Common use of Lessee’s Failure to Achieve the Lease Effective Date Clause in Contracts

Lessee’s Failure to Achieve the Lease Effective Date. (a) If the Lease Effective Date has not occurred by the Required Lease Effective Date due to the acts or omissions of Lessee (including the failure of Lessee to satisfy its conditions precedent to the Lease Effective Date set forth in Schedule 5.1) or the failure of Lessee to perform any of its obligations under this Facility Lease or any other Lease Document to which it is a party or due to an Excused Event, then within ninety (90) days after the Required Lease Effective Date, Lessor may deliver to Lessee written notice of its election to terminate this Facility Lease (the “Lessor Termination Notice”) or to continue this Facility Lease (the “Lessor Continuation Notice”). (b) If Lessor elects to terminate this Facility Lease pursuant to Section 5.4(a), then Lessor shall specify in the Lessor Termination Notice (i) the conditions precedent to the Lease Effective Date that Lessor believes have not been satisfied, (ii) the date on which this Facility Lease shall terminate (the “Lessor Termination Date”), provided that the Lessor Termination Date shall not be earlier than the date that is one hundred eighty (180) days after the Required Lease Effective Date, and (iii) whether Lessor elects to retain or sell the Leased Facility to Lessee. (c) If Lessor elects to terminate this Facility Lease and to sell the Leased Facility to Lessee pursuant to Section 5.4(a), then Lessee shall purchase the Leased Facility and shall pay the Purchase Price to or for the account of Lessor, subject to Section 5.6(d), on the Lessor Termination Date as Lessor shall direct in writing in immediately available funds in Dollars and this Facility Lease shall terminate on the Lessor Termination Date in accordance with Section 5.6. (d) If Lessor elects to terminate this Facility Lease and to retain the Leased Facility pursuant to Section 5.4(a), then Lessee shall pay the amount of the Pre-Termination Pre-CPCN Expenses less the Major Equipment Procurement Pre-CPCN Expenses to or for the account of Lessor on the Lessor Termination Date as Lessor shall direct in writing in immediately available funds in Dollars and this Facility Lease shall terminate on the Lessor Termination Date in accordance with Section 5.6. (e) If Lessor elects to continue this Facility Lease pursuant to Section 5.4(a) and provided that Lessor has secured a Completeness Determination from the PSCW (a copy of which Lessor has included in the Lessor Continuation Notice) then: (i) Lessor shall specify in the Lessor Continuation Notice the date on which the Lease Effective Date shall be deemed to have occurred (the “Lessor Deemed Lease Effective Date”), provided that the Lessor Deemed Lease Effective Date shall not be more than thirty (30) days after the date of the Lessor Continuation Notice; and (ii) the provisions of the first sentence of Section 5.1 shall apply. (f) In the event that Lessor fails to timely deliver either the Lessor Termination Notice or the Lessor Continuation Notice within ninety (90) days after the Required Lease Effective Date in accordance with Section 5.4(a), then this Facility Lease will automatically terminate on the date that is one hundred eighty (180) days after the Required Lease Effective Date and Lessor shall be deemed to have elected to sell the Leased Facility in accordance with Section 5.4(c). Notwithstanding any other provision of this Section 5.4 or any notice provided by Lessor, in the event that the conditions precedent to the Lease Effective Date have been satisfied in accordance with the terms and conditions of this Facility Lease prior to any termination date provided for in this Section 5.4, then the Lessor Termination Notice and the first sentence of this Section 5.4(f) shall automatically be revoked and the provisions of the first sentence of Section 5.1 shall apply.

Lessee’s Failure to Achieve the Lease Effective Date. (a) If the Lease Effective Date has not occurred by the Required Lease Effective Date due to the acts or omissions of Lessee (including the failure of Lessee to satisfy its conditions precedent to the Lease Effective Date set forth in Schedule 5.1) or the failure of Lessee to perform any of its obligations under this Facility Lease or any other Lease Document to which it is a party or due to an Excused Event, then within ninety (90) days after the Required Lease Effective Date, Lessor may deliver to Lessee written notice of its election to terminate this Facility Lease (the “"Lessor Termination Notice”") or to continue this Facility Lease (the “"Lessor Continuation Notice”"). (b) If Lessor elects to terminate this Facility Lease pursuant to Section 5.4(a), then Lessor shall specify in the Lessor Termination Notice (i) the conditions precedent to the Lease Effective Date that Lessor believes have not been satisfied, (ii) the date on which this Facility Lease shall terminate (the “"Lessor Termination Date”"), provided that the Lessor Termination Date shall not be earlier than the date that is one hundred eighty (180) days after the Required Lease Effective Date, and (iii) whether Lessor elects to retain or sell the Leased Facility Unit 1 to Lessee. (c) If Lessor elects to terminate this Facility Lease and to sell the Leased Facility Unit 1 to Lessee pursuant to Section 5.4(a), then Lessee shall purchase the Leased Facility Unit 1 and shall pay the Purchase Price plus the Damages Amount to or for the account of Lessor, subject to Section 5.6(d5.6(f), on the Lessor Termination Date as Lessor shall direct in writing in immediately available funds in Dollars and this Facility Lease shall terminate on the Lessor Termination Date in accordance with Section 5.6. (d) If Lessor elects to terminate this Facility Lease and to retain the Leased Facility Unit 1 pursuant to Section 5.4(a), then Lessee shall pay the amount of the Pre-Termination Pre-CPCN Expenses less the Major Equipment Procurement Pre-CPCN Expenses to or for the account of Lessor on the Lessor Termination Date as Lessor shall direct in writing in immediately available funds in Dollars and this Facility Lease shall terminate on the Lessor Termination Date in accordance with Section 5.6. (e) If Lessor elects to continue this Facility Lease pursuant to Section 5.4(a) and provided that Lessor has secured a Completeness Determination from the PSCW (a copy of which Lessor has included in the Lessor Continuation Notice) then: (i) Lessor shall specify in the Lessor Continuation Notice the date on which the Lease Effective Date shall be deemed to have occurred (the “"Lessor Deemed Lease Effective Date”"), provided that the Lessor Deemed Lease Effective Date shall not be more than thirty (30) days after the date of the Lessor Continuation Notice; and (ii) the provisions of the first sentence of Section 5.1 shall apply. (f) In the event that Lessor fails to timely deliver either the Lessor Termination Notice or the Lessor Continuation Notice within ninety (90) days after the Required Lease Effective Date in accordance with Section 5.4(a), then this Facility Lease will automatically terminate on the date that is one hundred eighty (180) days after the Required Lease Effective Date and Lessor shall be deemed to have elected to sell the Leased Facility Unit 1 in accordance with Section 5.4(c). Notwithstanding any other provision of this Section 5.4 or any notice provided by Lessor, in the event that the conditions precedent to the Lease Effective Date have been satisfied in accordance with the terms and conditions of this Facility Lease prior to any termination date provided for in this Section 5.4, then the Lessor Termination Notice and the first sentence of this Section 5.4(f) shall automatically be revoked and the provisions of the first sentence of Section 5.1 shall apply.

Lessee’s Failure to Achieve the Lease Effective Date. (a) If the Lease Effective Date has not occurred by the Required Lease Effective Date due to the acts or omissions of Lessee (including the failure of Lessee to satisfy its conditions precedent to the Lease Effective Date set forth in Schedule 5.1) or the failure of Lessee to perform any of its obligations under this Facility Lease or any other Lease Document to which it is a party or due to an Excused Event, then within ninety (90) days after the Required Lease Effective Date, Lessor may deliver to Lessee written notice of its election to terminate this Facility Lease (the “"Lessor Termination Notice”") or to continue this Facility Lease (the “"Lessor Continuation Notice”"). (b) If Lessor elects to terminate this Facility Lease pursuant to Section 5.4(a), then Lessor shall specify in the Lessor Termination Notice (i) the conditions precedent to the Lease Effective Date that Lessor believes have not been satisfied, (ii) the date on which this Facility Lease shall terminate (the “"Lessor Termination Date”"), provided that the Lessor Termination Date shall not be earlier than the date that is one hundred eighty (180) days after the Required Lease Effective Date, and (iii) whether Lessor elects to retain or sell the Leased Facility Unit 2 to Lessee. (c) If Lessor elects to terminate this Facility Lease and to sell the Leased Facility Unit 2 to Lessee pursuant to Section 5.4(a), then Lessee shall purchase the Leased Facility Unit 2 and shall pay the Purchase Price plus the Damages Amount to or for the account of Lessor, subject to Section 5.6(d5.6(f), on the Lessor Termination Date as Lessor shall direct in writing in immediately available funds in Dollars and this Facility Lease shall terminate on the Lessor Termination Date in accordance with Section 5.6. (d) If Lessor elects to terminate this Facility Lease and to retain the Leased Facility Unit 2 pursuant to Section 5.4(a), then Lessee shall pay the amount of the Pre-Termination Pre-CPCN Expenses less the Major Equipment Procurement Pre-CPCN Expenses to or for the account of Lessor on the Lessor Termination Date as Lessor shall direct in writing in immediately available funds in Dollars and this Facility Lease shall terminate on the Lessor Termination Date in accordance with Section 5.6. (e) If Lessor elects to continue this Facility Lease pursuant to Section 5.4(a) and provided that Lessor has secured a Completeness Determination from the PSCW (a copy of which Lessor has included in the Lessor Continuation Notice) then: (i) Lessor shall specify in the Lessor Continuation Notice the date on which the Lease Effective Date shall be deemed to have occurred (the “"Lessor Deemed Lease Effective Date”"), provided that the Lessor Deemed Lease Effective Date shall not be more than thirty (30) days after the date of the Lessor Continuation Notice; and (ii) the provisions of the first sentence of Section 5.1 shall apply. (f) In the event that Lessor fails to timely deliver either the Lessor Termination Notice or the Lessor Continuation Notice within ninety (90) days after the Required Lease Effective Date in accordance with Section 5.4(a), then this Facility Lease will automatically terminate on the date that is one hundred eighty (180) days after the Required Lease Effective Date and Lessor shall be deemed to have elected to sell the Leased Facility Unit 2 in accordance with Section 5.4(c). Notwithstanding any other provision of this Section 5.4 or any notice provided by Lessor, in the event that the conditions precedent to the Lease Effective Date have been satisfied in accordance with the terms and conditions of this Facility Lease prior to any termination date provided for in this Section 5.4, then the Lessor Termination Notice and the first sentence of this Section 5.4(f) shall automatically be revoked and the provisions of the first sentence of Section 5.1 shall apply.