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~~ The Contributor hereby consents to the ~~provisions~~ collateral assignment by the Company of ~~this Section 9.05~~all 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 Facility~~Secured 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 and~~subject 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 ~~representative~~assignee), 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~~9.06, 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(g~~9.06(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(a~~9.06(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(h~~9.06(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 9.05, 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 9.05~~Article 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 Facility~~Project; 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 ~~Xxxxx~~SCE, 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 give~~Seller, 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 ~~concerning~~setting 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 ~~Buyer~~SCE’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 ~~Buyer~~SCE’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 Facility~~Project), 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 Facility~~Project (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.

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~~ . In connection with any financing or ~~Equity Investment and, in connection therewith~~refinancing of the Generating Facility by Seller, Buyer 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 ~~Xxxxx~~Buyer, 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):~~ provisions: Buyer shall ~~give~~give Notice of an Event of Default by Seller, to the ~~Person(s~~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~~ 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 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: 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~~ must provide the report to Buyer within 10 ten (10) Business Days after Notice from Buyer requesting the report. Buyer ~~shall~~ 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~~ Xxxxxx 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~~ Xxxxx 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~~ 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) ; 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 before any termination of this Agreement which does not arise out of an Event of ~~Default or the end of the Term~~Default; 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~~ 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 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)~~ 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 (i) cause~~ either: Cause such ~~Incipient Event(s) of Default or~~ Event of Default to be cured, or ~~(ii) not~~ 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 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 Buyer~~minimum tangible net worth of at least [Dollar amount text] dollars ($[Number]) and at least three (3) years of experience operating a generating plant of similar technology and similar size; 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 ~~Facility~~Facility (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 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~~Article 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 Facility~~Project; 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 ~~Xxxxx~~SCE, 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 give~~Seller, 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 ~~concerning~~setting 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 ~~Xxxxxx~~Lender’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 ~~Buyer~~SCE’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 ~~Buyer~~SCE’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 Facility~~Project), 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 Facility~~Project (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. Subject to the provisions of this ~~Section 9.05~~Article 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 Facility~~Project; 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 ~~Xxxxx~~SCE, 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 give~~Seller, 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 ~~concerning~~setting 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 ~~Xxxxxx~~Lender’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 ~~Buyer~~SCE’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 ~~Buyer~~SCE’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 Facility~~Project), 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 Facility~~Project (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 ~~9.05~~Twelve.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 ~~Xxxxx~~Anaheim, ~~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 give~~Seller, to the ~~Person(s~~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~~ 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 ~~Xxxxxx~~Lender’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~~Anaheim’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 Term~~Default; 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 ~~Buyer~~Anaheim’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 ~~Buyer~~that 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 ~~Facility~~Facility (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

Samples: Renewable Power Purchase and Sale Agreement

Consent to Collateral Assignment. ~~Subject~~ The Contributor hereby consents to the ~~provisions~~ collateral assignment by each Obligor of ~~this Section 9.05~~all 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 Facility~~Secured 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 and~~subject 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 ~~representative~~assignee), 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 9.05~~Article 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 Facility~~Project; 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 ~~Xxxxx~~SCE, 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 give~~Seller, 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 ~~concerning~~setting 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 ~~Xxxxxx~~Lender’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 ~~Buyer~~SCE’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 ~~Buyer~~SCE’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 Facility~~Project), 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 Facility~~Project (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.

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) 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~~ The Contributor hereby consents to the ~~provisions~~ collateral assignment by the Company of ~~this Section 9.05~~all 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 Facility~~Secured 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 and~~subject 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 ~~representative~~assignee), 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/)

Common use of Consent to Collateral Assignment Clause in Contracts