Occurrence of Events of Loss. (a) Each of the Owner Participant and the Owner Lessor will promptly notify the Facility Lessee of any event of which it is aware that would result in a Regulatory Event of Loss; PROVIDED, HOWEVER, that the failure to provide such notice shall not result in any liability with respect to the Owner Participant or the Owner Lessor and shall not in any way relieve the Facility Lessee of any of its obligations under this Facility Lease, including the obligations under this SECTION 10. The Facility Lessee shall promptly notify each other Lease Financing Party of any Event of Loss. (b) If an Event of Loss described in clauses (i), (ii) or (iii) of the definition of Event of Loss shall occur, then the Facility Lessee shall rebuild or replace the Facility in accordance with this Facility Lease and the other Operative Documents and subject to the Rebuild Conditions; PROVIDED THAT in the event that any such Event of Loss occurs after the last day upon which the Facility Lessee may exercise a renewal right under this Facility Lease pursuant to SECTION 15.1, (i) the Lease Term shall be automatically extended for such period of time as is reasonably necessary for the Facility Lessee to complete any rebuilding or replacement required hereunder, (ii) the Facility Lessee shall pay as Renewal Rent during any such extended term an amount, payable monthly in arrears, equal to the average monthly Rent paid during the Basic Lease Term or Renewal Term, as the case may be, then being extended, and (iii) the Termination Value during such extended term shall be the Termination Value as of the end of the Facility Lease Term without giving effect to any such extension. The Facility Lessee shall have the right, in lieu of rebuilding or replacing the Facility, to terminate this Facility Lease and purchase the Undivided Interest from the Owner Lessor by paying to the Owner Lessor an amount equal to the Termination Value and paying to the parties entitled thereto all other amounts payable pursuant to SECTION 10.2; PROVIDED THAT the Facility Lessee shall give irrevocable written notice of its election to terminate the Facility Lease not later than six (6) months after such Event of Loss. (c) In the event of a Regulatory Event of Loss or an Event of Loss described in clause (v) of the definition of Event of Loss, the Facility Lessee shall use commercially reasonable efforts to obtain bids from third parties unaffiliated with the Facility Lessee and sell the Owner Lessor's interest following such Event of Loss, subject to SECTION 10.2(B) hereof.
Appears in 3 contracts
Samples: Facility Lease Agreement (Eme Homer City Generation Lp), Facility Lease Agreement (Eme Homer City Generation Lp), Facility Lease Agreement (Eme Homer City Generation Lp)
Occurrence of Events of Loss. (a) Each of the Owner Participant and the Owner Lessor The Facility Lessee will promptly notify the Owner Lessor and, so long as the Lien of the Lease Indenture shall not have been terminated or discharged, the Lease Indenture Trustee of any damage to, or other event with respect to, any portion of the Facility which the Facility Lessee of any event of which it is aware that would result in a Regulatory reasonably anticipates will cause an Event of Loss; PROVIDED, HOWEVER, that the failure to provide such notice shall not result in any liability with respect to the Owner Participant or the Owner Lessor and shall not in any way relieve the Facility Lessee of any of its obligations under this Facility Lease, including the obligations under this SECTION 10. The Facility Lessee shall promptly notify each other Lease Financing Party of any Event of Loss.
(b) If an Event of Loss described in clauses (i), (ii) or (iii) of the definition of Event of Loss shall occur, then no later than eighteen months following such occurrence, the Facility Lessee shall notify the Owner Lessor and, so long as the Lien of the Lease Indenture shall not have been terminated or discharged, the Lease Indenture Trustee, in writing of its election to either (a) subject to the satisfaction of the conditions set forth in Section 10.3(a), rebuild or replace the Facility in accordance with or a Relevant Portion of the Facility or (b) terminate this Facility Lease and the other Operative Documents and subject Lease, in whole or in part with respect to the Rebuild Conditions; PROVIDED THAT in Facility or a Relevant Portion of the event that any such Event of Loss occurs after the last day upon which the Facility Lessee may exercise a renewal right under this Facility Lease pursuant to SECTION 15.1, (i) the Lease Term shall be automatically extended for such period of time as is reasonably necessary for the Facility Lessee to complete any rebuilding or replacement required hereunder, (ii) the Facility Lessee shall pay as Renewal Rent during any such extended term an amount, payable monthly in arrears, equal to the average monthly Rent paid during the Basic Lease Term or Renewal TermFacility, as the case may be, then being extendedby electing to effect an Early Buy Out pursuant to Section 15.1 hereof; provided, and however, that the Facility Lessee may only elect to terminate the Facility Lease in part with respect to a Relevant Portion of the Facility to the extent that the remaining Units subject to the Facility Lease continue to be (iiior will be, after repairing in accordance with this Facility Lease any damage to such remaining Units which may have occurred as a result of the Event of Loss to a Relevant Portion of the Facility to which such partial termination relates) commercially viable in accordance with Prudent Industry Practice. Subject to the Termination Value during such extended term last sentence of Section 15.1, the Facility Lessee may elect the option provided in clause (b) of the preceding sentence regardless of whether a Relevant Portion of the Facility is to be rebuilt or replaced. If the Facility Lessee fails to make an election as provided above, an Event of Loss shall be deemed to occur with respect to the Termination Value Facility or, if the Event of Loss relates to less than all of the Units, a Relevant Portion of the Facility, as of the end of the Facility Lease Term without giving effect eighteen-month period referred to any such extension. The in the second sentence of this Section 10.1 and the Facility Lessee shall will be deemed to have made the right, in lieu of rebuilding or replacing the Facility, election to terminate this Facility Lease and purchase Lease, in whole or in part, as the Undivided Interest from the Owner Lessor case may be, by paying to the Owner Lessor an amount equal to the Termination Value and paying to the parties entitled thereto all other amounts payable exercising its Early Buy Out pursuant to SECTION 10.2; PROVIDED THAT the Facility Lessee shall give irrevocable written notice of its election Section 15.2 and will be deemed to terminate the Facility Lease not later than six (6) months after such Event of Loss.
(c) In the event of a Regulatory Event of Loss or have delivered an Event of Loss described in clause (v) Early Buy Out Notice pursuant to Section 15.2 as of the definition end of Event of Loss, the Facility Lessee shall use commercially reasonable efforts to obtain bids from third parties unaffiliated with the Facility Lessee and sell the Owner Lessor's interest following such Event of Loss, subject to SECTION 10.2(B) hereofeighteen-month period.
Appears in 2 contracts
Samples: Facility Lease Purchase Agreement (Tennessee Valley Authority), Facility Lease Purchase Agreement (Tennessee Valley Authority)
Occurrence of Events of Loss. (a) Each of the Owner Participant and the The Owner Lessor will promptly notify notify, or will cause the Facility Equity Investor to promptly notify, the Lessee upon obtaining Actual Knowledge of any event that upon election of which it is aware that the Equity Investor would result in a Regulatory Event of Loss; PROVIDED, HOWEVER, provided that the failure to provide deliver such notice shall not result in any liability with respect to the Owner Participant Lessor or the Owner Lessor and shall not in any way relieve the Facility Lessee of any of its obligations under this Facility Lease, including the obligations under this SECTION 10Equity Investor. The Facility Lessee shall promptly notify each other Lease Financing Party of any Event of Loss.
(b) If an Event of Loss described in clauses clause (a) or (b) of the definition of such term shall occur or an event shall occur which could become an Event of Loss as described in clause (c) of such term, then the Lessee shall promptly notify the Owner Lessor and, so long as the Lien of the Indenture shall not have been terminated and fully discharged, the Indenture Trustee of the occurrence thereof. In the case of an Event of Loss described in clause (a) or (b) of the definition thereof, the Lessee may elect to rebuild or replace the damaged Project, provided (i) no Lease Default or Lease Event of Default has occurred and is continuing (other than any Lease Default or Lease Event of Default that would be cured by such rebuilding), (ii) notice of such election has been given to the Owner Lessor and, so long as the Lien of the Indenture shall not have been terminated and fully discharged, the Indenture Trustee within 30 days of the date of the occurrence of the Event of Loss and (iii) the conditions set forth in Section 10.3(a) shall have been satisfied. If the Lessee fails to duly satisfy the conditions set forth in Section 10.3(a), the Lessee will be deemed to have made the election to terminate this Project Lease pursuant to Section 10.1(b) as of the end of the 30 day period referred to in the previous paragraph. If the Lessee satisfies the conditions in Section 10.3(a), but fails to satisfy the conditions in Section 10.3(b), (c) or (iiid), the Lessee will be deemed to have elected the termination option as of the last day of the month in which the Owner Lessor has given notice of such failure.
(b) If (i) an Event of Loss described in clause (a) or (b) of the definition of such term shall have occurred and the Lessee shall have elected (or shall be deemed to have elected) not to rebuild or replace the Project pursuant to Section 10.1(a) hereof, or (ii) an Event of Loss described in clause (c) of the definition of Event of Loss shall occur, then the Facility Lessee shall rebuild occur or replace the Facility in accordance with this Facility Lease and the other Operative Documents and subject to the Rebuild Conditions; PROVIDED THAT in the event that any such Event of Loss occurs after the last day upon which the Facility Lessee may exercise a renewal right under this Facility Lease pursuant to SECTION 15.1, (i) the Lease Term shall be automatically extended for such period of time as is reasonably necessary for the Facility Lessee to complete any rebuilding or replacement required hereunder, (ii) the Facility Lessee shall pay as Renewal Rent during any such extended term an amount, payable monthly in arrears, equal to the average monthly Rent paid during the Basic Lease Term or Renewal Term, as the case may be, then being extended, and (iii) the Termination Value during such extended term shall be the Termination Value as of the end of the Facility Lease Term without giving effect to any such extension. The Facility Lessee shall have the right, in lieu of rebuilding or replacing the Facility, to terminate this Facility Lease and purchase the Undivided Interest from the Owner Lessor by paying to the Owner Lessor an amount equal to the Termination Value and paying to the parties entitled thereto all other amounts payable pursuant to SECTION 10.2; PROVIDED THAT the Facility Lessee shall give irrevocable written notice of its election to terminate the Facility Lease not later than six (6) months after such Event of Loss.
(c) In the event of a Regulatory Event of Loss shall occur, then, (x) in the case of clause (i) above, on the next Termination Date occurring at least 30 days after such election or deemed election or (y) in the case of clause (ii) above, on the Termination Date next occurring (1) at least six months after the occurrence of such Event of Loss or (2) if earlier, at least 30 days after receipt of Casualty Insurance Proceeds or Requisition Proceeds in respect of such Event of Loss, or (z) in the case of clause (iii) above, on the Termination Date next occurring at least three months after the occurrence of such Regulatory Event of Loss the Lessee shall terminate this Project Lease. In connection with any such termination arising as a result of an Event of Loss described in clause (va), (b) or (c) of the definition thereof, if the Lessee shall have elected not to rebuild or replace the Project, the Owner Lessor may elect to retain the Project and pay the outstanding principal and accrued and unpaid interest on the Senior Notes; provided however, that if the Owner Lessor elects to retain the Project it shall notify the Lessee at least 30 days prior to such Termination Date and shall deliver to the Indenture Trustee a letter of credit of an Acceptable Letter of Credit Provider with a maximum drawing amount equal to not less than the principal and interest which would be payable on the Senior Notes. If the Owner Lessor elects to retain the Project as provided above, then the Lessee shall, on such Termination Date, pay to the Owner Lessor (A) all amounts of any unpaid Periodic Lease Rent and Renewal Lease Rent due on or before such Termination Date, plus (B) all amounts of Supplemental Lease Rent (including reasonable documented out-of-pocket costs and expenses incurred in connection with such Event of LossLoss by the Owner Lessor, the Facility Equity Investor, and the Indenture Trustee) due and payable on or before such Termination Date. If the Owner Lessor fails to elect to retain the Project as provided above, Lessee shall use commercially reasonable efforts offer (and unless the Lessor elects to obtain bids from third parties unaffiliated with retain the Facility Lessee and sell Project, such offer shall be deemed accepted) to purchase, subject to the rights of any insurers under policies maintained by the Lessee, on such Termination Date the Owner Lessor's interest following Leasehold Interest by paying or causing to be paid (1) the Termination Value determined as of such Termination Date, plus (2) any unpaid Periodic Lease Rent and Renewal Lease Rent due on or before such Termination Date, plus (3) all other Supplemental Lease Rent (including reasonable documented out-of-pocket costs and expenses incurred in connection with such Event of LossLoss by the Owner Lessor, subject the Equity Investor and the Indenture Trustee) due and payable on or prior to SECTION 10.2(Bsuch Termination Date. Upon the payment of all sums required to be paid pursuant to this Section 10.1(b), (i) hereofAllocated Rent shall cease to accrue and the obligation to pay Periodic Lease Rent or Renewal Lease Rent shall cease, (ii) the Lessee shall cease to have any other liability to the Owner Lessor, the Equity Investor, or the Indenture Trustee except for Supplemental Lease Rent and other obligations (including those under Sections 9.1 and 9.2 of the Participation Agreement and the Tax Indemnity Agreement) surviving pursuant to the express terms of any Operative Document, (iii) the Owner Lessor shall pay the outstanding principal and accrued and unpaid interest on the Senior Notes, (iv) this Project Lease, the Head Lease, the Sublease of the Power Plant Sublease and the Real Estate Documents related thereto shall terminate, (v) the Owner Lessor shall, at the Lessee's cost and expense, execute and deliver to the Lessee a release and termination of this Project Lease, the Head Lease, the Sublease of the Power Plant Sublease and the Real Estate Documents related thereto, (vi) the Owner Lessor shall transfer (by an appropriate instrument of transfer in form and substance reasonably satisfactory to the Owner Lessor and prepared by and at the expense of the Lessee) the Owner Lessor's Leasehold Interest to the Lessee on an "as is, where is" and "with all faults" basis, without representations or warranties other than a warranty as to the absence of Owner Lessor's Liens and a warranty of the Equity Investor as to the absence of Equity Investor's Liens and (vii) the Owner Lessor shall use all reasonable efforts to cause the Indenture Trustee to discharge the Lien of the Indenture and shall execute and deliver appropriate releases and other documents or instruments necessary or desirable to effect the foregoing, all to be prepared, filed and recorded (as appropriate) at the cost and expense of the Lessee.
Appears in 2 contracts
Samples: Project Lease Agreement (Ormat Technologies, Inc.), Project Lease Agreement (Ormat Technologies, Inc.)
Occurrence of Events of Loss. (a) Each The Owner Participant will promptly notify, or will cause the Owner Lessor to promptly notify, the Facility Lessee upon obtaining Actual Knowledge of any event that upon election of the Owner Participant and the Owner Lessor will promptly notify the Facility Lessee of any event of which it is aware that would result in a Regulatory Event of Loss; PROVIDED, HOWEVER, provided that the failure to provide deliver such notice shall not result in any liability with respect to the Owner Participant Lessor or the Owner Lessor and shall not in any way relieve the Facility Lessee of any of its obligations under this Facility Lease, including the obligations under this SECTION 10Participant. The Facility Lessee shall promptly notify each other Lease Financing Party of any Event of Loss.
(b) If an Event of Loss described in clauses (i), (iia) or (iiib) of the definition of Event of Loss shall occuroccur with respect to any Unit, then the Facility Lessee shall rebuild promptly notify the Owner Lessor, the Owner Participant and, so long as the Lien of the Lease Indenture shall not have been terminated or replace discharged, the Lease Indenture Trustee of the occurrence thereof and no later than nine months following such occurrence the Facility in accordance with this Facility Lessee shall notify the Owner Lessor, the Owner Participant and, so long as the Lien of the Lease Indenture shall not have been terminated or discharged, the Lease Indenture Trustee and the Pass Through Trustees in writing of its election to either:
(i) if no Lease Event of Default (other Operative Documents than any Lease Event of Default under Section 16(c) or Section 16(d) (to the extent such Lease Event of Default occurs as a result of the Facility Lessee's failure to observe or perform its obligations under Section 7, 8 or 11 hereof, Section 5.3 of the Site Lease or Section 5.2 of the Site Sublease), in each case arising as a result of such Event of Loss) has occurred and is continuing and subject to the Rebuild Conditions; PROVIDED THAT satisfaction of the conditions set forth in Section 10.3(a) and (b), rebuild or replace such Unit and so that the event rebuilt or replacement unit shall have a current and residual value, remaining useful life and utility at least equal to that any of such Unit prior to such Event of Loss occurs after (assuming such Unit was then in the last day upon which condition and repair required to be maintained by this Facility Lease) and such rebuilding or replacement will not result in the Facility being "limited use property" within the meaning of Rev. Proc. 75-28, 1975-1 C.B. 752 or Rev. Proc. 76-30, 1976-2 C.B. 647), or
(ii) terminate this Facility Lease with respect to such Unit pursuant to Section 10.2 hereof. If the Facility Lessee may exercise a renewal right under this Facility Lease pursuant fails to SECTION 15.1make an election as provided above, (i) the Lease Term shall be automatically extended for such period of time as is reasonably necessary for or if the Facility Lessee elects to complete any rebuilding or replacement required hereunder, (iirebuild the Unit as aforesaid but fails to duly satisfy the conditions set forth in Section 10.3(a) the Facility Lessee shall pay will be deemed to have made the election to terminate this Facility Lease with respect to such Unit pursuant to Section 10.2. as Renewal Rent during any such extended term of the end of the nine-month period referred to in the second sentence of this Section 10.1(a). If the Facility Lessee makes an amountelection to rebuild as provided above and satisfies the conditions in Section 10.3(a), payable monthly but fails to satisfy the conditions in arrearsSection 10.3(b) or (c), equal the Facility Lessee will be deemed to have elected the average monthly Rent paid during termination option as of the Basic Lease Term last day of the period by which the rebuild is to commence specified in Section 10.3(b) or Renewal Termthe period for completion specified in Section 10.3(c), as the case may be. If an Event of Loss shall occur with respect to only one Unit at a time when both Units are subject to this Facility Lease, then being extended, and (iii) the Termination Value during such extended term shall be the Termination Value as of the end of unless the Facility Lease Term without giving effect Lessee has duly elected to any rebuild or replace such extension. The Facility Lessee shall have the rightUnit, in lieu of rebuilding or replacing the Facility, to terminate this Facility Lease and purchase the Undivided Interest from the Owner Lessor by paying to the Owner Lessor an amount equal to the Termination Value and paying to the parties entitled thereto all other amounts payable pursuant to SECTION 10.2; PROVIDED THAT the Facility Lessee shall give irrevocable written notice of its election to terminate the Facility Lease not later than six the date that is 25 days prior to the date Termination Value with respect to such Unit is payable hereunder, deliver to the Owner Participant a report of the Engineering Consultant or another independent engineer selected by the Facility Lessee, such other engineer and such report to be reasonably satisfactory to the Owner Participant to the effect that operation of the remaining Unit (6) months after such without the Unit which suffered the Event of Loss) is technologically feasible and economically viable. If the Facility Lessee fails to deliver such report by the date specified in the preceding sentence, an Event of Loss shall be deemed to have occurred with respect to such Unit as of such date.
(cb) In the event of a Regulatory Event of Loss or If (x) an Event of Loss described in clause (va) or (b) of the definition of Event of Loss shall have occurred with respect to any Unit and the Facility Lessee shall have elected (or shall be deemed to have elected) not to rebuild or replace such Unit pursuant to Section 10.1(a) hereof or an Event of Loss shall be deemed to have occurred pursuant to the last sentence of Section 10.1(a), or (y) an Event of Loss described in clause (c) of the definition of Event of Loss shall occur with respect to any Unit, then, (A) in the case of clause (x) above, on the Termination Date next occurring after the earlier of (1) the day that is 30 days after the date of such election or deemed Event of Loss or (2) the last day of the nine-month period referred to in the second sentence of Section 10.1(a), or (B) in the case of clause (y) above, on the Termination Date next occurring (1) at least three months after the occurrence of such Event of Loss or (2) if earlier, at least one month after receipt of insurance proceeds in respect of such Event of Loss, the Facility Lessee shall terminate the Facility Lease with respect to such Unit. In connection with any such termination, the Owner Lessor may (i) tender the affected Unit or Units to the Facility Lessee in return for Termination Value with respect to such Unit or Units determined as of the relevant Termination Date, (ii) retain such Unit or Units, or (iii) sell or otherwise convey such Unit or Units to a third party; provided, however, that in the case of an Event of Loss described in clauses (a), (b) or (c) of the definition of Event of Loss, the Owner Lessor may only elect to retain, sell or convey such Unit or Units pursuant to clause (ii) or (iii) if it notifies the Facility Lessee and the Lease Indenture Trustee at least 25 days prior to such Termination Date and provides the Facility Lessee with adequate financial assurance (which shall be reasonably satisfactory to the Facility Lessee) that the Owner Lessor will pay the Unit Principal Portion of such Unit, together with accrued interest thereon, and any other amounts payable by the Owner Lessor pursuant to Section 10.2(a); provided, further, the Facility Lessee shall have a right of first refusal with respect to any sale or other conveyance pursuant to clause (iii) above; and provided, further, that prior to any sale or conveyance to any third party pursuant to clause (iii) above, the Owner Lessor shall have given the applicable notice, if any, required by the Exempt Facilities Agreement or obtained a waiver thereof. If the Owner Lessor fails to make an election as provided above, the Owner Lessor will be deemed to have made the election specified in clause (i) above.
(c) If an Event of Loss described in clause (d) of the definition of Event of Loss shall have occurred, then the Facility Lessee shall, as non- exclusive agent for the Owner Lessor, use commercially reasonable efforts to obtain cash bids from third parties unaffiliated for the Owner Lessor's Interest. In connection with such Regulatory Event of Loss, the Facility Lessee may, but shall be under no obligation to, make an offer to purchase the Facility and shall have a right of first refusal with respect to any offer received. Neither the Owner Participant or any Affiliate thereof nor the Owner Lessor may purchase the Owner Lessor's Interest in connection with any termination pursuant to this Section 10.1(c). If at least one cash bid is received on or prior to the next Termination Date occurring at least three months after the occurrence of such Regulatory Event of Loss, the Facility Lease shall terminate on such Termination Date and the Owner Lessor shall, subject to the Facility Lessee's right of first refusal, sell the Owner Lessor's interest following Interest to the party that submitted the highest cash bid on an "as is", "where is" and "with all faults" basis, without representations or warranties other than a warranty as to the absence of Owner Lessor's Liens and a warranty of the Owner Participant as to the absence of Owner Participant's Liens, all of the proceeds of which will be for the account of the Owner Lessor; and the Facility Lessee shall pay (i) the amount, if any, by which the Termination Value determined as of the Termination Date exceeds the sales price received by the Owner Lessor for the Owner Lessor's Interest (net of the fees, commissions and costs of any broker engaged by the Facility Lessee or any Affiliate thereof), plus (ii) any unpaid Periodic Lease Rent due before such Termination Date, plus (iii) all other Supplemental Lease Rent (including reasonable documented out-of-pocket costs and expenses of the Owner Participant, the Lease Indenture Trustee and the Pass Through Trustees, and all sales, use, stamp, ad valorem, rental, license, value added, property and other Taxes required to be indemnified by the Facility Lessee pursuant to Section 9.2 of the Participation Agreement associated with the exercise of the termination option pursuant to this Section 10.2) due and payable on or prior to such Termination Date, but shall not be required to pay Termination Value. Prior to any sale or conveyance to any third party pursuant to this Section 10.1(c), the Facility Lessee shall have given the applicable notice, if any, required by the Exempt Facilities Agreement or obtained a waiver thereof. If no cash bids are received on or prior to the next Termination Date occurring at least three months after the occurrence of such Regulatory Event of Loss or if any cash bids are received but no sale is consummated, the Facility Lessee shall pay (x) Termination Value as of such Termination Date, plus (y) any unpaid Periodic Lease Rent due before such Termination Date, plus (z) all other Supplemental Lease Rent (including reasonable documented out-of-pocket costs and expenses of the Owner Participant, the Lease Indenture Trustee and the Pass Through Trustees) due and payable on or prior to such Termination Date, and, upon payment of such amounts, (i) Allocated Rent shall cease to accrue and the obligation to pay Periodic Lease Rent and Renewal Lease Rent shall cease, (ii) this Facility Lease shall terminate other than, to the extent set forth in clause (iv)(B) below, the Facility Lessee's obligations under Sections 7, 8 and 11, (iii) if shutting down the Facility does not eliminate the burdensome regulation which gave the Owner Participant the right to declare the Regulatory Event of Loss, the Owner Lessor may exercise its rights under Section 2.6 of the Site Lease, and (iv) if shutting down the Facility eliminates the burdensome regulation which gave the Owner Participant the right to declare the Regulatory Event of Loss, (A) the Facility shall be shut down, (B) the Facility Lessee may, at its option, continue marketing the Owner Lessor's Interest for up to an additional three months (the "Extended Marketing Period") during which time, the ------------------------- Facility Lessee's obligation under Sections 7, 8 and 11 shall continue. If at least one offer is received prior to the end of the Extended Marketing Period, the Owner Lessor shall, subject to SECTION 10.2(Bthe Facility Lessee's right of first refusal, sell the Owner Lessor's Interest to the highest cash bidder on an "as is", "where is" and "with all faults" basis, without representations or warranties other than a warranty as to the absence of Owner Lessor's Liens and a warranty of the Owner Participant as to the absence of Owner Participant's Liens; the Facility Lessee shall pay all reasonable documented out-of-pocket costs and expenses of the Owner Participant, the Owner Lessor, the Lease Indenture Trustee and the Pass Through Trustees, and all sales, use, value added and other Taxes required to be indemnified by the Facility Lessee pursuant to Section 9.2 of the Participation Agreement associated with the sale and the Owner Lessor shall pay the net cash proceeds of the sale to the Facility Lessee to the extent of payments made by the Facility Lessee under clauses (x), (y) hereofand (z) above. If there is no Extended Marketing Period or no offers are received prior to the end of the Extended Marketing Period, the Owner Lessor may exercise its rights under Section 2.6 of the Site Lease. The Facility Lessee's obligations under Section 7, 8 and 11 shall terminate at the end of the Extended Marketing Period. Notwithstanding the foregoing provisions of this Section 10.1(c) in the case of a Regulatory Event of Loss, where the Facility is transferred to the Facility Lessee, (i) if the Facility Lessee (as its designee) shall have executed and delivered an assumption agreement to assume in full the Lessor Notes as permitted by and in accordance with Section 2.10(b) of the Lease Indenture, (ii) all other conditions contained in such Section 2.10(b) shall have been satisfied, and (iii) no Significant Lease Default or Lease Event of Default shall have occurred or be continuing after giving effect to such assumption, then, the obligation of the Facility Lessee to pay Termination Value shall be reduced by an amount equal to the outstanding principal amount of and accrued interest on the Lessor Notes so assumed by the Facility Lessee.
Appears in 2 contracts
Samples: Participation Agreement (Dynegy Danskammer LLC), Facility Lease Agreement (Dynegy Danskammer LLC)
Occurrence of Events of Loss. (a) Each of the Owner Participant and the Owner Lessor The Facility Lessee will promptly notify the Owner Lessor and, so long as the Lien of the Lease Indenture shall not have been terminated or discharged, the Lease Indenture Trustee of any damage to, or other event with respect to, any portion of the Facility which the Facility Lessee of any event of which it is aware that would result in a Regulatory reasonably anticipates will cause an Event of Loss; PROVIDED, HOWEVER, that the failure to provide such notice shall not result in any liability with respect to the Owner Participant or the Owner Lessor and shall not in any way relieve the Facility Lessee of any of its obligations under this Facility Lease, including the obligations under this SECTION 10. The Facility Lessee shall promptly notify each other Lease Financing Party of any Event of Loss.
(b) If an Event of Loss described in clauses (i), (ii) or (iii) of the definition of Event of Loss shall occur, then no later than eighteen months following such occurrence, the Facility Lessee shall notify the Owner Lessor and, so long as the Lien of the Lease Indenture shall not have been terminated or discharged, the Lease Indenture Trustee, in writing of its election to either (a) subject to the satisfaction of the conditions set forth in Section 10.3(a), rebuild or replace the Facility or a Relevant Portion of the Facility or (b) terminate this 12 Facility Lease, in accordance whole or in part with this Facility Lease and the other Operative Documents and subject respect to the Rebuild Conditions; PROVIDED THAT in Facility or a Relevant Portion of the event that any such Event of Loss occurs after the last day upon which the Facility Lessee may exercise a renewal right under this Facility Lease pursuant to SECTION 15.1, (i) the Lease Term shall be automatically extended for such period of time as is reasonably necessary for the Facility Lessee to complete any rebuilding or replacement required hereunder, (ii) the Facility Lessee shall pay as Renewal Rent during any such extended term an amount, payable monthly in arrears, equal to the average monthly Rent paid during the Basic Lease Term or Renewal TermFacility, as the case may be, then being extendedby electing to effect an Early Buy Out pursuant to Section 15.1 hereof; provided, and however, that the Facility Lessee may only elect to terminate the Facility Lease in part with respect to a Relevant Portion of the Facility to the extent that the remaining Units subject to the Facility Lease continue to be (iiior will be, after repairing in accordance with this Facility Lease any damage to such remaining Units which may have occurred as a result of the Event of Loss to a Relevant Portion of the Facility to which such partial termination relates) commercially viable in accordance with Prudent Industry Practice. Subject to the Termination Value during such extended term last sentence of Section 15.1, the Facility Lessee may elect the option provided in clause (b) of the preceding sentence regardless of whether a Relevant Portion of the Facility is to be rebuilt or replaced. If the Facility Lessee fails to make an election as provided above, an Event of Loss shall be deemed to occur with respect to the Termination Value Facility or, if the Event of Loss relates to less than all of the Units, a Relevant Portion of the Facility, as of the end of the Facility Lease Term without giving effect eighteen-month period referred to any such extension. The in the second sentence of this Section 10.1 and the Facility Lessee shall will be deemed to have made the right, in lieu of rebuilding or replacing the Facility, election to terminate this Facility Lease and purchase Lease, in whole or in part, as the Undivided Interest from the Owner Lessor case may be, by paying to the Owner Lessor an amount equal to the Termination Value and paying to the parties entitled thereto all other amounts payable exercising its Early Buy Out pursuant to SECTION 10.2; PROVIDED THAT the Facility Lessee shall give irrevocable written notice of its election Section 15.2 and will be deemed to terminate the Facility Lease not later than six (6) months after such Event of Loss.
(c) In the event of a Regulatory Event of Loss or have delivered an Event of Loss described in clause (v) Early Buy Out Notice pursuant to Section 15.2 as of the definition end of Event of Loss, the Facility Lessee shall use commercially reasonable efforts to obtain bids from third parties unaffiliated with the Facility Lessee and sell the Owner Lessor's interest following such Event of Loss, subject to SECTION 10.2(B) hereofeighteen-month period.
Appears in 1 contract
Samples: Facility Lease Purchase Agreement
Occurrence of Events of Loss. XXXXXXXXX FACILITY LEASE (L1) -----------------------------
(a) Each of the Owner Participant and the Owner Lessor will promptly notify the Facility Lessee of any event of which it is aware that would result in a Regulatory Event of Loss; PROVIDEDprovided, HOWEVERhowever, that the failure to provide such notice shall not result in any liability with respect to the Owner Participant or the Owner Lessor and shall not in any way relieve the Facility Lessee of any of its obligations under this Facility Lease, including the obligations under this SECTION Section 10. The Facility Lessee shall promptly notify ---------- each other Lease Financing Party of any Event of Loss.
(b) If an Event of Loss described in clauses (i), (ii) or (iiiii) of the definition of Event of Loss shall occur, then then, no later than six months following the date that the Facility Lessee has actual knowledge of such occurrence, the Facility Lessee shall notify the Owner Lessor and the other Lease Financing Parties of its election either to (1) rebuild or replace the Facility in accordance with the Operative Documents and the provisions of this Facility Lease and the other Operative Documents and subject to the Rebuild Conditions; PROVIDED THAT in the event that any such Event of Loss occurs after the last day upon which the Facility Lessee may exercise a renewal right under this Facility Lease pursuant to SECTION 15.1including Section 10.4, or (i2) the Lease Term shall be automatically extended for such period of time as is reasonably necessary for the Facility Lessee to complete any rebuilding or replacement required hereunder, (ii) the Facility Lessee shall pay as Renewal Rent during any such extended term an amount, payable monthly in arrears, equal to the average monthly Rent paid during the Basic Lease Term or Renewal Term, as the case may be, then being extended, and (iii) the Termination Value during such extended term shall be the Termination Value as of the end of the Facility Lease Term without giving effect to any such extension. The Facility Lessee shall have the right, in lieu of rebuilding or replacing the Facility, to terminate this Facility Lease and ------------ purchase the Undivided Interest from the Owner Lessor by paying to the Owner Lessor an amount equal to the applicable Termination Value and paying to the parties entitled thereto all other amounts payable pursuant to SECTION Section 10.2; PROVIDED THAT . ------------ The Facility Lessee may elect the option provided in clause (2) of the preceding sentence regardless of whether the Facility is to be rebuilt or replaced. If the Facility Lessee shall give irrevocable written notice of its fails to make an election to terminate the Facility Lease not later than six (6) months after such Event of Loss.
(c) In the event of a Regulatory Event of Loss or an Event of Loss described in clause (v) of the definition of Event of Lossas provided above, the Facility Lessee shall use commercially reasonable efforts will be deemed to obtain bids from third parties unaffiliated with have made the election to terminate this Facility Lessee and sell Lease pursuant to clause (2) of this Section 10.1(b) as of the Owner Lessor's interest following such Event end of Loss, subject the six month --------------- period referred to SECTION 10.2(B) hereof.in the first sentence of this Section 10.1(b). ---------------
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Occurrence of Events of Loss. The Facility Lessee will notify the Facility Lessor, the Owner Participant, the Lender and AMBAC of any damage to the Facility which the Facility Lessee reasonably anticipates may cause an Event of Loss described in clause (ai), (ii), (iii) Each or (v) of the definition of Event of Loss within 10 Business Days of such event. The Owner Participant and or the Owner Facility Lessor will promptly notify the Facility Lessee of any event of which it is aware that upon election of the Owner Participant would result in a Regulatory an Event of Loss described in clause (iv) of the definition of Event of Loss; PROVIDED, HOWEVER, that the failure to provide such notice shall not result in any liability with respect to the Owner Participant or the Owner Lessor and shall not in any way relieve the Facility Lessee of any of its obligations under this Facility Lease, including the obligations under this SECTION 10. The Facility Lessee shall promptly notify each other Lease Financing Party of any Event of Loss.
(b) If an Event of Loss described in clauses (i), (ii) or (iiiii) of the definition of Event of Loss shall occur, then no later than six months following such occurrence the Facility Lessee shall notify the Facility Lessor in writing of its election to either (a) if no Event of Default has occurred and is continuing and subject to the satisfaction of the conditions set forth in Section 10.3, rebuild or replace and restore the Facility in accordance with the provisions of the Rocky Mountain Agreements so that the Facility shall have a fair market value (present and residual), remaining useful life and utility at least equal to that of the Facility prior to such rebuilding, assuming the Facility was in the condition and repair required to be maintained by this Facility Lease and the other Operative Documents and subject to the Rebuild Conditions; PROVIDED THAT in the event that any such Event of Loss occurs after the last day upon which the Facility Lessee may exercise a renewal right under or (b) terminate this Facility Lease pursuant to SECTION 15.1, Section 10.2 hereof. The Facility Lessee may elect the option provided in clause (ib) of the Lease Term shall preceding sentence regardless of whether the Facility is to be automatically extended for such period of time as is reasonably necessary for rebuilt. If the Facility Lessee fails to complete any rebuilding or replacement required hereundermake an election as provided above, (ii) the Facility Lessee shall pay as Renewal Rent during any such extended term an amount, payable monthly in arrears, equal to the average monthly Rent paid during the Basic Lease Term or Renewal Term, as the case may be, then being extended, and (iii) the Termination Value during such extended term Event of Loss shall be the Termination Value deemed to occur as of the end of the Facility Lease Term without giving effect six month period referred to any such extension. The in the third sentence of this Section 10.1 and the Facility Lessee shall will be deemed to have made the right, in lieu of rebuilding or replacing the Facility, election to terminate this Facility Lease and purchase the Undivided Interest from the Owner Lessor by paying to the Owner Lessor an amount equal to the Termination Value and paying to the parties entitled thereto all other amounts payable pursuant to SECTION Section 10.2; PROVIDED THAT the Facility Lessee shall give irrevocable written notice of its election to terminate the Facility Lease not later than six (6) months after such Event of Loss.
(c) In the event of a Regulatory Event of Loss or an Event of Loss described in clause (v) of the definition of Event of Loss, the Facility Lessee shall use commercially reasonable efforts to obtain bids from third parties unaffiliated with the Facility Lessee and sell the Owner Lessor's interest following such Event of Loss, subject to SECTION 10.2(B) hereof.
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Occurrence of Events of Loss. (a) Each of the Owner Participant and the Owner Lessor will promptly notify the Facility Lessee of any event of which it is aware that would result in a Regulatory Event of Loss; PROVIDED, HOWEVER, that the failure to provide such notice shall not result in any liability with respect to the Owner Participant or the Owner Lessor and shall not in any way relieve the Facility Lessee of any of its obligations under this Facility Lease, including the obligations under this SECTION 10. The Facility Lessee shall promptly notify each other Lease Financing Party of any Event of Loss.
(b) If an Event of Loss described in clauses (ia), (iib) or (iiic) of the definition of Event of Loss shall occur, then the Facility Lessee shall (i) promptly notify the Owner Lessor, the Owner Trustee, the Owner Participant and, so long as the Lien of the Indenture shall not have been terminated or discharged, the Indenture Trustee of the occurrence thereof, and (ii) if no Significant Lease Default or Lease Event of Default has occurred and is continuing (other than any Significant Lease Default or Lease Event of Default that would be cured by such rebuilding) and subject to the satisfaction of the conditions set forth in Section 10.3(a), (b) and (e), rebuild or replace the Facility, so that the rebuilt or replacement facility as a whole shall have a current and residual value, remaining useful life and utility at least equal to that of the Facility in accordance with this Facility Lease and the other Operative Documents and subject as a whole, prior to the Rebuild Conditions; PROVIDED THAT in the event that any such Event of Loss occurs after the last day upon which (assuming the Facility Lessee may exercise a renewal right under was then in the condition required to be maintained by the terms of this Facility Lease pursuant to SECTION 15.1Lease), (i) the Lease Term shall be automatically extended for and such period of time as is reasonably necessary for the Facility Lessee to complete any rebuilding or replacement required hereunderwill not result in the Facility's being "limited use" property within the meaning of Revenue Procedure 2001-28, (ii) 2001-19 I.R.B. 1156 or Revenue Procedure 2001-29, 2001-19 I.R.B. 1160; provided that the Facility Lessee shall pay as Renewal Rent during any such extended term an amount, payable monthly in arrears, equal to the average monthly Rent paid during the Basic Lease Term or Renewal Term, as the case may be, then being extended, and (iii) the Termination Value during such extended term shall be the Termination Value as of the end of the Facility Lease Term without giving effect to any such extension. The Facility Lessee shall have the right, in lieu of rebuilding or replacing the Facility, to terminate this Facility Lease and purchase the Undivided Interest from the Owner Lessor by paying upon irrevocable notice given to the Owner Lessor an amount equal to the Termination Value and paying to the parties entitled thereto all other amounts payable pursuant to SECTION 10.2; PROVIDED THAT the Facility Lessee shall give irrevocable written notice of its election to terminate the Facility Lease not later than six twelve (612) months after such Event of LossLoss has occurred, to terminate this Facility Lease pursuant to Section 10.1(b) hereof. If the Lessee fails to duly satisfy the conditions set forth in Section 10.3(a), the Lessee will be deemed to have made the election to terminate this Facility Lease pursuant to Section 10.1(b) as of the end of the twelve-month period referred to in the previous sentence. If the Lessee satisfies the conditions in Section 10.3(a), but fails to satisfy the conditions in Section 10.3(b) or (c), the Lessee will be deemed to have elected the termination option as of the last day of the period by which the rebuilding or replacement is to commence specified in Section 10.3(b) or the period for completion specified in Section 10.3(c), as the case may be.
(ci) In the event of a Regulatory Event of Loss or If an Event of Loss described in clause (va), (b) or (c) of the definition of Event of Loss shall have occurred and the Lessee shall have elected (or shall be deemed to have elected) not to rebuild or replace the Facility pursuant to Section 10.1(a) hereof, then, (A) in the case of an Event of Loss described in clause (a) or (b) of the definition thereof, on the date set forth in the following clauses (ii), (iii) or (iv) or (B) in the case of an Event of Loss described in clause (c) of the definition thereof, on the Termination Date next occurring (1) at least three months after the occurrence of such Event of Loss or (2) if earlier, at least one month after receipt of insurance or Requisition proceeds in respect of such Event of Loss, the Facility Lessee shall terminate this Facility Lease.
(ii) In connection with any such termination in the case of an Event of Loss described in clause (a) or (b) of the definition thereof, the Owner Lessor may (A) tender the Facility to the Lessee, in which event the provisions of clauses (iii) and (iv) of this Section 10.1(b) shall apply, or (B) subject to prepayment by the Owner Lessor of the Notes and payment by the Owner Lessor to the Lessee on the Termination Date referred to in the next sentence of this Section 10.1(b)(ii) of the sum of any Overpayment of Basic Lease Rent as of such Termination Date plus, unless such Termination Date is a Basic Lease Rent Payment Date, any Interest on Prepaid Rent accrued and unpaid as of such Termination Date and the rights of any insurers under policies maintained by the Lessee and upon not less than 45 days' written notice to the Lessee, elect to retain the Owner Lessor's Interest. If the Owner Lessor makes the election described in clause (B) of the preceding sentence, the Lessee shall pay to the Owner Lessor on the next Termination Date occurring at least 30 days after such election (w) if such Termination Date is a Rent Payment Date, any Basic Lease Rent or Renewal Lease Rent due and payable on such Termination Date, plus (x) any unpaid Basic Lease Rent or Renewal Lease Rent due before such Termination Date, plus (y) any Underpayment of Basic Lease Rent as of such Termination Date, plus (z) all other Accrued Supplemental Lease Rent (including reasonable documented out-of-pocket costs and expenses of the Owner Lessor, the Owner Trustee, the Owner Participant, the Indenture Trustee and the Pass Through Trustee (excluding the fees and costs of any broker unless engaged by the Lessee on the Owner Lessor's behalf) associated with the exercise of the termination option pursuant to this Section 10.1(b)) due and payable on or prior to such Termination Date; upon payment of such amounts, this Facility Lease shall terminate with respect to the Facility.
(iii) In connection with any termination in the case of an Event of Loss described in clause (a) or (b) of the definition thereof with respect to which the Owner Lessor does not make the election to retain the Owner Lessor's Interest described in clause (B) of Section 10.1(b)(ii), the Lessee shall, as non-exclusive agent for the Owner Lessor and subject to the rights of any insurers under policies maintained by the Lessee, use commercially reasonable efforts to sell the Owner Lessor's Interest. In addition, the Lessee may, but shall be under no obligation to, make an offer to purchase the Owner Lessor's Interest and shall have a right of first refusal with respect to any offer received (pursuant to the terms and conditions set forth in Section 13.2 of the Participation Agreement, mutatis mutandis); provided that the Lessee reasonably demonstrates its ability to make such a purchase.
(A) If at least one cash bid is received on or prior to the next Termination Date occurring at least six months after the occurrence of such Event of Loss, this Facility Lease shall terminate on such Termination Date, and the Owner Lessor shall, subject to the Lessee's right of first refusal (pursuant to the terms and conditions set forth in Section 13.2 of the Participation Agreement, mutatis mutandis) and to the rights of any insurers under policies maintained by the Lessee, sell the Owner Lessor's Interest to the party that submitted the highest cash bid on an "as is", "where is" and "with all faults" basis, without representations or warranties other than a warranty as to the absence of Owner Trustee's Liens attributable to the Owner Lessor and a warranty of the Owner Participant as to the absence of Owner Participant's Liens, and all of the proceeds of such sale will be for the account of the Owner Lessor; and the Lessee shall pay (1) the amount, if any, by which the Termination Value determined as of the applicable Termination Date exceeds the sales price received by the Owner Lessor for the Owner Lessor's Interest (net of the fees, commissions and costs of any broker engaged by the Lessee or any Affiliate thereof), plus (2) if such Termination Date is a Rent Payment Date, any Basic Lease Rent or Renewal Lease Rent due and payable on such Termination Date, plus (3) any unpaid Basic Lease Rent or Renewal Lease Rent due before such Termination Date, plus (4) Accrued Supplemental Lease Rent (including reasonable documented out-of-pocket costs and expenses of the Owner Lessor, the Owner Trustee, the Owner Participant, the Indenture Trustee and the Pass Through Trustee, associated with the exercise of the termination option pursuant to this Section 10.1(b)) due and payable on or prior to such Termination Date.
(B) If (1) no cash bids are received on or prior to the next Termination Date occurring at least six months after the occurrence of such Event of Loss or (2) if any cash bids are received but no sale is consummated, the Lessee shall pay (w) Termination Value as of such Termination Date, plus (x) if such Termination Date is a Rent Payment Date, any Basic Lease Rent or Renewal Lease Rent due and payable on such Termination Date, plus (y) any unpaid Basic Lease Rent or Renewal Lease Rent due before such Termination Date, plus (z) all other Accrued Supplemental Lease Rent (including reasonable documented out-of-pocket costs and expenses of the Owner Lessor, the Owner Trustee, the Owner Participant, the Indenture Trustee and the Pass Through Trustee associated with the exercise of the termination option pursuant to this Section 10.1(b)) due and payable on or prior to such Termination Date, and, upon payment of such amounts, this Facility Lease shall terminate.
(v) If an Event of Loss described in clause (c) of the definition of Event of Loss shall have occurred, on the Termination Date described in clause (B) of Section 10.1(b)(i), the Lessee shall pay (w) Termination Value as of such Termination Date, plus (x) if such Termination Date is a Rent Payment Date, any Basic Lease Rent or Renewal Lease Rent due and payable on such Termination Date, plus (y) any unpaid Basic Lease Rent or Renewal Lease Rent due before such Termination Date, plus (z) all other Accrued Supplemental Lease Rent (including reasonable documented out-of-pocket costs and expenses of the Owner Lessor, the Owner Trustee, the Owner Participant, the Indenture Trustee and the Pass Through Trustee associated with the exercise of the termination option pursuant to this Section 10.1(b)) due and payable on or prior to such Termination Date, and, upon payment of such amounts, this Facility Lease shall terminate.
(i) If an Event of Loss described in clause (d) or (e) of the definition of Event of Loss shall have occurred, then the Lessee shall, as non-exclusive agent for the Owner Lessor, use commercially reasonable efforts to obtain cash bids from third parties unaffiliated for the Owner Lessor's Interest. In connection with such Event of Loss, the Lessee may, but shall be under no obligation to, make an offer to purchase the Facility Lessee and shall have a right of first refusal with respect to any offer received. Neither the Owner Participant or any Affiliate thereof nor the Owner Lessor may purchase the Owner Lessor's Interest in connection with such Event of Loss.
(ii) If at least one cash bid is received on or prior to the next Termination Date occurring at least three months after the occurrence of such Event of Loss, this Facility Lease shall terminate on such Termination Date and the Owner Lessor shall, subject to the Lessee's right of first refusal (pursuant to the terms and conditions set forth in Section 13.2 of the Participation Agreement, mutatis mutandis), sell the Owner Lessor's interest following Interest to the party that submitted the highest cash bid on an "as is", "where is" and "with all faults" basis, without representations or warranties other than a warranty as to the absence of Owner Trustee's Liens attributable to the Owner Lessor and a warranty of the Owner Participant as to the absence of Owner Participant's Liens, and all of the proceeds of such sale will be for the account of the Owner Lessor; and the Lessee shall pay (i) the amount, if any, by which the Termination Value determined as of the applicable Termination Date exceeds the sales price received by the Owner Lessor for the Owner Lessor's Interest (net of the fees, commissions and costs of any broker engaged by the Lessee or any Affiliate thereof), plus (ii) if such Termination Date is a Rent Payment Date, any Basic Lease Rent or Renewal Lease Rent due and payable on such Termination Date, plus (iii) any unpaid Basic Lease Rent or Renewal Lease Rent due before such Termination Date, plus (iv) all other Accrued Supplemental Lease Rent (including reasonable documented out-of-pocket costs and expenses of the Owner Lessor, the Owner Trustee, the Owner Participant, the Indenture Trustee and the Pass Through Trustee associated with the exercise of the termination option pursuant to this Section 10.1) due and payable on or prior to such Termination Date.
(iii) If no cash bids are received on or prior to the next Termination Date occurring at least three months after the occurrence of such Event of Loss or if any cash bids are received but no sale is consummated, the Lessee shall pay (w) Termination Value as of such Termination Date, plus (x) if such Termination Date is a Rent Payment Date, any Basic Lease Rent or Renewal Lease Rent due and payable on such Termination Date, plus (y) any unpaid Basic Lease Rent or Renewal Lease Rent due before such Termination Date, plus (z) all other Accrued Supplemental Lease Rent (including reasonable documented out-of-pocket costs and expenses of the Owner Lessor, the Owner Trustee, the Owner Participant, the Indenture Trustee and the Pass Through Trustee associated with the exercise of the termination option pursuant to this Section 10.1) due and payable on or prior to such Termination Date, and, upon payment of such amounts, (i) this Facility Lease shall terminate other than, to the extent set forth in clause (iii)(B) of this sentence, the Lessee's obligations under Sections 7, 8 and 11 hereof, (ii) if shutting down the Facility does not eliminate the circumstances which gave the Owner Participant the right to declare such Event of Loss, the Owner Lessor shall sell the Facility, subject to SECTION 10.2(Bthe Lessee's right of first refusal, and (iii) hereofif shutting down the Facility eliminates the circumstances which gave the Owner Participant the right to declare such Event of Loss, (A) the Facility shall be shut down and (B) the Lessee may, at its option, continue marketing the Owner Lessor's Interest for up to an additional three months (the "Extended Marketing Period") during which time, the Lessee's obligation under Sections 7, 8 and 11 hereof shall continue. If at least one cash bid is received prior to the end of the Extended Marketing Period, the Owner Lessor shall, subject to the Lessee's right of first refusal (pursuant to the terms and conditions set forth in Section 13.2 of the Participation Agreement, mutatis mutandis), sell the Owner Lessor's Interest to the highest cash bidder on an "as is", "where is" and "with all faults" basis, without representations or warranties other than a warranty as to the absence of Owner Trustee's Liens attributable to the Owner Lessor and a warranty of the Owner Participant as to the absence of Owner Participant's Liens; the Lessee shall pay, on an After-Tax Basis, all reasonable documented out-of-pocket costs and expenses of the Owner Participant, the Owner Lessor, the Owner Trustee, the Indenture Trustee and the Pass Through Trustee associated with the sale and the Owner Lessor shall pay the net cash proceeds of the sale to the Lessee to the extent of payments made by the Lessee under clauses (w) and (z) above (but in the case of clause (z), only to the extent of payments described in the parenthetical thereof). If there is no Extended Marketing Period or no offers are received prior to the end of the Extended Marketing Period, the Owner Lessor shall sell the Facility as scrap or otherwise, subject to the Lessee's right of first refusal (pursuant to the terms and conditions set forth in Section 13.2 of the Participation Agreement, mutatis mutandis). The Lessee's obligations under Sections 7, 8 and 11 shall terminate at the end of the Extended Marketing Period.
(iv) Notwithstanding the foregoing provisions of this Section 10.1(c), in the case of an Event of Loss described in clause (d) or (e) of the definition of Event of Loss where the Facility is transferred to the Lessee, (i) if the Lessee (or its designee) shall have executed and delivered an assumption agreement to assume in full the Notes as permitted by and in accordance with Section 2.10(b) of the Indenture, (ii) all other conditions contained in such Section 2.10(b) shall have been satisfied, and (iii) no Significant Lease Default or Lease Event of Default shall have occurred or be continuing after giving effect to such assumption, then, the obligation of the Lessee to pay Termination Value shall be reduced by an amount equal to the outstanding principal amount of and accrued interest on the Notes so assumed by the Lessee.
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Occurrence of Events of Loss. (a) Each of the The Owner Participant and or the Owner Lessor will promptly notify the Facility Lessee of any event of which it is aware that that, upon election of the Owner Participant, would result in a Regulatory Event of Loss; PROVIDEDprovided, HOWEVERhowever, that the failure to provide such notice shall not result in any liability with respect to the Owner Participant or the Owner Lessor and shall not in any way relieve the Facility Lessee of any of its obligations under this Facility Lease, including the obligations under this SECTION Section 10. The Facility Lessee shall promptly notify each other Lease Financing Party of any Event of Loss.
(b) If an Event of Loss described in clauses (i), (iia) or (iiib) of the fhe definition of Event of Loss shall occur, then no later than nine months following such occurrence the Facility Lessee shall notify the Owner Lessor, the Owner Participant and, so long as the Lien of the Lease Indenture shall not have been terminated or discharged, the Lease Indenture Trustee and the Pass Through Trustee in writing of its election to either (a) rebuild or replace the Facility in accordance with the Operative Documents and the Owners Agreement so that the Facility shall have a current and residual value, remaining useful life and utility at least equal to that of the Facility prior to such Event of Loss, assuming the Facility was in the condition and repair required to be maintained by this Facility Lease and the other Operative Documents and subject to the Rebuild Conditions; PROVIDED THAT in the event that any such Event of Loss occurs after the last day upon which the Facility Lessee may exercise a renewal right under this Facility Lease pursuant to SECTION 15.1, or (ib) the Lease Term shall be automatically extended for such period of time as is reasonably necessary for the Facility Lessee to complete any rebuilding or replacement required hereunder, (ii) the Facility Lessee shall pay as Renewal Rent during any such extended term an amount, payable monthly in arrears, equal to the average monthly Rent paid during the Basic Lease Term or Renewal Term, as the case may be, then being extended, and (iii) the Termination Value during such extended term shall be the Termination Value as of the end of the Facility Lease Term without giving effect to any such extension. The Facility Lessee shall have the right, in lieu of rebuilding or replacing the Facility, to terminate this Facility Lease with respect to the Facility Interest and purchase the Undivided Facility Interest from the Owner Lessor by paying to the Owner Lessor an amount equal to the applicable Termination Value and paying to the parties entitled thereto all other amounts payable pursuant to SECTION 10.2; PROVIDED THAT Section I 0.2. The Facility Lessee may elect the option provided in clause (b) of the preceding sentence regardless of whether the Facility is to be rebuilt or replaced. If the Facility Lessee shall give irrevocable written notice of its fails to make an election to terminate the Facility Lease not later than six (6) months after such Event of Loss.
(c) In the event of a Regulatory Event of Loss or as provided above, an Event of Loss described in clause (v) shall be deemed to occur as of the definition end of Event the nine month period referred to in the second sentence of Loss, this Section 10.1 and the Facility Lessee shall use commercially reasonable efforts will be deemed to obtain bids from third parties unaffiliated have made the election to terminate this Facility Lease with respect to the Facility Lessee Interest and sell purchase the Facility Interest from the Owner Lessor's interest following such Event of Loss, subject Lessor by paying to SECTION 10.2(B) hereof.the Owner Lessor an amount equal to the applicable Termination Value and paying to the parties entitled thereto all other amounts payable pursuant to Section 10.2. HOU0!:587609.2. Ke)'stone Facility Lease 19
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Occurrence of Events of Loss. The Facility Sublessee will notify the Facility Sublessor of any damage to the Facility, which the Facility Sublessee reasonably anticipates may cause an Event of Loss described in clause (ai), (ii), (iii) Each or (v) of the Owner Participant and the Owner Lessor definition of Event of Loss within 8 Business Days of such event. The Facility Sublessor will promptly notify the Facility Lessee Sublessee if it shall be notified by the Owner Participant or the Facility Lessor pursuant to Section 10.1 of the Facility Lease of any event of which it is aware that upon election of the Owner Participant would result in a Regulatory an Event of Loss described in clause (iv) of the definition of Event of Loss; PROVIDED, HOWEVER, that the failure to provide such notice shall not result in any liability with respect to the Owner Participant or the Owner Lessor and shall not in any way relieve the Facility Lessee of any of its obligations under this Facility Lease, including the obligations under this SECTION 10. The Facility Lessee shall promptly notify each other Lease Financing Party of any Event of Loss.
(b) If an Event of Loss described in clauses (i), (ii) or (iiiii) of the definition of Event of Loss shall occur, then no later than six months following such occurrence the Facility Lessee Sublessee shall notify the Facility Sublessor in writing of its election to either (a) if no Sublease Event of Default has occurred and is continuing and subject to the satisfaction of the conditions set forth in Section 10.3, rebuild or replace and restore the Facility in accordance with the provisions of the Rocky Mountain Agreements so that the Facility shall have a fair market value (present and residual), remaining useful life and utility at least equal to that of the Facility prior to such rebuilding, assuming the Facility was in the condition and repair required to be maintained by this Facility Lease and Sublease or (b) terminate this Facility Sublease pursuant to Section 10.2 hereof. The Facility Sublessee may elect the other Operative Documents and subject option provided in clause (b) of the preceding sentence regardless of whether the Facility is to be rebuilt. If the Rebuild Conditions; PROVIDED THAT in the event that any such Facility Sublessee fails to make an election as provided above, an Event of Loss occurs after the last day upon which the Facility Lessee may exercise a renewal right under this Facility Lease pursuant to SECTION 15.1, (i) the Lease Term shall be automatically extended for such period of time as is reasonably necessary for the Facility Lessee deemed to complete any rebuilding or replacement required hereunder, (ii) the Facility Lessee shall pay as Renewal Rent during any such extended term an amount, payable monthly in arrears, equal to the average monthly Rent paid during the Basic Lease Term or Renewal Term, as the case may be, then being extended, and (iii) the Termination Value during such extended term shall be the Termination Value occur as of the end of the Facility Lease Term without giving effect six month period referred to any such extension. The Facility Lessee shall have in the right, in lieu third sentence of rebuilding or replacing the Facility, to terminate this Facility Lease and purchase the Undivided Interest from the Owner Lessor by paying to the Owner Lessor an amount equal to the Termination Value and paying to the parties entitled thereto all other amounts payable pursuant to SECTION 10.2; PROVIDED THAT the Facility Lessee shall give irrevocable written notice of its election to terminate the Facility Lease not later than six (6) months after such Event of LossSection 10.1.
(c) In the event of a Regulatory Event of Loss or an Event of Loss described in clause (v) of the definition of Event of Loss, the Facility Lessee shall use commercially reasonable efforts to obtain bids from third parties unaffiliated with the Facility Lessee and sell the Owner Lessor's interest following such Event of Loss, subject to SECTION 10.2(B) hereof.
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Occurrence of Events of Loss. (a) Each of the The Owner Participant and or the Owner Lessor will promptly notify the Facility Lessee of any event of which it is aware that upon election of the Owner Participant would result in a Regulatory Event of Loss; PROVIDED, HOWEVER, that the failure to provide such notice shall not result in any liability with respect to the Owner Participant or the Owner Lessor and shall not in any way relieve the Facility Lessee of any of its obligations under this Facility Lease, including the obligations under this SECTION 10. The Facility Lessee shall promptly notify each other Lease Financing Party of any Event of Loss.
(b) If an Event of Loss described in clauses (i), (iia) or (iiib) of the definition of Event of Loss shall occuroccur with respect to any Unit, then no later than six months following such occurrence the Facility Lessee shall rebuild notify the Owner Lessor, the Owner Participant and, so long as the Lien of the Lease Indenture shall not have been terminated or replace discharged, the Facility in accordance with this Facility Lease Indenture Trustee and the Pass Through Trustee in writing of its election to either (a) if no Significant Lease Default or Lease Event of Default (other Operative Documents than Lease Events of Default arising as a result of such Event of Loss) has occurred and is continuing and subject to the Rebuild Conditions; PROVIDED THAT satisfaction of the conditions set forth in Section 10.3(a) and (b), rebuild or replace such Unit to the event extent of the Undivided Interest and subject to the Project Agreements and the Related Common Facilities so that any such Unit to the extent of the Undivided Interest shall have a current and residual value, remaining useful life and utility at least equal to that of such Unit prior to such Event of Loss occurs after Loss, assuming such Unit and the last day upon which Related Common Facilities were in the condition and repair required to be maintained by this Facility Lease or (b) terminate this Facility Lease with respect to such Unit Interest pursuant to Section 10.2 hereof. The Facility Lessee may elect the option provided in clause (b) of the preceding sentence regardless of whether such Unit and the Related Common Facilities are to be rebuilt or replaced. If the Facility Lessee may exercise a renewal right under this Facility Lease pursuant fails to SECTION 15.1make an election as provided above, (i) the Lease Term an Event of Loss shall be automatically extended for such period of time as is reasonably necessary for the Facility Lessee deemed to complete any rebuilding or replacement required hereunder, (ii) the Facility Lessee shall pay as Renewal Rent during any such extended term an amount, payable monthly in arrears, equal to the average monthly Rent paid during the Basic Lease Term or Renewal Term, as the case may be, then being extended, and (iii) the Termination Value during such extended term shall be the Termination Value occur as of the end of the Facility Lease Term without giving effect six month period referred to any such extension. The in the second sentence of this Section 10.1 and the Facility Lessee shall will be deemed to have made the right, in lieu of rebuilding or replacing the Facility, election to terminate this Facility Lease and purchase the Undivided with respect to such Unit Interest from the Owner Lessor by paying to the Owner Lessor an amount equal to the Termination Value and paying to the parties entitled thereto all other amounts payable pursuant to SECTION Section 10.2; PROVIDED THAT . Notwithstanding the Facility Lessee shall give irrevocable written notice of its election to terminate the Facility Lease not later than six (6) months after such Event of Loss.
(c) In the event of a Regulatory Event of Loss or an Event of Loss described in clause (v) of the definition of Event of Lossforegoing, the Facility Lessee shall use commercially reasonable efforts to obtain bids from third parties unaffiliated with may make either such election only if (i) the Facility Lessee and sell the Owner Lessor's interest following such Event of Loss, subject to SECTION 10.2(B) hereof.makes an identical
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Occurrence of Events of Loss. (a) Each of the Owner Participant and the Owner Lessor will promptly notify the Facility Lessee of any event of which it is aware that would result in a Regulatory Event of Loss; PROVIDED, HOWEVER, that the failure to provide such notice shall not result in any liability with respect to the Owner Participant or the Owner Lessor and shall not in any way relieve the Facility Lessee of any of its obligations under this Facility Lease, including the obligations under this SECTION 10. The Facility Lessee shall promptly notify each other Lease Financing Party of any Event of Loss.
(b) If an Event of Loss described in clauses (i), (ii) or (iii) of the definition of Event of Loss shall occur, then the Facility Lessee shall rebuild or replace the Facility in accordance with this Facility Lease and the other Operative Documents and subject to the Rebuild Conditions; PROVIDED THAT provided, that in the event that any such Event of Loss occurs after the last day upon which the Facility Lessee may exercise a renewal right under this Facility Lease pursuant to SECTION 15.1, (i) the Lease Term shall be automatically extended for such period of time as is reasonably necessary for the Facility Lessee to complete any rebuilding or replacement required hereunder, (ii) the Facility Lessee shall pay as Renewal Rent during any such extended term an amount, payable monthly in arrears, equal to the average monthly Rent paid during the Basic Lease Term or Renewal Term, as the case may be, then being extended, and (iii) the Termination Value during such extended term shall be the Termination Value as of the end of the Facility Lease Term without giving effect to any such extension. The Facility Lessee shall have the right, in lieu of rebuilding or replacing the Facility, to terminate this Facility Lease and purchase the Undivided Interest from the Owner Lessor by paying to the Owner Lessor an amount equal to the Termination Value and paying to the parties entitled thereto all other amounts payable pursuant to SECTION 10.2; PROVIDED THAT provided that the Facility Lessee shall give irrevocable written notice of its election to terminate the Facility Lease not later than six (6) months after such Event of Loss.
(c) . In the event of a Regulatory Event of Loss or an Event of Loss described in clause (v) of the definition of Event of Loss, the Facility Lessee shall use commercially reasonable efforts to obtain bids from third parties unaffiliated with the Facility Lessee and sell the Owner Lessor's interest following such Event of Loss, Loss subject to SECTION 10.2(BSection 10.2(b) hereof.
Appears in 1 contract
Samples: Facility Lease Agreement (Eme Homer City Generation Lp)
Occurrence of Events of Loss. (a) Each of the Owner Participant and the Owner Lessor will promptly notify the Facility Lessee of any event of which it is aware that would result in a Regulatory Event of Loss; PROVIDEDprovided, HOWEVERhowever, that the failure to provide such notice shall not result in any liability with respect to the Owner Participant or the Owner Lessor and shall not in any way relieve the Facility Lessee of any of its obligations under this Facility Lease, including the obligations under this SECTION Section 10. The Facility Lessee shall promptly notify each other Lease Financing Party of any Event of Loss.
(b) If an Event of Loss described in clauses (i), (ii) or (iii) of the definition of Event of Loss shall occur, then the Facility Lessee shall rebuild or replace the Facility in accordance with this Facility Lease and the other Operative Documents and subject to the Rebuild Conditions; PROVIDED THAT provided that in the event that any such Event of Loss occurs after the last day upon which the Facility Lessee may exercise a renewal right under this Facility Lease pursuant to SECTION Section 15.1, (i) the Lease Term shall be automatically extended for such period of time as is reasonably necessary for the Facility Lessee to complete any rebuilding or replacement required hereunder, (ii) the Facility Lessee shall pay as Renewal Rent during any such extended term an amount, payable monthly in arrears, equal to the average monthly Rent paid during the Basic Lease Term or Renewal Term, as the case may be, then being extended, and (iii) the Termination Value during such extended term shall be the Termination Value as of the end of the Facility Lease Term without giving effect to any such extension. The Facility Lessee shall have the right, in lieu of rebuilding or replacing the Facility, to terminate this Facility Lease and purchase the Undivided Interest from the Owner Lessor by paying to the Owner Lessor an amount equal to the Termination Value and paying to the parties entitled thereto all other amounts payable pursuant to SECTION Section 10.2; PROVIDED THAT provided that the Facility Lessee shall give irrevocable written notice of its election to terminate the Facility Lease not later than six (6) months after such Event of Loss.
(c) In the event of a Regulatory Event of Loss or an Event of Loss described in clause (v) of the definition of Event of Loss, the Facility Lessee shall use commercially reasonable efforts to obtain bids from third parties unaffiliated with the Facility Lessee and sell the Owner Lessor's interest following such Event of Loss, subject to SECTION 10.2(BSection 10.2(b) hereof.
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Samples: Facility Lease Agreement (Eme Homer City Generation Lp)
Occurrence of Events of Loss. (a) Each of the Owner Participant and the Owner Lessor The Facility Lessee will promptly notify the Owner Lessor and, so long as the Lien of the Lease Indenture shall not have been terminated or discharged, the Lease Indenture Trustee of any damage to, or other event with respect to, any portion of the Facility which the Facility Lessee of any event of which it is aware that would result in a Regulatory reasonably anticipates will cause an Event of Loss; PROVIDED, HOWEVER, that the failure to provide such notice shall not result in any liability with respect to the Owner Participant or the Owner Lessor and shall not in any way relieve the Facility Lessee of any of its obligations under this Facility Lease, including the obligations under this SECTION 10. The Facility Lessee shall promptly notify each other Lease Financing Party of any Event of Loss.
(b) If an Event of Loss described in clauses (i), (ii) or (iii) of the definition of Event of Loss shall occur, then no later than eighteen (18) months following such occurrence, the Facility Lessee shall notify the Owner Lessor and, so long as the Lien of the Lease Indenture shall not have been terminated or discharged, the Lease Indenture Trustee, in writing of its election to either (a) subject to the satisfaction of the conditions set forth in Section 10.3(a), rebuild or replace the Facility in accordance with or a Relevant Portion of the Facility or (b) terminate this Facility Lease and Lease, in whole or in part with respect to a Relevant Portion of the other Operative Documents and subject to the Rebuild Conditions; PROVIDED THAT in the event that any such Event of Loss occurs after the last day upon which the Facility Lessee may exercise a renewal right under this Facility Lease pursuant to SECTION 15.1, (i) the Lease Term shall be automatically extended for such period of time as is reasonably necessary for the Facility Lessee to complete any rebuilding or replacement required hereunder, (ii) the Facility Lessee shall pay as Renewal Rent during any such extended term an amount, payable monthly in arrears, equal to the average monthly Rent paid during the Basic Lease Term or Renewal TermUndivided Interest, as the case may be, then being extendedby electing to effect an Early Buy Out pursuant to Section 15.1 hereof; provided, and however, that the Facility Lessee may only elect to terminate the Facility Lease in part with respect to a Relevant Portion of the Undivided Interest to the extent that the Unit or Units not suffering an Event of Loss continue to be (iiior will be, after repairing in accordance with this Facility Lease any damage to such remaining Units which may have occurred as a result of the Event of Loss to a Relevant Portion of the Facility to which such partial termination relates) commercially viable in accordance with Prudent Industry Practice. Subject to the Termination Value during such extended term last sentence of Section 15.1, the Facility Lessee may elect the option provided in clause (b) of the preceding sentence regardless of whether a Relevant Portion of the Facility is to be rebuilt or replaced. If the Facility Lessee fails to make an election as provided above, an Event of Loss shall be deemed to occur with respect to the Termination Value Facility or, if the Event of Loss relates to less than all of the Units, a Relevant Portion of the Facility, as of the end of the Facility Lease Term without giving effect eighteen- (18-) month period referred to any such extension. The in the second sentence of this Section 10.1 and the Facility Lessee shall will be deemed to have made the right, in lieu of rebuilding or replacing the Facility, election to terminate this Facility Lease and purchase Lease, in whole or in part, as the Undivided Interest from the Owner Lessor case may be, by paying to the Owner Lessor an amount equal to the Termination Value and paying to the parties entitled thereto all other amounts payable exercising its Early Buy Out pursuant to SECTION 10.2; PROVIDED THAT the Facility Lessee shall give irrevocable written notice of its election Section 15.2 and will be deemed to terminate the Facility Lease not later than six (6) months after such Event of Loss.
(c) In the event of a Regulatory Event of Loss or have delivered an Event of Loss described in clause (v) Early Buy Out Notice pursuant to Section 15.2 as of the definition end of Event of Loss, the Facility Lessee shall use commercially reasonable efforts to obtain bids from third parties unaffiliated with the Facility Lessee and sell the Owner Lessor's interest following such Event of Loss, subject to SECTION 10.2(Beighteen- (18-) hereofmonth period.
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Samples: Facility Lease Purchase Agreement (Tennessee Valley Authority)
Occurrence of Events of Loss. (a) Each of the The Owner Participant and or the Owner Lessor will promptly notify the Facility Lessee of any event of which it is aware that upon election of the Owner Participant would result in a Regulatory Event of Loss; PROVIDED, HOWEVER, that the failure to provide such notice shall not result in any liability with respect to the Owner Participant or the Owner Lessor and shall not in any way relieve the Facility Lessee of any of its obligations under this Facility Lease, including the obligations under this SECTION 10. The Facility Lessee shall promptly notify each other Lease Financing Party of any Event of Loss.
(b) If an Event of Loss described in clauses (i), (iia) or (iiib) of the definition of Event of Loss shall occur, then no later than six months following such occurrence the Facility Lessee shall rebuild notify the Owner Lessor, the Owner Participant and, so long as the Lien of the Lease Indenture shall not have been terminated or replace discharged, the Facility in accordance with this Facility Lease Indenture Trustee and the Pass Through Trustee in writing of its election to either (a) if no Significant Lease Default or Lease Event of Default (other Operative Documents than Lease Events of Default arising as a result of such Event of Loss) has occurred and is continuing and subject to the Rebuild Conditions; PROVIDED THAT satisfaction of the conditions set forth in Section 10.3(a) and (b), rebuild or replace such Unit to the event extent of the Undivided Interest and subject to the Project Agreements and the Related Common Facilities so that any such Unit to the extent of the Undivided Interest shall have a current and residual value, remaining useful life and utility at least equal to that of the Undivided Interest prior to such Event of Loss occurs after Loss, assuming such Unit and the last day upon which Related Common Facilities were in the condition and repair required to be maintained by this Facility Lessee may exercise a renewal right under Lease or (b) terminate this Facility Lease pursuant to SECTION 15.1, Section 10.2 hereof. The Facility Lessee may elect the option provided in clause (ib) of the Lease Term shall preceding sentence regardless of whether such Unit and the Related Common Facilities are to be automatically extended for such period of time as is reasonably necessary for rebuilt or replaced. If the Facility Lessee fails to complete any rebuilding or replacement required hereundermake an election as provided above, (ii) the Facility Lessee shall pay as Renewal Rent during any such extended term an amount, payable monthly in arrears, equal to the average monthly Rent paid during the Basic Lease Term or Renewal Term, as the case may be, then being extended, and (iii) the Termination Value during such extended term Event of Loss shall be the Termination Value deemed to occur as of the end of the Facility Lease Term without giving effect six month period referred to any such extension. The in the second sentence of this Section 10.1 and the Facility Lessee shall will be deemed to have made the right, in lieu of rebuilding or replacing the Facility, election to terminate this Facility Lease and purchase the Undivided Interest from the Owner Lessor by paying to the Owner Lessor an amount equal to the Termination Value and paying to the parties entitled thereto all other amounts payable pursuant to SECTION Section 10.2; PROVIDED THAT . Notwithstanding the foregoing, the Facility Lessee shall give irrevocable written notice of its may make either such election to terminate only if (i) the Facility Lessee makes an identical election under the Other Facility Lease not later than six with respect to the Facility, and (6ii) months after such Event in the case of Loss.
(c) In the event of a Regulatory Event of Loss or an Event of Loss described in clause (v) of the definition of Event of Losselection under Section 10.1(a), the Facility Lessee shall use commercially reasonable efforts have complied with Section 10.3(a) and (b) hereunder and under the Other Facility Lease with respect to obtain bids from third parties unaffiliated with the Facility Lessee and sell the Owner Lessor's interest following such Event of Loss, subject to SECTION 10.2(B) hereofFacility.
Appears in 1 contract
Occurrence of Events of Loss. (a) Each of The Owner Lessor and the Owner Participant and the Owner Lessor will promptly notify the Facility Lessee and, so long as the Lien of the Lease Indenture shall not have been terminated or discharged, the Lease Indenture Trustee and the Pass Through Trustee of any event of which it is aware that upon election by the Owner Participant or Owner Lessor would result in a Regulatory Event of Loss; PROVIDED. The Lessee will promptly notify the Owner Lessor, HOWEVER, that the failure to provide such notice shall not result in any liability with respect to the Owner Participant or and, so long as the Owner Lessor and Lien of the Lease Indenture shall not in any way relieve have been terminated or discharged, the Facility Lessee Lease Indenture Trustee and the Pass Through Trustee of any of its obligations under this Facility Leasedamage to or other event with respect to, including the obligations under this SECTION 10. The Facility Network that the Lessee shall promptly notify each other Lease Financing Party of any reasonably anticipates will cause an Event of Loss.
Loss described in clause (a) or (b) of the definition of Event of Loss or that causes damage to the Network in excess of $20 million. If an Event of Loss described in clauses clause (i), (iia) or (iiib) of the definition of Event of Loss shall occur, then no later than six months following such occurrence, the Facility Lessee shall rebuild notify the Owner Lessor, the Owner Participant and, so long as the Lien of the Lease Indenture shall not have been terminated or replace discharged, the Facility in accordance with this Facility Lease Indenture Trustee and the Pass Through Trustee, in writing of its election to either (a) if no Significant Lease Default or Lease Event of Default (other Operative Documents than Lease Events of Default arising as a result of such Event of Loss) has occurred and is continuing and subject to the Rebuild Conditions; PROVIDED THAT satisfaction of the conditions set forth in Section 10.3(a) and (b), repair or replace the event Network so that any the Network shall have a current and residual value, remaining useful life and utility at least equal to that of the Network prior to such Event of Loss occurs after Loss, assuming the last day upon which Network was in the Facility Lessee may exercise a renewal right under condition and repair required to be maintained by this Facility Network Lease or (b) terminate this Network Lease pursuant to SECTION 15.1Section 10.2 hereof. The Lessee may elect the option provided in clause (b) of the preceding sentence regardless of whether the Network is to be repaired or replaced. If the Lessee fails to make an election as provided above, (i) the Lease Term an Event of Loss shall be automatically extended for such period of time as is reasonably necessary for the Facility Lessee deemed to complete any rebuilding or replacement required hereunder, (ii) the Facility Lessee shall pay as Renewal Rent during any such extended term an amount, payable monthly in arrears, equal occur with respect to the average monthly Rent paid during the Basic Lease Term or Renewal Term, as the case may be, then being extended, and (iii) the Termination Value during such extended term shall be the Termination Value Network as of the end of the Facility Lease Term without giving effect six month period referred to any such extension. The Facility in the third sentence of this Section 10.1 and the Lessee shall will be deemed to have made the right, in lieu of rebuilding or replacing the Facility, election to terminate this Facility Network Lease and purchase the Undivided Interest from the Owner Lessor by paying to the Owner Lessor an amount equal to the Termination Value and paying to the parties entitled thereto all other amounts payable pursuant to SECTION Section 10.2; PROVIDED THAT the Facility Lessee shall give irrevocable written notice of its election to terminate the Facility Lease not later than six (6) months after such Event of Loss.
(c) In the event of a Regulatory Event of Loss or an Event of Loss described in clause (v) of the definition of Event of Loss, the Facility Lessee shall use commercially reasonable efforts to obtain bids from third parties unaffiliated with the Facility Lessee and sell the Owner Lessor's interest following such Event of Loss, subject to SECTION 10.2(B) hereof.
Appears in 1 contract
Samples: Network Lease Agreement (Tennessee Valley Authority)
