right to cure an Incipient Event of Default or an Event of Default by Seller in accordance with the same provisions of this Agreement as apply to Seller; ;
(b) Following an Event of Default by Seller under this Agreement, Buyer SCE may require Seller or Lender to (although Lender may, but shall have no obligation, subject to 9.05(g)) provide to Buyer SCE a report concerning: :
(i) The status of efforts by Seller or Lender to develop a plan to cure the Event of Default; ;
(ii) Impediments to the cure plan or its development; ;
(iii) If a cure plan has been adopted, the status of the cure plan’s implementation (including any modifications to the plan as well as the expected timeframe within which any cure is expected to be implemented); and and
(iv) Any other information which Buyer SCE may reasonably require related to the development, implementation and timetable of the cure plan; . Seller or Lender shall must provide the report to Buyer SCE within 10 ten (10) Business Days after Notice from Buyer SCE requesting the report. Buyer shall SCE will have no further right to require the report with respect to a particular Event of Default after that Event of Default has been cured; ;
(c) Lender shall will have the right to cure an Event of Default or Incipient Event of Default on behalf of Seller, only if Xxxxxx Lender sends a written notice to Buyer SCE before the end of any cure period indicating XxxxxxLender’s intention to cure. Lender may must remedy or cure the Event of Default or Incipient Event of Default within the cure period under this Agreement. Such cure period for Lender shall be extended for each day Buyer does not provide the Notice to Lender referred to in Section 9.05(a). In addition; provided, such cure period may, in BuyerSCE’s reasonable sole discretion, be extended by no more than an additional 180 one hundred eighty (180) days. If possession of the Generating Facility is necessary to cure such Incipient Event of Default or Event of Default, ;
(d) Lender has commenced foreclosure proceedings within 60 days after receipt of such Notice from Buyer, and Lender is making diligent and consistent efforts to complete such foreclosure, take possession of the Generating Facility and promptly cure the Incipient Event of Default or Event of Default, Lender or its designee(s) or assignee(s) will be allowed a reasonable period of time to complete such foreclosure proceedings, take possession of the Generating Facility and cure such Incipient Event of Default or Event of Default, not to exceed 180 days after Xxxxxx’s commencement of foreclosure. Additionally, if Lender is prohibited from curing any Incipient Event of Default or Event of Default by any process, stay or injunction issued by a Governmental Authority or pursuant to any bankruptcy, insolvency or similar proceedings, then the time period for curing such Incipient Event of Default or Event of Default shall be extended for the period of the prohibition provided that Lender is exercising reasonable diligence in having such process, stay or injunction removed; Lender shall have the right to consent before any termination of this Agreement which does not arise out of an Event of Default or the end of the Term; Lender shall receive prior Notice of, of and shall have the right to approve material amendments to this Agreement, which approval may will not be unreasonably withheld, delayed or conditioned; In the event ;
(e) If Lender, directly or indirectly, takes possession of, or title to the Generating Facility (including possession by a receiver or title by foreclosure or deed in lieu of foreclosure), the Person taking title to the Generating Facility shall Lender must assume all of Seller’s obligations arising under this Agreement and all related agreements (subject to such limits on liability as are mutually agreed to by Seller, Buyer SCE and Lender as set forth in the Collateral Assignment Agreement); provided, however, that Lender (or such Person) shall have no liability for any monetary obligations of Seller under this Agreement which are due and owing to Buyer as of the assumption date (but this provision may not be interpreted to limit Buyer’s rights to proceed against Seller as a result of an Event of Default) and Lender’s (or such Person’s) liability to Buyer after such assumption shall be limited to its interest in the Generating Facility; provided further, that before such assumption, if Buyer SCE advises Lender (or such Person) that Buyer SCE will require that Lender (or such Person) cure (or cause to be cured) one or more monetary or non-monetary Incipient Event(s) of Default or Event(s) any Event of Default existing as of the possession date such Person takes title in order to avoid the exercise by Buyer SCE (in its sole discretion) of BuyerSCE’s right to terminate this Agreement with respect to such Incipient Event(s) of Default or Event(s) Event of Default, then Lender (or such Person) at its option option, and in its sole discretion discretion, may elect to either either:
(i) cause Cause such Incipient Event(s) of Default or Event of Default to be cured, or or
(ii) not Not assume this Agreement; ;
(f) If Lender has assumed this Agreement as provided in Section 9.05(h) and elects to sell or transfer the Generating Facility (after Lender directly or indirectly, takes possession of, or title to the Generating Facility), or sale of the Generating Facility occurs through the actions of Lender or an agent of or representative of Lender (excluding any for example, a foreclosure sale where a third party other than Lender, Seller, an Related Entity of Lender or an Related Entity of Seller is the buyer, or otherwise), then Lender must cause the transferee or buyer to assume all of Seller’s obligations arising under this Agreement and all related agreements as a condition of the sale or transfer excluding, however, a foreclosure (unless the transferee or buyer is Lender, Seller, an Related Entity of Lender or an Related Entity of Seller). Lender shall be released from all further obligations under the Agreement and all related documents following such assumptiontransfer. Such sale or transfer (excluding a foreclosure) may be made only to an entity with a Person reasonably acceptable to Buyertangible net worth of at least Nineteen Million dollars ($19,000,000) and at least three (3) years of experience operating a generating plant of similar technology and similar size; and and
(g) If this Agreement is rejected in Seller’s Bankruptcy or otherwise terminated in connection therewith and if Lender or its representative or designee, directly or indirectly, takes possession of, or title to to, the Generating FacilityFacility (including possession by a receiver or title by foreclosure or deed in lieu of foreclosure), then, at the request of either Buyer Lender must itself or Lender, Buyer and Lender (or must cause its designee or representative) shall to promptly enter into a new agreement with Buyer SCE having substantially the same terms as this Agreement for the term that would have been remaining under this Agreement, provided that Lender’s (or its designee’s or representative’s) liability under such new agreement shall be limited to its interest in the Generating Facility and neither Lender (or its designee or representative) nor Buyer shall have any personal liability to the other for any amounts owing and neither Buyer nor Lender (or its designee or representative) shall have any obligation to cure any defaults under the original Agreement that was rejected in, or otherwise terminated in connection with Seller’s Bankruptcy.
Appears in 2 contracts
Samples: Renewable Power Purchase Agreement, Renewable Power Purchase Agreement
Consent to Collateral Assignment. Subject to the provisions of this Section 9.0510.05, Seller may (but is not obligated to) has the right to assign this Agreement as collateral to a Lender for any financing or refinancing of the Generating Facility. In connection with any financing or refinancing of the Generating Facility by Seller, including a Sale-Leaseback Transaction or Equity Investment and, in connection therewith, Buyer SCE shall in good faith work with Seller and Lender to agree upon a consent to a collateral assignment of this Agreement or to a Sale-Leaseback Transaction or Equity Investment, as applicable (“Collateral Assignment Agreement”). The Collateral Assignment Agreement shall must be in form and substance reasonably agreed to by XxxxxSCE, Seller and Lender, and shall must include, among others, the following provisions provisions:
(together with such other commercially reasonable provisions required a) SCE shall give Notice of an Event of Default by any Lender that are reasonably acceptable to Buyer): Buyer shall giveSeller, to the Person(sperson(s) to be specified by Lender in the Collateral Assignment Agreement, simultaneously with the Notice to Seller and before exercising its right to terminate this Agreement, written Notice Agreement as a result of any event or circumstance known to Buyer which would, if not cured within the applicable cure period specified in Article VI, constitute an Event of Default (an “Incipient such Event of Default”); Lender shall have the right to cure an Incipient Event of Default or an Event of Default by Seller in accordance with the same provisions of this Agreement as apply to Seller; ;
(b) Following an Event of Default by Seller under this Agreement, Buyer SCE may require Seller or Lender to (although Lender may, but shall have no obligation, subject to 9.05(g)) provide to Buyer SCE a report concerning: :
(i) The status of efforts by Seller or Lender to develop a plan to cure the Event of Default; ;
(ii) Impediments to the cure plan or its development; ;
(iii) If a cure plan has been adopted, the status of the cure plan’s implementation (including any modifications to the plan as well as the expected timeframe within which any cure is expected to be implemented); and and
(iv) Any other information which Buyer SCE may reasonably require related to the development, implementation and timetable of the cure plan; . Seller or Lender shall must provide the report to Buyer SCE within 10 ten (10) Business Days after Notice from Buyer SCE requesting the report. Buyer shall SCE will have no further right to require the report with respect to a particular Event of Default after that Event of Default has been cured; ;
(c) Lender shall will have the right to cure an Event of Default or Incipient Event of Default on behalf of Seller, only if Xxxxxx Lender sends a written notice to Buyer SCE before the end of any cure period indicating XxxxxxLender’s intention to cure. Lender may must remedy or cure the Event of Default or Incipient Event of Default within the cure period under this Agreement. Such cure period for Lender shall be extended for each day Buyer does not provide the Notice to Lender referred to in Section 9.05(a). In addition; provided, such cure period may, in BuyerSCE’s reasonable sole discretion, be extended by no more than an additional 180 one hundred eighty (180) days. If possession of the Generating Facility is necessary to cure such Incipient Event of Default or Event of Default, ;
(d) Lender has commenced foreclosure proceedings within 60 days after receipt of such Notice from Buyer, and Lender is making diligent and consistent efforts to complete such foreclosure, take possession of the Generating Facility and promptly cure the Incipient Event of Default or Event of Default, Lender or its designee(s) or assignee(s) will be allowed a reasonable period of time to complete such foreclosure proceedings, take possession of the Generating Facility and cure such Incipient Event of Default or Event of Default, not to exceed 180 days after Xxxxxx’s commencement of foreclosure. Additionally, if Lender is prohibited from curing any Incipient Event of Default or Event of Default by any process, stay or injunction issued by a Governmental Authority or pursuant to any bankruptcy, insolvency or similar proceedings, then the time period for curing such Incipient Event of Default or Event of Default shall be extended for the period of the prohibition provided that Lender is exercising reasonable diligence in having such process, stay or injunction removed; Lender shall have the right to consent before any termination of this Agreement which does not arise out of an Event of Default or the end of the Term; Default;
(e) Lender shall will receive prior Notice of, of and shall have the right to approve material amendments to this Agreement, which approval may will not be unreasonably withheld, delayed or conditioned; In the event ;
(f) If Lender, directly or indirectly, takes possession of, or title to the Generating Facility (including possession by a receiver or title by foreclosure or deed in lieu of foreclosure), the Person taking title to the Generating Facility shall Lender must assume all of Seller’s obligations arising under this Agreement and all related agreements (subject to such limits on liability as are mutually agreed to by Seller, Buyer SCE and Lender as set forth in the Collateral Assignment Agreement); providedprovided that, however, that Lender (or such Person) shall will have no personal liability for any monetary obligations of Seller under this Agreement which are due and owing to Buyer SCE as of the assumption date (but this provision may not be interpreted to limit Buyer’s rights to proceed against Seller as a result of an Event of Default) and Lender’s (or such Person’s) liability to Buyer after such assumption shall be limited to its interest in the Generating Facilitydate; provided furtherprovided, however, that before such assumption, if Buyer SCE advises Lender (or such Person) that Buyer SCE will require that Lender (or such Person) cure (or cause to be cured) one or more monetary or non-monetary Incipient Event(s) of Default or Event(s) any Event of Default existing as of the possession date such Person takes title in order to avoid the exercise by Buyer SCE (in its sole discretion) of BuyerSCE’s right to terminate this Agreement with respect to such Incipient Event(s) of Default or Event(s) Event of Default, then Lender (or such Person) at its option option, and in its sole discretion discretion, may elect to either either:
(i) cause Cause such Incipient Event(s) of Default or Event of Default to be cured, or or
(ii) not Not assume this Agreement; ;
(g) If Lender has assumed this Agreement as provided in Section 9.05(h) and elects to sell or transfer the Generating Facility (after Lender directly or indirectly, takes possession of, or title to the Generating Facility), or sale of the Generating Facility occurs through the actions of Lender or an agent of or representative of Lender (excluding any for example, a foreclosure sale where a third party other than Lender, Seller, an Related Entity of Lender or an Related Entity of Seller is the buyer, or otherwise), then Lender must cause the transferee or buyer to assume all of Seller’s obligations arising under this Agreement and all related agreements as a condition of the sale or transfer excluding, however, a foreclosure (unless the transferee or buyer is Lender, Seller, an Related Entity of Lender or an Related Entity of Seller). Lender shall be released from all further obligations under the Agreement and all related documents following such assumptiontransfer. Such sale or transfer (excluding a foreclosure) may be made only to an entity with financial qualifications (including collateral support and any other additional security as may be required by SCE) equivalent to that of Seller as of the Effective Date satisfactory to SCE in its sole discretion and at least three (3) years of experience Operating a Person reasonably acceptable to Buyergenerating plant of similar technology; and and
(h) If this Agreement is rejected in Seller’s Bankruptcy or otherwise terminated in connection therewith and if Lender or its representative or designee, directly or indirectly, takes possession of, or title to to, the Generating FacilityFacility (including possession by a receiver or title by foreclosure or deed in lieu of foreclosure), then, at the request of either Buyer Lender must itself or Lender, Buyer and Lender (or must cause its designee or representative) shall to promptly enter into a new agreement with Buyer SCE having substantially the same terms as this Agreement for the term that would have been remaining under this Agreement, provided that Lender’s (or its designee’s or representative’s) liability under such new agreement shall be limited to its interest in the Generating Facility and neither Lender (or its designee or representative) nor Buyer shall have any personal liability to the other for any amounts owing and neither Buyer nor Lender (or its designee or representative) shall have any obligation to cure any defaults under the original Agreement that was rejected in, or otherwise terminated in connection with Seller’s Bankruptcy.
Appears in 2 contracts
Samples: Renewable Power Purchase and Sale Agreement, Renewable Power Purchase and Sale Agreement
Consent to Collateral Assignment. Subject to the provisions of this Section 9.0510.05, Seller may (but is not obligated to) has the right to assign this Agreement as collateral to a Lender for any financing or refinancing of the Generating Facility. In connection with any financing or refinancing of the Generating Facility by Seller, including a Sale-Leaseback Transaction or Equity Investment and, in connection therewith, Buyer Anaheim shall in good faith work with Seller and Lender to agree upon a consent to a collateral assignment of this Agreement or to a Sale-Leaseback Transaction or Equity Investment, as applicable (“Collateral Assignment Agreement”). The Collateral Assignment Agreement shall must be in form and substance reasonably agreed to by XxxxxAnaheim, Seller Seller, and Lender, and shall must include, among others, the following provisions provisions:
(together with such other commercially reasonable provisions required a) Anaheim shall give Notice of an Event of Default by any Lender that are reasonably acceptable to Buyer): Buyer shall giveSeller, to the Person(sperson(s) to be specified by Lender in the Collateral Assignment Agreement, simultaneously with the Notice to Seller and before exercising its right to terminate this Agreement, written Notice Agreement as a result of any event or circumstance known to Buyer which would, if not cured within the applicable cure period specified in Article VI, constitute an Event of Default (an “Incipient such Event of Default”); Lender shall have the right to cure an Incipient Event of Default or an Event of Default by Seller in accordance with the same provisions of this Agreement as apply to Seller; ;
(b) Following an Event of Default by Seller under this Agreement, Buyer Anaheim may require Seller or Lender to (although Lender may, but shall have no obligation, subject to 9.05(g)) provide to Buyer Anaheim a report concerning: :
(i) The status of efforts by Seller or Lender to develop a plan to cure the Event of Default; ;
(ii) Impediments to the cure plan or its development; ;
(iii) If a cure plan has been adopted, the status of the cure plan’s implementation (including any modifications to the plan as well as the expected timeframe within which any cure is expected to be implemented); and and
(iv) Any other information which Buyer Anaheim may reasonably require related to the development, implementation implementation, and timetable of the cure plan; . Seller or Lender shall must provide the report to Buyer Anaheim within 10 ten (10) Business Days after Notice from Buyer Anaheim requesting the report. Buyer shall Anaheim will have no further right to require the report with respect to a particular Event of Default after that Event of Default has been cured; ;
(c) Lender shall will have the right to cure an Event of Default or Incipient Event of Default on behalf of Seller, only if Xxxxxx Lender sends a written notice to Buyer Anaheim before the end of any cure period indicating XxxxxxLender’s intention to cure. Lender may must remedy or cure the Event of Default or Incipient Event of Default within the cure period under this Agreement. Such cure period for Lender shall be extended for each day Buyer does not provide the Notice to Lender referred to in Section 9.05(a). In addition; provided, such cure period may, in BuyerAnaheim’s reasonable sole discretion, be extended by no more than an additional 180 one hundred eighty (180) days. If possession of the Generating Facility is necessary to cure such Incipient Event of Default or Event of Default, ;
(d) Lender has commenced foreclosure proceedings within 60 days after receipt of such Notice from Buyer, and Lender is making diligent and consistent efforts to complete such foreclosure, take possession of the Generating Facility and promptly cure the Incipient Event of Default or Event of Default, Lender or its designee(s) or assignee(s) will be allowed a reasonable period of time to complete such foreclosure proceedings, take possession of the Generating Facility and cure such Incipient Event of Default or Event of Default, not to exceed 180 days after Xxxxxx’s commencement of foreclosure. Additionally, if Lender is prohibited from curing any Incipient Event of Default or Event of Default by any process, stay or injunction issued by a Governmental Authority or pursuant to any bankruptcy, insolvency or similar proceedings, then the time period for curing such Incipient Event of Default or Event of Default shall be extended for the period of the prohibition provided that Lender is exercising reasonable diligence in having such process, stay or injunction removed; Lender shall have the right to consent receive prior written notice before any termination of this Agreement which does not arise out of an Event of Default or the end of the Term; Default;
(e) Lender shall will receive prior Notice of, written notice of and shall have the right to approve material amendments to this Agreement, which approval may will not be unreasonably withheld, delayed delayed, or conditioned; In the event ;
(f) If Lender, directly or indirectly, takes possession of, or title to the Generating Facility (including possession by a receiver or title by foreclosure or deed in lieu of foreclosure), the Person taking title to the Generating Facility shall Lender must assume all of Seller’s obligations arising under this Agreement and all related agreements (subject to such limits on liability as are mutually agreed to by Seller, Buyer Anaheim, and Lender as set forth in the Collateral Assignment Agreement); provided, however, that Lender (or such Person) shall have no liability for any monetary obligations of Seller under this Agreement which are due and owing to Buyer as of the assumption date (but this provision may not be interpreted to limit Buyer’s rights to proceed against Seller as a result of an Event of Default) and Lender’s (or such Person’s) liability to Buyer after such assumption shall be limited to its interest in the Generating Facility; provided further, that before such assumption, if Buyer Anaheim advises Lender (or such Person) that Buyer Anaheim will require that Lender (or such Person) cure (or cause to be cured) one or more monetary or non-monetary Incipient Event(s) of Default or Event(s) any Event of Default existing as of the possession date such Person takes title in order to avoid the exercise by Buyer Anaheim (in its sole discretion) of BuyerAnaheim’s right to terminate this Agreement with respect to such Incipient Event(s) of Default or Event(s) Event of Default, then Lender (or such Person) at its option option, and in its sole discretion discretion, may elect to either either:
(i) cause Cause such Incipient Event(s) of Default or Event of Default to be cured, or or
(ii) not Not assume this Agreement; , in which case this Agreement terminates unimpeded either by operation of law or the terms of this Agreement, as applicable;
(g) If Lender has assumed this Agreement as provided in Section 9.05(h) and elects to sell or transfer the Generating Facility (after Lender directly or indirectly, takes possession of, or title to the Generating Facility), or sale of the Generating Facility occurs through the actions of Lender or an agent of or representative of Lender (excluding any for example, a foreclosure sale where a third party other than Lender, Seller, an Related Entity of Lender or an Related Entity of Seller is the buyer, or otherwise), then Lender must cause the transferee or buyer to assume all of Seller’s obligations arising under this Agreement and all related agreements as a condition of the sale or transfer excluding, however, a foreclosure (unless the transferee or buyer is Lender, Seller, an Related Entity of Lender or an Related Entity of Seller). Lender shall be released from all further obligations under the Agreement and all related documents following such assumptiontransfer. Such sale or transfer (excluding a foreclosure) may be made only to a Person reasonably acceptable an entity with financial qualifications (including collateral support and any other additional security as may be required by Anaheim) and Operating experience equivalent to Buyerthat of Seller as of the Effective Date satisfactory to Anaheim in its sole discretion; and and
(h) If this Agreement is rejected in Seller’s Bankruptcy or otherwise terminated in connection therewith and if Lender or its representative or designee, directly or indirectly, takes possession of, or title to to, the Generating FacilityFacility (including possession by a receiver or title by foreclosure or deed in lieu of foreclosure), then, at the request of either Buyer Lender must itself or Lender, Buyer and Lender (or must cause its designee or representative) shall to promptly enter into a new agreement with Buyer Anaheim having substantially the same terms as this Agreement for the term that would have been remaining under this Agreement, provided that Lender’s (or its designee’s or representative’s) liability under such new agreement shall be limited to its interest in the Generating Facility and neither Lender (or its designee or representative) nor Buyer shall have any personal liability to the other for any amounts owing and neither Buyer nor Lender (or its designee or representative) shall have any obligation to cure any defaults under the original Agreement that was rejected in, or otherwise terminated in connection with Seller’s Bankruptcy.
Appears in 2 contracts
Samples: Renewable Power Purchase and Sale Agreement, Renewable Power Purchase and Sale Agreement
Consent to Collateral Assignment. Subject to the provisions of this Section 9.0510.04, Seller may (but is not obligated to) shall have the right to assign this Agreement as collateral to a Lender for any financing or refinancing of the Generating Facility, including a Sale-Leaseback Transaction . In connection with any financing or Equity Investment and, in connection therewithrefinancing of the Generating Facility by Seller, Buyer shall in good faith work with Seller and Lender to agree upon a consent to a collateral assignment of this Agreement or to a Sale-Leaseback Transaction or Equity Investment, as applicable (“Collateral Assignment Agreement”). The Collateral Assignment Agreement shall be in form and substance reasonably agreed to by XxxxxBuyer, Seller and Lender, and shall may include, among others, the following provisions provisions:
(together with such other commercially reasonable provisions required by any Lender that are reasonably acceptable to Buyer): a) Buyer shall givegive Notice of an Event of Default by Seller, to the Person(sperson(s) to be specified by Lender in the Collateral Assignment Agreement, simultaneously with the Notice prior to Seller and before exercising its right to terminate this Agreement, written Notice Agreement as a result of any event or circumstance known to Buyer which would, if not cured within the applicable cure period specified in Article VI, constitute an Event of Default (an “Incipient such Event of Default”); Lender shall have the right to cure an Incipient Event of Default or an Event of Default by Seller in accordance with the same provisions of this Agreement as apply to Seller; ;
(b) Following an Event of Default by Seller under this Agreement, Buyer may require Seller or Lender to (although Lender may, but shall have no obligation, subject to 9.05(g)) provide to Buyer a report concerning: :
(i) The status of efforts by Seller or Lender to develop a plan to cure the Event of Default; ;
(ii) Impediments to the cure plan or its development; ;
(iii) If a cure plan has been adopted, the status of the cure plan’s implementation (including any modifications to the plan as well as the expected timeframe within which any cure is expected to be implemented); and and
(iv) Any other information which Buyer may reasonably require related to the development, implementation and timetable of the cure plan; . Seller or Lender shall provide the report to Buyer within 10 ten (10) Business Days after Notice from Buyer requesting the report. Buyer shall have no further right to require the report with respect to a particular Event of Default after that Event of Default has been cured; ;
(c) Lender shall have the right to cure an Event of Default or Incipient Event of Default on behalf of Seller, only if Xxxxxx sends a written notice Seller pursuant to Buyer before the end of any cure period indicating Xxxxxx’s intention to cure. Lender may remedy or cure the Event of Default or Incipient Event of Default within the cure period under this Agreement. Such cure period for Lender shall be extended for each day Buyer does not provide the Notice to Lender referred to in Section 9.05(a). In addition, such cure period may, in Buyer’s reasonable discretion, be extended by no more than an additional 180 days. If possession terms of the Generating Facility is necessary to cure such Incipient Event of Default or Event of Default, Lender has commenced foreclosure proceedings within 60 days after receipt of such Notice from Buyer, and Lender is making diligent and consistent efforts to complete such foreclosure, take possession of the Generating Facility and promptly cure the Incipient Event of Default or Event of Default, Lender or its designee(sCollateral Assignment Agreement;
(d) or assignee(s) will be allowed a reasonable period of time to complete such foreclosure proceedings, take possession of the Generating Facility and cure such Incipient Event of Default or Event of Default, not to exceed 180 days after Xxxxxx’s commencement of foreclosure. Additionally, if Lender is prohibited from curing any Incipient Event of Default or Event of Default by any process, stay or injunction issued by a Governmental Authority or pursuant to any bankruptcy, insolvency or similar proceedings, then the time period for curing such Incipient Event of Default or Event of Default shall be extended for the period of the prohibition provided that Lender is exercising reasonable diligence in having such process, stay or injunction removed; Lender shall have the right to consent before prior to any early termination of this Agreement which by Seller that does not arise out of an Event of Default or the end of the Term; by Seller;
(e) Lender shall receive prior Notice of, and shall have the right to approve of a material amendments amendment to this Agreement, which approval may not be unreasonably withheld, delayed or conditioned; Agreement from Seller;
(f) In the event Lender, directly or indirectly, takes possession of, or title to the Generating Facility (including possession by a receiver or title by foreclosure or deed in lieu of foreclosure), the Person taking title Lender, to the Generating Facility extent authorized by Governmental Authority, Applicable Law, and in accordance with Prudent Electrical Practices, shall assume all of Seller’s obligations arising under this Agreement and all related agreements (subject to such limits on liability as are mutually agreed to by Seller, Buyer and Lender as may be set forth in the Collateral Assignment Agreement); providedprovided that, however, that Lender (or such Person) shall have no personal liability for any monetary obligations of Seller under this Agreement which are due and owing to Buyer as of the assumption date (but this provision may not be interpreted to limit Buyer’s rights to proceed against Seller as a result of an Event of Default) and Lender’s (or such Person’s) liability to Buyer after such assumption shall be limited to its interest in the Generating Facilitydate; provided furtherprovided, however, that before prior to such assumption, if Buyer advises Lender (or such Person) that Buyer will require that Lender (or such Person) cure (or cause to be cured) one or more monetary or non-monetary Incipient Event(s) of Default or Event(s) any Event of Default existing as of the possession date such Person takes title in order to avoid the exercise by Buyer (in its sole discretion) of Buyer’s right to terminate this Agreement with respect to such Incipient Event(s) of Default or Event(s) Event of Default, then Lender (or such Person) at its option option; and in its sole discretion discretion, may elect to either either:
(i) cause Cause such Incipient Event(s) of Default or Event of Default to be cured, or or
(ii) not Not assume this Agreement; .
(g) If Lender has assumed this Agreement as provided in Section 9.05(h) and elects to sell or transfer the Generating Facility (after Lender directly or indirectly, takes possession of, or title to the Generating Facility), or sale of the Generating Facility occurs through the actions of Lender or an agent of or representative of Lender (excluding any for example, a foreclosure sale where a third party other than Lender, Seller, an Related Entity of Lender or an Related Entity of Seller is the buyer, or otherwise), then Lender must cause the transferee or buyer buyer, to the extent authorized by Governmental Authority, Applicable Law, and in accordance with Prudent Electrical Practices, to assume all of Seller’s obligations arising under this Agreement and all related agreements as a condition of the sale or transfer excludingtransfer; provided that, however, a foreclosure the third party shall have no personal liability for any monetary obligations of Seller under this Agreement which are due and owing to Buyer as of the assumption date; and
(unless the transferee or buyer is Lender, Seller, an Related Entity of Lender or an Related Entity of Seller). Lender shall be released from all further obligations under the Agreement and all related documents following such assumption. Such sale or transfer (excluding a foreclosureh) may be made only to a Person reasonably acceptable to Buyer; and If this Agreement is rejected in Seller’s Bankruptcy or otherwise terminated in connection therewith and if Lender or its representative or designee, directly or indirectly, takes possession of, or title to to, the Generating FacilityFacility (including possession by a receiver or title by foreclosure or deed in lieu of foreclosure), then, at the request of either Buyer Lender shall or Lender, Buyer and Lender (or shall cause its designee or representative) shall to promptly enter into a new agreement with Buyer Buyer, having substantially the same terms as this Agreement for the term that would have been remaining under this Agreement, provided that Lender’s (or its designee’s or representative’s) liability under such new agreement shall be limited to its interest in the Generating Facility and neither Lender (or its designee or representative) nor Buyer shall have any personal liability to the other for any amounts owing and neither Buyer nor Lender (or its designee or representative) shall have any obligation to cure any defaults under the original Agreement that was rejected in, or otherwise terminated in connection with Seller’s Bankruptcy.
Appears in 2 contracts
Samples: Renewable Power Purchase and Sale Agreement (Raser Technologies Inc), Renewable Power Purchase and Sale Agreement (Raser Technologies Inc)
Consent to Collateral Assignment. Subject to the provisions of this Section 9.05, Seller may (but is not obligated to) has the right to assign this Agreement as collateral to a Lender for any financing or refinancing of the Generating Facility, including a Sale-Leaseback Transaction or Equity Investment and, in connection therewith, Buyer shall in good faith work with Seller and Lender to agree upon a consent to a collateral assignment of this Agreement or to a Sale-Leaseback Transaction or Equity Investment, as applicable (“Collateral Assignment Agreement”). The Collateral Assignment Agreement shall be in form and substance reasonably agreed to by Xxxxx, Seller and Lender, and shall include, among others, the following provisions (together with such other commercially reasonable provisions required by any Lender that are reasonably acceptable to Buyer): Buyer shall give, to the Person(s) to be specified by Lender in the Collateral Assignment Agreement, simultaneously with the Notice to Seller and before exercising its right to terminate this Agreement, written Notice of any event or circumstance known to Buyer which would, if not cured within the applicable cure period specified in Article VI, constitute an Event of Default (an “Incipient Event of Default”); Lender shall have the right to cure an Incipient Event of Default or an Event of Default by Seller in accordance with the same provisions of this Agreement as apply to Seller; Following an Event of Default by Seller under this Agreement, Buyer may require Seller to (although Lender may, but shall have no obligation, subject to 9.05(g)) provide to Buyer a report concerning: The status of efforts by Seller or Lender to develop a plan to cure the Event of Default; Impediments to the cure plan or its development; If a cure plan has been adopted, the status of the cure plan’s implementation (including any modifications to the plan as well as the expected timeframe within which any cure is expected to be implemented); and Any other information which Buyer may reasonably require related to the development, implementation and timetable of the cure plan; Seller or Lender shall provide the report to Buyer within 10 Business Days after Notice from Buyer requesting the report. Buyer shall have no further right to require the report with respect to a particular Event of Default after that Event of Default has been cured; Lender shall have the right to cure an Event of Default or Incipient Event of Default on behalf of Seller, only if Xxxxxx sends a written notice to Buyer before the end of any cure period indicating Xxxxxx’s intention to cure. Lender may remedy or cure the Event of Default or Incipient Event of Default within the cure period under this Agreement. Such cure period for Lender shall be extended for each day Buyer does not provide the Notice to Lender referred to in Section 9.05(a). In addition, such cure period may, in Buyer’s reasonable discretion, be extended by no more than an additional 180 one hundred and eighty (180) days. If possession of the Generating Facility is necessary to cure such Incipient Event of Default or Event of Default, Lender has commenced foreclosure proceedings within 60 sixty (60) days after receipt of such Notice from Buyer, and Lender is making diligent and consistent efforts to complete such foreclosure, take possession of the Generating Facility and promptly cure the Incipient Event of Default or Event of Default, Lender or its designee(s) or assignee(s) will be allowed a reasonable period of time to complete such foreclosure proceedings, take possession of the Generating Facility and cure such Incipient Event of Default or Event of Default, not to exceed 180 one hundred and eighty (180) days after Xxxxxx’s commencement of foreclosure. Additionally, if Lender is prohibited from curing any Incipient Event of Default or Event of Default by any process, stay or injunction issued by a Governmental Authority or pursuant to any bankruptcy, insolvency or similar proceedings, then the time period for curing such Incipient Event of Default or Event of Default shall be extended for the period of the prohibition provided that Lender is exercising reasonable diligence in having such process, stay or injunction removed; Lender shall have the right to consent before any termination of this Agreement which does not arise out of an Event of Default or the end of the Term; Lender shall receive prior Notice of, and shall have the right to approve material amendments to this Agreement, which approval may not be unreasonably withheld, delayed or conditioned; In the event Lender, directly or indirectly, takes title to the Generating Facility (including title by foreclosure or deed in lieu of foreclosure), the Person taking title to the Generating Facility shall assume all of Seller’s obligations arising under this Agreement and all related agreements (subject to such limits on liability as are mutually agreed to by Seller, Buyer and Lender as set forth in the Collateral Assignment Agreement); provided, however, that Lender (or such Person) shall have no liability for any monetary obligations of Seller under this Agreement which are due and owing to Buyer as of the assumption date (but this provision may not be interpreted to limit Buyer’s rights to proceed against Seller as a result of an Event of Default) and Lender’s (or such Person’s) liability to Buyer after such assumption shall be limited to its interest in the Generating Facility; provided further, that before such assumption, if Buyer advises Lender (or such Person) that Buyer will require that Lender (or such Person) cure (or cause to be cured) one or more monetary or non-monetary Incipient Event(s) of Default or Event(s) of Default existing as of the date such Person takes title in order to avoid the exercise by Buyer (in its sole discretion) of Buyer’s right to terminate this Agreement with respect to such Incipient Event(s) of Default or Event(s) of Default, then Lender (or such Person) at its option and in its sole discretion may elect to either (i) cause such Incipient Event(s) of Default or Event of Default to be cured, or (ii) not assume this Agreement; If Lender has assumed this Agreement as provided in Section 9.05(h) and elects to sell or transfer the Generating Facility (after Lender directly or indirectly, takes title to the Generating Facility), or sale of the Generating Facility occurs through the actions of Lender or an agent of or representative of Lender (excluding any foreclosure sale where a third party other than Lender, Seller, an Related Entity Affiliate of Lender or an Related Entity Affiliate of Seller is the buyer), then Lender must cause the transferee or buyer to assume all of Seller’s obligations arising under this Agreement and all related agreements as a condition of the sale or transfer excluding, however, a foreclosure (unless the transferee or buyer is Lender, Seller, an Related Entity Affiliate of Lender or an Related Entity Affiliate of Seller). Lender shall be released from all further obligations under the Agreement and all related documents following such assumption. Such sale or transfer (excluding a foreclosure) may be made only to a Person reasonably acceptable to Buyer; and If this Agreement is rejected in Seller’s Bankruptcy or otherwise terminated in connection therewith and if Lender or its representative or designee, directly or indirectly, takes title to the Generating Facility, then, at the request of either Buyer or Lender, Buyer and Lender (or its designee or representative) shall promptly enter into a new agreement with agreement, wherein Buyer having shall have substantially the same terms contractual rights as found in this Agreement Agreement. for the term that would have been remaining under this Agreement, provided that Lender’s (or its designee’s or representative’s) liability under such new agreement shall be limited to its interest in the Generating Facility and neither Lender (or its designee or representative) nor Buyer shall have any personal liability to the other for any amounts owing and neither Buyer nor Lender (or its designee or representative) shall have any obligation to cure any defaults under the original Agreement that was rejected in, or otherwise terminated in connection with Seller’s Bankruptcy. Governing Law and Jury Trial Waiver. THIS AGREEMENT AND THE RIGHTS AND DUTIES OF THE PARTIES HEREUNDER ARE GOVERNED BY AND CONSTRUED, ENFORCED AND PERFORMED IN ACCORDANCE WITH THE LAWS OF THE STATE OF CALIFORNIA, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW. TO THE EXTENT ENFORCEABLE AT SUCH TIME, EACH PARTY WAIVES ITS RESPECTIVE RIGHT TO ANY JURY TRIAL WITH RESPECT TO ANY LITIGATION ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT.
Appears in 2 contracts
Samples: Power Purchase and Sale Agreement, Power Purchase and Sale Agreement
Consent to Collateral Assignment. Subject to the provisions of this Section 9.059.06, Seller may (but is not obligated to) assign this Agreement as collateral to a Lender for any financing or refinancing of the Generating Facility, including a Sale-Leaseback Transaction or Equity Investment and, in connection therewith, Buyer shall in good faith work with Seller and Lender to agree upon a consent to a collateral assignment of this Agreement or to a Sale-Leaseback Transaction or Equity Investment, as applicable (“Collateral Assignment Agreement”). The Collateral Assignment Agreement shall be in form and substance reasonably agreed to by Xxxxx, Seller and Lender, and shall include, among others, the following provisions (together with such other commercially reasonable provisions required by any Lender that are reasonably acceptable to Buyer): Buyer shall give, to the Person(s) to be specified by Lender in the Collateral Assignment Agreement, simultaneously with the Notice to Seller and before exercising its right to terminate this Agreement, written Notice of any event or circumstance known to Buyer which would, if not cured within the applicable cure period specified in Article VI, constitute an Event of Default (an “Incipient Event of Default”); Lender shall have the right to cure an Incipient Event of Default or an Event of Default by Seller in accordance with the same provisions of this Agreement as apply to Seller; Following an Event of Default by Seller under this Agreement, Buyer may require Seller to (although Lender may, but shall have no obligation, subject to 9.05(g9.06(g)) provide to Buyer a report concerning: The status of efforts by Seller or Lender to develop a plan to cure the Event of Default; Impediments to the cure plan or its development; If a cure plan has been adopted, the status of the cure plan’s implementation (including any modifications to the plan as well as the expected timeframe within which any cure is expected to be implemented); and Any other information which Buyer may reasonably require related to the development, implementation and timetable of the cure plan; Seller or Lender shall provide the report to Buyer within 10 Business Days after Notice from Buyer requesting the report. Buyer shall have no further right to require the report with respect to a particular Event of Default after that Event of Default has been cured; Lender shall have the right to cure an Event of Default or Incipient Event of Default on behalf of Seller, only if Xxxxxx sends a written notice to Buyer before the end of any cure period indicating Xxxxxx’s intention to cure. Lender may remedy or cure the Event of Default or Incipient Event of Default within the cure period under this Agreement. Such cure period for Lender shall be extended for each day Buyer does not provide the Notice to Lender referred to in Section 9.05(a9.06(a). In addition, such cure period may, in Buyer’s reasonable discretion, be extended by no more than an additional 180 days. If possession of the Generating Facility is necessary to cure such Incipient Event of Default or Event of Default, Lender has commenced foreclosure proceedings within 60 days after receipt of such Notice from Buyer, and Lender is making diligent and consistent efforts to complete such foreclosure, take possession of the Generating Facility and promptly cure the Incipient Event of Default or Event of Default, Lender or its designee(s) or assignee(s) will be allowed a reasonable period of time to complete such foreclosure proceedings, take possession of the Generating Facility and cure such Incipient Event of Default or Event of Default, not to exceed 180 days after Xxxxxx’s commencement of foreclosure. Additionally, if Lender is prohibited from curing any Incipient Event of Default or Event of Default by any process, stay or injunction issued by a Governmental Authority or pursuant to any bankruptcy, insolvency or similar proceedings, then the time period for curing such Incipient Event of Default or Event of Default shall be extended for the period of the prohibition provided that Lender is exercising reasonable diligence in having such process, stay or injunction removed; Lender shall have the right to consent before any termination of this Agreement which does not arise out of an Event of Default or the end of the Term; Lender shall receive prior Notice of, and shall have the right to approve material amendments to this Agreement, which approval may not be unreasonably withheld, delayed or conditioned; In the event Lender, directly or indirectly, takes title to the Generating Facility (including title by foreclosure or deed in lieu of foreclosure), the Person taking title to the Generating Facility shall assume all of Seller’s obligations arising under this Agreement and all related agreements (subject to such limits on liability as are mutually agreed to by Seller, Buyer and Lender as set forth in the Collateral Assignment Agreement); provided, however, that Lender (or such Person) shall have no liability for any monetary obligations of Seller under this Agreement which are due and owing to Buyer as of the assumption date (but this provision may not be interpreted to limit Buyer’s rights to proceed against Seller as a result of an Event of Default) and Lender’s (or such Person’s) liability to Buyer after such assumption shall be limited to its interest in the Generating Facility; provided further, that before such assumption, if Buyer advises Lender (or such Person) that Buyer will require that Lender (or such Person) cure (or cause to be cured) one or more monetary or non-monetary Incipient Event(s) of Default or Event(s) of Default existing as of the date such Person takes title in order to avoid the exercise by Buyer (in its sole discretion) of Buyer’s right to terminate this Agreement with respect to such Incipient Event(s) of Default or Event(s) of Default, then Lender (or such Person) at its option and in its sole discretion may elect to either (i) cause such Incipient Event(s) of Default or Event of Default to be cured, or (ii) not assume this Agreement; If Lender has assumed this Agreement as provided in Section 9.05(h9.06(h) and elects to sell or transfer the Generating Facility (after Lender directly or indirectly, takes title to the Generating Facility), or sale of the Generating Facility occurs through the actions of Lender or an agent of or representative of Lender (excluding any foreclosure sale where a third party other than Lender, Seller, an Related Entity of Lender or an Related Entity of Seller is the buyer), then Lender must cause the transferee or buyer to assume all of Seller’s obligations arising under this Agreement and all related agreements as a condition of the sale or transfer excluding, however, a foreclosure (unless the transferee or buyer is Lender, Seller, an Related Entity of Lender or an Related Entity of Seller). Lender shall be released from all further obligations under the Agreement and all related documents following such assumption. Such sale or transfer (excluding a foreclosure) may be made only to a Person reasonably acceptable to Buyer; and If this Agreement is rejected in Seller’s Bankruptcy or otherwise terminated in connection therewith and if Lender or its representative or designee, directly or indirectly, takes title to the Generating Facility, then, at the request of either Buyer or Lender, Buyer and Lender (or its designee or representative) shall promptly enter into a new agreement with Buyer having substantially the same terms as this Agreement for the term that would have been remaining under this Agreement, provided that Lender’s (or its designee’s or representative’s) liability under such new agreement shall be limited to its interest in the Generating Facility and neither Lender (or its designee or representative) nor Buyer shall have any personal liability to the other for any amounts owing and neither Buyer nor Lender (or its designee or representative) shall have any obligation to cure any defaults under the original Agreement that was rejected in, or otherwise terminated in connection with Seller’s Bankruptcy.
Appears in 2 contracts
Samples: Power Purchase and Sale Agreement, Power Purchase and Sale Agreement
Consent to Collateral Assignment. Subject to the provisions of this Section 9.0510.05, Seller may (but is not obligated to) has the right to assign this Agreement as collateral to a Lender for any financing or refinancing of the Generating Facility; provided, Seller shall be responsible for SCE’s reasonable costs associated with the preparation, review, execution and delivery of documents in connection with any such assignment, including a Sale-Leaseback Transaction without limitation attorneys’ fees. In connection with any financing or Equity Investment andrefinancing of the Generating Facility by Seller, in connection therewith, Buyer SCE shall in good faith work with Seller and Lender to agree upon a consent to a collateral assignment of this Agreement or to a Sale-Leaseback Transaction or Equity Investment, as applicable (“Collateral Assignment Agreement”). The Collateral Assignment Agreement shall must be in form and substance reasonably agreed to by XxxxxSCE, Seller and Lender, and shall must include, among others, the following provisions provisions:
(together with such other commercially reasonable provisions required a) SCE shall give Notice of an Event of Default by any Lender that are reasonably acceptable to Buyer): Buyer shall giveSeller, to the Person(sperson(s) to be specified by Lender in the Collateral Assignment Agreement, simultaneously with the Notice to Seller and before exercising its right to terminate this Agreement, written Notice Agreement as a result of any event or circumstance known to Buyer which would, if not cured within the applicable cure period specified in Article VI, constitute an Event of Default (an “Incipient such Event of Default”); Lender shall have the right to cure an Incipient Event of Default or an Event of Default by Seller in accordance with the same provisions of this Agreement as apply to Seller; ;
(b) Following an Event of Default by Seller under this Agreement, Buyer SCE may require Seller or Lender to (although Lender may, but shall have no obligation, subject to 9.05(g)) provide to Buyer SCE a report concerning: :
(i) The status of efforts by Seller or Lender to develop a plan to cure the Event of Default; ;
(ii) Impediments to the cure plan or its development; ;
(iii) If a cure plan has been adopted, the status of the cure plan’s implementation (including any modifications to the plan as well as the expected timeframe within which any cure is expected to be implemented); and and
(iv) Any other information which Buyer SCE may reasonably require related to the development, implementation and timetable of the cure plan; . Seller or Lender shall must provide the report to Buyer SCE within 10 ten (10) Business Days after Notice from Buyer SCE requesting the report. Buyer shall SCE will have no further right to require the report with respect to a particular Event of Default after that Event of Default has been cured; ;
(c) Lender shall will have the right to cure an Event of Default or Incipient Event of Default on behalf of Seller, only if Xxxxxx Lender sends a written notice to Buyer SCE before the end of any cure period indicating XxxxxxLender’s intention to cure. Lender may must remedy or cure the Event of Default or Incipient Event of Default within the cure period under this Agreement. Such cure period for Lender shall be extended for each day Buyer does not provide the Notice to Lender referred to in Section 9.05(a). In addition; provided, such cure period may, in BuyerSCE’s reasonable sole discretion, be extended by no more than an additional 180 one hundred eighty (180) days. If possession of the Generating Facility is necessary to cure such Incipient Event of Default or Event of Default, ;
(d) Lender has commenced foreclosure proceedings within 60 days after receipt of such Notice from Buyer, and Lender is making diligent and consistent efforts to complete such foreclosure, take possession of the Generating Facility and promptly cure the Incipient Event of Default or Event of Default, Lender or its designee(s) or assignee(s) will be allowed a reasonable period of time to complete such foreclosure proceedings, take possession of the Generating Facility and cure such Incipient Event of Default or Event of Default, not to exceed 180 days after Xxxxxx’s commencement of foreclosure. Additionally, if Lender is prohibited from curing any Incipient Event of Default or Event of Default by any process, stay or injunction issued by a Governmental Authority or pursuant to any bankruptcy, insolvency or similar proceedings, then the time period for curing such Incipient Event of Default or Event of Default shall be extended for the period of the prohibition provided that Lender is exercising reasonable diligence in having such process, stay or injunction removed; Lender shall have the right to consent before any termination of this Agreement which does not arise out of an Event of Default or the end of the Term; Default;
(e) Lender shall will receive prior Notice of, of and shall have the right to approve material amendments to this Agreement, which approval may will not be unreasonably withheld, delayed or conditioned; In the event ;
(f) If Lender, directly or indirectly, takes possession of, or title to the Generating Facility (including possession by a receiver or title by foreclosure or deed in lieu of foreclosure), the Person taking title to the Generating Facility shall Lender must assume all of Seller’s obligations arising under this Agreement and all related agreements (subject to such limits on liability as are mutually agreed to by Seller, Buyer SCE and Lender as set forth in the Collateral Assignment Agreement); provided, however, that Lender (or such Person) shall have no liability for any monetary obligations of Seller under this Agreement which are due and owing to Buyer as of the assumption date (but this provision may not be interpreted to limit Buyer’s rights to proceed against Seller as a result of an Event of Default) and Lender’s (or such Person’s) liability to Buyer after such assumption shall be limited to its interest in the Generating Facility; provided further, that before such assumption, if Buyer SCE advises Lender (or such Person) that Buyer SCE will require that Lender (or such Person) cure (or cause to be cured) one or more monetary or non-monetary Incipient Event(s) of Default or Event(s) any Event of Default existing as of the possession date such Person takes title in order to avoid the exercise by Buyer SCE (in its sole discretion) of BuyerSCE’s right to terminate this Agreement with respect to such Incipient Event(s) of Default or Event(s) Event of Default, then Lender (or such Person) at its option option, and in its sole discretion discretion, may elect to either either:
(i) cause Cause such Incipient Event(s) of Default or Event of Default to be cured, or or
(ii) not Not assume this Agreement; ;
(g) If Lender has assumed this Agreement as provided in Section 9.05(h) and elects to sell or transfer the Generating Facility (after Lender directly or indirectly, takes possession of, or title to the Generating Facility), or sale of the Generating Facility occurs through the actions of Lender or an agent of or representative of Lender (excluding any for example, a foreclosure sale where a third party other than Lender, Seller, an Related Entity of Lender or an Related Entity of Seller is the buyer, or otherwise), then Lender must cause the transferee or buyer to assume all of Seller’s obligations arising under this Agreement and all related agreements as a condition of the sale or transfer excluding, however, a foreclosure (unless the transferee or buyer is Lender, Seller, an Related Entity of Lender or an Related Entity of Seller). Lender shall be released from all further obligations under the Agreement and all related documents following such assumptiontransfer. Such sale or transfer (excluding a foreclosure) may be made only to an entity with a Person reasonably acceptable to Buyertangible net worth of at least Seventeen Million Eight Hundred Fifty Thousand dollars ($17,850,000) and at least three (3) years of experience operating a generating plant of similar technology and similar size; and and
(h) If this Agreement is rejected in Seller’s Bankruptcy or otherwise terminated in connection therewith and if Lender or its representative or designee, directly or indirectly, takes possession of, or title to to, the Generating FacilityFacility (including possession by a receiver or title by foreclosure or deed in lieu of foreclosure), then, at the request of either Buyer Lender must itself or Lender, Buyer and Lender (or must cause its designee or representative) shall to promptly enter into a new agreement with Buyer SCE having substantially the same terms as this Agreement for the term that would have been remaining under this Agreement, provided that Lender’s (or its designee’s or representative’s) liability under such new agreement shall be limited to its interest in the Generating Facility and neither Lender (or its designee or representative) nor Buyer shall have any personal liability to the other for any amounts owing and neither Buyer nor Lender (or its designee or representative) shall have any obligation to cure any defaults under the original Agreement that was rejected in, or otherwise terminated in connection with Seller’s Bankruptcy.
Appears in 1 contract
Consent to Collateral Assignment. Subject to the provisions of this Section 9.05, Seller may (but is not obligated to) has the right to assign this Agreement as collateral to a Lender for any financing or refinancing of the Generating Facility, including a Sale-Leaseback Transaction or Equity Investment and, in connection therewith, Buyer shall in good faith work with Seller and Lender to agree upon a consent to a collateral assignment of this Agreement or to a Sale-Sale- Leaseback Transaction or Equity Investment, as applicable (“Collateral Assignment Agreement”). The Collateral Assignment Agreement shall be in form and substance reasonably agreed to by XxxxxBuyer, Seller and Lender, and shall include, among others, the following provisions (together with such other commercially reasonable provisions required by any Lender that are reasonably acceptable to Buyer): ):
(a) Buyer shall give, to the Person(s) to be specified by Lender in the Collateral Assignment Agreement, simultaneously with the Notice to Seller and before exercising its right to terminate this Agreement, written Notice of any event or circumstance known to Buyer which would, if not cured within the applicable cure period specified in Article VISix, constitute an Event of Default (an “Incipient Event of Default”); ;
(b) Lender shall have the right to cure an Incipient Event of Default or an Event of Default by Seller in accordance with the same provisions of this Agreement as apply to Seller; ;
(c) Following an Event of Default by Seller under this Agreement, Buyer may require Seller to (although Lender may, but shall have no obligation, subject to 9.05(g)) provide to Buyer a report concerning: :
(i) The status of efforts by Seller or Lender to develop a plan to cure the Event of Default; ;
(ii) Impediments to the cure plan or its development; ;
(iii) If a cure plan has been adopted, the status of the cure plan’s implementation (including any modifications to the plan as well as the expected timeframe within which any cure is expected to be implemented); and and
(iv) Any other information which Buyer may reasonably require related to the development, implementation and timetable of the cure plan; ;
(d) Seller or Lender shall provide the report to Buyer within 10 Business Days after Notice from Buyer requesting the report. Buyer shall have no further right to require the report with respect to a particular Event of Default after that Event of Default has been cured; ;
(e) Lender shall have the right to cure an Event of Default or Incipient Event of Default on behalf of Seller, only if Xxxxxx Lender sends a written notice to Buyer before the end of any cure period indicating XxxxxxLender’s intention to cure. Lender may remedy or cure the Event of Default or Incipient Event of Default within the cure period under this Agreement. Such cure period for Lender shall be extended for each day Buyer does not provide the Notice to Lender referred to in Section 9.05(a). In addition, such cure period may, in Buyer’s reasonable discretion, be extended by no more than an additional 180 one hundred and eighty (180) days. If possession of the Generating Facility is necessary to cure such Incipient Event of Default or Event of Default, Lender has commenced foreclosure proceedings within 60 sixty (60) days after receipt of such Notice from Buyer, and Lender is making diligent and consistent efforts to complete such foreclosure, take possession of the Generating Facility and promptly cure the Incipient Event of Default or Event of Default, Lender or its designee(s) or assignee(s) will be allowed a reasonable period of time to complete such foreclosure proceedings, take possession of the Generating Facility and cure such Incipient Event of Default or Event of Default, not to exceed 180 one hundred and eighty (180) days after XxxxxxLender’s commencement of foreclosure. Additionally, if Lender is prohibited from curing any Incipient Event of Default or Event of Default by any process, stay or injunction issued by a Governmental Authority or pursuant to any bankruptcy, insolvency or similar proceedings, then the time period for curing such Incipient Event of Default or Event of Default shall be extended for the period of the prohibition provided that Lender is exercising reasonable diligence in having such process, stay or injunction removed; ;
(f) Lender shall have the right to consent before any termination of this Agreement which does not arise out of an Event of Default or the end of the Term; ;
(g) Lender shall receive prior Notice of, and shall have the right to approve material amendments to this Agreement, which approval may not be unreasonably withheld, delayed or conditioned; ;
(h) In the event Lender, directly or indirectly, takes title to the Generating Facility (including title by foreclosure or deed in lieu of foreclosure), the Person taking title to the Generating Facility shall assume all of Seller’s obligations arising under this Agreement and all related agreements (subject to such limits on liability as are mutually agreed to by Seller, Buyer and Lender as set forth in the Collateral Assignment Agreement); provided, however, that Lender (or such Person) shall have no liability for any monetary obligations of Seller under this Agreement which are due and owing to Buyer as of the assumption date (but this provision may not be interpreted to limit Buyer’s rights to proceed against Seller as a result of an Event of Default) and Lender’s (or such Person’s) liability to Buyer after such assumption shall be limited to its interest in the Generating Facility; provided further, that before such assumption, if Buyer advises Lender (or such Person) that Buyer will require that Lender (or such Person) cure (or cause to be cured) one or more monetary or non-monetary Incipient Event(s) of Default or Event(s) of Default existing as of the date such Person takes title in order to avoid the exercise by Buyer (in its sole discretion) of Buyer’s right to terminate this Agreement with respect to such Incipient Event(s) of Default or Event(s) of Default, then Lender (or such Person) at its option and in its sole discretion may elect to either (i) cause such Incipient Event(s) of Default or Event of Default to be cured, or (ii) not assume this Agreement; ;
(i) If Lender has assumed this Agreement as provided in Section 9.05(h) and elects to sell or transfer the Generating Facility (after Lender directly or indirectly, takes title to the Generating Facility), or sale of the Generating Facility occurs through the actions of Lender or an agent of or representative of Lender (excluding any foreclosure sale where a third party other than Lender, Seller, an Related Entity Affiliate of Lender or an Related Entity Affiliate of Seller is the buyer), then Lender must cause the transferee or buyer to assume all of Seller’s obligations arising under this Agreement and all related agreements as a condition of the sale or transfer excluding, however, a foreclosure (unless the transferee or buyer is Lender, Seller, an Related Entity Affiliate of Lender or an Related Entity Affiliate of Seller). Lender shall be released from all further obligations under the Agreement and all related documents following such assumption. Such sale or transfer (excluding a foreclosure) may be made only to a Person reasonably acceptable to Buyer; and and
(j) If this Agreement is rejected in Seller’s Bankruptcy or otherwise terminated in connection therewith and if Lender or its representative or designee, directly or indirectly, takes title to the Generating Facility, then, at the request of either Buyer or Lender, Buyer and Lender (or its designee or representative) shall promptly enter into a new agreement with agreement, wherein Buyer having shall have substantially the same terms contractual rights as found in this Agreement Agreement. for the term that would have been remaining under this Agreement, provided that Lender’s (or its designee’s or representative’s) liability under such new agreement shall be limited to its interest in the Generating Facility and neither Lender (or its designee or representative) nor Buyer shall have any personal liability to the other for any amounts owing and neither Buyer nor Lender (or its designee or representative) shall have any obligation to cure any defaults under the original Agreement that was rejected in, or otherwise terminated in connection with Seller’s Bankruptcy.
Appears in 1 contract
Samples: Power Purchase and Sale Agreement
Consent to Collateral Assignment. Subject to the provisions of this Section 9.05Article Fourteen, Seller may (but is not obligated to) shall have the right to assign this Agreement to Lender as collateral to a Lender for any financing or refinancing of the Generating FacilityProject; provided, Seller shall be responsible for SCE’s reasonable costs associated with the preparation, review, execution and delivery of documents in connection with any such assignment, including a Sale-Leaseback Transaction or Equity Investment and, in connection therewith, Buyer without limitation attorneys’ fees. SCE shall in good faith work with Seller and Lender to agree upon a consent to a collateral assignment of this Agreement or to a Sale-Leaseback Transaction or Equity Investment, as applicable (“Collateral Assignment Agreement”). The Collateral Assignment Agreement shall be in form and substance reasonably agreed to by XxxxxSCE, Seller and Lender, and shall include, among others, the following provisions (together with such other commercially reasonable provisions required provisions: SCE shall give Notice of an Event of Default by any Lender that are reasonably acceptable to Buyer): Buyer shall giveSeller, to the Person(s) persons to be specified by Lender in the Collateral Assignment Agreement, simultaneously with the Notice prior to Seller and before exercising its right to terminate this Agreement, written Notice the Agreement as a result of any event or circumstance known to Buyer which would, if not cured within the applicable cure period specified in Article VI, constitute an Event of Default (an “Incipient such Event of Default”); Lender shall have the right to cure an Incipient Event of Default or an Event of Default by Seller in accordance with the same provisions of this Agreement as apply to Seller; . Following an Event of Default by Seller under this Agreement, Buyer SCE may require Seller or Lender to (although Lender may, but shall have no obligation, subject to 9.05(g)) provide to Buyer SCE a report concerningsetting forth: The the status of efforts by Seller or Lender to develop a plan to cure the Event of Default; Impediments impediments to the cure plan or its development; If if a cure plan has been adopted, the status of the cure plan’s implementation (including any modifications to the plan as well as the expected timeframe within which any cure is expected to be implemented); and Any any other information which Buyer SCE may reasonably require related to the development, implementation and timetable of the cure plan; . Seller or Lender shall provide the report to Buyer SCE within 10 ten (10) Business Days after of Notice from Buyer SCE requesting the report. Buyer SCE shall have no further right to require the report with respect to a particular Event of Default after that Event of Default has been cured; . Lender shall have the right to cure an Event of Default or Incipient Event of Default on behalf of Seller, only if Xxxxxx Lender sends a written notice to Buyer before SCE prior to the end of any cure period indicating XxxxxxLender’s intention to cure. Lender may must remedy or cure the Event of Default or Incipient Event of Default within the cure period under this the Agreement. Such cure period for Lender shall be extended for each day Buyer does not provide the Notice to Lender referred to in Section 9.05(a). In addition; provided, such cure period may, in BuyerSCE’s reasonable sole discretion, be extended by no more than an additional 180 one hundred eighty (180) days. If possession of the Generating Facility is necessary to cure such Incipient Event of Default or Event of Default, Lender has commenced foreclosure proceedings within 60 days after receipt of such Notice from Buyer, and Lender is making diligent and consistent efforts to complete such foreclosure, take possession of the Generating Facility and promptly cure the Incipient Event of Default or Event of Default, Lender or its designee(s) or assignee(s) will be allowed a reasonable period of time to complete such foreclosure proceedings, take possession of the Generating Facility and cure such Incipient Event of Default or Event of Default, not to exceed 180 days after Xxxxxx’s commencement of foreclosure. Additionally, if Lender is prohibited from curing any Incipient Event of Default or Event of Default by any process, stay or injunction issued by a Governmental Authority or pursuant to any bankruptcy, insolvency or similar proceedings, then the time period for curing such Incipient Event of Default or Event of Default shall be extended for the period of the prohibition provided that Lender is exercising reasonable diligence in having such process, stay or injunction removed; Lender shall have the right to consent before prior to any termination of this the Agreement which does not arise out of an Event of Default or the end of the Term; Default. Lender shall receive prior Notice of, and shall have the right to approve approve, material amendments to this the Agreement, which approval may shall not be unreasonably withheld, delayed or conditioned; . In the event Lender, directly or indirectly, takes possession of, or title to the Generating Facility Project (including possession by a receiver or title by foreclosure or deed in lieu of foreclosure), the Person taking title to the Generating Facility Lender shall assume all of Seller’s obligations arising under this the Agreement and all related agreements (subject to such limits on liability as are mutually agreed to by Seller, Buyer SCE and Lender as set forth in the Collateral Assignment Agreement); provided, however, that . Lender (or such Person) shall have no personal liability for any monetary obligations of Seller under this the Agreement which are due and owing to Buyer SCE as of the assumption date (but this provision may not be interpreted date; provided, if, prior to limit Buyer’s rights to proceed against Seller as a result of an Event of Default) and Lender’s (or such Person’s) liability to Buyer after such assumption shall be limited to its interest in the Generating Facility; provided further, that before such assumption, if Buyer SCE advises Lender (or such Person) that Buyer SCE will require that Lender (or such Person) cure (or cause to be cured) one or more monetary or non-monetary Incipient Event(s) of Default or Event(s) any Event of Default existing as of the assumption date such Person takes title in order to avoid the exercise by Buyer SCE (in its sole discretion) of BuyerSCE’s right to terminate this the Agreement with in respect to of such Incipient Event(s) of Default or Event(s) Event of Default, then Lender (or such Person) Lender, at its option and in its sole discretion discretion, may elect to either (i) cause such Incipient Event(s) of Default or Event of Default to be cured, or (ii) not assume this Agreement; Seller’s obligations under the Agreement and all related agreements, including the pre-assumption payment obligations that are otherwise excluded. If Lender has assumed this Agreement as provided in Section 9.05(h) and elects to sell or transfer the Generating Facility Project (after Lender directly or indirectly, takes possession of, or title to the Generating FacilityProject), or sale of the Generating Facility Project occurs through the actions of Lender or an agent of or representative of Lender (excluding any for example, a foreclosure sale where a third party other than Lender, Seller, an Related Entity of Lender or an Related Entity of Seller is the buyer, or otherwise), then Lender must cause the transferee or buyer to assume all of Seller’s obligations arising under this Agreement and all related agreements as a condition of the sale or transfer excluding, however, a foreclosure (unless the transferee or buyer is Lender, Seller, an Related Entity of Lender or an Related Entity of Seller). Lender shall be released from all further obligations under the Agreement and all related documents following such assumptiontransfer. Such sale or transfer (excluding a foreclosure) may be made only to a Person reasonably acceptable an entity with financial qualifications (including, collateral support and any other additional security as may be required by SCE) and operating experience at least equivalent to Buyer; and Seller as of the Effective Date, as determined by SCE in its sole discretion. If this Agreement is rejected in Seller’s Bankruptcy bankruptcy or otherwise terminated in connection therewith and if Lender or its representative or designee, directly or indirectly, takes possession of, or title to to, the Generating FacilityProject (including possession by a receiver or title by foreclosure or deed in lieu of foreclosure), then, at the request of either Buyer Lender shall or Lender, Buyer and Lender (or shall cause its designee or representative) shall to promptly enter into a new agreement with Buyer SCE having substantially the same terms as this Agreement Agreement. Notwithstanding the foregoing, SCE shall not be required to enter into such agreement with Lender or such designee if there has been a change in circumstances resulting from actions of Seller in its bankruptcy case that would, in SCE’s judgment, materially impact the rights or obligations of SCE under such agreement. Seller shall reimburse, or shall cause Lender to reimburse, SCE for all reasonable and direct third party expenses (including the term that would have been remaining reasonable fees and expenses of counsel of SCE’s choice) incurred by SCE in the preparation, negotiation, execution and/or delivery of any documents required under this Agreement, provided that Lender’s (or its designee’s or representative’s) liability under such new agreement shall be limited to its interest in the Generating Facility and neither Lender (or its designee or representative) nor Buyer shall have any personal liability to the other for any amounts owing and neither Buyer nor Lender (or its designee or representative) shall have any obligation to cure any defaults under the original Agreement that was rejected inArticle Fourteen, or otherwise terminated requested by Seller or Lender in connection with Seller’s Bankruptcythis Article Fourteen.
Appears in 1 contract
Samples: Resource Adequacy Purchase Agreement
Consent to Collateral Assignment. Subject to the provisions of this Section 9.05, Seller may (but is not obligated to) has the right to assign this Agreement as collateral to a Lender for any financing or refinancing of the Generating Facility, including a Sale-Leaseback Transaction or Equity Investment and, in connection therewith, Buyer shall in good faith work with Seller and Lender to agree upon a consent to a collateral assignment of this Agreement or to a Sale-Sale- Leaseback Transaction or Equity Investment, as applicable (“Collateral Assignment Agreement”). The Collateral Assignment Agreement shall be in form and substance reasonably agreed to by Xxxxx, Seller and Lender, and shall include, among others, the following provisions (together with such other commercially reasonable provisions required by any Lender that are reasonably acceptable to Buyer): ):
(a) Buyer shall give, to the Person(s) to be specified by Lender in the Collateral Assignment Agreement, simultaneously with the Notice to Seller and before exercising its right to terminate this Agreement, written Notice of any event or circumstance known to Buyer which would, if not cured within the applicable cure period specified in Article VI, constitute an Event of Default (an “Incipient Event of Default”); ;
(b) Lender shall have the right to cure an Incipient Event of Default or an Event of Default by Seller in accordance with the same provisions of this Agreement as apply to Seller; ;
(c) Following an Event of Default by Seller under this Agreement, Buyer may require Seller to (although Lender may, but shall have no obligation, subject to 9.05(g)) provide to Buyer a report concerning: :
(i) The status of efforts by Seller or Lender to develop a plan to cure the Event of Default; ;
(ii) Impediments to the cure plan or its development; ;
(iii) If a cure plan has been adopted, the status of the cure plan’s implementation (including any modifications to the plan as well as the expected timeframe within which any cure is expected to be implemented); and and
(iv) Any other information which Buyer may reasonably require related to the development, implementation and timetable of the cure plan; ;
(d) Seller or Lender shall provide the report to Buyer within 10 Business Days after Notice from Buyer requesting the report. Buyer shall have no further right to require the report with respect to a particular Event of Default after that Event of Default has been cured; ;
(e) Lender shall have the right to cure an Event of Default or Incipient Event of Default on behalf of Seller, only if Xxxxxx sends a written notice to Buyer before the end of any cure period indicating Xxxxxx’s intention to cure. Lender may remedy or cure the Event of Default or Incipient Event of Default within the cure period under this Agreement. Such cure period for Lender shall be extended for each day Buyer does not provide the Notice to Lender referred to in Section 9.05(a). In addition, such cure period may, in Buyer’s reasonable discretion, be extended by no more than an additional 180 one hundred and eighty (180) days. If possession of the Generating Facility is necessary to cure such Incipient Event of Default or Event of Default, Lender has commenced foreclosure proceedings within 60 sixty (60) days after receipt of such Notice from Buyer, and Lender is making diligent and consistent efforts to complete such foreclosure, take possession of the Generating Facility and promptly cure the Incipient Event of Default or Event of Default, Lender or its designee(s) or assignee(s) will be allowed a reasonable period of time to complete such foreclosure proceedings, take possession of the Generating Facility and cure such Incipient Event of Default or Event of Default, not to exceed 180 one hundred and eighty (180) days after Xxxxxx’s commencement of foreclosure. Additionally, if Lender is prohibited from curing any Incipient Event of Default or Event of Default by any process, stay or injunction issued by a Governmental Authority or pursuant to any bankruptcy, insolvency or similar proceedings, then the time period for curing such Incipient Event of Default or Event of Default shall be extended for the period of the prohibition provided that Lender is exercising reasonable diligence in having such process, stay or injunction removed; ;
(f) Lender shall have the right to consent before any termination of this Agreement which does not arise out of an Event of Default or the end of the Term; ;
(g) Lender shall receive prior Notice of, and shall have the right to approve material amendments to this Agreement, which approval may not be unreasonably withheld, delayed or conditioned; ;
(h) In the event Lender, directly or indirectly, takes title to the Generating Facility (including title by foreclosure or deed in lieu of foreclosure), the Person taking title to the Generating Facility shall assume all of Seller’s obligations arising under this Agreement and all related agreements (subject to such limits on liability as are mutually agreed to by Seller, Buyer and Lender as set forth in the Collateral Assignment Agreement); provided, however, that Lender (or such Person) shall have no liability for any monetary obligations of Seller under this Agreement which are due and owing to Buyer as of the assumption date (but this provision may not be interpreted to limit Buyer’s rights to proceed against Seller as a result of an Event of Default) and Lender’s (or such Person’s) liability to Buyer after such assumption shall be limited to its interest in the Generating Facility; provided further, that before such assumption, if Buyer advises Lender (or such Person) that Buyer will require that Lender (or such Person) cure (or cause to be cured) one or more monetary or non-monetary Incipient Event(s) of Default or Event(s) of Default existing as of the date such Person takes title in order to avoid the exercise by Buyer (in its sole discretion) of Buyer’s right to terminate this Agreement with respect to such Incipient Event(s) of Default or Event(s) of Default, then Lender (or such Person) at its option and in its sole discretion may elect to either (i) cause such Incipient Event(s) of Default or Event of Default to be cured, or (ii) not assume this Agreement; ;
(i) If Lender has assumed this Agreement as provided in Section 9.05(h) and elects to sell or transfer the Generating Facility (after Lender directly or indirectly, takes title to the Generating Facility), or sale of the Generating Facility occurs through the actions of Lender or an agent of or representative of Lender (excluding any foreclosure sale where a third party other than Lender, Seller, an Related Entity Affiliate of Lender or an Related Entity Affiliate of Seller is the buyer), then Lender must cause the transferee or buyer to assume all of Seller’s obligations arising under this Agreement and all related agreements as a condition of the sale or transfer excluding, however, a foreclosure (unless the transferee or buyer is Lender, Seller, an Related Entity Affiliate of Lender or an Related Entity Affiliate of Seller). Lender shall be released from all further obligations under the Agreement and all related documents following such assumption. Such sale or transfer (excluding a foreclosure) may be made only to a Person reasonably acceptable to Buyer; and and
(j) If this Agreement is rejected in Seller’s Bankruptcy or otherwise terminated in connection therewith and if Lender or its representative or designee, directly or indirectly, takes title to the Generating Facility, then, at the request of either Buyer or Lender, Buyer and Lender (or its designee or representative) shall promptly enter into a new agreement with agreement, wherein Buyer having shall have substantially the same terms contractual rights as found in this Agreement Agreement. for the term that would have been remaining under this Agreement, provided that Lender’s (or its designee’s or representative’s) liability under such new agreement shall be limited to its interest in the Generating Facility and neither Lender (or its designee or representative) nor Buyer shall have any personal liability to the other for any amounts owing and neither Buyer nor Lender (or its designee or representative) shall have any obligation to cure any defaults under the original Agreement that was rejected in, or otherwise terminated in connection with Seller’s Bankruptcy.
Appears in 1 contract
Samples: Power Purchase and Sale Agreement
Consent to Collateral Assignment. Subject to the provisions of this Section 9.05Article Thirteen, Seller may (but is not obligated to) shall have the right to assign this Agreement to Lender as collateral to a Lender for any financing or refinancing of the Generating FacilityProject; provided, Seller shall be responsible for SCE’s reasonable costs associated with the preparation, review, execution and delivery of documents in connection with any such assignment, including a Sale-Leaseback Transaction or Equity Investment and, in connection therewith, Buyer without limitation attorneys’ fees. SCE shall in good faith work with Seller and Lender to agree upon a consent to a collateral assignment of this Agreement or to a Sale-Leaseback Transaction or Equity Investment, as applicable (“Collateral Assignment Agreement”). The Collateral Assignment Agreement shall be in form and substance reasonably agreed to by XxxxxSCE, Seller and Lender, and shall include, among others, the following provisions (together with such other commercially reasonable provisions required provisions: SCE shall give Notice of an Event of Default by any Lender that are reasonably acceptable to Buyer): Buyer shall giveSeller, to the Person(s) persons to be specified by Lender in the Collateral Assignment Agreement, simultaneously with the Notice prior to Seller and before exercising its right to terminate this Agreement, written Notice the Agreement as a result of any event or circumstance known to Buyer which would, if not cured within the applicable cure period specified in Article VI, constitute an Event of Default (an “Incipient such Event of Default”); Lender shall have the right to cure an Incipient Event of Default or an Event of Default by Seller in accordance with the same provisions of this Agreement as apply to Seller; . Following an Event of Default by Seller under this Agreement, Buyer SCE may require Seller or Lender to (although Lender may, but shall have no obligation, subject to 9.05(g)) provide to Buyer SCE a report concerningsetting forth: The the status of efforts by Seller or Lender to develop a plan to cure the Event of Default; Impediments impediments to the cure plan or its development; If if a cure plan has been adopted, the status of the cure plan’s implementation (including any modifications to the plan as well as the expected timeframe within which any cure is expected to be implemented); and Any any other information which Buyer SCE may reasonably require related to the development, implementation and timetable of the cure plan; . Seller or Lender shall provide the report to Buyer SCE within 10 ten (10) Business Days after of Notice from Buyer SCE requesting the report. Buyer SCE shall have no further right to require the report with respect to a particular Event of Default after that Event of Default has been cured; . Lender shall have the right to cure an Event of Default or Incipient Event of Default on behalf of Seller, only if Xxxxxx Lender sends a written notice to Buyer before SCE prior to the end of any cure period indicating XxxxxxLender’s intention to cure. Lender may must remedy or cure the Event of Default or Incipient Event of Default within the cure period under this the Agreement. Such cure period for Lender shall be extended for each day Buyer does not provide the Notice to Lender referred to in Section 9.05(a). In addition; provided, such cure period may, in BuyerSCE’s reasonable sole discretion, be extended by no more than an additional 180 one hundred eighty (180) days. If possession of the Generating Facility is necessary to cure such Incipient Event of Default or Event of Default, Lender has commenced foreclosure proceedings within 60 days after receipt of such Notice from Buyer, and Lender is making diligent and consistent efforts to complete such foreclosure, take possession of the Generating Facility and promptly cure the Incipient Event of Default or Event of Default, Lender or its designee(s) or assignee(s) will be allowed a reasonable period of time to complete such foreclosure proceedings, take possession of the Generating Facility and cure such Incipient Event of Default or Event of Default, not to exceed 180 days after Xxxxxx’s commencement of foreclosure. Additionally, if Lender is prohibited from curing any Incipient Event of Default or Event of Default by any process, stay or injunction issued by a Governmental Authority or pursuant to any bankruptcy, insolvency or similar proceedings, then the time period for curing such Incipient Event of Default or Event of Default shall be extended for the period of the prohibition provided that Lender is exercising reasonable diligence in having such process, stay or injunction removed; Lender shall have the right to consent before prior to any termination of this the Agreement which does not arise out of an Event of Default or the end of the Term; Default. Lender shall receive prior Notice of, and shall have the right to approve approve, material amendments to this the Agreement, which approval may shall not be unreasonably withheld, delayed or conditioned; . In the event Lender, directly or indirectly, takes possession of, or title to the Generating Facility Project (including possession by a receiver or title by foreclosure or deed in lieu of foreclosure), the Person taking title to the Generating Facility Lender shall assume all of Seller’s obligations arising under this the Agreement and all related agreements (subject to such limits on liability as are mutually agreed to by Seller, Buyer SCE and Lender as set forth in the Collateral Assignment Agreement); provided, however, that . Lender (or such Person) shall have no personal liability for any monetary obligations of Seller under this the Agreement which are due and owing to Buyer SCE as of the assumption date (but this provision may not be interpreted date; provided, if, prior to limit Buyer’s rights to proceed against Seller as a result of an Event of Default) and Lender’s (or such Person’s) liability to Buyer after such assumption shall be limited to its interest in the Generating Facility; provided further, that before such assumption, if Buyer SCE advises Lender (or such Person) that Buyer SCE will require that Lender (or such Person) cure (or cause to be cured) one or more monetary or non-monetary Incipient Event(s) of Default or Event(s) any Event of Default existing as of the assumption date such Person takes title in order to avoid the exercise by Buyer SCE (in its sole discretion) of BuyerSCE’s right to terminate this the Agreement with in respect to of such Incipient Event(s) of Default or Event(s) Event of Default, then Lender (or such Person) Lender, at its option and in its sole discretion discretion, may elect to either (i) cause such Incipient Event(s) of Default or Event of Default to be cured, or (ii) not assume this Agreement; Seller’s obligations under the Agreement and all related agreements, including the pre-assumption payment obligations that are otherwise excluded. If Lender has assumed this Agreement as provided in Section 9.05(h) and elects to sell or transfer the Generating Facility Project (after Lender directly or indirectly, takes possession of, or title to the Generating FacilityProject), or sale of the Generating Facility Project occurs through the actions of Lender or an agent of or representative of Lender (excluding any for example, a foreclosure sale where a third party other than Lender, Seller, an Related Entity of Lender or an Related Entity of Seller is the buyer, or otherwise), then Lender must cause the transferee or buyer to assume all of Seller’s obligations arising under this Agreement and all related agreements as a condition of the sale or transfer excluding, however, a foreclosure (unless the transferee or buyer is Lender, Seller, an Related Entity of Lender or an Related Entity of Seller). Lender shall be released from all further obligations under the Agreement and all related documents following such assumptiontransfer. Such sale or transfer (excluding a foreclosure) may be made only to a Person reasonably acceptable an entity with financial qualifications (including, collateral support and any other additional security as may be required by SCE) and operating experience at least equivalent to Buyer; and Seller as of the Effective Date, as determined by SCE in its sole discretion. If this Agreement is rejected in Seller’s Bankruptcy bankruptcy or otherwise terminated in connection therewith and if Lender or its representative or designee, directly or indirectly, takes possession of, or title to to, the Generating FacilityProject (including possession by a receiver or title by foreclosure or deed in lieu of foreclosure), then, at the request of either Buyer Lender shall or Lender, Buyer and Lender (or shall cause its designee or representative) shall to promptly enter into a new agreement with Buyer SCE having substantially the same terms as this Agreement Agreement. Notwithstanding the foregoing, SCE shall not be required to enter into such agreement with Lender or such designee if there has been a change in circumstances resulting from actions of Seller in its bankruptcy case that would, in SCE’s judgment, materially impact the rights or obligations of SCE under such agreement. Seller shall reimburse, or shall cause Lender to reimburse, SCE for all reasonable and direct third party expenses (including the term that would have been remaining reasonable fees and expenses of counsel of SCE’s choice) incurred by SCE in the preparation, negotiation, execution and/or delivery of any documents required under this Agreement, provided that Lender’s (or its designee’s or representative’s) liability under such new agreement shall be limited to its interest in the Generating Facility and neither Lender (or its designee or representative) nor Buyer shall have any personal liability to the other for any amounts owing and neither Buyer nor Lender (or its designee or representative) shall have any obligation to cure any defaults under the original Agreement that was rejected inArticle Thirteen, or otherwise terminated requested by Seller or Lender in connection with Seller’s Bankruptcy.this Article Thirteen. ARTICLE FourTEEN
Appears in 1 contract
Samples: Resource Adequacy Purchase Agreement
Consent to Collateral Assignment. (a) Subject to the provisions of this Section 9.0510.05, Seller may (but is not obligated to) shall have the right to assign this Agreement as collateral to a Lender for any financing or refinancing of the Generating Facility. In connection with any financing or refinancing of the Generating Facility by Seller, including a Sale-Leaseback Transaction or Equity Investment and, in connection therewith, Buyer SCE shall in good faith work with Seller and Lender to agree upon a consent to a collateral assignment of this Agreement or to a Sale-Leaseback Transaction or Equity Investment, as applicable (“Collateral Assignment Agreement”). .
(b) The Collateral Assignment Agreement shall be in form and substance reasonably agreed to by XxxxxSCE, Seller and Lender, and shall include, among others, the following provisions provisions:
(together with such other commercially reasonable provisions required i) SCE shall give Notice of an Event of Default by any Lender that are reasonably acceptable to Buyer): Buyer shall giveSeller, to the Person(sperson(s) to be specified by Lender in the Collateral Assignment Agreement, simultaneously with the Notice prior to Seller and before exercising its right to terminate this Agreement, written Notice Agreement as a result of any event or circumstance known to Buyer which would, if not cured within the applicable cure period specified in Article VI, constitute an Event of Default (an “Incipient such Event of Default”); Lender shall have the right to cure an Incipient Event of Default or an Event of Default by Seller in accordance with the same provisions of this Agreement as apply to Seller; ;
(ii) Following an Event of Default by Seller under this Agreement, Buyer SCE may require Seller or Lender to (although Lender may, but shall have no obligation, subject to 9.05(g)) provide to Buyer SCE a report concerning: :
(1) The status of efforts by Seller or Lender to develop a plan to cure the Event of Default; ;
(2) Impediments to the cure plan or its development; ;
(3) If a cure plan has been adopted, the status of the cure plan’s implementation (including any modifications to the plan as well as the expected timeframe within which any cure is expected to be implemented); and and
(4) Any other information which Buyer SCE may reasonably require related to the development, implementation and timetable of the cure plan; .
(iii) Seller or Lender shall provide the report to Buyer SCE within 10 ten (10) Business Days after Notice from Buyer SCE requesting the report. Buyer SCE shall have no further right to require the report with respect to a particular Event of Default after that Event of Default has been cured; ;
(c) Lender shall have the right to cure an Event of Default or Incipient Event of Default on behalf of Seller, only if Xxxxxx Lender sends a written notice to Buyer before SCE prior to the end of any cure period indicating XxxxxxLender’s intention to cure. Lender may must remedy or cure the Event of Default or Incipient Event of Default within the cure period under this Agreement. Such cure period for Lender shall be extended for each day Buyer does not provide the Notice to Lender referred to in Section 9.05(a). In addition; provided that, such cure period may, in BuyerSCE’s reasonable sole discretion, be extended by no more than an additional 180 one hundred eighty (180) days. If possession of the Generating Facility is necessary to cure such Incipient Event of Default or Event of Default, Lender has commenced foreclosure proceedings within 60 days after receipt of such Notice from Buyer, and Lender is making diligent and consistent efforts to complete such foreclosure, take possession of the Generating Facility and promptly cure the Incipient Event of Default or Event of Default, Lender or its designee(s;
(d) or assignee(s) will be allowed a reasonable period of time to complete such foreclosure proceedings, take possession of the Generating Facility and cure such Incipient Event of Default or Event of Default, not to exceed 180 days after Xxxxxx’s commencement of foreclosure. Additionally, if Lender is prohibited from curing any Incipient Event of Default or Event of Default by any process, stay or injunction issued by a Governmental Authority or pursuant to any bankruptcy, insolvency or similar proceedings, then the time period for curing such Incipient Event of Default or Event of Default shall be extended for the period of the prohibition provided that Lender is exercising reasonable diligence in having such process, stay or injunction removed; Lender shall have the right to consent before prior to any termination of this Agreement which does not arise out of an Event of Default or the end of the Term; Default;
(e) Lender shall receive prior Notice of, of and shall have the right to approve material amendments to this Agreement, which approval may shall not be unreasonably withheld, delayed or conditioned; ;
(f) In the event Lender, directly or indirectly, takes possession of, or title to the Generating Facility (including possession by a receiver or title by foreclosure or deed in lieu of foreclosure), the Person taking title to the Generating Facility Lender shall assume all of Seller’s obligations arising under this Agreement and all related agreements (subject to such limits on liability as are mutually agreed to by Seller, Buyer SCE and Lender as set forth in the Collateral Assignment Agreement); providedprovided that, however, that Lender (or such Person) shall have no personal liability for any monetary obligations of Seller under this Agreement which are due and owing to Buyer SCE as of the assumption date (but this provision may not be interpreted to limit Buyer’s rights to proceed against Seller as a result of an Event of Default) and Lender’s (or such Person’s) liability to Buyer after such assumption shall be limited to its interest in the Generating Facilitydate; provided furtherprovided, however, that before prior to such assumption, if Buyer SCE advises Lender (or such Person) that Buyer SCE will require that Lender (or such Person) cure (or cause to be cured) one or more monetary or non-monetary Incipient Event(s) of Default or Event(s) any Event of Default existing as of the possession date such Person takes title in order to avoid the exercise by Buyer SCE (in its sole discretion) of BuyerSCE’s right to terminate this Agreement with respect to such Incipient Event(s) of Default or Event(s) Event of Default, then Lender (or such Person) at its option option; and in its sole discretion discretion, may elect to either either:
(i) cause Cause such Incipient Event(s) of Default or Event of Default to be cured, or or
(ii) not Not assume this Agreement; ;
(g) If Lender has assumed this Agreement as provided in Section 9.05(h) and elects to sell or transfer the Generating Facility (after Lender directly or indirectly, takes possession of, or title to the Generating Facility), or sale of the Generating Facility occurs through the actions of Lender or an agent of or representative of Lender (excluding any for example, a foreclosure sale where a third party other than Lender, Seller, an Related Entity of Lender or an Related Entity of Seller is the buyer, or otherwise), then Lender must cause the transferee or buyer to assume all of Seller’s obligations arising under this Agreement and all related agreements as a condition of the sale or transfer excluding, however, a foreclosure (unless the transferee or buyer is Lender, Seller, an Related Entity of Lender or an Related Entity of Seller). Lender shall be released from all further obligations under the Agreement and all related documents following such assumption. Such sale or transfer (excluding a foreclosure) may be made only to a Person reasonably acceptable to Buyer; and If this Agreement is rejected in Seller’s Bankruptcy or otherwise terminated in connection therewith and if Lender or its representative or designee, directly or indirectly, takes title to the Generating Facility, then, at the request of either Buyer or Lender, Buyer and Lender (or its designee or representative) shall promptly enter into a new agreement with Buyer having substantially the same terms as this Agreement for the term that would have been remaining under this Agreement, provided that Lender’s (or its designee’s or representative’s) liability under such new agreement shall be limited to its interest in the Generating Facility and neither Lender (or its designee or representative) nor Buyer shall have any personal liability to the other for any amounts owing and neither Buyer nor Lender (or its designee or representative) shall have any obligation to cure any defaults under the original Agreement that was rejected in, or otherwise terminated in connection with Seller’s Bankruptcy.the
Appears in 1 contract
Samples: Renewable Power Purchase and Sale Agreement (GreenHunter Energy, Inc.)
Consent to Collateral Assignment. Subject to the provisions of this Section 9.0510.05, Seller may (but is not obligated to) has the right to assign this Agreement as collateral to a Lender for any financing or refinancing of the Generating Facility. In connection with any financing or refinancing of the Generating Facility by Seller, including a Sale-Leaseback Transaction or Equity Investment and, in connection therewith, Buyer Anaheim shall in good faith work with Seller and Lender to agree upon a consent to a collateral assignment of this Agreement or to a Sale-Leaseback Transaction or Equity Investment, as applicable (“Collateral Assignment Agreement”). The Collateral Assignment Agreement shall must be in form and substance reasonably agreed to by XxxxxAnaheim, Seller and Lender, and shall must include, among others, the following provisions (together with such other commercially reasonable provisions required by any Lender that are reasonably acceptable to Buyer): Buyer ):
(a) Anaheim shall givegive Notice of an Event of Default by Seller, to the Person(sperson(s) to be specified by Lender in the Collateral Assignment Agreement, simultaneously with the Notice to Seller and before exercising its right to terminate this Agreement, written Notice Agreement as a result of any event or circumstance known to Buyer which would, if not cured within the applicable cure period specified in Article VI, constitute an Event of Default (an “Incipient such Event of Default”); Lender shall have the right to cure an Incipient Event of Default or an Event of Default by Seller in accordance with the same provisions of this Agreement as apply to Seller; ;
(b) Following an Event of Default by Seller under this Agreement, Buyer Anaheim may require Seller or Lender to (although Lender may, but shall have no obligation, subject to 9.05(g)) provide to Buyer Anaheim a report concerning: :
(i) The status of efforts by Seller or Lender to develop a plan to cure the Event of Default; ;
(ii) Impediments to the cure plan or its development; ;
(iii) If a cure plan has been adopted, the status of the cure plan’s implementation (including any modifications to the plan as well as the expected timeframe within which any cure is expected to be implemented); and and
(iv) Any other information which Buyer Anaheim may reasonably require related to the development, implementation and timetable of the cure plan; .
(v) Seller or Lender shall must provide the report to Buyer Anaheim within 10 ten (10) Business Days after Notice from Buyer Anaheim requesting the report. Buyer shall Anaheim will have no further right to require the report with respect to a particular Event of Default after that Event of Default has been cured; ;
(c) Lender shall will have the right to cure an Event of Default or Incipient Event of Default on behalf of Seller, only if Xxxxxx sends a written notice to Buyer Anaheim before the end of any cure period indicating Xxxxxx’s intention to cure. Lender may must remedy or cure the Event of Default or Incipient Event of Default within the cure period under this Agreement. Such cure period for Lender shall be extended for each day Buyer does not provide the Notice to Lender referred to in Section 9.05(a). In addition; provided, such cure period may, in Buyer’s reasonable discretion, may be extended by no more than an additional 180 one hundred eighty (180) days. If Notwithstanding the foregoing, if possession of the Generating Facility is necessary to cure such Incipient Event of Default or Event of Default, Lender Xxxxxx has commenced foreclosure proceedings within 60 sixty (60) days after receipt of such Notice of the Event of Default from Buyer, and Lender is making diligent and consistent efforts to complete such foreclosure, take possession of the Generating Facility and promptly cure the Incipient Event of Default or Event of Default, Lender or its designee(s) or assignee(s) will be allowed a reasonable period of time to complete such foreclosure proceedings, take possession of the Generating Facility Facility, and cure such Incipient Event of Default or Event of Default, all of which shall not to exceed 180 one hundred eighty (180) days after Xxxxxx’s commencement of foreclosure. Additionally, if Lender is prohibited from curing any Incipient Event of Default or Event of Default by any process, stay or injunction issued by a Governmental Authority or pursuant to any bankruptcy, insolvency or similar proceedings, then the time period for curing such Incipient Event of Default or Event of Default shall be extended for the period of the prohibition provided that Lender is exercising reasonable diligence in having such process, stay or injunction removed; Lender shall .
(d) Xxxxxx will have the right to consent receive prior written notice before any termination of this Agreement which does not arise out of an Event of Default or the end of the Term; Lender shall receive prior Notice of, and shall have the right to approve Default;
(e) No material amendments amendment to this AgreementAgreement shall be valid unless Seller has obtained prior written consent for such amendment from Lender, which approval may consent by Xxxxxx will not be unreasonably withheld, delayed or conditioned; In the event ;
(f) If Lender, directly or indirectly, takes possession of, or title to the Generating Facility (including possession by a receiver or title by foreclosure or deed in lieu of foreclosure), the Person taking title to the Generating Facility shall Lender must assume all of Seller’s obligations arising under this Agreement and all related agreements (subject to such limits on liability as are mutually agreed to by Seller, Buyer Anaheim and Lender as set forth in the Collateral Assignment Agreement); providedprovided that, however, that Lender (or such Person) shall will have no personal liability for any monetary obligations of Seller under this Agreement which are due and owing to Buyer Anaheim as of the assumption date (but this provision may not be interpreted to limit Buyer’s rights to proceed against Seller as a result of an Event of Default) and Lender’s (or such Person’s) liability to Buyer after such assumption shall be limited to its interest in the Generating Facilitydate; provided furtherprovided, however, that before such assumption, if Buyer Anaheim advises Lender (or such Person) that Buyer Anaheim will require that Lender (or such Person) cure (or cause to be cured) one or more monetary or non-monetary Incipient Event(s) of Default or Event(s) any Event of Default existing as of the possession date such Person takes title in order to avoid the exercise by Buyer Anaheim (in its sole discretion) of BuyerAnaheim’s right to terminate this Agreement with respect to such Incipient Event(s) of Default or Event(s) Event of Default, then Lender (or such Person) at its option option, and in its sole discretion discretion, may elect to either either:
(i) cause Cause such Incipient Event(s) of Default or Event of Default to be cured, or or
(ii) not Not assume this Agreement; , in which case this Agreement terminates unimpeded either by operation of law or the terms of this Agreement, as applicable;
(g) If Lender has assumed this Agreement as provided in Section 9.05(h) and elects to sell or transfer the Generating Facility (after Lender directly or indirectly, takes possession of, or title to the Generating Facility), or sale of the Generating Facility occurs through the actions of Lender or an agent of or representative of Lender (excluding any for example, a foreclosure sale where a third party other than Lender, Seller, an Related Entity of Lender or an Related Entity of Seller is the buyer, or otherwise), then Lender must cause the transferee or buyer to assume all of Seller’s obligations arising under this Agreement and all related agreements as a condition of the sale or transfer excluding, however, a foreclosure (unless the transferee or buyer is Lender, Seller, an Related Entity of Lender or an Related Entity of Seller). Lender shall be released from all further obligations under the Agreement and all related documents following such assumptiontransfer. Such sale or transfer (excluding a foreclosure) may be made only to a Person reasonably acceptable an entity with financial qualifications and Operating experience equivalent to Buyeror better than that of Seller as of the Effective Date; and and
(h) If this Agreement is rejected in Seller’s Bankruptcy or otherwise terminated in connection therewith and if Lender or its representative or designee, directly or indirectly, takes title to the Generating Facility, then, at the request of either Buyer Anaheim or Lender, Buyer Anaheim and Lender (or its designee or representative) shall promptly enter into a new agreement with Buyer Anaheim having substantially the same terms as this Agreement for the term that would have been remaining under this Agreement, provided that Lender’s (or its designee’s or representative’s) liability under such new agreement shall be limited to its interest in the Generating Facility and neither . Neither Lender (or its designee or representative) nor Buyer Anaheim shall have any personal liability to the other for any amounts owing under the original Agreement that was rejected in Bankruptcy or otherwise terminated in connection with Seller’s Bankruptcy, and neither Buyer Anaheim nor Lender (or its designee or representative) shall have any obligation to cure any defaults under the original Agreement that was rejected in, or otherwise terminated in connection with Seller’s Bankruptcy.
Appears in 1 contract
Consent to Collateral Assignment. Subject to the provisions of this Section 9.059.06, Seller may (but is not obligated to) assign this Agreement as collateral to a Lender for any financing or refinancing of the Generating Facility, including a Sale-Leaseback Transaction or Equity Investment and, in connection therewith, Buyer shall in good faith work with Seller and Lender to agree upon a consent to a collateral assignment of this Agreement or to a Sale-Leaseback Transaction or Equity Investment, as applicable (“Collateral Assignment Agreement”). The Collateral Assignment Agreement shall be in form and substance reasonably agreed to by Xxxxx, Seller and Lender, and shall include, among others, the following provisions (together with such other commercially reasonable provisions required by any Lender that are reasonably acceptable to Buyer): ):
(a) Buyer shall give, to the Person(s) to be specified by Lender in the Collateral Assignment Agreement, simultaneously with the Notice to Seller and before exercising its right to terminate this Agreement, written Notice of any event or circumstance known to Buyer which would, if not cured within the applicable cure period specified in Article VI, constitute an Event of Default (an “Incipient Event of Default”); ;
(b) Lender shall have the right to cure an Incipient Event of Default or an Event of Default by Seller in accordance with the same provisions of this Agreement as apply to Seller; ;
(c) Following an Event of Default by Seller under this Agreement, Buyer may require Seller to (although Lender may, but shall have no obligation, subject to 9.05(g9.06(g)) provide to Buyer a report concerning: :
(i) The status of efforts by Seller or Lender to develop a plan to cure the Event of Default; ;
(ii) Impediments to the cure plan or its development; ;
(iii) If a cure plan has been adopted, the status of the cure plan’s implementation (including any modifications to the plan as well as the expected timeframe within which any cure is expected to be implemented); and and
(iv) Any other information which Buyer may reasonably require related to the development, implementation and timetable of the cure plan; ;
(d) Seller or Lender shall provide the report to Buyer within 10 Business Days after Notice from Buyer requesting the report. Buyer shall have no further right to require the report with respect to a particular Event of Default after that Event of Default has been cured; ;
(e) Lender shall have the right to cure an Event of Default or Incipient Event of Default on behalf of Seller, only if Xxxxxx sends a written notice to Buyer before the end of any cure period indicating Xxxxxx’s intention to cure. Lender may remedy or cure the Event of Default or Incipient Event of Default within the cure period under this Agreement. Such cure period for Lender shall be extended for each day Buyer does not provide the Notice to Lender referred to in Section 9.05(a9.06(a). In addition, such cure period may, in Buyer’s reasonable discretion, be extended by no more than an additional 180 days. If possession of the Generating Facility is necessary to cure such Incipient Event of Default or Event of Default, Lender has commenced foreclosure proceedings within 60 days after receipt of such Notice from Buyer, and Lender is making diligent and consistent efforts to complete such foreclosure, take possession of the Generating Facility and promptly cure the Incipient Event of Default or Event of Default, Lender or its designee(s) or assignee(s) will be allowed a reasonable period of time to complete such foreclosure proceedings, take possession of the Generating Facility and cure such Incipient Event of Default or Event of Default, not to exceed 180 days after Xxxxxx’s commencement of foreclosure. Additionally, if Lender is prohibited from curing any Incipient Event of Default or Event of Default by any process, stay or injunction issued by a Governmental Authority or pursuant to any bankruptcy, insolvency or similar proceedings, then the time period for curing such Incipient Event of Default or Event of Default shall be extended for the period of the prohibition provided that Lender is exercising reasonable diligence in having such process, stay or injunction removed; ;
(f) Lender shall have the right to consent before any termination of this Agreement which does not arise out of an Event of Default or the end of the Term; ;
(g) Lender shall receive prior Notice of, and shall have the right to approve material amendments to this Agreement, which approval may not be unreasonably withheld, delayed or conditioned; ;
(h) In the event Lender, directly or indirectly, takes title to the Generating Facility (including title by foreclosure or deed in lieu of foreclosure), the Person taking title to the Generating Facility shall assume all of Seller’s obligations arising under this Agreement and all related agreements (subject to such limits on liability as are mutually agreed to by Seller, Buyer and Lender as set forth in the Collateral Assignment Agreement); provided, however, that Lender (or such Person) shall have no liability for any monetary obligations of Seller under this Agreement which are due and owing to Buyer as of the assumption date (but this provision may not be interpreted to limit Buyer’s rights to proceed against Seller as a result of an Event of Default) and Lender’s (or such Person’s) liability to Buyer after such assumption shall be limited to its interest in the Generating Facility; provided further, that before such assumption, if Buyer advises Lender (or such Person) that Buyer will require that Lender (or such Person) cure (or cause to be cured) one or more monetary or non-monetary Incipient Event(s) of Default or Event(s) of Default existing as of the date such Person takes title in order to avoid the exercise by Buyer (in its sole discretion) of Buyer’s right to terminate this Agreement with respect to such Incipient Event(s) of Default or Event(s) of Default, then Lender (or such Person) at its option and in its sole discretion may elect to either (i) cause such Incipient Event(s) of Default or Event of Default to be cured, or (ii) not assume this Agreement; ;
(i) If Lender has assumed this Agreement as provided in Section 9.05(h9.06(h) and elects to sell or transfer the Generating Facility (after Lender directly or indirectly, takes title to the Generating Facility), or sale of the Generating Facility occurs through the actions of Lender or an agent of or representative of Lender (excluding any foreclosure sale where a third party other than Lender, Seller, an Related Entity of Lender or an Related Entity of Seller is the buyer), then Lender must cause the transferee or buyer to assume all of Seller’s obligations arising under this Agreement and all related agreements as a condition of the sale or transfer excluding, however, a foreclosure (unless the transferee or buyer is Lender, Seller, an Related Entity of Lender or an Related Entity of Seller). Lender shall be released from all further obligations under the Agreement and all related documents following such assumption. Such sale or transfer (excluding a foreclosure) may be made only to a Person reasonably acceptable to Buyer; and and
(j) If this Agreement is rejected in Seller’s Bankruptcy or otherwise terminated in connection therewith and if Lender or its representative or designee, directly or indirectly, takes title to the Generating Facility, then, at the request of either Buyer or Lender, Buyer and Lender (or its designee or representative) shall promptly enter into a new agreement with Buyer having substantially the same terms as this Agreement for the term that would have been remaining under this Agreement, provided that Lender’s (or its designee’s or representative’s) liability under such new agreement shall be limited to its interest in the Generating Facility and neither Lender (or its designee or representative) nor Buyer shall have any personal liability to the other for any amounts owing and neither Buyer nor Lender (or its designee or representative) shall have any obligation to cure any defaults under the original Agreement that was rejected in, or otherwise terminated in connection with Seller’s Bankruptcy.
Appears in 1 contract
Samples: Power Purchase and Sale Agreement
Consent to Collateral Assignment. Subject to the provisions of this Section 9.0510.05, Seller may (but is not obligated to) has the right to assign this Agreement as collateral to a Lender for any financing or refinancing of the Generating Facility. In connection with any financing or refinancing of the Generating Facility by Seller, including a Sale-Leaseback Transaction or Equity Investment and, in connection therewith, Buyer Anaheim shall in good faith work with Seller and Lender to agree upon a consent to a collateral assignment of this Agreement or to a Sale-Leaseback Transaction or Equity Investment, as applicable (“Collateral Assignment Agreement”). The Collateral Assignment Agreement shall must be in form and substance reasonably agreed to by XxxxxAnaheim, Seller Seller, and Lender, and shall must include, among others, the following provisions provisions:
(together with such other commercially reasonable provisions required a) Anaheim shall give Notice of an Event of Default by any Lender that are reasonably acceptable to Buyer): Buyer shall giveSeller, to the Person(sperson(s) to be specified by Lender in the Collateral Assignment Agreement, simultaneously with the Notice to Seller and before exercising its right to terminate this Agreement, written Notice Agreement as a result of any event or circumstance known to Buyer which would, if not cured within the applicable cure period specified in Article VI, constitute an Event of Default (an “Incipient such Event of Default”); Lender shall have the right to cure an Incipient Event of Default or an Event of Default by Seller in accordance with the same provisions of this Agreement as apply to Seller; ;
(b) Following an Event of Default by Seller under this Agreement, Buyer Anaheim may require Seller or Lender to (although Lender may, but shall have no obligation, subject to 9.05(g)) provide to Buyer Anaheim a report concerning: :
(i) The status of efforts by Seller or Lender to develop a plan to cure the Event of Default; Default;
(ii) Impediments to the cure plan or its development; ;
(iii) If a cure plan has been adopted, the status of the cure plan’s implementation (including any modifications to the plan as well as the expected timeframe within which any cure is expected to be implemented); and and
(iv) Any other information which Buyer Anaheim may reasonably require related to the development, implementation implementation, and timetable of the cure plan; . Seller or Lender shall must provide the report to Buyer Anaheim within 10 ten (10) Business Days after Notice from Buyer Anaheim requesting the report. Buyer shall Anaheim will have no further right to require the report with respect to a particular Event of Default after that Event of Default has been cured; ;
(c) Lender shall will have the right to cure an Event of Default or Incipient Event of Default on behalf of Seller, only if Xxxxxx sends a written notice to Buyer Anaheim before the end of any cure period indicating Xxxxxx’s intention to cure. Lender may must remedy or cure the Event of Default or Incipient Event of Default within the cure period under this Agreement. Such cure period for Lender shall be extended for each day Buyer does not provide the Notice to Lender referred to in Section 9.05(a). In addition; provided, such cure period may, in BuyerAnaheim’s reasonable sole discretion, be extended by no more than an additional 180 days. If possession of the Generating Facility is necessary to cure such Incipient Event of Default or Event of Default, Lender has commenced foreclosure proceedings within 60 days after receipt of such Notice from Buyer, and Lender is making diligent and consistent efforts to complete such foreclosure, take possession of the Generating Facility and promptly cure the Incipient Event of Default or Event of Default, Lender or its designee(sone hundred eighty (180) or assignee(sdays;
(d) Xxxxxx will be allowed a reasonable period of time to complete such foreclosure proceedings, take possession of the Generating Facility and cure such Incipient Event of Default or Event of Default, not to exceed 180 days after Xxxxxx’s commencement of foreclosure. Additionally, if Lender is prohibited from curing any Incipient Event of Default or Event of Default by any process, stay or injunction issued by a Governmental Authority or pursuant to any bankruptcy, insolvency or similar proceedings, then the time period for curing such Incipient Event of Default or Event of Default shall be extended for the period of the prohibition provided that Lender is exercising reasonable diligence in having such process, stay or injunction removed; Lender shall have the right to consent receive prior written notice before any termination of this Agreement which does not arise out of an Event of Default or the end of the Term; Default;
(e) Lender shall will receive prior Notice of, written notice of and shall have the right to approve material amendments to this Agreement, which approval may will not be unreasonably withheld, delayed delayed, or conditioned; In the event ;
(f) If Lender, directly or indirectly, takes possession of, or title to the Generating Facility (including possession by a receiver or title by foreclosure or deed in lieu of foreclosure), the Person taking title to the Generating Facility shall Lender must assume all of Seller’s obligations arising under this Agreement and all related agreements (subject to such limits on liability as are mutually agreed to by Seller, Buyer Anaheim, and Lender as set forth in the Collateral Assignment Agreement); provided, however, that Lender (or such Person) shall have no liability for any monetary obligations of Seller under this Agreement which are due and owing to Buyer as of the assumption date (but this provision may not be interpreted to limit Buyer’s rights to proceed against Seller as a result of an Event of Default) and Lender’s (or such Person’s) liability to Buyer after such assumption shall be limited to its interest in the Generating Facility; provided further, that before such assumption, if Buyer Anaheim advises Lender (or such Person) that Buyer Anaheim will require that Lender (or such Person) cure (or cause to be cured) one or more monetary or non-monetary Incipient Event(s) of Default or Event(s) any Event of Default existing as of the possession date such Person takes title in order to avoid the exercise by Buyer Anaheim (in its sole discretion) of BuyerAnaheim’s right to terminate this Agreement with respect to such Incipient Event(s) of Default or Event(s) Event of Default, then Lender (or such Person) at its option option, and in its sole discretion discretion, may elect to either either:
(i) cause Cause such Incipient Event(s) of Default or Event of Default to be cured, or or
(ii) not Not assume this Agreement; , in which case this Agreement terminates unimpeded either by operation of law or the terms of this Agreement, as applicable;
(g) If Lender has assumed this Agreement as provided in Section 9.05(h) and elects to sell or transfer the Generating Facility (after Lender directly or indirectly, takes possession of, or title to the Generating Facility), or sale of the Generating Facility occurs through the actions of Lender or an agent of or representative of Lender (excluding any for example, a foreclosure sale where a third party other than Lender, Seller, an Related Entity of Lender or an Related Entity of Seller is the buyer, or otherwise), then Lender must cause the transferee or buyer to assume all of Seller’s obligations arising under this Agreement and all related agreements as a condition of the sale or transfer excluding, however, a foreclosure (unless the transferee or buyer is Lender, Seller, an Related Entity of Lender or an Related Entity of Seller). Lender shall be released from all further obligations under the Agreement and all related documents following such assumptiontransfer. Such sale or transfer (excluding a foreclosure) may be made only to a Person reasonably acceptable an entity with financial qualifications (including collateral support and any other additional security as may be required by Anaheim) and Operating experience equivalent to Buyerthat of Seller as of the Effective Date satisfactory to Anaheim in its sole discretion; and and
(h) If this Agreement is rejected in Seller’s Bankruptcy or otherwise terminated in connection therewith and if Lender or its representative or designee, directly or indirectly, takes possession of, or title to to, the Generating FacilityFacility (including possession by a receiver or title by foreclosure or deed in lieu of foreclosure), then, at the request of either Buyer Lender must itself or Lender, Buyer and Lender (or must cause its designee or representative) shall to promptly enter into a new agreement with Buyer Anaheim having substantially the same terms as this Agreement for the term that would have been remaining under this Agreement, provided that Lender’s (or its designee’s or representative’s) liability under such new agreement shall be limited to its interest in the Generating Facility and neither Lender (or its designee or representative) nor Buyer shall have any personal liability to the other for any amounts owing and neither Buyer nor Lender (or its designee or representative) shall have any obligation to cure any defaults under the original Agreement that was rejected in, or otherwise terminated in connection with Seller’s Bankruptcy.Agreement.
Appears in 1 contract
Consent to Collateral Assignment. Subject to the provisions of this Section 9.0510.05, Seller may (but is not obligated to) shall have the right to assign this Agreement as collateral to a Lender for any financing or refinancing of the Generating Facility. In connection with any financing or refinancing of the Generating Facility by Seller, including a Sale-Leaseback Transaction or Equity Investment and, in connection therewith, Buyer SCE shall in good faith work with Seller and Lender to agree upon a consent to a collateral assignment of this Agreement or to a Sale-Leaseback Transaction or Equity Investment, as applicable (“Collateral Assignment Agreement”). The Collateral Assignment Agreement shall be in form and substance reasonably agreed to by XxxxxSCE, Seller and Lender, and shall include, among others, the following provisions provisions:
(together with such other commercially reasonable provisions required a) SCE shall give Notice of an Event of Default by any Lender that are reasonably acceptable to Buyer): Buyer shall giveSeller, to the Person(sperson(s) to be specified by Lender in the Collateral Assignment Agreement, simultaneously with the Notice prior to Seller and before exercising its right to terminate this Agreement, written Notice Agreement as a result of any event or circumstance known to Buyer which would, if not cured within the applicable cure period specified in Article VI, constitute an Event of Default (an “Incipient such Event of Default”); Lender shall have the right to cure an Incipient Event of Default or an Event of Default by Seller in accordance with the same provisions of this Agreement as apply to Seller; ;
(b) Following an Event of Default by Seller under this Agreement, Buyer SCE may require Seller or Lender to (although Lender may, but shall have no obligation, subject to 9.05(g)) provide to Buyer SCE a report concerning: :
(i) The status of efforts by Seller or Lender to develop a plan to cure the Event of Default; ;
(ii) Impediments to the cure plan or its development; ;
(iii) If a cure plan has been adopted, the status of the cure plan’s implementation (including any modifications to the plan as well as the expected timeframe within which any cure is expected to be implemented); and and
(iv) Any other information which Buyer SCE may reasonably require related to the development, implementation and timetable of the cure plan; . Seller or Lender shall provide the report to Buyer SCE within 10 ten (10) Business Days after Notice from Buyer SCE requesting the report. Buyer SCE shall have no further right to require the report with respect to a particular Event of Default after that Event of Default has been cured; ;
(c) Lender shall have the right to cure an Event of Default or Incipient Event of Default on behalf of Seller, only if Xxxxxx Lender sends a written notice to Buyer before SCE prior to the end of any cure period indicating XxxxxxLender’s intention to cure. Lender may must remedy or cure the Event of Default or Incipient Event of Default within the cure period under this Agreement. Such Agreement or within another cure period for Lender shall be extended for each day Buyer does not provide the Notice agreed to Lender referred to in Section 9.05(a). In additionby SCE, such cure period may, in Buyer’s reasonable discretion, be extended by no more than an additional 180 days. If possession of the Generating Facility is necessary to cure such Incipient Event of Default or Event of Default, Lender has commenced foreclosure proceedings within 60 days after receipt of such Notice from Buyer, Seller and Lender is making diligent in their sole discretion and consistent efforts to complete such foreclosure, take possession of specified in the Generating Facility and promptly cure the Incipient Event of Default or Event of Default, Lender or its designee(sCollateral Assignment Agreement;
(d) or assignee(s) will be allowed a reasonable period of time to complete such foreclosure proceedings, take possession of the Generating Facility and cure such Incipient Event of Default or Event of Default, not to exceed 180 days after Xxxxxx’s commencement of foreclosure. Additionally, if Lender is prohibited from curing any Incipient Event of Default or Event of Default by any process, stay or injunction issued by a Governmental Authority or pursuant to any bankruptcy, insolvency or similar proceedings, then the time period for curing such Incipient Event of Default or Event of Default shall be extended for the period of the prohibition provided that Lender is exercising reasonable diligence in having such process, stay or injunction removed; Lender shall have the right to consent before prior to any termination of this Agreement which does not arise out of an Event of Default or the end of the Term; Default;
(e) Lender shall receive prior Notice of, of and shall have the right to approve material amendments to this Agreement, which approval may shall not be unreasonably withheld, delayed or conditioned; ;
(f) In the event Lender, directly or indirectly, takes possession of, or title to the Generating Facility (including possession by a receiver or title by foreclosure or deed in lieu of foreclosure), the Person taking title to the Generating Facility Lender shall assume all of Seller’s obligations arising under this Agreement and all related agreements (subject to such limits on liability as are mutually agreed to by Seller, Buyer SCE and Lender as set forth in the Collateral Assignment Agreement); providedprovided that, however, that Lender (or such Person) shall have no personal liability for any monetary obligations of Seller under this Agreement which are due and owing to Buyer SCE as of the assumption date (but this provision may not be interpreted to limit Buyer’s rights to proceed against Seller as a result of an Event of Default) and Lender’s (or such Person’s) liability to Buyer after such assumption shall be limited to its interest in the Generating Facilitydate; provided furtherprovided, however, that before prior to such assumption, if Buyer SCE advises Lender (or such Person) that Buyer SCE will require that Lender (or such Person) cure (or cause to be cured) one or more monetary or non-monetary Incipient Event(s) of Default or Event(s) any Event of Default existing as of the possession date such Person takes title in order to avoid the exercise by Buyer SCE (in its sole discretion) of BuyerSCE’s right to terminate this Agreement with respect to such Incipient Event(s) of Default or Event(s) Event of Default, then Lender (or such Person) at its option option, and in its sole discretion discretion, may elect to either either:
(i) cause Cause such Incipient Event(s) of Default or Event of Default to be cured, or or
(ii) not Not assume this Agreement; ;
(g) If Lender has assumed this Agreement as provided in Section 9.05(h) and elects to sell or transfer the Generating Facility (after Lender directly or indirectly, takes possession of, or title to the Generating Facility), or sale of the Generating Facility occurs through the actions of Lender or an agent of or representative of Lender (excluding any for example, a foreclosure sale where a third party other than Lender, Seller, an Related Entity of Lender or an Related Entity of Seller is the buyer, or otherwise), then Lender must (unless prohibited by Applicable Law) cause the transferee or buyer to assume all of Seller’s obligations arising under this Agreement and all related agreements as a condition of the sale or transfer excluding, however, a foreclosure (unless the transferee or buyer is Lender, Seller, an Related Entity of Lender or an Related Entity of Seller). Lender shall be released from all further obligations under the Agreement and all related documents following such assumptiontransfer. Such sale or transfer (excluding a foreclosure) may be made only to a Person reasonably acceptable an entity with financial qualifications (including collateral support and any other additional security as may be required by SCE) and Operating experience equivalent to Buyerthat of Seller as of the Effective Date satisfactory to SCE in its sole discretion; and and
(h) If this Agreement is rejected in Seller’s Bankruptcy or otherwise terminated in connection therewith and if Lender or its representative or designee, directly or indirectly, takes possession of, or title to to, the Generating FacilityFacility (including possession by a receiver or title by foreclosure or deed in lieu of foreclosure), thenupon SCE’s request, at the request of either Buyer Lender shall or Lender, Buyer and Lender (or shall cause its designee or representative) shall to promptly enter into a new agreement with Buyer SCE having substantially the same terms as this Agreement for a time period equal to any remaining Term of the term that would have been remaining under Agreement. If this Agreement, provided that LenderAgreement is rejected in Seller’s (or its designee’s or representative’s) liability under such new agreement shall be limited to its interest in the Generating Facility and neither Lender (or its designee or representative) nor Buyer shall have any personal liability to the other for any amounts owing and neither Buyer nor Lender (or its designee or representative) shall have any obligation to cure any defaults under the original Agreement that was rejected in, Bankruptcy or otherwise terminated in connection therewith and if Lender or its designee, directly or indirectly, takes possession of, or title to, the Generating Facility (including possession by a receiver or title by foreclosure or deed in lieu of foreclosure), upon Lender’s or its designee’s request, SCE shall promptly enter into a new agreement with Seller’s BankruptcyLender or its designee having substantially the same terms as this Agreement for a time period equal to any remaining Term of the Agreement.
Appears in 1 contract
Consent to Collateral Assignment. Subject to the provisions of this Section 9.0510.05, Seller may (but is not obligated to) has the right to assign this Agreement as collateral to a Lender for any financing or refinancing of the Generating Facility. In connection with any financing or refinancing of the Generating Facility by Seller, including a Sale-Leaseback Transaction or Equity Investment and, in connection therewith, Buyer SCE shall in good faith work with Seller and Lender to agree upon a consent to a collateral assignment of this Agreement or to a Sale-Leaseback Transaction or Equity Investment, as applicable (“Collateral Assignment Agreement”). The Collateral Assignment Agreement shall must be in form and substance reasonably agreed to by XxxxxSCE, Seller and Lender, and shall must include, among others, the following provisions provisions:
(together with such other commercially reasonable provisions required a) SCE shall give Notice of an Event of Default by any Lender that are reasonably acceptable to Buyer): Buyer shall giveSeller, to the Person(sperson(s) to be specified by Lender in the Collateral Assignment Agreement, simultaneously with the Notice to Seller and before exercising its right to terminate this Agreement, written Notice Agreement as a result of any event or circumstance known to Buyer which would, if not cured within the applicable cure period specified in Article VI, constitute an Event of Default (an “Incipient such Event of Default”); Lender shall have the right to cure an Incipient Event of Default or an Event of Default by Seller in accordance with the same provisions of this Agreement as apply to Seller; ;
(b) Following an Event of Default by Seller under this Agreement, Buyer SCE may require Seller or Lender to (although Lender may, but shall have no obligation, subject to 9.05(g)) provide to Buyer SCE a report concerning: :
(i) The status of efforts by Seller or Lender to develop a plan to cure the Event of Default; ;
(ii) Impediments to the cure plan or its development; ;
(iii) If a cure plan has been adopted, the status of the cure plan’s implementation (including any modifications to the plan as well as the expected timeframe within which any cure is expected to be implemented); and and
(iv) Any other information which Buyer SCE may reasonably require related to the development, implementation and timetable of the cure plan; . Seller or Lender shall must provide the report to Buyer SCE within 10 ten (10) Business Days after Notice from Buyer SCE requesting the report. Buyer shall SCE will have no further right to require the report with respect to a particular Event of Default after that Event of Default has been cured; Lender shall have the right to cure an Event of Default or Incipient Event of Default on behalf of Seller, only if Xxxxxx sends a written notice to Buyer before the end of any cure period indicating Xxxxxx’s intention to cure. Lender may remedy or cure the Event of Default or Incipient Event of Default within the cure period under this Agreement. Such cure period for Lender shall be extended for each day Buyer does not provide the Notice to Lender referred to in Section 9.05(a). In addition, such cure period may, in Buyer’s reasonable discretion, be extended by no more than an additional 180 days. If possession of the Generating Facility is necessary to cure such Incipient Event of Default or Event of Default, Lender has commenced foreclosure proceedings within 60 days after receipt of such Notice from Buyer, and Lender is making diligent and consistent efforts to complete such foreclosure, take possession of the Generating Facility and promptly cure the Incipient Event of Default or Event of Default, Lender or its designee(s) or assignee(s) will be allowed a reasonable period of time to complete such foreclosure proceedings, take possession of the Generating Facility and cure such Incipient Event of Default or Event of Default, not to exceed 180 days after Xxxxxx’s commencement of foreclosure. Additionally, if Lender is prohibited from curing any Incipient Event of Default or Event of Default by any process, stay or injunction issued by a Governmental Authority or pursuant to any bankruptcy, insolvency or similar proceedings, then the time period for curing such Incipient Event of Default or Event of Default shall be extended for the period of the prohibition provided that Lender is exercising reasonable diligence in having such process, stay or injunction removed; Lender shall have the right to consent before any termination of this Agreement which does not arise out of an Event of Default or the end of the Term; Lender shall receive prior Notice of, and shall have the right to approve material amendments to this Agreement, which approval may not be unreasonably withheld, delayed or conditioned; In the event Lender, directly or indirectly, takes title to the Generating Facility (including title by foreclosure or deed in lieu of foreclosure), the Person taking title to the Generating Facility shall assume all of Seller’s obligations arising under this Agreement and all related agreements (subject to such limits on liability as are mutually agreed to by Seller, Buyer and Lender as set forth in the Collateral Assignment Agreement); provided, however, that Lender (or such Person) shall have no liability for any monetary obligations of Seller under this Agreement which are due and owing to Buyer as of the assumption date (but this provision may not be interpreted to limit Buyer’s rights to proceed against Seller as a result of an Event of Default) and Lender’s (or such Person’s) liability to Buyer after such assumption shall be limited to its interest in the Generating Facility; provided further, that before such assumption, if Buyer advises Lender (or such Person) that Buyer will require that Lender (or such Person) cure (or cause to be cured) one or more monetary or non-monetary Incipient Event(s) of Default or Event(s) of Default existing as of the date such Person takes title in order to avoid the exercise by Buyer (in its sole discretion) of Buyer’s right to terminate this Agreement with respect to such Incipient Event(s) of Default or Event(s) of Default, then Lender (or such Person) at its option and in its sole discretion may elect to either (i) cause such Incipient Event(s) of Default or Event of Default to be cured, or (ii) not assume this Agreement; If Lender has assumed this Agreement as provided in Section 9.05(h) and elects to sell or transfer the Generating Facility (after Lender directly or indirectly, takes title to the Generating Facility), or sale of the Generating Facility occurs through the actions of Lender or an agent of or representative of Lender (excluding any foreclosure sale where a third party other than Lender, Seller, an Related Entity of Lender or an Related Entity of Seller is the buyer), then Lender must cause the transferee or buyer to assume all of Seller’s obligations arising under this Agreement and all related agreements as a condition of the sale or transfer excluding, however, a foreclosure (unless the transferee or buyer is Lender, Seller, an Related Entity of Lender or an Related Entity of Seller). Lender shall be released from all further obligations under the Agreement and all related documents following such assumption. Such sale or transfer (excluding a foreclosure) may be made only to a Person reasonably acceptable to Buyer; and If this Agreement is rejected in Seller’s Bankruptcy or otherwise terminated in connection therewith and if Lender or its representative or designee, directly or indirectly, takes title to the Generating Facility, then, at the request of either Buyer or Lender, Buyer and Lender (or its designee or representative) shall promptly enter into a new agreement with Buyer having substantially the same terms as this Agreement for the term that would have been remaining under this Agreement, provided that Lender’s (or its designee’s or representative’s) liability under such new agreement shall be limited to its interest in the Generating Facility and neither Lender (or its designee or representative) nor Buyer shall have any personal liability to the other for any amounts owing and neither Buyer nor Lender (or its designee or representative) shall have any obligation to cure any defaults under the original Agreement that was rejected in, or otherwise terminated in connection with Seller’s Bankruptcy.;
Appears in 1 contract
Consent to Collateral Assignment. Subject to the provisions of this Section 9.059.06, Seller may (but is not obligated to) assign this Agreement as collateral to a Lender for any financing or refinancing of the Generating Facility, including a Sale-Leaseback Transaction or Equity Investment and, in connection therewith, Buyer shall in good faith work with Seller and Lender to agree upon a consent to a collateral assignment of this Agreement or to a Sale-Leaseback Transaction or Equity Investment, as applicable (“Collateral Assignment Agreement”). The Collateral Assignment Agreement shall be in form and substance reasonably agreed to by Xxxxx, Seller and Lender, and shall include, among others, the following provisions (together with such other commercially reasonable provisions required by any Lender that are reasonably acceptable to Buyer): ):
(a) Buyer shall give, to the Person(s) to be specified by Lender in the Collateral Assignment Agreement, simultaneously with the Notice to Seller and before exercising its right to terminate this Agreement, written Notice of any event or circumstance known to Buyer which would, if not cured within the applicable cure period specified in Article VI, constitute an Event of Default (an ““ Incipient Event of Default”); ;
(b) Lender shall have the right to cure an Incipient Event of Default or an Event of Default by Seller in accordance with the same provisions of this Agreement as apply to Seller; ;
(c) Following an Event of Default by Seller under this Agreement, Buyer may require Seller to (although Lender may, but shall have no obligation, subject to 9.05(g9.06(g)) provide to Buyer a report concerning: :
(i) The status of efforts by Seller or Lender to develop a plan to cure the Event of Default; ;
(ii) Impediments to the cure plan or its development; ;
(iii) If a cure plan has been adopted, the status of the cure plan’s implementation (including any modifications to the plan as well as the expected timeframe within which any cure is expected to be implemented); and and
(iv) Any other information which Buyer may reasonably require related to the development, implementation and timetable of the cure plan; ;
(d) Seller or Lender shall provide the report to Buyer within 10 Business Days after Notice from Buyer requesting the report. Buyer shall have no further right to require the report with respect to a particular Event of Default after that Event of Default has been cured; ;
(e) Lender shall have the right to cure an Event of Default or Incipient Event of Default on behalf of Seller, only if Xxxxxx sends a written notice to Buyer before the end of any cure period indicating Xxxxxx’s intention to cure. Lender may remedy or cure the Event of Default or Incipient Event of Default within the cure period under this Agreement. Such cure period for Lender shall be extended for each day Buyer does not provide the Notice to Lender referred ref erred to in Section 9.05(a9.06(a). In addition, such cure period may, in Buyer’s reasonable discretion, be extended by no more than an additional 180 days. If possession of the Generating Facility is necessary to cure such Incipient Event of Default or Event of Default, Lender has commenced foreclosure proceedings within 60 days after receipt of such Notice from Buyer, and Lender is making diligent and consistent efforts to complete such foreclosure, take possession of the Generating Facility and promptly cure the Incipient Event of Default or Event of Default, Lender or its designee(s) or assignee(s) will be allowed a reasonable period of time to complete such foreclosure proceedings, take possession of the Generating Facility and cure such Incipient Event of Default or Event of Default, not to exceed 180 days after Xxxxxx’s commencement of foreclosure. Additionally, if Lender is prohibited from curing any Incipient Event of Default or Event of Default by any process, stay or injunction issued by a Governmental Authority or pursuant to any bankruptcy, insolvency or similar proceedings, then the time period for curing such Incipient Event of Default or Event of Default shall be extended for the period of the prohibition provided that Lender is exercising reasonable diligence in having such process, stay or injunction removed; ;
(f) Lender shall have the right to consent before any termination of this Agreement which does not arise out of an Event of Default or the end of the Term; ;
(g) Lender shall receive prior Notice of, and shall have the right to approve material amendments to this Agreement, which approval may not be unreasonably withheld, delayed or conditioned; ;
(h) In the event Lender, directly or indirectly, takes title to the Generating Facility (including title by foreclosure or deed in lieu of foreclosure), the Person taking title to the Generating Facility shall assume all of Seller’s obligations arising under this Agreement and all related agreements (subject to such limits on liability as are mutually agreed to by Seller, Buyer and Lender as set forth in the Collateral Assignment Agreement); provided, however, that Lender (or such Person) shall have no liability for any monetary obligations of Seller under this Agreement which are due and owing to Buyer as of the assumption date (but this provision may not be interpreted to limit Buyer’s rights to proceed against Seller as a result of an Event of Default) and Lender’s (or such Person’s) liability to Buyer after such assumption shall be limited to its interest in the Generating Facility; provided further, that before such assumption, if Buyer advises Lender (or such Person) that Buyer will require that Lender (or such Person) cure (or cause to be cured) one or more monetary or non-monetary Incipient Event(s) of Default or Event(s) of Default existing as of the date such Person takes title in order to avoid the exercise by Buyer (in its sole discretion) of Buyer’s right to terminate this Agreement with respect to such Incipient Event(s) of Default or Event(s) of Default, then Lender (or such Person) at its option and in its sole discretion may elect to either (i) cause such Incipient Event(s) of Default or Event of Default to be cured, or (ii) not assume this Agreement; ;
(i) If Lender has assumed this Agreement as provided in Section 9.05(h9.06(h) and elects to sell or transfer the Generating Facility (after Lender directly or indirectly, takes title to the Generating Facility), or sale of the Generating Facility occurs through the actions of Lender or an agent of or representative of Lender (excluding any foreclosure sale where a third party other than Lender, Seller, an Related Entity of Lender or an Related Entity of Seller is the buyer), then Lender must cause the transferee or buyer to assume all of Seller’s obligations arising under this Agreement and all related agreements as a condition of the sale or transfer excluding, however, a foreclosure (unless the transferee or buyer is Lender, Seller, an Related Entity of Lender or an Related Entity of Seller). Lender shall be released from all further obligations under the Agreement and all related documents following such assumption. Such sale or transfer (excluding a foreclosure) may be made only to a Person reasonably acceptable to Buyer; and and
(j) If this Agreement is rejected in Seller’s Bankruptcy or otherwise terminated in connection therewith and if Lender or its representative or designee, directly or indirectly, takes title to the Generating Facility, then, at the request of either Buyer or Lender, Buyer and Lender (or its designee or representative) shall promptly enter into a new agreement with Buyer having substantially the same terms as this Agreement for the term that would have been remaining under this Agreement, provided that Lender’s (or its designee’s or representative’s) liability under such new agreement shall be limited to its interest in the Generating Facility and neither Lender (or its designee or representative) nor Buyer shall have any personal liability to the other for any amounts owing and neither Buyer nor Lender (or its designee or representative) shall have any obligation to cure any defaults under the original Agreement that was rejected in, or otherwise terminated in connection with Seller’s Bankruptcy.
Appears in 1 contract
Samples: Power Purchase and Sale Agreement
Consent to Collateral Assignment. Subject to the provisions of this Section 9.05Article Fourteen, Seller may (but is not obligated to) shall have the right to assign this Agreement to Lender as collateral to a Lender for any financing or refinancing of the Generating FacilityProject; provided, Seller shall be responsible for SCE’s reasonable costs associated with the preparation, review, execution and delivery of documents in connection with any such assignment, including a Sale-Leaseback Transaction or Equity Investment and, in connection therewith, Buyer without limitation attorneys’ fees. SCE shall in good faith work with Seller Xxxxxx and Lender Xxxxxx to agree upon a consent to a collateral assignment of this Agreement or to a Sale-Leaseback Transaction or Equity Investment, as applicable (“Collateral Assignment Agreement”). The Collateral Assignment Agreement shall be in form and substance reasonably agreed to by XxxxxSCE, Seller and Lender, and shall include, among others, the following provisions (together with such other commercially reasonable provisions required provisions: SCE shall give Notice of an Event of Default by any Lender that are reasonably acceptable to Buyer): Buyer shall giveSeller, to the Person(s) persons to be specified by Lender in the Collateral Assignment Agreement, simultaneously with the Notice prior to Seller and before exercising its right to terminate this Agreement, written Notice the Agreement as a result of any event or circumstance known to Buyer which would, if not cured within the applicable cure period specified in Article VI, constitute an Event of Default (an “Incipient such Event of Default”); Lender shall have the right to cure an Incipient Event of Default or an Event of Default by Seller in accordance with the same provisions of this Agreement as apply to Seller; . Following an Event of Default by Seller under this Agreement, Buyer SCE may require Seller or Lender to (although Lender may, but shall have no obligation, subject to 9.05(g)) provide to Buyer SCE a report concerningsetting forth: The the status of efforts by Seller or Lender to develop a plan to cure the Event of Default; Impediments impediments to the cure plan or its development; If if a cure plan has been adopted, the status of the cure plan’s implementation (including any modifications to the plan as well as the expected timeframe within which any cure is expected to be implemented); and Any any other information which Buyer SCE may reasonably require related to the development, implementation and timetable of the cure plan; . Seller or Lender shall provide the report to Buyer SCE within 10 ten (10) Business Days after of Notice from Buyer SCE requesting the report. Buyer SCE shall have no further right to require the report with respect to a particular Event of Default after that Event of Default has been cured; . Lender shall have the right to cure an Event of Default or Incipient Event of Default on behalf of Seller, only if Xxxxxx sends a written notice to Buyer before SCE prior to the end of any cure period indicating Xxxxxx’s intention to cure. Lender may must remedy or cure the Event of Default or Incipient Event of Default within the cure period under this the Agreement. Such cure period for Lender shall be extended for each day Buyer does not provide the Notice to Lender referred to in Section 9.05(a). In addition; provided, such cure period may, in BuyerSCE’s reasonable sole discretion, be extended by no more than an additional 180 one hundred eighty (180) days. If possession of the Generating Facility is necessary to cure such Incipient Event of Default or Event of Default, Lender has commenced foreclosure proceedings within 60 days after receipt of such Notice from Buyer, and Lender is making diligent and consistent efforts to complete such foreclosure, take possession of the Generating Facility and promptly cure the Incipient Event of Default or Event of Default, Lender or its designee(s) or assignee(s) will be allowed a reasonable period of time to complete such foreclosure proceedings, take possession of the Generating Facility and cure such Incipient Event of Default or Event of Default, not to exceed 180 days after Xxxxxx’s commencement of foreclosure. Additionally, if Lender is prohibited from curing any Incipient Event of Default or Event of Default by any process, stay or injunction issued by a Governmental Authority or pursuant to any bankruptcy, insolvency or similar proceedings, then the time period for curing such Incipient Event of Default or Event of Default shall be extended for the period of the prohibition provided that Lender is exercising reasonable diligence in having such process, stay or injunction removed; Lender shall have the right to consent before prior to any termination of this the Agreement which does not arise out of an Event of Default or the end of the Term; Default. Lender shall receive prior Notice of, and shall have the right to approve approve, material amendments to this the Agreement, which approval may shall not be unreasonably withheld, delayed or conditioned; . In the event Lender, directly or indirectly, takes possession of, or title to the Generating Facility Project (including possession by a receiver or title by foreclosure or deed in lieu of foreclosure), the Person taking title to the Generating Facility Lender shall assume all of Seller’s obligations arising under this the Agreement and all related agreements (subject to such limits on liability as are mutually agreed to by Seller, Buyer SCE and Lender as set forth in the Collateral Assignment Agreement); provided, however, that . Lender (or such Person) shall have no personal liability for any monetary obligations of Seller under this the Agreement which are due and owing to Buyer SCE as of the assumption date (but this provision may not be interpreted date; provided, if, prior to limit Buyer’s rights to proceed against Seller as a result of an Event of Default) and Lender’s (or such Person’s) liability to Buyer after such assumption shall be limited to its interest in the Generating Facility; provided further, that before such assumption, if Buyer SCE advises Lender (or such Person) that Buyer SCE will require that Lender (or such Person) cure (or cause to be cured) one or more monetary or non-monetary Incipient Event(s) of Default or Event(s) any Event of Default existing as of the assumption date such Person takes title in order to avoid the exercise by Buyer SCE (in its sole discretion) of BuyerSCE’s right to terminate this the Agreement with in respect to of such Incipient Event(s) of Default or Event(s) Event of Default, then Lender (or such Person) Lender, at its option and in its sole discretion discretion, may elect to either (i) cause such Incipient Event(s) of Default or Event of Default to be cured, or (ii) not assume this Agreement; Seller’s obligations under the Agreement and all related agreements, including the pre-assumption payment obligations that are otherwise excluded. If Lender has assumed this Agreement as provided in Section 9.05(h) and elects to sell or transfer the Generating Facility Project (after Lender directly or indirectly, takes possession of, or title to the Generating FacilityProject), or sale of the Generating Facility Project occurs through the actions of Lender or an agent of or representative of Lender (excluding any for example, a foreclosure sale where a third party other than Lender, Seller, an Related Entity of Lender or an Related Entity of Seller is the buyer, or otherwise), then Lender must cause the transferee or buyer to assume all of Seller’s obligations arising under this Agreement and all related agreements as a condition of the sale or transfer excluding, however, a foreclosure (unless the transferee or buyer is Lender, Seller, an Related Entity of Lender or an Related Entity of Seller). Lender shall be released from all further obligations under the Agreement and all related documents following such assumptiontransfer. Such sale or transfer (excluding a foreclosure) may be made only to a Person reasonably acceptable an entity with financial qualifications (including, collateral support and any other additional security as may be required by SCE) and operating experience at least equivalent to Buyer; and Seller as of the Effective Date, as determined by SCE in its sole discretion. If this Agreement is rejected in Seller’s Bankruptcy bankruptcy or otherwise terminated in connection therewith and if Lender or its representative or designee, directly or indirectly, takes possession of, or title to to, the Generating FacilityProject (including possession by a receiver or title by foreclosure or deed in lieu of foreclosure), then, at the request of either Buyer Lender shall or Lender, Buyer and Lender (or shall cause its designee or representative) shall to promptly enter into a new agreement with Buyer SCE having substantially the same terms as this Agreement Agreement. Notwithstanding the foregoing, SCE shall not be required to enter into such agreement with Lender or such designee if there has been a change in circumstances resulting from actions of Seller in its bankruptcy case that would, in SCE’s judgment, materially impact the rights or obligations of SCE under such agreement. Seller shall reimburse, or shall cause Lender to reimburse, SCE for all reasonable and direct third party expenses (including the term that would have been remaining reasonable fees and expenses of counsel of SCE’s choice) incurred by SCE in the preparation, negotiation, execution and/or delivery of any documents required under this Agreement, provided that Lender’s (or its designee’s or representative’s) liability under such new agreement shall be limited to its interest in the Generating Facility and neither Lender (or its designee or representative) nor Buyer shall have any personal liability to the other for any amounts owing and neither Buyer nor Lender (or its designee or representative) shall have any obligation to cure any defaults under the original Agreement that was rejected inArticle Fourteen, or otherwise terminated requested by Seller or Lender in connection with Seller’s Bankruptcythis Article Fourteen.
Appears in 1 contract
Samples: Resource Adequacy Purchase Agreement
Consent to Collateral Assignment. Subject The Contributor hereby consents to the provisions collateral assignment by each Obligor of this Section 9.05all of its right, Seller may (but is not obligated to) assign title and interest in, to and under this Agreement as collateral to a Lender the Collateral Agent (for any financing or refinancing the benefit of the Generating FacilitySecured Parties) pursuant to the Security Agreement. The Contributor and each Obligor agree that the Collateral Agent (or its designee or assignee) shall, including a Sale-Leaseback Transaction or Equity Investment andsubject to the Intercreditor Agreement, in connection therewith, Buyer shall in good faith work with Seller and Lender be entitled to agree upon a consent to a collateral assignment of enforce this Agreement or in its own name and to a Sale-Leaseback Transaction or Equity Investment, as applicable (“Collateral Assignment Agreement”). The Collateral Assignment exercise any and all rights of each Obligor under this Agreement shall be in form and substance reasonably agreed to by Xxxxx, Seller and Lender, and shall include, among others, the following provisions (together with such other commercially reasonable provisions required by any Lender that are reasonably acceptable to Buyer): Buyer shall give, to the Person(s) to be specified by Lender in the Collateral Assignment Agreement, simultaneously with the Notice to Seller and before exercising its right to terminate this Agreement, written Notice of any event or circumstance known to Buyer which would, if not cured within the applicable cure period specified in Article VI, constitute an Event of Default (an “Incipient Event of Default”); Lender shall have the right to cure an Incipient Event of Default or an Event of Default by Seller in accordance with the same provisions terms hereof (either in its own name or in the name of this Agreement each Obligor, as apply the Collateral Agent may elect), and the Contributor and each Obligor agree to Seller; Following an Event of Default by Seller under this Agreement, Buyer may require Seller to (although Lender may, but shall have no obligation, subject to 9.05(g)) provide to Buyer a report concerning: The status of efforts by Seller or Lender to develop a plan to cure comply and cooperate in all respects with such exercise. Without limiting the Event of Default; Impediments to the cure plan or its development; If a cure plan has been adopted, the status generality of the cure plan’s implementation (including any modifications to foregoing, upon the plan as well as occurrence and during the expected timeframe within which any cure is expected to be implemented); and Any other information which Buyer may reasonably require related to the development, implementation and timetable of the cure plan; Seller or Lender shall provide the report to Buyer within 10 Business Days after Notice from Buyer requesting the report. Buyer shall have no further right to require the report with respect to a particular Event of Default after that Event of Default has been cured; Lender shall have the right to cure an Event of Default or Incipient Event of Default on behalf of Seller, only if Xxxxxx sends a written notice to Buyer before the end of any cure period indicating Xxxxxx’s intention to cure. Lender may remedy or cure the Event of Default or Incipient Event of Default within the cure period under this Agreement. Such cure period for Lender shall be extended for each day Buyer does not provide the Notice to Lender referred to in Section 9.05(a). In addition, such cure period may, in Buyer’s reasonable discretion, be extended by no more than an additional 180 days. If possession of the Generating Facility is necessary to cure such Incipient Event of Default or Event of Default, Lender has commenced foreclosure proceedings within 60 days after receipt of such Notice from Buyer, and Lender is making diligent and consistent efforts to complete such foreclosure, take possession of the Generating Facility and promptly cure the Incipient Event of Default or Event of Default, Lender or its designee(s) or assignee(s) will be allowed a reasonable period of time to complete such foreclosure proceedings, take possession of the Generating Facility and cure such Incipient Event of Default or Event of Default, not to exceed 180 days after Xxxxxx’s commencement of foreclosure. Additionally, if Lender is prohibited from curing any Incipient Event of Default or Event of Default by any process, stay or injunction issued by a Governmental Authority or pursuant to any bankruptcy, insolvency or similar proceedings, then the time period for curing such Incipient Event of Default or Event of Default shall be extended for the period of the prohibition provided that Lender is exercising reasonable diligence in having such process, stay or injunction removed; Lender shall have the right to consent before any termination of this Agreement which does not arise out of an Event of Default or the end of the Term; Lender shall receive prior Notice of, and shall have the right to approve material amendments to this Agreement, which approval may not be unreasonably withheld, delayed or conditioned; In the event Lender, directly or indirectly, takes title to the Generating Facility (including title by foreclosure or deed in lieu of foreclosure), the Person taking title to the Generating Facility shall assume all of Seller’s obligations arising under this Agreement and all related agreements (subject to such limits on liability as are mutually agreed to by Seller, Buyer and Lender as set forth in the Collateral Assignment Agreement); provided, however, that Lender (or such Person) shall have no liability for any monetary obligations of Seller under this Agreement which are due and owing to Buyer as of the assumption date (but this provision may not be interpreted to limit Buyer’s rights to proceed against Seller as a result continuance of an Event of Default) and Lender’s (or such Person’s) liability to Buyer after such assumption shall be limited to its interest in , the Generating Facility; provided further, that before such assumption, if Buyer advises Lender (or such Person) that Buyer will require that Lender (or such Person) cure (or cause to be cured) one or more monetary or non-monetary Incipient Event(s) of Default or Event(s) of Default existing as of the date such Person takes title in order to avoid the exercise by Buyer (in its sole discretion) of Buyer’s right to terminate this Agreement with respect to such Incipient Event(s) of Default or Event(s) of Default, then Lender (or such Person) at its option and in its sole discretion may elect to either (i) cause such Incipient Event(s) of Default or Event of Default to be cured, or (ii) not assume this Agreement; If Lender has assumed this Agreement as provided in Section 9.05(h) and elects to sell or transfer the Generating Facility (after Lender directly or indirectly, takes title to the Generating Facility), or sale of the Generating Facility occurs through the actions of Lender or an agent of or representative of Lender (excluding any foreclosure sale where a third party other than Lender, Seller, an Related Entity of Lender or an Related Entity of Seller is the buyer), then Lender must cause the transferee or buyer to assume all of Seller’s obligations arising under this Agreement and all related agreements as a condition of the sale or transfer excluding, however, a foreclosure (unless the transferee or buyer is Lender, Seller, an Related Entity of Lender or an Related Entity of Seller). Lender shall be released from all further obligations under the Agreement and all related documents following such assumption. Such sale or transfer (excluding a foreclosure) may be made only to a Person reasonably acceptable to Buyer; and If this Agreement is rejected in Seller’s Bankruptcy or otherwise terminated in connection therewith and if Lender or its representative or designee, directly or indirectly, takes title to the Generating Facility, then, at the request of either Buyer or Lender, Buyer and Lender Collateral Agent (or its designee or representativeassignee), subject to the Intercreditor Agreement, shall have the full right and power to enforce directly against the Contributor all obligations of the Contributor under this Agreement and otherwise to exercise all remedies available to each Obligor hereunder, and to make all demands and give all notices and make all requests (either in its own name or in the name of any Obligor, as the Collateral Agent may elect) required or permitted to be made or given by any Obligor under this Agreement (including the right to make demand for payment of Equity Contributions in accordance with Section 2.2(a)), and the Contributor acknowledges and agrees that any such action taken by the Collateral Agent shall promptly enter into a new agreement with Buyer having substantially be deemed effective for all purposes of this Agreement to the same terms extent as if such action had been taken directly by the such Obligor. If the Contributor shall receive inconsistent directions under this Agreement for from the term that would have been remaining under Company and the Collateral Agent, the directions of the Collateral Agent shall be deemed the superseding directions (so long as such directions are consistent with the provisions of this Agreement, provided that Lender’s (or its designee’s or representative’s) liability under and the Contributor shall accordingly comply with such new agreement shall be limited to its interest in directions of the Generating Facility and neither Lender (or its designee or representative) nor Buyer shall have any personal liability to the other for any amounts owing and neither Buyer nor Lender (or its designee or representative) shall have any obligation to cure any defaults under the original Agreement that was rejected in, or otherwise terminated in connection with Seller’s BankruptcyCollateral Agent.
Appears in 1 contract
Samples: Equity Contribution Agreement (Midamerican Energy Holdings Co /New/)
Consent to Collateral Assignment. Subject to the provisions of this Section 9.05Article Fourteen, Seller may (but is not obligated to) shall have the right to assign this Agreement to Lender as collateral to a Lender for any financing or refinancing of the Generating FacilityProject; provided, Seller shall be responsible for SCE’s reasonable costs associated with the preparation, review, execution and delivery of documents in connection with any such assignment, including a Sale-Leaseback Transaction or Equity Investment and, in connection therewith, Buyer without limitation attorneys’ fees. SCE shall in good faith work with Seller and Lender to agree upon a consent to a collateral assignment of this Agreement or to a Sale-Leaseback Transaction or Equity Investment, as applicable (“Collateral Assignment Agreement”). The Collateral Assignment Agreement shall be in form and substance reasonably agreed to by XxxxxSCE, Seller and Lender, and shall include, among others, the following provisions (together with such other commercially reasonable provisions required provisions: SCE shall give Notice of an Event of Default by any Lender that are reasonably acceptable to Buyer): Buyer shall giveSeller, to the Person(s) persons to be specified by Lender in the Collateral Assignment Agreement, simultaneously with the Notice prior to Seller and before exercising its right to terminate this Agreement, written Notice the Agreement as a result of any event or circumstance known to Buyer which would, if not cured within the applicable cure period specified in Article VI, constitute an Event of Default (an “Incipient such Event of Default”); Lender shall have the right to cure an Incipient Event of Default or an Event of Default by Seller in accordance with the same provisions of this Agreement as apply to Seller; . Following an Event of Default by Seller under this Agreement, Buyer SCE may require Seller or Lender to (although Lender may, but shall have no obligation, subject to 9.05(g)) provide to Buyer SCE a report concerningsetting forth: The the status of efforts by Seller or Lender to develop a plan to cure the Event of Default; Impediments impediments to the cure plan or its development; If if a cure plan has been adopted, the status of the cure plan’s implementation (including any modifications to the plan as well as the expected timeframe within which any cure is expected to be implemented); and Any any other information which Buyer SCE may reasonably require related to the development, implementation and timetable of the cure plan; . Seller or Lender shall provide the report to Buyer SCE within 10 ten (10) Business Days after of Notice from Buyer SCE requesting the report. Buyer SCE shall have no further right to require the report with respect to a particular Event of Default after that Event of Default has been cured; . Lender shall have the right to cure an Event of Default or Incipient Event of Default on behalf of Seller, only if Xxxxxx Lender sends a written notice to Buyer before SCE prior to the end of any cure period indicating XxxxxxLender’s intention to cure. Lender may must remedy or cure the Event of Default or Incipient Event of Default within the cure period under this the Agreement. Such cure period for Lender shall be extended for each day Buyer does not provide the Notice to Lender referred to in Section 9.05(a). In addition; provided, such cure period may, in BuyerSCE’s reasonable sole discretion, be extended by no more than an additional 180 one hundred eighty (180) days. If possession of the Generating Facility is necessary to cure such Incipient Event of Default or Event of Default, Lender has commenced foreclosure proceedings within 60 days after receipt of such Notice from Buyer, and Lender is making diligent and consistent efforts to complete such foreclosure, take possession of the Generating Facility and promptly cure the Incipient Event of Default or Event of Default, Lender or its designee(s) or assignee(s) will be allowed a reasonable period of time to complete such foreclosure proceedings, take possession of the Generating Facility and cure such Incipient Event of Default or Event of Default, not to exceed 180 days after Xxxxxx’s commencement of foreclosure. Additionally, if Lender is prohibited from curing any Incipient Event of Default or Event of Default by any process, stay or injunction issued by a Governmental Authority or pursuant to any bankruptcy, insolvency or similar proceedings, then the time period for curing such Incipient Event of Default or Event of Default shall be extended for the period of the prohibition provided that Lender is exercising reasonable diligence in having such process, stay or injunction removed; Lender shall have the right to consent before prior to any termination of this the Agreement which does not arise out of an Event of Default or the end of the Term; Default. Lender shall receive prior Notice of, and shall have the right to approve approve, material amendments to this the Agreement, which approval may shall not be unreasonably withheld, delayed or conditioned; . In the event Lender, directly or indirectly, takes possession of, or title to the Generating Facility Project (including possession by a receiver or title by foreclosure or deed in lieu of foreclosure), the Person taking title to the Generating Facility Lender shall assume all of Seller’s obligations arising under this the Agreement and all related agreements (subject to such limits on liability as are mutually agreed to by Seller, Buyer SCE and Lender as set forth in the Collateral Assignment Agreement); provided, however, that . Lender (or such Person) shall have no personal liability for any monetary obligations of Seller under this the Agreement which are due and owing to Buyer SCE as of the assumption date (but this provision may not be interpreted date; provided, if, prior to limit Buyer’s rights to proceed against Seller as a result of an Event of Default) and Lender’s (or such Person’s) liability to Buyer after such assumption shall be limited to its interest in the Generating Facility; provided further, that before such assumption, if Buyer SCE advises Lender (or such Person) that Buyer SCE will require that Lender (or such Person) cure (or cause to be cured) one or more monetary or non-monetary Incipient Event(s) of Default or Event(s) any Event of Default existing as of the assumption date such Person takes title in order to avoid the exercise by Buyer SCE (in its sole discretion) of BuyerSCE’s right to terminate this the Agreement with in respect to of such Incipient Event(s) of Default or Event(s) Event of Default, then Lender (or such Person) Lender, at its option and in its sole discretion discretion, may elect to either (i) cause such Incipient Event(s) of Default or Event of Default to be cured, or (ii) not assume this Agreement; Seller’s obligations under the Agreement and all related agreements, including the pre-assumption payment obligations that are otherwise excluded. If Lender has assumed this Agreement as provided in Section 9.05(h) and elects to sell or transfer the Generating Facility Project (after Lender directly or indirectly, takes possession of, or title to the Generating FacilityProject), or sale of the Generating Facility Project occurs through the actions of Lender or an agent of or representative of Lender (excluding any for example, a foreclosure sale where a third party other than Lender, Seller, an Related Entity of Lender or an Related Entity of Seller is the buyer, or otherwise), then Lender must cause the transferee or buyer to assume all of Seller’s obligations arising under this Agreement and all related agreements as a condition of the sale or transfer excluding, however, a foreclosure (unless the transferee or buyer is Lender, Seller, an Related Entity of Lender or an Related Entity of Seller). Lender shall be released from all further obligations under the Agreement and all related documents following such assumptiontransfer. Such sale or transfer (excluding a foreclosure) may be made only to a Person reasonably acceptable an entity with financial qualifications (including, collateral support and any other additional security as may be required by SCE) and operating experience at least equivalent to Buyer; and Seller as of the Effective Date, as determined by SCE in its sole discretion. If this Agreement is rejected in Seller’s Bankruptcy bankruptcy or otherwise terminated in connection therewith and if Lender or its representative or designee, directly or indirectly, takes possession of, or title to to, the Generating FacilityProject (including possession by a receiver or title by foreclosure or deed in lieu of foreclosure), then, at the request of either Buyer Lender shall or Lender, Buyer and Lender (or shall cause its designee or representative) shall to promptly enter into a new agreement with Buyer SCE having substantially the same terms as this Agreement Agreement. Notwithstanding the foregoing, SCE shall not be required to enter into such agreement with Lender or such designee if there has been a change in circumstances resulting from actions of Seller in its bankruptcy case that would, in SCE’s judgment, materially impact the rights or obligations of SCE under such agreement. Seller shall reimburse, or shall cause Lender to reimburse, SCE for all reasonable and direct third party expenses (including the term that would have been remaining reasonable fees and expenses of counsel of SCE’s choice) incurred by SCE in the preparation, negotiation, execution and/or delivery of any documents required under this Agreement, provided that Lender’s (or its designee’s or representative’s) liability under such new agreement shall be limited to its interest in the Generating Facility and neither Lender (or its designee or representative) nor Buyer shall have any personal liability to the other for any amounts owing and neither Buyer nor Lender (or its designee or representative) shall have any obligation to cure any defaults under the original Agreement that was rejected inArticle Fourteen, or otherwise terminated requested by Seller or Lender in connection with Seller’s Bankruptcy.this Article Fourteen. ARTICLE FIFTEEN
Appears in 1 contract
Samples: Resource Adequacy Purchase Agreement
Consent to Collateral Assignment. Subject to the provisions of this Section 9.0510.05, Seller may (but is not obligated to) has the right to assign this Agreement as collateral to a Lender for any financing or refinancing of the Generating Facility; provided, Seller shall be responsible for SCE's reasonable costs associated with the preparation, review, execution and delivery of documents in connection with any such assignment, including a Sale-Leaseback Transaction without limitation attorneys' fees. In connection with any financing or Equity Investment andrefinancing of the Generating Facility by Seller, in connection therewith, Buyer SCE shall in good faith work with Seller and Lender to agree upon a consent to a collateral assignment of this Agreement or to a Sale-Leaseback Transaction or Equity Investment, as applicable (“Collateral Assignment Agreement”). The Collateral Assignment Agreement shall must be in form and substance reasonably agreed to by XxxxxSCE, Seller and Lender, and shall must include, among others, the following provisions provisions:
(together with such other commercially reasonable provisions required a) SCE shall give Notice of an Event of Default by any Lender that are reasonably acceptable to Buyer): Buyer shall giveSeller, to the Person(sperson(s) to be specified by Lender in the Collateral Assignment Agreement, simultaneously with the Notice to Seller and before exercising its right to terminate this Agreement, written Notice Agreement as a result of any event or circumstance known to Buyer which would, if not cured within the applicable cure period specified in Article VI, constitute an Event of Default (an “Incipient such Event of Default”); Lender shall have the right to cure an Incipient Event of Default or an Event of Default by Seller in accordance with the same provisions of this Agreement as apply to Seller; ;
(b) Following an Event of Default by Seller under this Agreement, Buyer SCE may require Seller or Lender to (although Lender may, but shall have no obligation, subject to 9.05(g)) provide to Buyer SCE a report concerning: :
(i) The status of efforts by Seller or Lender to develop a plan to cure the Event of Default; ;
(ii) Impediments to the cure plan or its development; ;
(iii) If a cure plan has been adopted, the status of the cure plan’s 's implementation (including any modifications to the plan as well as the expected timeframe within which any cure is expected to be implemented); and and
(iv) Any other information which Buyer SCE may reasonably require related to the development, implementation and timetable of the cure plan; . Seller or Lender shall must provide the report to Buyer SCE within 10 ten (10) Business Days after Notice from Buyer SCE requesting the report. Buyer shall SCE will have no further right to require the report with respect to a particular Event of Default after that Event of Default has been cured; Lender shall have the right to cure an Event of Default or Incipient Event of Default on behalf of Seller, only if Xxxxxx sends a written notice to Buyer before the end of any cure period indicating Xxxxxx’s intention to cure. Lender may remedy or cure the Event of Default or Incipient Event of Default within the cure period under this Agreement. Such cure period for Lender shall be extended for each day Buyer does not provide the Notice to Lender referred to in Section 9.05(a). In addition, such cure period may, in Buyer’s reasonable discretion, be extended by no more than an additional 180 days. If possession of the Generating Facility is necessary to cure such Incipient Event of Default or Event of Default, Lender has commenced foreclosure proceedings within 60 days after receipt of such Notice from Buyer, and Lender is making diligent and consistent efforts to complete such foreclosure, take possession of the Generating Facility and promptly cure the Incipient Event of Default or Event of Default, Lender or its designee(s) or assignee(s) will be allowed a reasonable period of time to complete such foreclosure proceedings, take possession of the Generating Facility and cure such Incipient Event of Default or Event of Default, not to exceed 180 days after Xxxxxx’s commencement of foreclosure. Additionally, if Lender is prohibited from curing any Incipient Event of Default or Event of Default by any process, stay or injunction issued by a Governmental Authority or pursuant to any bankruptcy, insolvency or similar proceedings, then the time period for curing such Incipient Event of Default or Event of Default shall be extended for the period of the prohibition provided that Lender is exercising reasonable diligence in having such process, stay or injunction removed; Lender shall have the right to consent before any termination of this Agreement which does not arise out of an Event of Default or the end of the Term; Lender shall receive prior Notice of, and shall have the right to approve material amendments to this Agreement, which approval may not be unreasonably withheld, delayed or conditioned; In the event Lender, directly or indirectly, takes title to the Generating Facility (including title by foreclosure or deed in lieu of foreclosure), the Person taking title to the Generating Facility shall assume all of Seller’s obligations arising under this Agreement and all related agreements (subject to such limits on liability as are mutually agreed to by Seller, Buyer and Lender as set forth in the Collateral Assignment Agreement); provided, however, that Lender (or such Person) shall have no liability for any monetary obligations of Seller under this Agreement which are due and owing to Buyer as of the assumption date (but this provision may not be interpreted to limit Buyer’s rights to proceed against Seller as a result of an Event of Default) and Lender’s (or such Person’s) liability to Buyer after such assumption shall be limited to its interest in the Generating Facility; provided further, that before such assumption, if Buyer advises Lender (or such Person) that Buyer will require that Lender (or such Person) cure (or cause to be cured) one or more monetary or non-monetary Incipient Event(s) of Default or Event(s) of Default existing as of the date such Person takes title in order to avoid the exercise by Buyer (in its sole discretion) of Buyer’s right to terminate this Agreement with respect to such Incipient Event(s) of Default or Event(s) of Default, then Lender (or such Person) at its option and in its sole discretion may elect to either (i) cause such Incipient Event(s) of Default or Event of Default to be cured, or (ii) not assume this Agreement; If Lender has assumed this Agreement as provided in Section 9.05(h) and elects to sell or transfer the Generating Facility (after Lender directly or indirectly, takes title to the Generating Facility), or sale of the Generating Facility occurs through the actions of Lender or an agent of or representative of Lender (excluding any foreclosure sale where a third party other than Lender, Seller, an Related Entity of Lender or an Related Entity of Seller is the buyer), then Lender must cause the transferee or buyer to assume all of Seller’s obligations arising under this Agreement and all related agreements as a condition of the sale or transfer excluding, however, a foreclosure (unless the transferee or buyer is Lender, Seller, an Related Entity of Lender or an Related Entity of Seller). Lender shall be released from all further obligations under the Agreement and all related documents following such assumption. Such sale or transfer (excluding a foreclosure) may be made only to a Person reasonably acceptable to Buyer; and If this Agreement is rejected in Seller’s Bankruptcy or otherwise terminated in connection therewith and if Lender or its representative or designee, directly or indirectly, takes title to the Generating Facility, then, at the request of either Buyer or Lender, Buyer and Lender (or its designee or representative) shall promptly enter into a new agreement with Buyer having substantially the same terms as this Agreement for the term that would have been remaining under this Agreement, provided that Lender’s (or its designee’s or representative’s) liability under such new agreement shall be limited to its interest in the Generating Facility and neither Lender (or its designee or representative) nor Buyer shall have any personal liability to the other for any amounts owing and neither Buyer nor Lender (or its designee or representative) shall have any obligation to cure any defaults under the original Agreement that was rejected in, or otherwise terminated in connection with Seller’s Bankruptcy.;
Appears in 1 contract
Consent to Collateral Assignment. Subject The Contributor hereby consents to the provisions collateral assignment by the Company of this Section 9.05all of its right, Seller may (but is not obligated to) assign title and interest in, to and under this Agreement as collateral to a Lender the Collateral Agent (for any financing or refinancing the benefit of the Generating FacilitySecured Parties) pursuant to the Security Agreement. The Contributor and the Company agree that the Collateral Agent (or its designee or assignee) shall, including a Sale-Leaseback Transaction or Equity Investment andsubject to the Intercreditor Agreement, in connection therewith, Buyer shall in good faith work with Seller and Lender be entitled to agree upon a consent to a collateral assignment of enforce this Agreement or in its own name and to a Sale-Leaseback Transaction or Equity Investment, as applicable (“Collateral Assignment Agreement”). The Collateral Assignment exercise any and all rights of the Company under this Agreement shall be in form and substance reasonably agreed to by Xxxxx, Seller and Lender, and shall include, among others, the following provisions (together with such other commercially reasonable provisions required by any Lender that are reasonably acceptable to Buyer): Buyer shall give, to the Person(s) to be specified by Lender in the Collateral Assignment Agreement, simultaneously with the Notice to Seller and before exercising its right to terminate this Agreement, written Notice of any event or circumstance known to Buyer which would, if not cured within the applicable cure period specified in Article VI, constitute an Event of Default (an “Incipient Event of Default”); Lender shall have the right to cure an Incipient Event of Default or an Event of Default by Seller in accordance with the same provisions of this Agreement as apply to Seller; Following an Event of Default by Seller under this Agreement, Buyer may require Seller to terms hereof (although Lender may, but shall have no obligation, subject to 9.05(g)) provide to Buyer a report concerning: The status of efforts by Seller either in its own name or Lender to develop a plan to cure in the Event of Default; Impediments to the cure plan or its development; If a cure plan has been adopted, the status name of the cure plan’s implementation (including any modifications to the plan as well Company, as the expected timeframe within which any cure is expected Collateral Agent may elect), and the Contributor and the Company agree to be implemented); comply and Any other information which Buyer may reasonably require related to cooperate in all respects with such exercise. Without limiting the development, implementation and timetable generality of the cure plan; Seller or Lender shall provide foregoing, upon the report to Buyer within 10 Business Days after Notice from Buyer requesting occurrence and during the report. Buyer shall have no further right to require the report with respect to a particular Event of Default after that Event of Default has been cured; Lender shall have the right to cure an Event of Default or Incipient Event of Default on behalf of Seller, only if Xxxxxx sends a written notice to Buyer before the end of any cure period indicating Xxxxxx’s intention to cure. Lender may remedy or cure the Event of Default or Incipient Event of Default within the cure period under this Agreement. Such cure period for Lender shall be extended for each day Buyer does not provide the Notice to Lender referred to in Section 9.05(a). In addition, such cure period may, in Buyer’s reasonable discretion, be extended by no more than an additional 180 days. If possession of the Generating Facility is necessary to cure such Incipient Event of Default or Event of Default, Lender has commenced foreclosure proceedings within 60 days after receipt of such Notice from Buyer, and Lender is making diligent and consistent efforts to complete such foreclosure, take possession of the Generating Facility and promptly cure the Incipient Event of Default or Event of Default, Lender or its designee(s) or assignee(s) will be allowed a reasonable period of time to complete such foreclosure proceedings, take possession of the Generating Facility and cure such Incipient Event of Default or Event of Default, not to exceed 180 days after Xxxxxx’s commencement of foreclosure. Additionally, if Lender is prohibited from curing any Incipient Event of Default or Event of Default by any process, stay or injunction issued by a Governmental Authority or pursuant to any bankruptcy, insolvency or similar proceedings, then the time period for curing such Incipient Event of Default or Event of Default shall be extended for the period of the prohibition provided that Lender is exercising reasonable diligence in having such process, stay or injunction removed; Lender shall have the right to consent before any termination of this Agreement which does not arise out of an Event of Default or the end of the Term; Lender shall receive prior Notice of, and shall have the right to approve material amendments to this Agreement, which approval may not be unreasonably withheld, delayed or conditioned; In the event Lender, directly or indirectly, takes title to the Generating Facility (including title by foreclosure or deed in lieu of foreclosure), the Person taking title to the Generating Facility shall assume all of Seller’s obligations arising under this Agreement and all related agreements (subject to such limits on liability as are mutually agreed to by Seller, Buyer and Lender as set forth in the Collateral Assignment Agreement); provided, however, that Lender (or such Person) shall have no liability for any monetary obligations of Seller under this Agreement which are due and owing to Buyer as of the assumption date (but this provision may not be interpreted to limit Buyer’s rights to proceed against Seller as a result continuance of an Event of Default) and Lender’s (or such Person’s) liability to Buyer after such assumption shall be limited to its interest in , the Generating Facility; provided further, that before such assumption, if Buyer advises Lender (or such Person) that Buyer will require that Lender (or such Person) cure (or cause to be cured) one or more monetary or non-monetary Incipient Event(s) of Default or Event(s) of Default existing as of the date such Person takes title in order to avoid the exercise by Buyer (in its sole discretion) of Buyer’s right to terminate this Agreement with respect to such Incipient Event(s) of Default or Event(s) of Default, then Lender (or such Person) at its option and in its sole discretion may elect to either (i) cause such Incipient Event(s) of Default or Event of Default to be cured, or (ii) not assume this Agreement; If Lender has assumed this Agreement as provided in Section 9.05(h) and elects to sell or transfer the Generating Facility (after Lender directly or indirectly, takes title to the Generating Facility), or sale of the Generating Facility occurs through the actions of Lender or an agent of or representative of Lender (excluding any foreclosure sale where a third party other than Lender, Seller, an Related Entity of Lender or an Related Entity of Seller is the buyer), then Lender must cause the transferee or buyer to assume all of Seller’s obligations arising under this Agreement and all related agreements as a condition of the sale or transfer excluding, however, a foreclosure (unless the transferee or buyer is Lender, Seller, an Related Entity of Lender or an Related Entity of Seller). Lender shall be released from all further obligations under the Agreement and all related documents following such assumption. Such sale or transfer (excluding a foreclosure) may be made only to a Person reasonably acceptable to Buyer; and If this Agreement is rejected in Seller’s Bankruptcy or otherwise terminated in connection therewith and if Lender or its representative or designee, directly or indirectly, takes title to the Generating Facility, then, at the request of either Buyer or Lender, Buyer and Lender Collateral Agent (or its designee or representativeassignee), subject to the Intercreditor Agreement, shall have the full right and power to enforce directly against the Contributor all obligations of the Contributor under this Agreement and otherwise to exercise all remedies available to the Company hereunder, and to make all demands and give all notices and make all requests (either in its own name or in the name of the Company, as the Collateral Agent may elect) required or permitted to be made or given by the Company under this Agreement (including the right to make demand for payment of Equity Contributions in accordance with 2.2(a)), and the Contributor acknowledges and agrees that any such action taken by the Collateral Agent shall promptly enter into a new agreement with Buyer having substantially be deemed effective for all purposes of this Agreement to the same terms extent as if such action had been taken directly by the Company. If the Contributor shall receive inconsistent directions under this Agreement for from the term that would have been remaining under Company and the Collateral Agent, the directions of the Collateral Agent shall be deemed the superseding directions (so long as such directions are consistent with the provisions of this Agreement, provided that Lender’s (or its designee’s or representative’s) liability under and the Contributor shall accordingly comply with such new agreement shall be limited to its interest in directions of the Generating Facility and neither Lender (or its designee or representative) nor Buyer shall have any personal liability to the other for any amounts owing and neither Buyer nor Lender (or its designee or representative) shall have any obligation to cure any defaults under the original Agreement that was rejected in, or otherwise terminated in connection with Seller’s BankruptcyCollateral Agent.
Appears in 1 contract
Samples: Equity Contribution Agreement (Midamerican Energy Holdings Co /New/)
Consent to Collateral Assignment. Subject to the provisions of this Section 9.05, Seller may (but is not obligated to) has the right to assign this Agreement as collateral to a Lender for any financing or refinancing of the Generating Facility, including a Sale-Leaseback Transaction or Equity Investment and, in connection therewith, Buyer shall in good faith work with Seller and Lender to agree upon a consent to a collateral assignment of this Agreement or to a Sale-Leaseback Transaction or Equity Investment, as applicable (“Collateral Assignment Agreement”). The Collateral Assignment Agreement shall be in form and substance reasonably agreed to by XxxxxBuyer, Seller and Lender, and shall include, among others, the following provisions (together with such other commercially reasonable provisions required by any Lender that are reasonably acceptable to Buyer): ):
(a) Buyer shall give, to the Person(s) to be specified by Lender in the Collateral Assignment Agreement, simultaneously with the Notice to Seller and before exercising its right to terminate this Agreement, written Notice of any event or circumstance known to Buyer which would, if not cured within the applicable cure period specified in Article VISix, constitute an Event of Default (an “Incipient Event of Default”); ;
(b) Lender shall have the right to cure an Incipient Event of Default or an Event of Default by Seller in accordance with the same provisions of this Agreement as apply to Seller; ;
(c) Following an Event of Default by Seller under this Agreement, Buyer may require Seller to (although Lender may, but shall have no obligation, subject to 9.05(g)) provide to Buyer a report concerning: :
(i) The status of efforts by Seller or Lender to develop a plan to cure the Event of Default; ;
(ii) Impediments to the cure plan or its development; ;
(iii) If a cure plan has been adopted, the status of the cure plan’s implementation (including any modifications to the plan as well as the expected timeframe within which any cure is expected to be implemented); and and
(iv) Any other information which Buyer may reasonably require related to the development, implementation and timetable of the cure plan; ;
(d) Seller or Lender shall provide the report to Buyer within 10 Business Days after Notice from Buyer requesting the report. Buyer shall have no further right to require the report with respect to a particular Event of Default after that Event of Default has been cured; ;
(e) Lender shall have the right to cure an Event of Default or Incipient Event of Default on behalf of Seller, only if Xxxxxx Lender sends a written notice to Buyer before the end of any cure period indicating XxxxxxLender’s intention to cure. Lender may remedy or cure the Event of Default or Incipient Event of Default within the cure period under this Agreement. Such cure period for Lender shall be extended for each day Buyer does not provide the Notice to Lender referred to in Section 9.05(a). In addition, such cure period may, in Buyer’s reasonable discretion, be extended by no more than an additional 180 one hundred and eighty (180) days. If possession of the Generating Facility is necessary to cure such Incipient Event of Default or Event of Default, Lender has commenced foreclosure proceedings within 60 sixty (60) days after receipt of such Notice from Buyer, and Lender is making diligent and consistent efforts to complete such foreclosure, take possession of the Generating Facility and promptly cure the Incipient Event of Default or Event of Default, Lender or its designee(s) or assignee(s) will be allowed a reasonable period of time to complete such foreclosure proceedings, take possession of the Generating Facility and cure such Incipient Event of Default or Event of Default, not to exceed 180 one hundred and eighty (180) days after XxxxxxLender’s commencement of foreclosure. Additionally, if Lender is prohibited from curing any Incipient Event of Default or Event of Default by any process, stay or injunction issued by a Governmental Authority or pursuant to any bankruptcy, insolvency or similar proceedings, then the time period for curing such Incipient Event of Default or Event of Default shall be extended for the period of the prohibition provided that Lender is exercising reasonable diligence in having such process, stay or injunction removed; ;
(f) Lender shall have the right to consent before any termination of this Agreement which does not arise out of an Event of Default or the end of the Term; ;
(g) Lender shall receive prior Notice of, and shall have the right to approve material amendments to this Agreement, which approval may not be unreasonably withheld, delayed or conditioned; ;
(h) In the event Lender, directly or indirectly, takes title to the Generating Facility (including title by foreclosure or deed in lieu of foreclosure), the Person taking title to the Generating Facility shall assume all of Seller’s obligations arising under this Agreement and all related agreements (subject to such limits on liability as are mutually agreed to by Seller, Buyer and Lender as set forth in the Collateral Assignment Agreement); provided, however, that Lender (or such Person) shall have no liability for any monetary obligations of Seller under this Agreement which are due and owing to Buyer as of the assumption date (but this provision may not be interpreted to limit Buyer’s rights to proceed against Seller as a result of an Event of Default) and Lender’s (or such Person’s) liability to Buyer after such assumption shall be limited to its interest in the Generating Facility; provided further, that before such assumption, if Buyer advises Lender (or such Person) that Buyer will require that Lender (or such Person) cure (or cause to be cured) one or more monetary or non-monetary Incipient Event(s) of Default or Event(s) of Default existing as of the date such Person takes title in order to avoid the exercise by Buyer (in its sole discretion) of Buyer’s right to terminate this Agreement with respect to such Incipient Event(s) of Default or Event(s) of Default, then Lender (or such Person) at its option and in its sole discretion may elect to either (i) cause such Incipient Event(s) of Default or Event of Default to be cured, or (ii) not assume this Agreement; ;
(i) If Lender has assumed this Agreement as provided in Section 9.05(h) and elects to sell or transfer the Generating Facility (after Lender directly or indirectly, takes title to the Generating Facility), or sale of the Generating Facility occurs through the actions of Lender or an agent of or representative of Lender (excluding any foreclosure sale where a third party other than Lender, Seller, an Related Entity Affiliate of Lender or an Related Entity Affiliate of Seller is the buyer), then Lender must cause the transferee or buyer to assume all of Seller’s obligations arising under this Agreement and all related agreements as a condition of the sale or transfer excluding, however, a foreclosure (unless the transferee or buyer is Lender, Seller, an Related Entity Affiliate of Lender or an Related Entity Affiliate of Seller). Lender shall be released from all further obligations under the Agreement and all related documents following such assumption. Such sale or transfer (excluding a foreclosure) may be made only to a Person reasonably acceptable to Buyer; and and
(j) If this Agreement is rejected in Seller’s Bankruptcy or otherwise terminated in connection therewith and if Lender or its representative or designee, directly or indirectly, takes title to the Generating Facility, then, at the request of either Buyer or Lender, Buyer and Lender (or its designee or representative) shall promptly enter into a new agreement with agreement, wherein Buyer having shall have substantially the same terms contractual rights as found in this Agreement Agreement. for the term that would have been remaining under this Agreement, provided that Lender’s (or its designee’s or representative’s) liability under such new agreement shall be limited to its interest in the Generating Facility and neither Lender (or its designee or representative) nor Buyer shall have any personal liability to the other for any amounts owing and neither Buyer nor Lender (or its designee or representative) shall have any obligation to cure any defaults under the original Agreement that was rejected in, or otherwise terminated in connection with Seller’s Bankruptcy.
Appears in 1 contract
Samples: Power Purchase and Sale Agreement
Consent to Collateral Assignment. Subject to the provisions of this Section 9.05, Seller may (but is not obligated to) assign this Agreement as collateral to a Lender for any financing or refinancing of the Generating Facility, including a Sale-Leaseback Transaction or Equity Investment and, in connection therewith, Buyer shall in good faith work with Seller and Lender to agree upon a consent to a collateral assignment of this Agreement or to a Sale-Leaseback Transaction or Equity Investment, as applicable (“Collateral Assignment Agreement”). The Collateral Assignment Agreement shall be in form and substance reasonably agreed to by Xxxxx, Seller and Lender, and shall include, among others, the following provisions (together with such other commercially reasonable provisions required by any Lender that are reasonably acceptable to Buyer): Buyer shall give, to the Person(s) to be specified by Lender in the Collateral Assignment Agreement, simultaneously with the Notice to Seller and before exercising its right to terminate this Agreement, written Notice of any event or circumstance known to Buyer which would, if not cured within the applicable cure period specified in Article VI, constitute an Event of Default (an “Incipient Event of Default”); Lender shall have the right to cure an Incipient Event of Default or an Event of Default by Seller in accordance with the same provisions of this Agreement as apply to Seller; Following an Event of Default by Seller under this Agreement, Buyer may require Seller to (although Lender may, but shall have no obligation, subject to 9.05(g)) provide to Buyer a report concerning: The status of efforts by Seller or Lender to develop a plan to cure the Event of Default; Impediments to the cure plan or its development; If a cure plan has been adopted, the status of the cure plan’s implementation (including any modifications to the plan as well as the expected timeframe within which any cure is expected to be implemented); and Any other information which Buyer may reasonably require related to the development, implementation and timetable of the cure plan; Seller or Lender shall provide the report to Buyer within 10 Business Days after Notice from Buyer requesting the report. Buyer shall have no further right to require the report with respect to a particular Event of Default after that Event of Default has been cured; Lender shall have the right to cure an Event of Default or Incipient Event of Default on behalf of Seller, only if Xxxxxx sends a written notice to Buyer before the end of any cure period indicating Xxxxxx’s intention to cure. Lender may remedy or cure the Event of Default or Incipient Event of Default within the cure period under this Agreement. Such cure period for Lender shall be extended for each day Buyer does not provide the Notice to Lender referred to in Section 9.05(a). In addition, such cure period may, in Buyer’s reasonable discretion, be extended by no more than an additional 180 days. If possession of the Generating Facility is necessary to cure such Incipient Event of Default or Event of Default, Lender Xxxxxx has commenced foreclosure proceedings within 60 days after receipt of such Notice from Buyer, and Lender is making diligent and consistent efforts to complete such foreclosure, take possession of the Generating Facility and promptly cure the Incipient Event of Default or Event of Default, Lender or its designee(s) or assignee(s) will be allowed a reasonable period of time to complete such foreclosure proceedings, take possession of the Generating Facility and cure such Incipient Event of Default or Event of Default, not to exceed 180 days after Xxxxxx’s commencement of foreclosure. Additionally, if Lender is prohibited from curing any Incipient Event of Default or Event of Default by any process, stay or injunction issued by a Governmental Authority or pursuant to any bankruptcy, insolvency or similar proceedings, then the time period for curing such Incipient Event of Default or Event of Default shall be extended for the period of the prohibition provided that Lender is exercising reasonable diligence in having such process, stay or injunction removed; Lender shall have the right to consent before any termination of this Agreement which does not arise out of an Event of Default or the end of the Term; Lender shall receive prior Notice of, and shall have the right to approve material amendments to this Agreement, which approval may not be unreasonably withheld, delayed or conditioned; In the event Lender, directly or indirectly, takes title to the Generating Facility (including title by foreclosure or deed in lieu of foreclosure), the Person taking title to the Generating Facility shall assume all of Seller’s obligations arising under this Agreement and all related agreements (subject to such limits on liability as are mutually agreed to by Seller, Buyer and Lender as set forth in the Collateral Assignment Agreement); provided, however, that Lender (or such Person) shall have no liability for any monetary obligations of Seller under this Agreement which are due and owing to Buyer as of the assumption date (but this provision may not be interpreted to limit Buyer’s rights to proceed against Seller as a result of an Event of Default) and Lender’s (or such Person’s) liability to Buyer after such assumption shall be limited to its interest in the Generating Facility; provided further, that before such assumption, if Buyer advises Lender (or such Person) that Buyer will require that Lender (or such Person) cure (or cause to be cured) one or more monetary or non-monetary Incipient Event(s) of Default or Event(s) of Default existing as of the date such Person takes title in order to avoid the exercise by Buyer (in its sole discretion) of Buyer’s right to terminate this Agreement with respect to such Incipient Event(s) of Default or Event(s) of Default, then Lender (or such Person) at its option and in its sole discretion may elect to either (i) cause such Incipient Event(s) of Default or Event of Default to be cured, or (ii) not assume this Agreement; If Lender has assumed this Agreement as provided in Section 9.05(h) and elects to sell or transfer the Generating Facility (after Lender directly or indirectly, takes title to the Generating Facility), or sale of the Generating Facility occurs through the actions of Lender or an agent of or representative of Lender (excluding any foreclosure sale where a third party other than Lender, Seller, an Related Entity of Lender or an Related Entity of Seller is the buyer), then Lender must cause the transferee or buyer to assume all of Seller’s obligations arising under this Agreement and all related agreements as a condition of the sale or transfer excluding, however, a foreclosure (unless the transferee or buyer is Lender, Seller, an Related Entity of Lender or an Related Entity of Seller). Lender shall be released from all further obligations under the Agreement and all related documents following such assumption. Such sale or transfer (excluding a foreclosure) may be made only to a Person reasonably acceptable to Buyer; and If this Agreement is rejected in Seller’s Bankruptcy or otherwise terminated in connection therewith and if Lender or its representative or designee, directly or indirectly, takes title to the Generating Facility, then, at the request of either Buyer or Lender, Buyer and Lender (or its designee or representative) shall promptly enter into a new agreement with Buyer having substantially the same terms as this Agreement for the term that would have been remaining under this Agreement, provided that Lender’s (or its designee’s or representative’s) liability under such new agreement shall be limited to its interest in the Generating Facility and neither Lender (or its designee or representative) nor Buyer shall have any personal liability to the other for any amounts owing and neither Buyer nor Lender (or its designee or representative) shall have any obligation to cure any defaults under the original Agreement that was rejected in, or otherwise terminated in connection with Seller’s Bankruptcy.
Appears in 1 contract
Samples: Power Purchase and Sale Agreement
Consent to Collateral Assignment. Subject to the provisions of this Section 9.05, Seller may (but is not obligated to) shall have the right to assign this Agreement as collateral to a Lender for any financing or refinancing of the Generating Facility. In connection with any financing or refinancing of the Generating Facility by Seller, including a Sale-Leaseback Transaction or Equity Investment and, in connection therewith, Buyer SCE shall in good faith work with Seller and Lender to agree upon a consent to a collateral assignment of this Agreement or to a Sale-Leaseback Transaction or Equity Investment, as applicable (“Collateral Assignment Agreement”). The Collateral Assignment Agreement shall be in form and substance reasonably agreed to by XxxxxSCE, Seller and Lender, and shall include, among others, the following provisions provisions:
(together with such other commercially reasonable provisions required a) SCE shall give Notice of an Event of Default by any Lender that are reasonably acceptable to Buyer): Buyer shall giveSeller, to the Person(sperson(s) to be specified by Lender in the Collateral Assignment Agreement, simultaneously with the Notice prior to Seller and before exercising its right to terminate this Agreement, written Notice Agreement as a result of any event or circumstance known to Buyer which would, if not cured within the applicable cure period specified in Article VI, constitute an Event of Default (an “Incipient such Event of Default”); Lender shall have the right to cure an Incipient Event of Default or an Event of Default by Seller in accordance with the same provisions of this Agreement as apply to Seller; ;
(b) Following an Event of Default by Seller under this Agreement, Buyer SCE may require Seller or Lender to (although Lender may, but shall have no obligation, subject to 9.05(g)) provide to Buyer SCE a report concerning: :
(i) The status of efforts by Seller or Lender to develop a plan to cure the Event of Default; RAP ID #[Name], [Seller’s Name]
(ii) Impediments to the cure plan or its development; ;
(iii) If a cure plan has been adopted, the status of the cure plan’s implementation (including any modifications to the plan as well as the expected timeframe within which any cure is expected to be implemented); and and
(iv) Any other information which Buyer SCE may reasonably require related to the development, implementation and timetable of the cure plan; . Seller or Lender shall provide the report to Buyer SCE within 10 ten (10) Business Days after Notice from Buyer SCE requesting the report. Buyer SCE shall have no further right to require the report with respect to a particular Event of Default after that Event of Default has been cured; ;
(c) Lender shall have the right to cure an Event of Default or Incipient Event of Default on behalf of Seller, only if Xxxxxx Lender sends a written notice to Buyer before SCE prior to the end of any cure period indicating XxxxxxLender’s intention to cure. Lender may must remedy or cure the Event of Default or Incipient Event of Default within the cure period under this Agreement. Such cure period for Lender shall be extended for each day Buyer does not provide the Notice to Lender referred to in Section 9.05(a). In addition; provided that, such cure period may, in BuyerSCE’s reasonable sole discretion, be extended by no more than an additional 180 one hundred eighty (180) days. If possession of the Generating Facility is necessary to cure such Incipient Event of Default or Event of Default, Lender has commenced foreclosure proceedings within 60 days after receipt of such Notice from Buyer, and Lender is making diligent and consistent efforts to complete such foreclosure, take possession of the Generating Facility and promptly cure the Incipient Event of Default or Event of Default, Lender or its designee(s;
(d) or assignee(s) will be allowed a reasonable period of time to complete such foreclosure proceedings, take possession of the Generating Facility and cure such Incipient Event of Default or Event of Default, not to exceed 180 days after Xxxxxx’s commencement of foreclosure. Additionally, if Lender is prohibited from curing any Incipient Event of Default or Event of Default by any process, stay or injunction issued by a Governmental Authority or pursuant to any bankruptcy, insolvency or similar proceedings, then the time period for curing such Incipient Event of Default or Event of Default shall be extended for the period of the prohibition provided that Lender is exercising reasonable diligence in having such process, stay or injunction removed; Lender shall have the right to consent before prior to any termination of this Agreement which does not arise out of an Event of Default or the end of the Term; Default;
(e) Lender shall receive prior Notice of, of and shall have the right to approve material amendments to this Agreement, which approval may shall not be unreasonably withheld, delayed or conditioned; ;
(f) In the event Lender, directly or indirectly, takes possession of, or title to the Generating Facility (including possession by a receiver or title by foreclosure or deed in lieu of foreclosure), the Person taking title to the Generating Facility Lender shall assume all of Seller’s obligations arising under this Agreement and all related agreements (subject to such limits on liability as are mutually agreed to by Seller, Buyer SCE and Lender as set forth in the Collateral Assignment Agreement); providedprovided that, however, that Lender (or such Person) shall have no personal liability for any monetary obligations of Seller under this Agreement which are due and owing to Buyer SCE as of the assumption date (but this provision may not be interpreted to limit Buyer’s rights to proceed against Seller as a result of an Event of Default) and Lender’s (or such Person’s) liability to Buyer after such assumption shall be limited to its interest in the Generating Facilitydate; provided furtherprovided, however, that before prior to such assumption, if Buyer SCE advises Lender (or such Person) that Buyer SCE will require that Lender (or such Person) cure (or cause to be cured) one or more monetary or non-monetary Incipient Event(s) of Default or Event(s) any Event of Default existing as of the possession date such Person takes title in order to avoid the exercise by Buyer SCE (in its sole discretion) of BuyerSCE’s right to terminate this Agreement with respect to such Incipient Event(s) of Default or Event(s) Event of Default, then Lender (or such Person) at its option option; and in its sole discretion discretion, may elect to either either:
(i) cause Cause such Incipient Event(s) of Default or Event of Default to be cured, or RAP ID #[Name], [Seller’s Name]
(ii) not Not assume this Agreement; .
(g) If Lender has assumed this Agreement as provided in Section 9.05(h) and elects to sell or transfer the Generating Facility (after Lender directly or indirectly, takes possession of, or title to the Generating Facility), or sale of the Generating Facility occurs through the actions of Lender or an agent of or representative of Lender (excluding any for example, a foreclosure sale where a third party other than Lender, Seller, an Related Entity of Lender or an Related Entity of Seller is the buyer, or otherwise), then Lender must cause the transferee or buyer to assume all of Seller’s obligations arising under this Agreement and all related agreements as a condition of the sale or transfer excluding, however, a foreclosure (unless the transferee or buyer is Lender, Seller, an Related Entity of Lender or an Related Entity of Seller). Lender shall be released from all further obligations under the Agreement and all related documents following such assumptiontransfer. Such sale or transfer (excluding a foreclosure) may be made only to a Person reasonably acceptable an entity with financial qualifications (including collateral support and any other additional security as may be required by SCE) and operating experience equivalent to Buyerthat of Seller as of the Effective Date satisfactory to SCE in its sole discretion; and and
(h) If this Agreement is rejected in Seller’s Bankruptcy or otherwise terminated in connection therewith and if Lender or its representative or designee, directly or indirectly, takes possession of, or title to to, the Generating FacilityFacility (including possession by a receiver or title by foreclosure or deed in lieu of foreclosure), then, at the request of either Buyer Lender shall or Lender, Buyer and Lender (or shall cause its designee or representative) shall to promptly enter into a new agreement with Buyer SCE having substantially the same terms as this Agreement for Agreement. Notwithstanding the term foregoing, SCE shall not be required to enter into such agreement with Lender or such designee if there has been a change in circumstances resulting from actions of Seller in its Bankruptcy case that would have been remaining under this Agreementwould, provided that Lenderin SCE’s (judgment, materially impact the rights or its designee’s or representative’s) liability obligations of SCE under such new agreement shall be limited to its interest in the Generating Facility and neither Lender (or its designee or representative) nor Buyer shall have any personal liability to the other for any amounts owing and neither Buyer nor Lender (or its designee or representative) shall have any obligation to cure any defaults under the original Agreement that was rejected in, or otherwise terminated in connection with Seller’s Bankruptcyan agreement.
Appears in 1 contract
Samples: Power Purchase and Sale Agreement
Consent to Collateral Assignment. Subject to the provisions of this Section 9.0510.05, Seller may (but is not obligated to) has the right to assign this Agreement as collateral to a Lender for any financing or refinancing of the Generating Facility. In connection with any financing or refinancing of the Generating Facility by Seller, including a Sale-Leaseback Transaction or Equity Investment and, in connection therewith, Buyer SCE shall in good faith work with Seller and Lender to agree upon a consent to a collateral assignment of this Agreement or to a Sale-Leaseback Transaction or Equity Investment, as applicable (“Collateral Assignment Agreement”). The Collateral Assignment Agreement shall must be in form and substance reasonably agreed to by XxxxxSCE, Seller and Lender, and shall must include, among others, the following provisions provisions:
(together with such other commercially reasonable provisions required a) SCE shall give Notice of an Event of Default by any Lender that are reasonably acceptable to Buyer): Buyer shall giveSeller, to the Person(sperson(s) to be specified by Lender in the Collateral Assignment Agreement, simultaneously with the Notice to Seller and before exercising its right to terminate this Agreement, written Notice Agreement as a result of any event or circumstance known to Buyer which would, if not cured within the applicable cure period specified in Article VI, constitute an Event of Default (an “Incipient such Event of Default”); Lender shall have the right to cure an Incipient Event of Default or an Event of Default by Seller in accordance with the same provisions of this Agreement as apply to Seller; ;
(b) Following an Event of Default by Seller under this Agreement, Buyer SCE may require Seller or Lender to (although Lender may, but shall have no obligation, subject to 9.05(g)) provide to Buyer SCE a report concerning: :
(i) The status of efforts by Seller or Lender to develop a plan to cure the Event of Default; ;
(ii) Impediments to the cure plan or its development; ;
(iii) If a cure plan has been adopted, the status of the cure plan’s implementation (including any modifications to the plan as well as the expected timeframe within which any cure is expected to be implemented); and and
(iv) Any other information which Buyer SCE may reasonably require related to the development, implementation and timetable of the cure plan; . Seller or Lender shall must provide the report to Buyer SCE within 10 ten (10) Business Days after Notice from Buyer SCE requesting the report. Buyer shall SCE will have no further right to require the report with respect to a particular Event of Default after that Event of Default has been cured; ;
(c) Lender shall will have the right to cure an Event of Default or Incipient Event of Default on behalf of Seller, only if Xxxxxx Lender sends a written notice to Buyer SCE before the end of any cure period indicating XxxxxxLender’s intention to cure. Lender may must remedy or cure the Event of Default or Incipient Event of Default within the cure period under this Agreement. Such cure period for Lender shall be extended for each day Buyer does not provide the Notice to Lender referred to in Section 9.05(a). In addition; provided that, such cure period may, in BuyerSCE’s reasonable sole discretion, be extended by no more than an additional 180 one hundred eighty (180) days. If possession of the Generating Facility is necessary to cure such Incipient Event of Default or Event of Default, ;
(d) Lender has commenced foreclosure proceedings within 60 days after receipt of such Notice from Buyer, and Lender is making diligent and consistent efforts to complete such foreclosure, take possession of the Generating Facility and promptly cure the Incipient Event of Default or Event of Default, Lender or its designee(s) or assignee(s) will be allowed a reasonable period of time to complete such foreclosure proceedings, take possession of the Generating Facility and cure such Incipient Event of Default or Event of Default, not to exceed 180 days after Xxxxxx’s commencement of foreclosure. Additionally, if Lender is prohibited from curing any Incipient Event of Default or Event of Default by any process, stay or injunction issued by a Governmental Authority or pursuant to any bankruptcy, insolvency or similar proceedings, then the time period for curing such Incipient Event of Default or Event of Default shall be extended for the period of the prohibition provided that Lender is exercising reasonable diligence in having such process, stay or injunction removed; Lender shall have the right to consent before any termination of this Agreement which does not arise out of an Event of Default or the end of the Term; Default;
(e) Lender shall will receive prior Notice of, of and shall have the right to approve material amendments to this Agreement, which approval may will not be unreasonably withheld, delayed or conditioned; In the event ;
(f) If Lender, directly or indirectly, takes possession of, or title to the Generating Facility (including possession by a receiver or title by foreclosure or deed in lieu of foreclosure), the Person taking title to the Generating Facility shall Lender must assume all of Seller’s obligations arising under this Agreement and all related agreements (subject to such limits on liability as are mutually agreed to by Seller, Buyer SCE and Lender as set forth in the Collateral Assignment Agreement); providedprovided that, however, that Lender (or such Person) shall will have no personal liability for any monetary obligations of Seller under this Agreement which are due and owing to Buyer SCE as of the assumption date (but this provision may not be interpreted to limit Buyer’s rights to proceed against Seller as a result of an Event of Default) and Lender’s (or such Person’s) liability to Buyer after such assumption shall be limited to its interest in the Generating Facilitydate; provided furtherprovided, however, that before such assumption, if Buyer SCE advises Lender (or such Person) that Buyer SCE will require that Lender (or such Person) cure (or cause to be cured) one or more monetary or non-monetary Incipient Event(s) of Default or Event(s) any Event of Default existing as of the possession date such Person takes title in order to avoid the exercise by Buyer SCE (in its sole discretion) of BuyerSCE’s right to terminate this Agreement with respect to such Incipient Event(s) of Default or Event(s) Event of Default, then Lender (or such Person) at its option option; and in its sole discretion discretion, may elect to either either:
(i) cause Cause such Incipient Event(s) of Default or Event of Default to be cured, or or
(ii) not Not assume this Agreement; .
(g) If Lender has assumed this Agreement as provided in Section 9.05(h) and elects to sell or transfer the Generating Facility (after Lender directly or indirectly, takes possession of, or title to the Generating Facility), or sale of the Generating Facility occurs through the actions of Lender or an agent of or representative of Lender (excluding any for example, a foreclosure sale where a third party other than Lender, Seller, an Related Entity of Lender or an Related Entity of Seller is the buyer, or otherwise), then Lender must cause the transferee or buyer to assume all of Seller’s obligations arising under this Agreement and all related agreements as a condition of the sale or transfer excluding, however, a foreclosure (unless the transferee or buyer is Lender, Seller, an Related Entity of Lender or an Related Entity of Seller). Lender shall be released from all further obligations under the Agreement and all related documents following such assumptiontransfer. Such sale or transfer (excluding a foreclosure) may be made only to a Person reasonably acceptable an entity with financial qualifications (including collateral support and any other additional security as may be required by SCE) and Operating experience equivalent to Buyerthat of Seller as of the Effective Date satisfactory to SCE in its sole discretion; and and
(h) If this Agreement is rejected in Seller’s Bankruptcy or otherwise terminated in connection therewith and if Lender or its representative or designee, directly or indirectly, takes possession of, or title to to, the Generating FacilityFacility (including possession by a receiver or title by foreclosure or deed in lieu of foreclosure), then, at the request of either Buyer Lender must itself or Lender, Buyer and Lender (or must cause its designee or representative) shall to promptly enter into a new agreement with Buyer SCE having substantially the same terms as this Agreement for Agreement. Notwithstanding the term foregoing sentence, SCE shall not be required to enter into such agreement with Lender or such designee if there has been a change in circumstances resulting from actions of Seller in its Bankruptcy case that would have been remaining under this Agreementwould, provided that Lenderin SCE’s (judgment, materially impact the rights or its designee’s or representative’s) liability obligations of SCE under such new agreement shall be limited to its interest in the Generating Facility and neither Lender (or its designee or representative) nor Buyer shall have any personal liability to the other for any amounts owing and neither Buyer nor Lender (or its designee or representative) shall have any obligation to cure any defaults under the original Agreement that was rejected in, or otherwise terminated in connection with Seller’s Bankruptcy.an agreement
Appears in 1 contract
Consent to Collateral Assignment. Subject to the provisions of this Section 9.05, Seller may (but is not obligated to) has the right to assign this Agreement as collateral to a Lender for any financing or refinancing of the Generating Facility, including a Sale-Leaseback Transaction or Equity Investment and, in connection therewith, Buyer shall in good faith work with Seller and Lender to agree upon a consent to a collateral assignment of this Agreement or to a Sale-Leaseback Transaction or Equity Investment, as applicable (“Collateral Assignment Agreement”). The Collateral Assignment Agreement shall be in form and substance reasonably agreed to by XxxxxBuyer, Seller and Lender, and shall include, among others, the following provisions (together with such other commercially reasonable provisions required by any Lender that are reasonably acceptable to Buyer): ):
(a) Buyer shall give, to the Person(s) to be specified by Lender in the Collateral Assignment Agreement, simultaneously with the Notice to Seller and before exercising its right to terminate this Agreement, written Notice of any event or circumstance known to Buyer which would, if not cured within the applicable cure period specified in Article VISix, constitute an Event of Default (an “Incipient Event of Default”); ;
(b) Lender shall have the right to cure an Incipient Event of Default or an Event of Default by Seller in accordance with the same provisions of this Agreement as apply to Seller; ;
(c) Following an Event of Default by Seller under this Agreement, Buyer may require Seller to (although Lender may, but shall have no obligation, subject to 9.05(g)) provide to Buyer a report concerning: :
(i) The status of efforts by Seller or Lender to develop a plan to cure the Event of Default; ;
(ii) Impediments to the cure plan or its development; ;
(iii) If a cure plan has been adopted, the status of the cure plan’s implementation (including any modifications to the plan as well as the expected timeframe within which any cure is expected to be implemented); and and
(iv) Any other information which Buyer may reasonably require related to the development, implementation and timetable of the cure plan; ;
(d) Seller or Lender shall provide the report to Buyer within 10 Business Days after Notice from Buyer requesting the report. Buyer shall have no further right to require the report with respect to a particular Event of Default after that Event of Default has been cured; ID# [Number], [Seller’s Name]
(e) Lender shall have the right to cure an Event of Default or Incipient Event of Default on behalf of Seller, only if Xxxxxx Lender sends a written notice to Buyer before the end of any cure period indicating XxxxxxLender’s intention to cure. Lender may remedy or cure the Event of Default or Incipient Event of Default within the cure period under this Agreement. Such cure period for Lender shall be extended for each day Buyer does not provide the Notice to Lender referred to in Section 9.05(a). In addition, such cure period may, in Buyer’s reasonable discretion, be extended by no more than an additional 180 one hundred and eighty (180) days. If possession of the Generating Facility is necessary to cure such Incipient Event of Default or Event of Default, Lender has commenced foreclosure proceedings within 60 sixty (60) days after receipt of such Notice from Buyer, and Lender is making diligent and consistent efforts to complete such foreclosure, take possession of the Generating Facility and promptly cure the Incipient Event of Default or Event of Default, Lender or its designee(s) or assignee(s) will be allowed a reasonable period of time to complete such foreclosure proceedings, take possession of the Generating Facility and cure such Incipient Event of Default or Event of Default, not to exceed 180 one hundred and eighty (180) days after XxxxxxLender’s commencement of foreclosure. Additionally, if Lender is prohibited from curing any Incipient Event of Default or Event of Default by any process, stay or injunction issued by a Governmental Authority or pursuant to any bankruptcy, insolvency or similar proceedings, then the time period for curing such Incipient Event of Default or Event of Default shall be extended for the period of the prohibition provided that Lender is exercising reasonable diligence in having such process, stay or injunction removed; ;
(f) Lender shall have the right to consent before any termination of this Agreement which does not arise out of an Event of Default or the end of the Term; ;
(g) Lender shall receive prior Notice of, and shall have the right to approve material amendments to this Agreement, which approval may not be unreasonably withheld, delayed or conditioned; ;
(h) In the event Lender, directly or indirectly, takes title to the Generating Facility (including title by foreclosure or deed in lieu of foreclosure), the Person taking title to the Generating Facility shall assume all of Seller’s obligations arising under this Agreement and all related agreements (subject to such limits on liability as are mutually agreed to by Seller, Buyer and Lender as set forth in the Collateral Assignment Agreement); provided, however, that Lender (or such Person) shall have no liability for any monetary obligations of Seller under this Agreement which are due and owing to Buyer as of the assumption date (but this provision may not be interpreted to limit Buyer’s rights to proceed against Seller as a result of an Event of Default) and Lender’s (or such Person’s) liability to Buyer after such assumption shall be limited to its interest in the Generating Facility; provided further, that before such assumption, if Buyer advises Lender (or such Person) that Buyer will require that Lender (or such Person) cure (or cause to be cured) one or more monetary or non-monetary Incipient Event(s) of Default or Event(s) of Default existing as of the date such Person takes title in order to avoid the exercise by Buyer (in its sole discretion) of Buyer’s right to terminate this Agreement with respect to such Incipient Event(s) of Default or Event(s) of Default, then Lender (or such Person) at its ID# [Number], [Seller’s Name] option and in its sole discretion may elect to either (i) cause such Incipient Event(s) of Default or Event of Default to be cured, or (ii) not assume this Agreement; ;
(i) If Lender has assumed this Agreement as provided in Section 9.05(h) and elects to sell or transfer the Generating Facility (after Lender directly or indirectly, takes title to the Generating Facility), or sale of the Generating Facility occurs through the actions of Lender or an agent of or representative of Lender (excluding any foreclosure sale where a third party other than Lender, Seller, an Related Entity Affiliate of Lender or an Related Entity Affiliate of Seller is the buyer), then Lender must cause the transferee or buyer to assume all of Seller’s obligations arising under this Agreement and all related agreements as a condition of the sale or transfer excluding, however, a foreclosure (unless the transferee or buyer is Lender, Seller, an Related Entity Affiliate of Lender or an Related Entity Affiliate of Seller). Lender shall be released from all further obligations under the Agreement and all related documents following such assumption. Such sale or transfer (excluding a foreclosure) may be made only to a Person reasonably acceptable to Buyer; and and
(j) If this Agreement is rejected in Seller’s Bankruptcy or otherwise terminated in connection therewith and if Lender or its representative or designee, directly or indirectly, takes title to the Generating Facility, then, at the request of either Buyer or Lender, Buyer and Lender (or its designee or representative) shall promptly enter into a new agreement with agreement, wherein Buyer having shall have substantially the same terms contractual rights as found in this Agreement Agreement. for the term that would have been remaining under this Agreement, provided that Lender’s (or its designee’s or representative’s) liability under such new agreement shall be limited to its interest in the Generating Facility and neither Lender (or its designee or representative) nor Buyer shall have any personal liability to the other for any amounts owing and neither Buyer nor Lender (or its designee or representative) shall have any obligation to cure any defaults under the original Agreement that was rejected in, or otherwise terminated in connection with Seller’s Bankruptcy.
Appears in 1 contract
Samples: Power Purchase and Sale Agreement
Consent to Collateral Assignment. Subject to the provisions of this Section 9.0510.05, Seller may (but is not obligated to) has the right to assign this Agreement as collateral to a Lender for any financing or refinancing of the Generating Facility. In connection with any financing or refinancing of the Generating Facility by Seller, including a Sale-Leaseback Transaction or Equity Investment and, in connection therewith, Buyer Anaheim shall in good faith work with Seller and Lender to agree upon a consent to a collateral assignment of this Agreement or to a Sale-Leaseback Transaction or Equity Investment, as applicable (“Collateral Assignment Agreement”). The Collateral Assignment Agreement shall must be in form and substance reasonably agreed to by XxxxxAnaheim, Seller Seller, and Lender, and shall must include, among others, the following provisions provisions:
(together with such other commercially reasonable provisions required a) Anaheim shall give Notice of an Event of Default by any Lender that are reasonably acceptable to Buyer): Buyer shall giveSeller, to the Person(sperson(s) to be specified by Lender in the Collateral Assignment Agreement, simultaneously with the Notice to Seller and before exercising its right to terminate this Agreement, written Notice Agreement as a result of any event or circumstance known to Buyer which would, if not cured within the applicable cure period specified in Article VI, constitute an Event of Default (an “Incipient such Event of Default”); Lender shall have the right to cure an Incipient Event of Default or an Event of Default by Seller in accordance with the same provisions of this Agreement as apply to Seller; ;
(b) Following an Event of Default by Seller under this Agreement, Buyer Anaheim may require Seller or Lender to (although Lender may, but shall have no obligation, subject to 9.05(g)) provide to Buyer Anaheim a report concerning: :
(i) The status of efforts by Seller or Lender to develop a plan to cure the Event of Default; ;
(ii) Impediments to the cure plan or its development; ;
(iii) If a cure plan has been adopted, the status of the cure plan’s implementation (including any modifications to the plan as well as the expected timeframe within which any cure is expected to be implemented); and and
(iv) Any other information which Buyer Anaheim may reasonably require related to the development, implementation implementation, and timetable of the cure plan; . Seller or Lender shall must provide the report to Buyer Anaheim within 10 ten (10) Business Days after Notice from Buyer Anaheim requesting the report. Buyer shall Anaheim will have no further right to require the report with respect to a particular Event of Default after that Event of Default has been cured; Lender shall have the right to cure an Event Table of Default or Incipient Event of Default on behalf of Seller, only if Xxxxxx sends a written notice to Buyer before the end of any cure period indicating Xxxxxx’s intention to cure. Lender may remedy or cure the Event of Default or Incipient Event of Default within the cure period under this Agreement. Such cure period for Lender shall be extended for each day Buyer does not provide the Notice to Lender referred to in Section 9.05(a). In addition, such cure period may, in Buyer’s reasonable discretion, be extended by no more than an additional 180 days. If possession of the Generating Facility is necessary to cure such Incipient Event of Default or Event of Default, Lender has commenced foreclosure proceedings within 60 days after receipt of such Notice from Buyer, and Lender is making diligent and consistent efforts to complete such foreclosure, take possession of the Generating Facility and promptly cure the Incipient Event of Default or Event of Default, Lender or its designee(s) or assignee(s) will be allowed a reasonable period of time to complete such foreclosure proceedings, take possession of the Generating Facility and cure such Incipient Event of Default or Event of Default, not to exceed 180 days after Xxxxxx’s commencement of foreclosure. Additionally, if Lender is prohibited from curing any Incipient Event of Default or Event of Default by any process, stay or injunction issued by a Governmental Authority or pursuant to any bankruptcy, insolvency or similar proceedings, then the time period for curing such Incipient Event of Default or Event of Default shall be extended for the period of the prohibition provided that Lender is exercising reasonable diligence in having such process, stay or injunction removed; Lender shall have the right to consent before any termination of this Agreement which does not arise out of an Event of Default or the end of the Term; Lender shall receive prior Notice of, and shall have the right to approve material amendments to this Agreement, which approval may not be unreasonably withheld, delayed or conditioned; In the event Lender, directly or indirectly, takes title to the Generating Facility (including title by foreclosure or deed in lieu of foreclosure), the Person taking title to the Generating Facility shall assume all of Seller’s obligations arising under this Agreement and all related agreements (subject to such limits on liability as are mutually agreed to by Seller, Buyer and Lender as set forth in the Collateral Assignment Agreement); provided, however, that Lender (or such Person) shall have no liability for any monetary obligations of Seller under this Agreement which are due and owing to Buyer as of the assumption date (but this provision may not be interpreted to limit Buyer’s rights to proceed against Seller as a result of an Event of Default) and Lender’s (or such Person’s) liability to Buyer after such assumption shall be limited to its interest in the Generating Facility; provided further, that before such assumption, if Buyer advises Lender (or such Person) that Buyer will require that Lender (or such Person) cure (or cause to be cured) one or more monetary or non-monetary Incipient Event(s) of Default or Event(s) of Default existing as of the date such Person takes title in order to avoid the exercise by Buyer (in its sole discretion) of Buyer’s right to terminate this Agreement with respect to such Incipient Event(s) of Default or Event(s) of Default, then Lender (or such Person) at its option and in its sole discretion may elect to either (i) cause such Incipient Event(s) of Default or Event of Default to be cured, or (ii) not assume this Agreement; If Lender has assumed this Agreement as provided in Section 9.05(h) and elects to sell or transfer the Generating Facility (after Lender directly or indirectly, takes title to the Generating Facility), or sale of the Generating Facility occurs through the actions of Lender or an agent of or representative of Lender (excluding any foreclosure sale where a third party other than Lender, Seller, an Related Entity of Lender or an Related Entity of Seller is the buyer), then Lender must cause the transferee or buyer to assume all of Seller’s obligations arising under this Agreement and all related agreements as a condition of the sale or transfer excluding, however, a foreclosure (unless the transferee or buyer is Lender, Seller, an Related Entity of Lender or an Related Entity of Seller). Lender shall be released from all further obligations under the Agreement and all related documents following such assumption. Such sale or transfer (excluding a foreclosure) may be made only to a Person reasonably acceptable to Buyer; and If this Agreement is rejected in Seller’s Bankruptcy or otherwise terminated in connection therewith and if Lender or its representative or designee, directly or indirectly, takes title to the Generating Facility, then, at the request of either Buyer or Lender, Buyer and Lender (or its designee or representative) shall promptly enter into a new agreement with Buyer having substantially the same terms as this Agreement for the term that would have been remaining under this Agreement, provided that Lender’s (or its designee’s or representative’s) liability under such new agreement shall be limited to its interest in the Generating Facility and neither Lender (or its designee or representative) nor Buyer shall have any personal liability to the other for any amounts owing and neither Buyer nor Lender (or its designee or representative) shall have any obligation to cure any defaults under the original Agreement that was rejected in, or otherwise terminated in connection with Seller’s Bankruptcy.Contents
Appears in 1 contract
Samples: Renewable Power Purchase and Sale Agreement (Montauk Renewables, Inc.)
Consent to Collateral Assignment. Subject to the provisions of this Section 9.05Twelve.5, Seller may (but is not obligated to) has the right to assign this Agreement as collateral to a Lender for any financing or refinancing of the Generating Facility. In connection with any financing or refinancing of the Generating Facility by Seller, including a Sale-Leaseback Transaction or Equity Investment and, in connection therewith, Buyer Anaheim shall in good faith work with Seller and Lender to agree upon a consent to a collateral assignment of this Agreement or to a Sale-Leaseback Transaction or Equity Investment, as applicable (“Collateral Assignment Agreement”). The Collateral Assignment Agreement shall must be in form and substance reasonably agreed to by XxxxxAnaheim, Seller Seller, and Lender, and shall must include, among others, the following provisions (together with such other commercially reasonable provisions required provisions: Anaheim shall give Notice of an Event of Default by any Lender that are reasonably acceptable to Buyer): Buyer shall giveSeller, to the Person(sperson(s) to be specified by Lender in the Collateral Assignment Agreement, simultaneously with the Notice to Seller and before exercising its right to terminate this Agreement, written Notice Agreement as a result of any event or circumstance known to Buyer which would, if not cured within the applicable cure period specified in Article VI, constitute an Event of Default (an “Incipient such Event of Default”); Lender shall have the right to cure an Incipient Event of Default or an Event of Default by Seller in accordance with the same provisions of this Agreement as apply to Seller; Following an Event of Default by Seller under this Agreement, Buyer Anaheim may require Seller or Lender to (although Lender may, but shall have no obligation, subject to 9.05(g)) provide to Buyer Anaheim a report concerning: The status of efforts by Seller or Lender to develop a plan to cure the Event of Default; Impediments to the cure plan or its development; If a cure plan has been adopted, the status of the cure plan’s implementation (including any modifications to the plan as well as the expected timeframe within which any cure is expected to be implemented); and Any other information which Buyer Anaheim may reasonably require related to the development, implementation implementation, and timetable of the cure plan; . Seller or Lender shall must provide the report to Buyer Anaheim within 10 ten (10) Business Days after Notice from Buyer Anaheim requesting the report. Buyer shall Anaheim will have no further right to require the report with respect to a particular Event of Default after that Event of Default has been cured; Lender shall will have the right to cure an Event of Default or Incipient Event of Default on behalf of Seller, only if Xxxxxx Lender sends a written notice to Buyer Anaheim before the end of any cure period indicating XxxxxxLender’s intention to cure. Lender may must remedy or cure the Event of Default or Incipient Event of Default within the cure period under this Agreement. Such cure period for Lender shall be extended for each day Buyer does not provide the Notice to Lender referred to in Section 9.05(a). In addition; provided, such cure period may, in BuyerAnaheim’s reasonable sole discretion, be extended by no more than an additional 180 one hundred eighty (180) days. If possession of the Generating Facility is necessary to cure such Incipient Event of Default or Event of Default, Lender has commenced foreclosure proceedings within 60 days after receipt of such Notice from Buyer, and Lender is making diligent and consistent efforts to complete such foreclosure, take possession of the Generating Facility and promptly cure the Incipient Event of Default or Event of Default, Lender or its designee(s) or assignee(s) will be allowed a reasonable period of time to complete such foreclosure proceedings, take possession of the Generating Facility and cure such Incipient Event of Default or Event of Default, not to exceed 180 days after Xxxxxx’s commencement of foreclosure. Additionally, if Lender is prohibited from curing any Incipient Event of Default or Event of Default by any process, stay or injunction issued by a Governmental Authority or pursuant to any bankruptcy, insolvency or similar proceedings, then the time period for curing such Incipient Event of Default or Event of Default shall be extended for the period of the prohibition provided that Lender is exercising reasonable diligence in having such process, stay or injunction removed; Lender shall will have the right to consent receive prior written notice before any termination of this Agreement which does not arise out of an Event of Default or the end of the TermDefault; Lender shall will receive prior Notice of, and shall have the right to approve written notice of material amendments to this Agreement, which approval may not be unreasonably withheld, delayed or conditioned; In the event If Lender, directly or indirectly, takes possession of, or title to the Generating Facility (including possession by a receiver or title by foreclosure or deed in lieu of foreclosure), the Person taking title to the Generating Facility shall Lender must assume all of Seller’s obligations arising under this Agreement and all related agreements (subject to such limits on liability as are mutually agreed to by Seller, Buyer Anaheim, and Lender as set forth in the Collateral Assignment Agreement); provided, however, that Lender (or such Person) shall have no liability for any monetary obligations of Seller under this Agreement which are due and owing to Buyer as of the assumption date (but this provision may not be interpreted to limit Buyer’s rights to proceed against Seller as a result of an Event of Default) and Lender’s (or such Person’s) liability to Buyer after such assumption shall be limited to its interest in the Generating Facility; provided further, that before such assumption, if Buyer Anaheim advises Lender (or such Person) that Buyer Anaheim will require that Lender (or such Person) cure (or cause to be cured) one or more monetary or non-monetary Incipient Event(s) of Default or Event(s) any Event of Default existing as of the possession date such Person takes title in order to avoid the exercise by Buyer Anaheim (in its sole discretion) of BuyerAnaheim’s right to terminate this Agreement with respect to such Incipient Event(s) of Default or Event(s) Event of Default, then Lender (or such Person) at its option option, and in its sole discretion discretion, may elect to either (i) cause either: Cause such Incipient Event(s) of Default or Event of Default to be cured, or (ii) not Not assume this Agreement, in which case this Agreement terminates unimpeded either by operation of law or the terms of this Agreement, as applicable; If Lender has assumed this Agreement as provided in Section 9.05(h) and elects to sell or transfer the Generating Facility (after Lender directly or indirectly, takes possession of, or title to the Generating Facility), or sale of the Generating Facility occurs through the actions of Lender or an agent of or representative of Lender (excluding any for example, a foreclosure sale where a third party other than Lender, Seller, an Related Entity of Lender or an Related Entity of Seller is the buyer, or otherwise), then Lender must cause the transferee or buyer to assume all of Seller’s obligations arising under this Agreement and all related agreements as a condition of the sale or transfer excluding, however, a foreclosure (unless the transferee or buyer is Lender, Seller, an Related Entity of Lender or an Related Entity of Seller). Lender shall be released from all further obligations under the Agreement and all related documents following such assumptiontransfer. Such sale or transfer (excluding a foreclosure) may be made only to a Person reasonably acceptable an entity with financial qualifications (including collateral support and any other additional security as may be required by Anaheim) and Operating experience equivalent to Buyerthat of Seller as of the Effective Date satisfactory to Anaheim in its sole discretion; and If this Agreement is rejected in Seller’s Bankruptcy or otherwise terminated in connection therewith and if Lender or its representative or designee, directly or indirectly, takes possession of, or title to to, the Generating FacilityFacility (including possession by a receiver or title by foreclosure or deed in lieu of foreclosure), then, at the request of either Buyer Lender must itself or Lender, Buyer and Lender (or must cause its designee or representative) shall to promptly enter into a new agreement with Buyer Anaheim having substantially the same terms as this Agreement for the term that would have been remaining under this Agreement, provided that Lender’s (or its designee’s or representative’s) liability under such new agreement shall be limited to its interest in the Generating Facility and neither Lender (or its designee or representative) nor Buyer shall have any personal liability to the other for any amounts owing and neither Buyer nor Lender (or its designee or representative) shall have any obligation to cure any defaults under the original Agreement that was rejected in, or otherwise terminated in connection with Seller’s Bankruptcy.
Appears in 1 contract
Consent to Collateral Assignment. Subject to the provisions of this Section 9.05, Seller may (but is not obligated to) has the right to assign this Agreement as collateral to a Lender for any financing or refinancing of the Generating Facility, including a Sale-Leaseback Transaction or Equity Investment and, in connection therewith, Buyer shall in good faith work with Seller and Lender to agree upon a consent to a collateral assignment of this Agreement or to a Sale-Sale- Leaseback Transaction or Equity Investment, as applicable (“Collateral Assignment Agreement”). The Collateral Assignment Agreement shall be in form and substance reasonably agreed to by XxxxxBuyer, Seller and Lender, and shall include, among others, the following provisions (together with such other commercially reasonable provisions required by any Lender that are reasonably acceptable to Buyer): ):
(a) Buyer shall give, to the Person(s) to be specified by Lender in the Collateral Assignment Agreement, simultaneously with the Notice to Seller and before exercising its right to terminate this Agreement, written Notice of any event or circumstance known to Buyer which would, if not cured within the applicable cure period specified in Article VI, constitute an Event of Default (an “Incipient Event of Default”); ;
(b) Lender shall have the right to cure an Incipient Event of Default or an Event of Default by Seller in accordance with the same provisions of this Agreement as apply to Seller; ;
(c) Following an Event of Default by Seller under this Agreement, Buyer may require Seller to (although Lender may, but shall have no obligation, subject to 9.05(g)) provide to Buyer a report concerning: :
(i) The status of efforts by Seller or Lender to develop a plan to cure the Event of Default; ;
(ii) Impediments to the cure plan or its development; ;
(iii) If a cure plan has been adopted, the status of the cure plan’s implementation (including any modifications to the plan as well as the expected timeframe within which any cure is expected to be implemented); and and
(iv) Any other information which Buyer may reasonably require related to the development, implementation and timetable of the cure plan; ;
(d) Seller or Lender shall provide the report to Buyer within 10 Business Days after Notice from Buyer requesting the report. Buyer shall have no further right to require the report with respect to a particular Event of Default after that Event of Default has been cured; ;
(e) Lender shall have the right to cure an Event of Default or Incipient Event of Default on behalf of Seller, only if Xxxxxx Lender sends a written notice to Buyer before the end of any cure period indicating XxxxxxLender’s intention to cure. Lender may remedy or cure the Event of Default or Incipient Event of Default within the cure period under this Agreement. Such cure period for Lender shall be extended for each day Buyer does not provide the Notice to Lender referred to in Section 9.05(a). In addition, such cure period may, in Buyer’s reasonable discretion, be extended by no more than an additional 180 days. If possession of the Generating Facility is necessary to cure such Incipient Event of Default or Event of Default, Lender has commenced foreclosure proceedings within 60 days after receipt of such Notice from Buyer, and Lender is making diligent and consistent efforts to complete such foreclosure, take possession of the Generating Facility and promptly cure the Incipient Event of Default or Event of Default, Lender or its designee(s) or assignee(s) will be allowed a reasonable period of time to complete such foreclosure proceedings, take possession of the Generating Facility and cure such Incipient Event of Default or Event of Default, not to exceed 180 days after XxxxxxLender’s commencement of foreclosure. Additionally, if Lender is prohibited from curing any Incipient Event of Default or Event of Default by any process, stay or injunction issued by a Governmental Authority or pursuant to any bankruptcy, insolvency or similar proceedings, then the time period for curing such Incipient Event of Default or Event of Default shall be extended for the period of the prohibition provided that Lender is exercising reasonable diligence in having such process, stay or injunction removed; ;
(f) Lender shall have the right to consent before any termination of this Agreement which does not arise out of an Event of Default or the end of the Term; ;
(g) Lender shall receive prior Notice of, and shall have the right to approve material amendments to this Agreement, which approval may not be unreasonably withheld, delayed or conditioned; ;
(h) In the event Lender, directly or indirectly, takes title to the Generating Facility (including title by foreclosure or deed in lieu of foreclosure), the Person taking title to the Generating Facility shall assume all of Seller’s obligations arising under this Agreement and all related agreements (subject to such limits on liability as are mutually agreed to by Seller, Buyer and Lender as set forth in the Collateral Assignment Agreement); provided, however, that Lender (or such Person) shall have no liability for any monetary obligations of Seller under this Agreement which are due and owing to Buyer as of the assumption date (but this provision may not be interpreted to limit Buyer’s rights to proceed against Seller as a result of an Event of Default) and Lender’s (or such Person’s) liability to Buyer after such assumption shall be limited to its interest in the Generating Facility; provided further, that before such assumption, if Buyer advises Lender (or such Person) that Buyer will require that Lender (or such Person) cure (or cause to be cured) one or more monetary or non-monetary Incipient Event(s) of Default or Event(s) of Default existing as of the date such Person takes title in order to avoid the exercise by Buyer (in its sole discretion) of Buyer’s right to terminate this Agreement with respect to such Incipient Event(s) of Default or Event(s) of Default, then Lender (or such Person) at its option and in its sole discretion may elect to either (i) cause such Incipient Event(s) of Default or Event of Default to be cured, or (ii) not assume this Agreement; ;
(i) If Lender has assumed this Agreement as provided in Section 9.05(h) and elects to sell or transfer the Generating Facility (after Lender directly or indirectly, takes title to the Generating Facility), or sale of the Generating Facility occurs through the actions of Lender or an agent of or representative of Lender (excluding any foreclosure sale where a third party other than Lender, Seller, an Related Entity Affiliate of Lender or an Related Entity Affiliate of Seller is the buyer), then Lender must cause the transferee or buyer to assume all of Seller’s obligations arising under this Agreement and all related agreements as a condition of the sale or transfer excluding, however, a foreclosure (unless the transferee or buyer is Lender, Seller, an Related Entity Affiliate of Lender or an Related Entity Affiliate of Seller). Lender shall be released from all further obligations under the Agreement and all related documents following such assumption. Such sale or transfer (excluding a foreclosureforeclosures) may be made only to a Person reasonably acceptable to Buyer; and and
(j) If this Agreement is rejected in Seller’s Bankruptcy or otherwise terminated in connection therewith and if Lender or its representative or designee, directly or indirectly, takes title to the Generating Facility, then, at the request of either Buyer or Lender, Buyer and Lender (or its designee or representative) shall promptly enter into a new agreement with Buyer having substantially the same terms as this Agreement Agreement. for the term that would have been remaining under this Agreement, provided that Lender’s (or its designee’s or representative’s) ’s liability under such new agreement shall be limited to its interest in the Generating Facility and neither Lender (or its designee or representative) nor Buyer shall have any personal liability to the other for any amounts owing and neither Buyer nor Lender (or its designee or representative) shall have any obligation to cure any defaults under the original Agreement that was rejected in, or otherwise terminated in connection with Seller’s Bankruptcy.
Appears in 1 contract
Samples: Power Purchase and Sale Agreement
Consent to Collateral Assignment. Subject to the provisions of this Section 9.05, Seller may (but is not obligated to) assign this Agreement as collateral to a Lender for any financing or refinancing of the Generating Facility, including a Sale-Leaseback Transaction or Equity Investment and, in connection therewith, Buyer shall in good faith work with Seller and Lender to agree upon a consent to a collateral assignment of this Agreement or to a Sale-Leaseback Transaction or Equity Investment, as applicable (“Collateral Assignment Agreement”). The Collateral Assignment Agreement shall be in form and substance reasonably agreed to by Xxxxx, Seller and Lender, and shall include, among others, the following provisions (together with such other commercially reasonable provisions required by any Lender a. BRM acknowledges that are reasonably acceptable to Buyer): Buyer shall give, to the Person(s) to be specified by Lender in the Collateral Assignment Agreement, simultaneously with the Notice to Seller and before exercising its right to terminate this Agreement, written Notice of any event or circumstance known to Buyer which would, if not cured within the applicable cure period specified in Article VI, constitute an Event of Default (an “Incipient Event of Default”); Lender shall have the right to cure an Incipient Event of Default or an Event of Default by Seller in accordance with the same provisions of this Agreement as apply to Seller; Following an Event of Default by Seller under this Agreement, Buyer may require Seller to (although Lender may, but shall have no obligation, subject to 9.05(g)) provide to Buyer a report concerning: The status of efforts by Seller or Lender to develop a plan to cure the Event of Default; Impediments to the cure plan or its development; If a cure plan has been adopted, the status of the cure plan’s implementation (including any modifications to the plan as well as the expected timeframe within which any cure is expected to be implemented); and Any other information which Buyer may reasonably require related to the development, implementation and timetable of the cure plan; Seller or Lender shall provide the report to Buyer within 10 Business Days after Notice from Buyer requesting the report. Buyer shall have no further right to require the report with respect to a particular Event of Default after that Event of Default has been cured; Lender shall have the right to cure an Event of Default or Incipient Event of Default on behalf of Seller, only if Xxxxxx sends a written notice to Buyer before the end of any cure period indicating Xxxxxx’s intention to cure. Lender may remedy or cure the Event of Default or Incipient Event of Default within the cure period under this Agreement. Such cure period for Lender shall be extended for each day Buyer does not provide the Notice to Lender referred to in Section 9.05(a). In addition, such cure period may, in Buyer’s reasonable discretion, be extended by no more than an additional 180 days. If possession of the Generating Facility is necessary to cure such Incipient Event of Default or Event of Default, Lender has commenced foreclosure proceedings within 60 days after receipt of such Notice from Buyer, and Lender is making diligent and consistent efforts to complete such foreclosure, take possession of the Generating Facility and promptly cure the Incipient Event of Default or Event of Default, Lender or its designee(s) or assignee(s) will be allowed a reasonable period of time to complete such foreclosure proceedings, take possession of the Generating Facility and cure such Incipient Event of Default or Event of Default, not to exceed 180 days after Xxxxxx’s commencement of foreclosure. Additionally, if Lender is prohibited from curing any Incipient Event of Default or Event of Default by any process, stay or injunction issued by a Governmental Authority or pursuant to any bankruptcy, insolvency or similar proceedings, then the time period for curing such Incipient Event of Default or Event of Default shall be extended for the period of the prohibition provided that Lender is exercising reasonable diligence in having such process, stay or injunction removed; Lender shall have the right to consent before any termination of this Agreement which does not arise out of an Event of Default or the end of the Term; Lender shall receive prior Notice of, and shall have the right to approve material amendments to this Agreement, which approval may not be unreasonably withheld, delayed or conditioned; In the event Lender, directly or indirectly, takes title to the Generating Facility (including title by foreclosure or deed in lieu of foreclosure), the Person taking title to the Generating Facility shall assume all of Seller’s obligations arising under this Agreement and all related agreements (subject to such limits on liability as are mutually agreed to by Seller, Buyer and Lender as set forth in the Collateral Assignment Agreement); provided, however, that Lender (or such Person) shall have no liability for any monetary obligations of Seller under this Agreement which are due and owing to Buyer as of the assumption date (but this provision may not be interpreted to limit Buyer’s rights to proceed against Seller as a result of an Event of Default) and Lender’s (or such Person’s) liability to Buyer after such assumption shall be limited to its interest in the Generating Facility; provided further, that before such assumption, if Buyer advises Lender (or such Person) that Buyer will require that Lender (or such Person) cure (or cause to be cured) one or more monetary or non-monetary Incipient Event(s) of Default or Event(s) of Default existing as of the date such Person takes title in order to avoid construct the exercise by Buyer (in its sole discretion) of Buyer’s right to terminate this Agreement with respect to such Incipient Event(s) of Default or Event(s) of Default, then Lender (or such Person) at its option and in its sole discretion Facility GREC may elect to either (i) cause such Incipient Event(s) of Default or Event of Default to be cured, or (ii) not assume this Agreement; If Lender has assumed this Agreement as provided in Section 9.05(h) and elects to sell or transfer the Generating Facility (after Lender directly or indirectly, takes title to the Generating Facility), or sale of the Generating Facility occurs seek debt financing through the actions of Lender or an agent of or representative of Lender (excluding any foreclosure sale where a third party other than lender or lenders (collectively “Lender, Seller, an Related Entity of Lender or an Related Entity of Seller is the buyer”), then Lender must cause the transferee or buyer to assume all of Seller’s obligations arising under this Agreement and all related agreements as a condition of the sale or transfer excluding, however, a foreclosure (unless the transferee or buyer is Lender, Seller, an Related Entity of Lender or an Related Entity of Seller). Lender shall be released from all further obligations under the Agreement and all related documents following such assumption. Such sale or transfer (excluding a foreclosure) may be made only to a Person reasonably acceptable to Buyer; and If this Agreement is rejected in Seller’s Bankruptcy or otherwise terminated that in connection therewith with such financing, GREC may collaterally assign this contract to Lender. BRM hereby consents to such assignment, and if Lender or its representative or designee, directly or indirectly, takes title to the Generating Facility, then, at the request of either Buyer or Lender, Buyer and accepts that Lender (or its designee or representativeassignee) is an intended third party beneficiary of the provisions of this Section 9.
b. BRM agrees in favor of Xxxxxx that no termination right available to BRM shall promptly enter into a new agreement with Buyer having substantially be effective unless written notice thereof and the same terms as this Agreement for the term that would reasons therefor have been remaining under this Agreementgiven by BRM to and received by Xxxxxx at least sixty (60) days prior to the proposed date of the exercise of the termination right. BRM further agrees that it shall not exercise any termination right, provided if, after such notice is received by Xxxxxx, and prior to the end of such sixty (60) day period, Lender has: (i) cured the condition creating the termination right; or (ii) if the condition is not capable of being cured prior to such date, commenced in a diligent manner to cure the condition for an additional period reasonably necessary to remedy such failure subject to the condition that during the additional period, Lender shall be diligently pursuing such cure. BRM shall accept cure and performance from Lender, but nothing herein shall (x) require Lender to cure or perform hereunder, or (y) assume any liability for claims of BRM against GREC arising from GREC’s failure to perform during the period prior to the Lender’s (or its designee’s or representative’s) liability under such new agreement shall be limited assignee’s succession to its GREC’s interest in the Generating Facility and neither under this Agreement.
c. BRM agrees in favor of Xxxxxx that, upon notice by Xxxxxx to BRM that Lender (or its designee or representativeassignee) nor Buyer shall have any personal liability has succeeded to the other for any amounts owing and neither Buyer nor rights of GREC under this Agreement, Lender (or its designee or representativeassignee) shall have any obligation be entitled, in the place of GREC, to cure any defaults exercise all rights of GREC under the original Agreement that was rejected inthis Agreement. BRM further agrees to cooperate reasonably with GREC’s efforts to secure such financing, or otherwise terminated in connection and to provide GREC and Lender on a timely basis with Seller’s Bankruptcysuch additional consents and related documents, as are reasonably requested by Xxxxxx.
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Samples: Biomass Services Agreement
Consent to Collateral Assignment. Subject to the provisions of this Section 9.0510.05, Seller may (but is not obligated to) has the right to assign this Agreement as collateral to a Lender for any financing or refinancing of the Generating Facility; provided, Seller shall be responsible for SCE’s reasonable costs associated with the preparation, review, execution and delivery of documents in connection with any such assignment, including a Sale-Leaseback Transaction without limitation attorneys’ fees. In connection with any financing or Equity Investment andrefinancing of the Generating Facility by Seller, in connection therewith, Buyer SCE shall in good faith work with Seller and Lender to agree upon a consent to a collateral assignment of this Agreement or to a Sale-Leaseback Transaction or Equity Investment, as applicable (“Collateral Assignment Agreement”). The Collateral Assignment Agreement shall must be in form and substance reasonably agreed to by XxxxxSCE, Seller and Lender, and shall must include, among others, the following provisions provisions:
(together with such other commercially reasonable provisions required a) SCE shall give Notice of an Event of Default by any Lender that are reasonably acceptable to Buyer): Buyer shall giveSeller, to the Person(sperson(s) to be specified by Lender in the Collateral Assignment Agreement, simultaneously with the Notice to Seller and before exercising its right to terminate this Agreement, written Notice Agreement as a result of any event or circumstance known to Buyer which would, if not cured within the applicable cure period specified in Article VI, constitute an Event of Default (an “Incipient such Event of Default”); Lender shall have the right to cure an Incipient Event of Default or an Event of Default by Seller in accordance with the same provisions of this Agreement as apply to Seller; ;
(b) Following an Event of Default by Seller under this Agreement, Buyer SCE may require Seller or Lender to (although Lender may, but shall have no obligation, subject to 9.05(g)) provide to Buyer SCE a report concerning: :
(i) The status of efforts by Seller or Lender to develop a plan to cure the Event of Default; ;
(ii) Impediments to the cure plan or its development; ;
(iii) If a cure plan has been adopted, the status of the cure plan’s implementation (including any modifications to the plan as well as the expected timeframe within which any cure is expected to be implemented); and and
(iv) Any other information which Buyer SCE may reasonably require related to the development, implementation and timetable of the cure plan; . Seller or Lender shall must provide the report to Buyer SCE within 10 ten (10) Business Days after Notice from Buyer SCE requesting the report. Buyer shall SCE will have no further right to require the report with respect to a particular Event of Default after that Event of Default has been cured; Lender shall have the right to cure an Event of Default or Incipient Event of Default on behalf of Seller, only if Xxxxxx sends a written notice to Buyer before the end of any cure period indicating Xxxxxx’s intention to cure. Lender may remedy or cure the Event of Default or Incipient Event of Default within the cure period under this Agreement. Such cure period for Lender shall be extended for each day Buyer does not provide the Notice to Lender referred to in Section 9.05(a). In addition, such cure period may, in Buyer’s reasonable discretion, be extended by no more than an additional 180 days. If possession of the Generating Facility is necessary to cure such Incipient Event of Default or Event of Default, Lender has commenced foreclosure proceedings within 60 days after receipt of such Notice from Buyer, and Lender is making diligent and consistent efforts to complete such foreclosure, take possession of the Generating Facility and promptly cure the Incipient Event of Default or Event of Default, Lender or its designee(s) or assignee(s) will be allowed a reasonable period of time to complete such foreclosure proceedings, take possession of the Generating Facility and cure such Incipient Event of Default or Event of Default, not to exceed 180 days after Xxxxxx’s commencement of foreclosure. Additionally, if Lender is prohibited from curing any Incipient Event of Default or Event of Default by any process, stay or injunction issued by a Governmental Authority or pursuant to any bankruptcy, insolvency or similar proceedings, then the time period for curing such Incipient Event of Default or Event of Default shall be extended for the period of the prohibition provided that Lender is exercising reasonable diligence in having such process, stay or injunction removed; Lender shall have the right to consent before any termination of this Agreement which does not arise out of an Event of Default or the end of the Term; Lender shall receive prior Notice of, and shall have the right to approve material amendments to this Agreement, which approval may not be unreasonably withheld, delayed or conditioned; In the event Lender, directly or indirectly, takes title to the Generating Facility (including title by foreclosure or deed in lieu of foreclosure), the Person taking title to the Generating Facility shall assume all of Seller’s obligations arising under this Agreement and all related agreements (subject to such limits on liability as are mutually agreed to by Seller, Buyer and Lender as set forth in the Collateral Assignment Agreement); provided, however, that Lender (or such Person) shall have no liability for any monetary obligations of Seller under this Agreement which are due and owing to Buyer as of the assumption date (but this provision may not be interpreted to limit Buyer’s rights to proceed against Seller as a result of an Event of Default) and Lender’s (or such Person’s) liability to Buyer after such assumption shall be limited to its interest in the Generating Facility; provided further, that before such assumption, if Buyer advises Lender (or such Person) that Buyer will require that Lender (or such Person) cure (or cause to be cured) one or more monetary or non-monetary Incipient Event(s) of Default or Event(s) of Default existing as of the date such Person takes title in order to avoid the exercise by Buyer (in its sole discretion) of Buyer’s right to terminate this Agreement with respect to such Incipient Event(s) of Default or Event(s) of Default, then Lender (or such Person) at its option and in its sole discretion may elect to either (i) cause such Incipient Event(s) of Default or Event of Default to be cured, or (ii) not assume this Agreement; If Lender has assumed this Agreement as provided in Section 9.05(h) and elects to sell or transfer the Generating Facility (after Lender directly or indirectly, takes title to the Generating Facility), or sale of the Generating Facility occurs through the actions of Lender or an agent of or representative of Lender (excluding any foreclosure sale where a third party other than Lender, Seller, an Related Entity of Lender or an Related Entity of Seller is the buyer), then Lender must cause the transferee or buyer to assume all of Seller’s obligations arising under this Agreement and all related agreements as a condition of the sale or transfer excluding, however, a foreclosure (unless the transferee or buyer is Lender, Seller, an Related Entity of Lender or an Related Entity of Seller). Lender shall be released from all further obligations under the Agreement and all related documents following such assumption. Such sale or transfer (excluding a foreclosure) may be made only to a Person reasonably acceptable to Buyer; and If this Agreement is rejected in Seller’s Bankruptcy or otherwise terminated in connection therewith and if Lender or its representative or designee, directly or indirectly, takes title to the Generating Facility, then, at the request of either Buyer or Lender, Buyer and Lender (or its designee or representative) shall promptly enter into a new agreement with Buyer having substantially the same terms as this Agreement for the term that would have been remaining under this Agreement, provided that Lender’s (or its designee’s or representative’s) liability under such new agreement shall be limited to its interest in the Generating Facility and neither Lender (or its designee or representative) nor Buyer shall have any personal liability to the other for any amounts owing and neither Buyer nor Lender (or its designee or representative) shall have any obligation to cure any defaults under the original Agreement that was rejected in, or otherwise terminated in connection with Seller’s Bankruptcy.;
Appears in 1 contract
