Remedies for Lease Event of Default. Upon the occurrence of any Lease Event of Default and at any time thereafter so long as the same shall be continuing, the Owner Lessor may, at its option, declare this Facility Lease to be in default by written notice to the Facility Lessee (PROVIDED, that this Facility Lease shall automatically be in default without the need for giving any notice upon the occurrence of a Lease Event of Default in clause (g) or (h) of SECTION 16) in respect of the Facility Lessee; and at any time thereafter, so long as the Facility Lessee shall not have remedied all outstanding Lease Events of Default, the Owner Lessor may, at the Facility Lessee's sole cost and expense, do one or more of the following as the Owner Lessor in its sole discretion shall elect, to the extent permitted by, and subject to compliance with any mandatory Requirements of Law then in effect: (a) proceed by appropriate court action or actions, either at law or in equity, to enforce performance by the Facility Lessee of the applicable covenants and terms of this Facility Lease or to recover damages for breach thereof; (b) by notice in writing to the Facility Lessee, terminate this Facility Lease whereupon all right of the Facility Lessee to the possession and use of the Undivided Interest under this Facility Lease shall absolutely cease and terminate but the Facility Lessee shall remain liable as hereinafter provided; and thereupon, the Owner Lessor may demand that the Facility Lessee, and the Facility Lessee shall, upon written demand of the Owner Lessor and at the Facility Lessee's sole cost and expense, forthwith return possession of the Undivided Interest to the Owner Lessor in the manner and condition required by, and otherwise in accordance with all of the provisions of SECTION 5, except those provisions relating to periods of notice; and the Owner Lessor may thenceforth hold, possess and enjoy the same free from any right of the Facility Lessee, or its successor or assigns, to use the Undivided Interest for any purpose whatever; (c) sell the Owner Lessor's Interest at public or private sale, as the Owner Lessor may determine, free and clear of any rights of the Facility Lessee under this Facility Lease and without any duty to account to the Facility Lessee with respect to such sale or for the proceeds thereof (except to the extent required by paragraph (f) below if the Owner Lessor elects to exercise its rights under said paragraph and by Requirements of Law), in which event (i) Allocated Rent shall cease to accrue and (ii) the Facility Lessee's obligation to pay Basic Lease Rent or Renewal Rent hereunder due for any periods subsequent to the date of such sale shall terminate (except to the extent that Basic Lease Rent or Renewal Rent is to be included in computations under paragraph (f) below if the Owner Lessor elects to exercise its rights under said paragraph) and in which event the Owner Lessor shall pay to the Facility Lessee the Lessor Section 467 Loan Balance, if any, determined as of such date, PROVIDED, HOWEVER, that the obligation of the Owner Lessor to make such payments shall be subject to the provisions of Section 3.2(d); (d) hold, keep idle or lease to others the Owner Lessor's Interest as the Owner Lessor in its sole discretion may determine, free and clear of any rights of the Facility Lessee under this Facility Lease and without any duty to account to the Facility Lessee with respect to such action or inaction or for any proceeds with respect thereto, except that the Facility Lessee's obligation to pay Basic Lease Rent or Renewal Rent with respect to the Undivided Interest due for any periods subsequent to the date upon which the Facility Lessee shall have been deprived of possession and use of the Undivided Interest pursuant to this SECTION 17 shall be reduced by the net proceeds, if any, received by the Owner Lessor from leasing the Undivided Interest to any Person other than the Facility Lessee and in which event the Owner Lessor shall pay to the Facility Lessee the Lessor Section 467 Loan Balance, if any, determined as of such date, PROVIDED, HOWEVER, that the obligation of the Owner Lessor to make such payments shall be subject to the provisions of Section 3.2(d); (e) whether or not the Owner Lessor shall have exercised, or shall thereafter at any time exercise, any of its rights under paragraph (b) above with respect to the Undivided Interest, the Owner Lessor, by written notice to the Facility Lessee specifying a Termination Date that shall be not earlier than 10 days after the date of such notice, may demand that the Facility Lessee pay to the Owner Lessor, and the Facility Lessee shall pay to the Owner Lessor, on the Termination Date specified in such notice any due and unpaid, or accrued and unpaid, Basic Lease Rent or Renewal Rent due through the Termination Date, any Supplemental Lease Rent due and payable as of the payment date specified in such notice, plus as liquidated damages for loss of a bargain and not as a penalty (in lieu of the Basic Lease Rent or Renewal Rent due after the Termination Date specified in such notice), (i) an amount equal to the excess, if any, of the sum of the Termination Value plus any Lessee Section 467 Loan Balance plus any Basic Lease Rent or Renewal Rent due and unpaid, in each case, computed as of the Termination Date specified in such notice over the Fair Market Sales Value of the Owner Lessor's Interest as of the Termination Date specified in such notice; or (ii) an amount equal to the excess, if any, of the sum of the Termination Value plus any Lessee Section 467 Loan Balance plus any Basic Lease Rent or Renewal Rent due and unpaid, in each case, computed as of the Termination Date specified in such notice over the Fair Market Rental Value of the Owner Lessor's Interest until the end of the Basic Lease Term or the then current Renewal Lease Term, after discounting such Fair Market Rental Value semi-annually to present value as of the Termination Date specified in such notice at a rate equal to the Discount Rate; or (iii) an amount equal to the Termination Value computed as of the Termination Date specified in such notice PROVIDED THAT upon payment of such Termination Value by the Facility Lessee pursuant to this clause (iii) and all other Rent then due and unpaid, or accrued and unpaid by the Facility Lessee and the payment of the Lessee Section 467 Loan Balance as of such Termination Date, the Owner Lessor shall proceed to exercise its commercially reasonable efforts promptly to sell the Undivided Interest at public or private sale and shall pay over to the Facility Lessee upon consummation of any such sale the net proceeds of such sale (after deducting from such proceeds all costs and expenses incurred by the Owner Lessor in connection therewith and all other amounts that may become payable to the Owner Lessor, the Security Agent or any other Lease Financing Party) and the Facility Lessee waives all claims against the Owner Lessor and the Owner Participant in connection with the sale of the Undivided Interest or the use of commercially reasonable efforts pursuant to this proviso; PROVIDED FURTHER that in lieu of paying an amount equal to the Termination Value pursuant to clause (iii) above, the Facility Lessee may make a rejectable offer in writing to the Owner Lessor (within 5 days following the Facility Lessee's receipt of notice by the Owner Lessor specifying a Termination Date) (an "OFFER") to purchase the Undivided Interest at a purchase price equal to or greater than Termination Value (the "OFFER PRICE"). If the Owner Lessor rejects such Offer in writing, the Facility Lessee shall remain liable to pay Termination Value pursuant to clause (iii) above, all other Rent then due and unpaid, or accrued and unpaid, by the Facility Lessee and any Lessee Section 467 Loan Balance, determined as of the Termination Date PROVIDED THAT (1) the Facility Lessee shall have no obligation to pay the costs and expenses incurred by the Owner Lessor solely in connection with any sale of the Undivided Interest and (2) the Owner Lessor shall proceed to exercise its best efforts promptly to sell the Undivided Interest at public or private sale and shall pay over to the Facility Lessee upon consummation of any such sale the proceeds of such sale, but not to exceed the sum of Termination Value paid by the Facility Lessee plus interest at the Applicable Rate from the Termination Date until the date of payment of such proceeds to the Facility Lessee. If the Facility Lessee has made an Offer and the Owner Lessor accepts such Offer or fails to respond to such Offer within two (2) Business Days prior to the date on which the Facility Lessee would have been required to pay Termination Value pursuant to clause (iii) above, the Facility Lessee shall pay to the Owner Lessor the Offer Price on or before the Termination Date and upon such payment of the Offer Price and all other Rent then due and unpaid, or accrued and unpaid, by the Facility Lessee and any Lessee Section 467 Loan Balance determined as of the Termination Date on the Termination Date, the Facility Lessee shall no longer remain liable to pay Termination Value or other amounts pursuant to clause (iii) above and the Owner Lessor shall forthwith transfer to the Facility Lessee (or its designee) in accordance with this SECTION 17.1(E) hereof and SECTION 6 of the Facility Site Lease on an "as is," "where is" and "with all faults" basis, without representation or warranty other than a warranty as to the absence of Owner Lessor Liens accompanied by a warranty of the Owner Participant as to the absence of the Owner Participant Liens, all of its interest in the Owner Lessor's Interest and execute, acknowledge and deliver, and record and file (as appropriate), appropriate releases, including a release from the Lien of the Lease Indenture, and all other documents or instructions necessary or desirable to effect the foregoing all in form and substance reasonably satisfactory to the Owner Lessor and at the cost and expense of the Facility Lessee, and upon payment of such amounts due under this paragraph (e), (x) Allocated Rent shall cease to accrue, (y) this Facility Lease, and the Facility Lessee's obligation to pay Basic Lease Rent or Renewal Lease Rent hereunder, as the case may be, due for any periods subsequent to the date of such payment shall terminate and (z) the Owner Lessor shall pay to the Facility Lessee the Lessor Section 467 Loan Balance, if any, determined as of the relevant Termination Date. The obligation to make such payments shall be subject to the provisions of SECTION 3.2(D); and (f) if the Owner Lessor shall have sold the Owner Lessor's Interest pursuant to paragraph (c) above, the Owner Lessor may, if it shall so elect, demand that the Facility Lessee pay to the Owner Lessor, and the Facility Lessee shall pay to the Owner Lessor, as liquidated damages for loss of a bargain and not as a penalty (in lieu of the Basic Lease Rent or Renewal Rent due for any periods subsequent to the date of such sale), an amount equal to (i) any unpaid Basic Lease Rent or Renewal Rent due and unpaid through the Relevant Termination Date plus (ii) any Lessee Section 467 Loan 45 Balance plus (iii) the amount, if any, by which the Termination Value computed as of the Termination Date next preceding the date of such sale or, if such sale occurs on a Rent Payment Date or a Termination Date then computed as of such date, exceeds the net proceeds of such sale, and, upon payment of such amount, this Facility Lease and the Facility Lessee's obligation to pay Basic Lease Rent or Renewal Rent for any periods subsequent to the date of such payment shall terminate, Allocated Rent shall cease to accrue and the Owner Lessor shall pay to the Facility Lessee the Lessor Section 467 Loan Balance, if any, determined as of the relevant Termination Date. The obligation to make such payments shall be subject to the provisions of SECTION 3.2(D). In addition, the Facility Lessee shall be liable, except as otherwise provided above, for (i) any and all unpaid Basic Lease Rent or Renewal Rent due hereunder before, or during the exercise of any of the foregoing remedies, and (ii) on an After-Tax Basis, for legal fees and other costs and expenses incurred by reason of the occurrence of any Lease Event of Default or the exercise of the Owner Lessor's remedies with respect thereto, including the repayment in full of any costs and expenses necessary to be expended in connection with the return of the Undivided Interest in accordance with SECTION 5 hereof, including, without limitation, any costs and expenses incurred by the Owner Lessor, the Owner Participant and the Lease Indenture Trustee in connection with retaking constructive possession of, or in repairing, the Undivided Interest in order to cause it to be in compliance with all maintenance standards imposed by this Facility Lease. (g) upon the occurrence and during the continuance of a Rent Default Event, the Owner Lessor may from time to time withdraw amounts from the Equity Account pursuant to Section 4.6(b) of the Amended Security Deposit Agreement and subject to the posting of an Equity Letter of Credit required thereunder.
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)
Remedies for Lease Event of Default. Upon the occurrence of any Lease Event of Default and at any time thereafter so long as the same shall be continuing, the Owner Lessor may, at its option, declare this Facility Lease to be in default by written notice to the Facility Lessee and the Lessee Guarantor; provided that upon the occurrence of a Lease Event of Default described in paragraph (PROVIDEDi) or (j) of Section 16, that this Facility Lease shall automatically be deemed to be in default without the need for giving any notice upon the occurrence of a Lease Event of Default in clause (g) or (h) of SECTION 16) in respect of the Facility Lesseenotice; and at any time thereafter, so long as the Facility Lessee shall not have remedied all outstanding Lease Events of Default, the Owner Lessor may, at the Facility Lessee's sole cost and expense, may do one or more of the following as the Owner Lessor in its sole discretion shall elect, to the extent permitted by, and subject to compliance with any mandatory Requirements of requirements of, Applicable Law then in effect:
(a) proceed by appropriate court action or actions, either at law or in equity, to enforce performance by the Facility Lessee Lessee, at the Facility Lessee's sole cost and expense, of the applicable covenants and terms of this Facility Lease or to recover damages for breach thereof;
(b) by notice in writing to the Facility LesseeLessee and the Lessee Guarantor, terminate this Facility Lease whereupon all right of the Facility Lessee to the possession and use of the Undivided Interest under this Facility Lease of the Facility shall absolutely cease and terminate but the Facility Lessee shall remain liable as hereinafter provided; and thereupon, the Owner Lessor may demand that the Facility LesseeLessee and the Lessee Guarantor, as the case may be, and the Facility Lessee Lessee, shall, upon written demand of the Owner Lessor and at the Facility Lessee's sole cost and expense, forthwith return possession of the Undivided Interest Facility to the Owner Lessor in the manner and condition required by, and otherwise in accordance with all of the provisions of SECTION Section 5, except those provisions relating to periods of notice; and the Owner Lessor may thenceforth hold, possess and enjoy the same free from any right of the Facility Lessee, or its successor or assigns, to use the Undivided Interest Facility for any purpose whatever;
(c) sell the Owner Lessor's Interest at public or private sale, as the Owner Lessor may determine, free and clear of any rights of the Facility Lessee under this Facility Lease and without any duty to account to the Facility Lessee with respect to such sale or for the proceeds thereof (except to the extent required by paragraph (f) below if the Owner Lessor elects to exercise its rights under said paragraph and by Requirements of Applicable Law), in which event (i) Allocated Rent shall cease to accrue and (ii) the Facility Lessee's obligation to pay Basic Periodic Lease Rent or and Renewal Lease Rent hereunder due for any periods subsequent to the date of such sale shall terminate (except to the extent that Basic Periodic Lease Rent or and Renewal Lease Rent is to be included in computations under paragraph (e) or (f) below if the Owner Lessor elects to exercise its rights under said paragraph) and in which event the Owner Lessor shall pay to the Facility Lessee the Lessor Section 467 Loan Balance, if any, determined as of such date, PROVIDED, HOWEVER, that the obligation of the Owner Lessor to make such payments shall be subject to the provisions of Section 3.2(dparagraphs);
(d) hold, keep idle or lease to others the Owner Lessor's Interest as the Owner Lessor in its sole discretion may determine, free and clear of any rights of the Facility Lessee under this Facility Lease and without any duty to account to the Facility Lessee with respect to such action or inaction or for any proceeds with respect thereto, except that the Facility Lessee's obligation to pay Basic Periodic Lease Rent or and Renewal Lease Rent with respect to the Undivided Interest due for any periods subsequent to the date upon which the Facility Lessee shall have been deprived of possession and use of the Undivided Interest Facility pursuant to this SECTION Section 17 shall be reduced by the net proceeds, if any, received by the Owner Lessor from leasing the Undivided Interest Facility to any Person other than the Facility Lessee and in which event the Owner Lessor shall pay to the Facility Lessee the Lessor Section 467 Loan Balance, if any, determined as of such date, PROVIDED, HOWEVER, that the obligation of the Owner Lessor to make such payments shall be subject to the provisions of Section 3.2(d)Lessee;
(e) whether or not the Owner Lessor shall have exercised, or shall thereafter at any time exercise, any of its rights under paragraph (b) above with respect to the Undivided InterestFacility, the Owner Lessor, by written notice to the Facility Lessee and the Lessee Guarantor specifying a Termination Date that shall be not earlier than 10 days after the date of such notice, may demand that the Facility Lessee or the Lessee Guarantor, as the case may be, pay to the Owner Lessor, and the Facility Lessee or the Lessee Guarantor, as the case may be, shall pay to the Owner Lessor, on the Termination Date specified in such notice notice, any due and unpaid, or accrued and unpaid, Basic unpaid Periodic Lease Rent or and Renewal Lease Rent due through the before such Termination Date, any Supplemental Lease Rent due and payable as of the payment date specified in such notice, plus as liquidated damages for loss of a bargain and not as a penalty (in lieu of the Basic Periodic Lease Rent or and Renewal Lease Rent due after the Termination Date specified in such notice), (i) an amount equal to the excess, if any, of the sum of the Termination Value plus any Lessee Section 467 Loan Balance plus any Basic Lease Rent or Renewal Rent due and unpaid, in each case, for the Facility computed as of the Termination Date specified in such notice over the Fair Market Sales Value of the Owner Lessor's Interest as of the Termination Date specified in such notice; , or (ii) an amount equal to the excess, if any, of the sum of the Termination Value plus any Lessee Section 467 Loan Balance plus any Basic Lease Rent or Renewal Rent due and unpaid, in each case, for the Facility computed as of the Termination Date specified in such notice over the Fair Market Rental Value of the Owner Lessor's Interest until the end of the Basic Lease Term or the then current Renewal Lease Term, after discounting such Fair Market Rental Value semi-annually semiannually to present value as of the Termination Date specified in such notice at a rate equal to the Discount Lease Debt Rate; , or (iii) an amount equal to the Termination Value computed as of the Termination Date specified in such notice PROVIDED THAT provided that upon payment of such Termination Value by the Facility Lessee pursuant to this clause (iii) and all other Rent then due and unpaid, or accrued and unpaid unpaid, by the Facility Lessee and the payment of the Lessee Section 467 Loan Balance as of such Termination DateLessee, the Owner Lessor shall proceed to exercise its commercially reasonable efforts promptly to sell the Undivided Interest Facility at public or private sale and shall pay over to the Facility Lessee upon consummation of any such sale the net proceeds of such sale (after deducting from such proceeds all costs and expenses incurred by the Owner Lessor in connection therewith and all other amounts that may become payable to the Owner Lessor, the Security Agent Owner Participant, the Lease Indenture Trustee or any other Lease Financing Partythe Pass Through Trustees) and the Facility Lessee waives all claims against the Owner Lessor and the Owner Participant in connection with the sale of the Undivided Interest Facility or the use of commercially reasonable efforts pursuant to this proviso; PROVIDED FURTHER provided further that in lieu of paying an amount equal to the Termination Value pursuant to clause (iii) above, the Facility Lessee may make a rejectable offer in writing to the Owner Lessor (within 5 days following the Facility Lessee's receipt of notice by the Owner Lessor specifying a Termination Date) (an "OFFEROffer") to ----- purchase the Undivided Interest Facility at a purchase price equal to or greater than Termination Value (the "OFFER PRICEOffer Price"). If the Owner Lessor rejects such ----------- Offer in writing, the Facility Lessee shall remain liable to pay Termination Value pursuant to clause (iii) above, all other Rent then due and unpaid, or accrued and unpaid, by the Facility Lessee and any Lessee Section 467 Loan Balance, determined as of the Termination Date PROVIDED THAT above provided that (1) the Facility Lessee shall have no obligation to pay the costs and expenses incurred by the Owner Lessor solely in connection with any sale of the Undivided Interest Facility and (2) the Owner Lessor shall proceed to exercise its best efforts promptly to sell the Undivided Interest Facility at public or private sale and shall pay over to the Facility Lessee upon consummation of any such sale the proceeds of such sale, but not to exceed the sum of Termination Value paid by the Facility Lessee plus interest at the Applicable Rate from the Termination Date until the date of payment of such proceeds to the Facility Lessee. If the Facility Lessee has made an Offer and the Owner Lessor accepts such Offer or fails to respond to such Offer within two (2) Business Days prior to the date on which the Facility Lessee would have been required to pay Termination Value pursuant to clause (iii) above, the Facility Lessee shall pay to the Owner Lessor the Offer Price on or before the Termination Date and upon such payment of the Offer Price and all other Rent then due and unpaid, or accrued and unpaid, by the Facility Lessee and any Lessee Section 467 Loan Balance determined as of the Termination Date on the Termination DateLessee, the Facility Lessee shall no longer remain liable to pay Termination Value or other amounts pursuant to clause (iii) above and the Owner Lessor shall forthwith transfer to the Facility Lessee (or its designee) in accordance with this SECTION 17.1(ESection 17.1(c)) hereof and SECTION 6 Section 2.4 --------------- ----------- of the Facility Site Lease on an "as is," "where is" and "with all faultsfault" basis, without representation or warranty other than a warranty as to the absence of Owner Lessor Lessor's Liens accompanied by a warranty of the Owner Participant as to the absence of the Owner Participant Participant's Liens, all of its interest in the Owner Lessor's Interest and execute, acknowledge and deliver, and record and file (as appropriate), appropriate releases, including a releases and shall use all reasonable efforts to cause the Indenture Trustee to release from the Lien of the Lease Indenture, and all other documents or instructions necessary or desirable to effect the foregoing all in form and substance reasonably satisfactory to the Owner Lessor and at the cost and expense of the Facility Lessee, and upon payment of such amounts due amount under either clause (i), (ii) or (iii) of this paragraph (e), (x) this Facility Lease, and Allocated Rent shall cease to accrue, (y) this Facility Lease, accrue and the Facility Lessee's obligation to pay Basic Periodic Lease Rent or and Renewal Lease Rent hereunder, as the case may be, hereunder due for any periods subsequent to the date of such payment shall terminate and (z) the Owner Lessor shall pay to the Facility Lessee the Lessor Section 467 Loan Balance, if any, determined as of the relevant Termination Date. The obligation to make such payments shall be subject to the provisions of SECTION 3.2(D); andterminate;
(f) if the Owner Lessor shall have sold the Owner Lessor's Interest pursuant to paragraph (c) above, the Owner Lessor may, if it shall so elect, demand that the Facility Lessee or the Lessee Guarantor, pay to the Owner Lessor, and the Facility Lessee or the Lessee Guarantor shall pay to the Owner Lessor, as liquidated damages for loss of a bargain and not as a penalty (in lieu of the Basic Periodic Lease Rent or and Renewal Lease Rent due for any periods subsequent to the date of such sale), an amount equal to (i) any unpaid Basic Periodic Lease Rent and Renewal Lease Rent due before the date of such sale and, (ii) if that date is not a Termination Date, the daily equivalent of Periodic Lease Rent or Renewal Lease Rent due and unpaid through for the Relevant period from the preceding Termination Date plus (ii) any Lessee Section 467 Loan 45 Balance to the date of such sale, plus (iii) the amount, if any, by which the Termination Value for the Facility computed as of the Termination Date next preceding the date of such sale or, if such sale occurs on a Rent Payment Date or a Termination Date then computed as of such date, exceeds the net proceeds of such sale, and, upon payment of such amount, this Facility Lease and the Facility Lessee's obligation to pay Basic Periodic Lease Rent or and Renewal Lease Rent for any periods subsequent to the date of such payment shall terminate, Allocated Rent shall cease to accrue and ; or
(g) apply any amounts which are held by the Owner Lessor shall pay to or the Lease Indenture Trustee under Section 10.2(d) or 11.7 as security for the Facility Lessee's obligations hereunder against any amounts owed by the Facility Lessee the Lessor Section 467 Loan Balance, if any, determined as of the relevant Termination Date. The obligation to make such payments shall be subject to the provisions of SECTION 3.2(D)hereunder or under any other Operative Document. In addition, the Facility Lessee shall be liable, except as otherwise provided above, for (i) any and all unpaid Basic Periodic Lease Rent or and Renewal Lease Rent due hereunder before, before or during the exercise of any of the foregoing remedies, and (ii) on an After-Tax Basis, for legal fees and other costs and expenses incurred by reason of the occurrence of any Lease Event of Default or the exercise of the Owner Lessor's remedies with respect thereto, including the repayment in full of any costs and expenses necessary to be expended in connection with the return of the Undivided Interest Facility in accordance with SECTION Section 5 hereof, including, without limitation, any costs and expenses incurred by the Owner Lessor, the Owner Participant and Participant, the Lease Indenture Trustee and the Pass Through Trustees in connection with retaking constructive possession of, or in repairing, the Undivided Interest Facility in order to cause it to be in compliance with all maintenance standards imposed by this Facility Lease.
(g. All payments of Rent under this Section 17.1(a) upon shall, to the occurrence and during extent required by Section 3.5(a), be made to the continuance Lease Indenture Trustee. Notwithstanding anything herein to the contrary, prior to any sale, lease or conveyance of a Rent Default Eventthe Facility, the Owner Lessor may from time to time withdraw amounts from may, and the Equity Account pursuant to Section 4.6(b) Facility Lessee shall, at the request of the Amended Security Deposit Owner Lessor, give the applicable notice, if any, required by the Exempt Facilities Agreement or obtain a waiver thereof; provided, however, that no such sale, lease or conveyance shall occur unless and subject to until the posting of an Equity Letter of Credit notice, if any, required thereunderby the Exempt Facilities Agreement shall have been given or waived.
Appears in 2 contracts
Samples: Participation Agreement (Dynegy Danskammer LLC), Facility Lease Agreement (Dynegy Danskammer LLC)
Remedies for Lease Event of Default. Upon the occurrence of any Lease Event of Default and at any time thereafter so long as the same shall be continuingcontinuing (the Owner Lessor acknowledging that in making a determination that a Lease Event of Default has occurred under Section 16(d) or (e), to the extent the Lessor exercises discretion in making such determination, it shall exercise such discretion in a commercially reasonable manner), the Owner Lessor may, at its option, declare this Facility Project Lease to be in default by written notice to the Facility Lessee Lessee; provided that upon the occurrence of a Lease Event of Default described in paragraph (PROVIDEDg) of Section 16, that this Facility Project Lease shall automatically be deemed to be in default without the need for giving any notice upon the occurrence of a Lease Event of Default in clause (g) or (h) of SECTION 16) in respect of the Facility Lesseenotice; and at any time thereafter, so long as the Facility Lessee shall not have remedied all outstanding Lease Events of Default, the Owner Lessor may, at the Facility Lessee's sole cost and expense, may do one or more of the following as the Owner Lessor in its sole discretion shall elect, to the extent permitted by, and subject to compliance with any mandatory Requirements of requirements of, Applicable Law then in effect:
(a) proceed by appropriate court action or actions, either at law or in equity, to enforce performance by the Facility Lessee Lessee, at the Lessee's sole cost and expense, of the applicable covenants and terms of this Facility Project Lease or to recover damages for breach thereof;
(b) by notice in writing to the Facility Lessee, terminate this Facility Project Lease whereupon all right of the Facility Lessee to the possession and use under this Project Lease of the Undivided Interest under this Facility Lease Project shall absolutely cease and terminate but the Facility Lessee shall remain liable as hereinafter provided; and thereupon, the Owner Lessor may demand that the Facility Lessee, and the Facility Lessee shall, shall upon written demand of the Owner Lessor and at the Facility Lessee's sole cost and expense, forthwith return possession of the Undivided Interest Project to the Owner Lessor in the manner and condition required by, and otherwise in accordance with all of the provisions of SECTION Section 5, except those provisions relating to periods of notice; and the Owner Lessor may thenceforth hold, possess and enjoy the same free from any right of the Facility Lessee, or its successor or assigns, to use the Undivided Interest Project for any purpose whatever;
(c) sell the Owner Lessor's Leasehold Interest at public or private sale, as the Owner Lessor may determine, free and clear of any rights of the Facility Lessee under this Facility Project Lease and without any duty to account to the Facility Lessee with respect to such sale or for the proceeds thereof (except to the extent required by paragraph (f) below if the Owner Lessor elects to exercise its rights under said paragraph and by Requirements of Applicable Law), in which event (i) Allocated Rent shall cease to accrue and (ii) the Facility Lessee's obligation to pay Basic Periodic Lease Rent or Renewal Lease Rent hereunder due for any periods subsequent to the date of such sale shall terminate (except to the extent that Basic Periodic Lease Rent or and Renewal Lease Rent is to be included in computations under paragraph (e) or (f) below if the Owner Lessor elects to exercise its rights under said paragraph) and in which event the Owner Lessor shall pay to the Facility Lessee the Lessor Section 467 Loan Balance, if any, determined as of such date, PROVIDED, HOWEVER, that the obligation of the Owner Lessor to make such payments shall be subject to the provisions of Section 3.2(dparagraphs);
(d) hold, keep idle or lease to others the Owner Lessor's Interest Project as the Owner Lessor in its sole discretion may determine, free and clear of any rights of the Facility Lessee under this Facility Project Lease and without any duty to account to the Facility Lessee with respect to such action or inaction or for any proceeds with respect thereto, except that the Facility Lessee's obligation to pay Basic Periodic Lease Rent or Renewal Lease Rent with respect to the Undivided Interest due for any periods subsequent to the date upon which the Facility Lessee shall have been deprived of possession and use of the Undivided Interest Project pursuant to this SECTION Section 17 shall be reduced by the net proceeds, if any, received by the Owner Lessor from leasing the Undivided Interest Project to any Person other than the Facility Lessee and in which event the Owner Lessor shall pay to the Facility Lessee the Lessor Section 467 Loan Balance, if any, determined as of such date, PROVIDED, HOWEVER, that the obligation of the Owner Lessor to make such payments shall be subject to the provisions of Section 3.2(d)Lessee;
(e) whether or not the Owner Lessor shall have exercised, or shall thereafter at any time exercise, any of its rights under paragraph (b) above with respect to the Undivided Interestabove, the Owner Lessor, by written notice to the Facility Lessee specifying a Termination Date that shall be not earlier than 10 days after the date of such notice, may demand that the Facility Lessee pay to the Owner Lessor, and the Facility Lessee shall pay to the Owner Lessor, on the Termination Date specified in such notice notice, any due and unpaid, or accrued and unpaid, Basic unpaid Periodic Lease Rent or and Renewal Lease Rent due through the on or before such Termination Date, any Supplemental Lease Rent due and payable as of the payment date specified in on or prior to such noticeTermination Date, plus as liquidated damages for loss of a bargain and not as a penalty (in lieu of the Basic Periodic Lease Rent or Renewal Lease Rent due on and after the such Termination Date specified in such noticeDate), (i) an amount equal to the excess, if any, of the sum of the Termination Value plus any Lessee Section 467 Loan Balance plus any Basic Lease Rent or Renewal Rent due and unpaid, in each case, computed as of the such Termination Date specified in such notice over the Fair Market Sales Value of the Owner Lessor's Interest Project as of the such Termination Date specified in such notice; Date, or (ii) an amount equal to the excess, if any, of the sum of the Termination Value plus any Lessee Section 467 Loan Balance plus any Basic Lease Rent or Renewal Rent due and unpaid, in each case, computed as of the such Termination Date specified in such notice over the Fair Market Rental Value of the Owner Lessor's Interest Project until the end of the Basic Lease Term or the then current Renewal Lease Term, after discounting such Fair Market Rental Value semi-annually semiannually to present value as of the such Termination Date specified in such notice at a rate equal to the Discount Lease Debt Rate; , or (iii) an amount equal to the Termination Value computed as of the such Termination Date specified in such notice PROVIDED THAT Date; provided that upon payment of such Termination Value by the Facility Lessee pursuant to this clause (iii) and all other Rent (not otherwise included in the calculation of such Termination Value) then due and unpaid, or accrued and unpaid unpaid, by the Facility Lessee and the payment Lessee, then upon any sale of the Lessee Section 467 Loan Balance Owner Lessor's Leasehold Interest as a result of such Termination Dateexercise of remedies at public or private sale, the Owner Lessor shall proceed to exercise its commercially reasonable efforts promptly to sell the Undivided Interest at public or private sale and shall pay over to the Facility Lessee upon consummation of any such sale the net proceeds of such sale (after deducting from such proceeds all costs and expenses incurred by the Owner Lessor in connection therewith and all other amounts that may become payable to the Owner Lessor, the Security Agent Equity Investor, the Indenture Trustee or any other Lease Financing PartyNoteholder) and the Facility Lessee waives all claims against the Owner Lessor and the Owner Participant in connection with the sale of the Undivided Interest or the use of commercially reasonable efforts pursuant to this proviso; PROVIDED FURTHER that in lieu of paying an amount equal to the Termination Value pursuant to clause (iii) above, the Facility Lessee may make a rejectable offer in writing to the Owner Lessor (within 5 days following the Facility Lessee's receipt of notice by the Owner Lessor specifying a Termination Date) (an "OFFER") to purchase the Undivided Interest at a purchase price equal to or greater than Termination Value (the "OFFER PRICE"). If the Owner Lessor rejects such Offer in writing, the Facility Lessee shall remain liable to pay Termination Value pursuant to clause (iii) above, all other Rent then due and unpaid, or accrued and unpaid, by the Facility Lessee and any Lessee Section 467 Loan Balance, determined as of the Termination Date PROVIDED THAT (1) the Facility Lessee shall have no obligation to pay the costs and expenses incurred by the Owner Lessor solely in connection with any sale of the Undivided Interest and (2) the Owner Lessor shall proceed to exercise its best efforts promptly to sell the Undivided Interest at public or private sale and shall pay over to the Facility Lessee upon consummation of any such sale the proceeds of such sale, but not to exceed the sum of such Termination Value paid by the Facility Lessee plus interest at the Applicable Prime Rate (as published in the Wall Street Journal from the time to time) from such Termination Date until the date of payment of such proceeds to the Facility Lessee. If Lessee and the Facility Lessee has made an Offer and waives all claims against the Owner Lessor accepts such Offer or fails to respond to such Offer within two (2) Business Days prior to and the date on which Equity Investor in connection with the Facility Lessee would have been required to pay Termination Value sale of the Owner Lessor's Leasehold Interest efforts pursuant to this proviso. Upon payment of such amount under either clause (i), (ii) or (iii) above, the Facility Lessee shall pay to the Owner Lessor the Offer Price on or before the Termination Date and upon such payment of the Offer Price this paragraph (e) and all other Rent then due and unpaid, or accrued and unpaid, by the Facility Lessee and any Lessee Section 467 Loan Balance determined as of the Termination Date on the Termination Date, the Facility Lessee shall no longer remain liable to pay Termination Value or other amounts pursuant to clause (iii) above and the Owner Lessor shall forthwith transfer to the Facility Lessee (or its designee) in accordance with this SECTION 17.1(E) hereof and SECTION 6 of the Facility Site Lease on an "as is," "where is" and "with all faults" basis, without representation or warranty other than a warranty as to the absence of Owner Lessor Liens accompanied by a warranty of the Owner Participant as to the absence of the Owner Participant Liens, all of its interest in the Owner Lessor's Interest and execute, acknowledge and deliver, and record and file (as appropriate), appropriate releases, including a release from the Lien of the Lease Indenture, and all other documents or instructions necessary or desirable to effect the foregoing all in form and substance reasonably satisfactory to the Owner Lessor and at the cost and expense of the Facility Lessee, and upon payment of such amounts due under this paragraph (e), (x) Allocated Rent shall cease to accrue, (y) this Facility Lease, accrue and the Facility Lessee's obligation to pay Basic Periodic Lease Rent or Renewal Lease Rent hereunder, as the case may be, hereunder due for any periods subsequent to the date of such payment shall terminate and (z) this Project Lease, the Owner Lessor shall pay to Head Lease and the Facility Lessee the Lessor Section 467 Loan Balance, if any, determined as Sublease of the relevant Termination Date. The obligation to make such payments Power Plant Sublease shall be subject to the provisions of SECTION 3.2(D); andterminate;
(f) if the Owner Lessor shall have sold the Owner Lessor's Leasehold Interest pursuant to paragraph (c) above, the Owner Lessor may, if it shall so elect, demand that the Facility Lessee pay to the Owner Lessor, and the Facility Lessee shall pay to the Owner Lessor, as liquidated damages for loss of a bargain and not as a penalty (in lieu of the Basic Periodic Lease Rent or Renewal Lease Rent due for any periods subsequent to the date of such sale), an amount equal to (i) any unpaid Basic Periodic Lease Rent or and Renewal Lease Rent due and unpaid through on or before the Relevant Termination Date date of such sale and, plus (ii) if the date is not a Termination Date, the sum of (A) accrued and unpaid interest on the Senior Notes from the Termination Date next preceding the date of such sale (after payment of principal, premium and interest on the Senior Notes on such Termination Date (if such Termination Date is a Rent Payment Date)) to the date of such sale, plus (B) the product of (x) the positive or negative difference between the Equity Portion of Termination Value on the Termination Date next preceding the date of such sale (after any Lessee Section 467 Loan 45 Balance payment of the Equity Portion of Periodic Lease Rent due on such Termination Date (if such Termination Date is a Rent Payment Date)) and the Equity Portion of Termination Value on the Termination Date next succeeding the date of such sale, and (y) a fraction, the numerator of which is the number of days from the Termination Date next preceding the date of such sale to the date of such sale, and the denominator of which is the number of days between the Termination Date next preceding the date of such sale and the Termination Date next succeeding the date of such sale, plus (iii) either (A) if the date of such sale is not a Termination Date, the amount, if any, by which the Termination Value computed as of the Termination Date next preceding the date of such sale or, (after deducting any payment of the Periodic Lease Rent due on such Termination Date (if such sale occurs on Termination Date is a Rent Payment Date Date)), exceeds the net proceeds of such sale or (B) if the date of such sale is a Termination Date then computed Date, the amount by which the Termination Value as of such date, the date of sale exceeds the net proceeds of such sale, together with interest on the amounts payable pursuant to this Section 17.1(f) at the Overdue Rate for the period, if any, from the date of sale to and including the date of actual payment of all such amounts to the Owner Lessor; and, upon payment of all such amountamounts, this Facility Lease and the Facility Lessee's obligation to pay Basic Periodic Lease Rent or Renewal Lease Rent for any periods subsequent to the date of such payment shall terminate and this Project Lease, the Head Lease and the Sublease of the Power Plant Sublease shall terminate, Allocated Rent shall cease to accrue and ; or
(g) apply any amounts that are held by the Owner Lessor shall pay to the Facility Lessee the Lessor Section 467 Loan Balance, if any, determined as of the relevant Termination Date. The obligation to make such payments shall be subject to the provisions of SECTION 3.2(D). In addition, the Facility Lessee shall be liable, except as otherwise provided above, for (i) any and all unpaid Basic Lease Rent or Renewal Rent due hereunder before, or during the exercise of any of the foregoing remedies, and (ii) on an After-Tax Basis, for legal fees and other costs and expenses incurred by reason of the occurrence of any Lease Event of Default or the exercise of the Owner Lessor's remedies with respect thereto, including the repayment in full of any costs and expenses necessary to be expended in connection with the return of the Undivided Interest in accordance with SECTION 5 hereof, including, without limitation, any costs and expenses incurred by the Owner Lessor, the Owner Participant and the Lease Indenture Trustee in connection with retaking constructive possession ofas security for the Lessee's obligations hereunder or under any Security Document against any amounts owed by the Lessee hereunder or under any other Operative Document, or in repairing, the Undivided Interest in order to cause it to be in compliance with all maintenance standards imposed by this Facility Lease.
(g) upon the occurrence and during the continuance of a Rent Default Event, the Owner Lessor may from time to time withdraw amounts from the Equity Account pursuant subject to Section 4.6(b) of the Amended Security Deposit Agreement and subject to the posting of an Equity Letter of Credit required thereunder.12.17
Appears in 2 contracts
Samples: Project Lease Agreement (Ormat Technologies, Inc.), Project Lease Agreement (Ormat Technologies, Inc.)
Remedies for Lease Event of Default. Upon the occurrence of any Lease Event of Default and at any time thereafter so long as the same shall be continuing, the Owner Lessor may, at its option, declare this Facility Network Lease to be in default by written notice to the Facility Lessee Lessee; provided that upon the occurrence of a Lease Event of Default described in paragraph (PROVIDEDe) or (f) of Section 17, that this Facility Network Lease shall automatically be deemed to be in default without the need for giving any notice upon the occurrence of a Lease Event of Default in clause (g) or (h) of SECTION 16) in respect of the Facility Lesseenotice; and at any time thereafter, so long as the Facility Lessee shall not have remedied all outstanding Lease Events of Default, the Owner Lessor may, at the Facility Lessee's sole cost and expense, may do one or more of the following as the Owner Lessor in its sole discretion shall elect, to the extent permitted by, and subject to compliance with any mandatory Requirements of requirements of, Applicable Law then in effect:
(a) proceed by appropriate court action or actions, either at law or in equity, to enforce performance by the Facility Lessee Lessee, at the Lessee’s sole cost and expense, of the applicable covenants and terms of this Facility Network Lease or to recover damages for breach thereof;
(b) by notice in writing to the Facility Lessee, terminate this Facility Network Lease whereupon all right of the Facility Lessee to the possession and use under this Network Lease of the Undivided Lessee’s Interest under this Facility Lease shall absolutely cease and terminate but the Facility Lessee shall remain liable as hereinafter provided; and thereupon, the Owner Lessor may demand that the Facility Lessee, and the Facility Lessee shall, upon written demand of the Owner Lessor and at the Facility Lessee's sole cost and ’s expense, forthwith return possession of the Undivided Interest and the Software Rights to the Owner Lessor in the manner and condition required by, and otherwise in accordance with all of the provisions of SECTION Section 5, except those provisions relating to periods of notice; and the Owner Lessor may thenceforth hold, possess and enjoy the same same, free from any right of the Facility Lessee, or its successor or assigns, to use the Undivided Interest and the Software Rights for any purpose whatever;
(c) sell the Owner Lessor's ’s Interest at public or private sale, as the Owner Lessor may determine, free and clear of any rights of the Facility Lessee under this Facility Network Lease and without any duty to account to the Facility Lessee with respect to such sale or for the proceeds thereof (except to the extent required by paragraph (f) below if the Owner Lessor elects to exercise its rights under said paragraph and by Requirements of Applicable Law), in which event (i) Allocated Rent shall cease to accrue and (ii) the Facility Lessee's ’s obligation to pay Basic Lease Rent or Renewal Rent hereunder due for any periods subsequent to the date of such sale shall terminate (except to the extent that Basic Lease Rent or Renewal Rent is to be included in computations under paragraph (e) or (f) below if the Owner Lessor elects to exercise its rights under said paragraph) and in which event the Owner Lessor shall pay to the Facility Lessee the Lessor Section 467 Loan Balance, if any, determined as of such date, PROVIDED, HOWEVER, that the obligation of the Owner Lessor to make such payments shall be subject to the provisions of Section 3.2(dparagraphs);
(d) hold, keep idle or lease to others the Owner Lessor's ’s Interest as the Owner Lessor in its sole discretion may determine, free and clear of any rights of the Facility Lessee under this Facility Network Lease and without any duty to account to the Facility Lessee with respect to such action or inaction or for any proceeds with respect thereto, except that the Facility Lessee's ’s obligation to pay Basic Lease Rent or Renewal Rent with respect to the Undivided Interest due for any periods subsequent to the date upon which the Facility Lessee shall have been deprived of possession and use of the Undivided Lessee’s Interest pursuant to this SECTION 17 Section 18 shall be reduced by the net proceeds, if any, received by the Owner Lessor from leasing subleasing the Undivided Interest and transferring the Software Rights to any Person other than the Facility Lessee and in which event the Owner Lessor shall pay to the Facility Lessee the Lessor Section 467 Loan Balance, if any, determined as of such date, PROVIDED, HOWEVER, that the obligation of the Owner Lessor to make such payments shall be subject to the provisions of Section 3.2(d)Lessee;
(e) whether or not the Owner Lessor shall have exercised, or shall thereafter at any time exercise, any of its rights under paragraph (b) above with respect to the Undivided Lessee’s Interest, the Owner Lessor, by written notice to the Facility Lessee specifying a Termination Date that shall be not earlier than 10 days after the date of such notice, may demand that the Facility Lessee pay to the Owner Lessor, and the Facility Lessee shall pay to the Owner Lessor, on the Termination Date specified in such notice notice, any due and unpaid, or accrued and unpaid, unpaid Basic Lease Rent due on or Renewal Rent due through the before such Termination Date, any Supplemental Lease Rent due and payable as of the payment date Termination Date specified in such notice, plus plus, as liquidated damages for loss of a bargain and not as a penalty (in lieu of the Basic Lease Rent or Renewal Rent due after the Termination Date specified in such notice), (i) an amount equal to the excess, if any, of the sum of the Termination Value plus any Lessee Section 467 Loan Balance plus any Basic Lease Rent or Renewal Rent due and unpaid, in each case, computed as of the Termination Date specified in such notice over the Fair Market Sales Value of the Owner Lessor's ’s Interest as of the Termination Date specified in such notice; , or (ii) an amount equal to the excess, if any, of the sum of the Termination Value plus any Lessee Section 467 Loan Balance plus any Basic Lease Rent or Renewal Rent due and unpaid, in each case, computed as of the Termination Date specified in such notice over the Fair Market Rental Value of the Owner Lessor's ’s Interest until the end of the Basic Lease Term or the then current Renewal Network Lease Term, after discounting such Fair Market Rental Value semi-annually semiannually to present value as of the Termination Date specified in such notice at a rate equal to the Discount Lease Debt Rate; or (iii) an amount equal to the Termination Value computed as of the Termination Date specified in such notice PROVIDED THAT upon payment of such Termination Value by the Facility Lessee pursuant to this clause (iii) and all other Rent then due and unpaid, or accrued and unpaid by the Facility Lessee and the payment of the Lessee Section 467 Loan Balance as of such Termination Date, the Owner Lessor shall proceed to exercise its commercially reasonable efforts promptly to sell the Undivided Interest at public or private sale and shall pay over to the Facility Lessee upon consummation of any such sale the net proceeds of such sale (after deducting from such proceeds all costs and expenses incurred by the Owner Lessor in connection therewith and all other amounts that may become payable to the Owner Lessor, the Security Agent or any other Lease Financing Party) and the Facility Lessee waives all claims against the Owner Lessor and the Owner Participant in connection with the sale of the Undivided Interest or the use of commercially reasonable efforts pursuant to this proviso; PROVIDED FURTHER that in lieu of paying an amount equal to the Termination Value pursuant to clause (iii) above, the Facility Lessee may make a rejectable offer in writing to the Owner Lessor (within 5 days following the Facility Lessee's receipt of notice by the Owner Lessor specifying a Termination Date) (an "OFFER") to purchase the Undivided Interest at a purchase price equal to or greater than Termination Value (the "OFFER PRICE"). If the Owner Lessor rejects such Offer in writing, the Facility Lessee shall remain liable to pay Termination Value pursuant to clause (iii) above, all other Rent then due and unpaid, or accrued and unpaid, by the Facility Lessee and any Lessee Section 467 Loan Balance, determined as of the Termination Date PROVIDED THAT (1) the Facility Lessee shall have no obligation to pay the costs and expenses incurred by the Owner Lessor solely in connection with any sale of the Undivided Interest and (2) the Owner Lessor shall proceed to exercise its best efforts promptly to sell the Undivided Interest at public or private sale and shall pay over to the Facility Lessee upon consummation of any such sale the proceeds of such sale, but not to exceed the sum of Termination Value paid by the Facility Lessee plus interest at the Applicable Rate from the Termination Date until the date of payment of such proceeds to the Facility Lessee. If the Facility Lessee has made an Offer and the Owner Lessor accepts such Offer or fails to respond to such Offer within two (2) Business Days prior to the date on which the Facility Lessee would have been required to pay Termination Value pursuant to clause (iii) above, the Facility Lessee shall pay to the Owner Lessor the Offer Price on or before the Termination Date and upon such payment of the Offer Price and all other Rent then due and unpaid, or accrued and unpaid, by the Facility Lessee and any Lessee Section 467 Loan Balance determined as of the Termination Date on the Termination Date, the Facility Lessee shall no longer remain liable to pay Termination Value or other amounts pursuant to clause (iii) above and the Owner Lessor shall forthwith transfer to the Facility Lessee (or its designee) in accordance with this SECTION 17.1(E) hereof and SECTION 6 of the Facility Site Lease on an "as is," "where is" and "with all faults" basis, without representation or warranty other than a warranty as to the absence of Owner Lessor Liens accompanied by a warranty of the Owner Participant as to the absence of the Owner Participant Liens, all of its interest in the Owner Lessor's Interest and execute, acknowledge and deliver, and record and file (as appropriate), appropriate releases, including a release from the Lien of the Lease Indenture, and all other documents or instructions necessary or desirable to effect the foregoing all in form and substance reasonably satisfactory to the Owner Lessor and at the cost and expense of the Facility Lessee, and upon payment of such amounts due excess amount under either clause (i) or (ii) of this paragraph (e), (x) Allocated Rent shall cease to accrue, (y) this Facility Lease, Network Lease and the Facility Lessee's ’s obligation to pay Basic Lease Rent or Renewal Lease Rent hereunder, as the case may be, hereunder due for any periods subsequent to the date of such payment shall terminate and (z) the Owner Lessor shall pay to the Facility Lessee the Lessor Section 467 Loan Balance, if any, determined as of the relevant Termination Date. The obligation to make such payments shall be subject to the provisions of SECTION 3.2(D); andterminate;
(f) if the Owner Lessor shall have sold the Owner Lessor's ’s Interest pursuant to paragraph (c) above, the Owner Lessor may, if it shall so elect, demand that the Facility Lessee pay to the Owner Lessor, and the Facility Lessee shall pay to the Owner Lessor, as liquidated damages for loss of a bargain and not as a penalty (in lieu of the Basic Lease Rent or Renewal Rent due for any periods subsequent to the date dxxx of such sale), an amount equal to (i) any unpaid Basic Lease Rent or Renewal Rent due and unpaid through [on or] before the Relevant Termination Date plus date of such sale and, (ii) any Lessee Section 467 Loan 45 Balance if that date is not a Termination Date, the daily equivalent of Basic Lease Rent for the period from the preceding Termination Date to the date of such sale, plus (iii) the amount, if any, by which the Termination Value computed as of the Termination Date next preceding the date of such sale or, if such sale occurs on a Rent Payment Date or a Termination Date then computed as of such date, exceeds the net proceeds of such sale, and, upon payment of such amount, this Facility Network Lease and the Facility Lessee's ’s obligation to pay Basic Lease Rent or Renewal Rent for any periods subsequent to the date of such payment shall terminate, Allocated Rent shall cease to accrue and ;
(g) whether or not the Owner Lessor shall have exercised, or shall thereafter at any time exercise, any of its rights under paragraph (b) above with respect to the Lessee’s Interest, the Owner Lessor, by written notice to the Lessee specifying a Termination Date that shall not be earlier than 10 days after the date of such notice, may demand that the Lessee pay to the Facility Owner Lessor, and the Lessee shall pay to the Lessor Section 467 Loan BalanceOwner Lessor, if anyon the Termination Date specified in such notice, determined any unpaid Basic Rent due before such Termination Date, plus as liquidated damages for loss of a bargain and not as a penalty (in lieu of the Basic Rent due after the Termination Date specified in such notice), an amount equal to the Termination Value computed, as of the relevant Termination Date. The Date specified in such notice and, upon payment of such Termination Value by the Lessee pursuant to this clause (g) and all other Rent then due and payable by the Lessee, the Owner Lessor will forthwith transfer to the Lessee in accordance with this Section 18.1(g), and Section 5 of the Head Lease on an “as is,” “where is” and “with all faults” basis, without representation or warranty other than a warranty as to the absence of Owner Lessor’s Liens accompanied by a warranty of the Owner Participant as to the absence of the Owner Participant’s Liens, all of its right, title and interest in and to the Owner Lessor’s Interest and execute, acknowledge and deliver, and prepare and file (as appropriate), appropriate releases and all other documents or instructions necessary or desirable to effect the foregoing all in form and substance reasonably satisfactory to, and at the cost and expense of, the Lessee, and upon payment of such amounts under this paragraph (g), this Network Lease and the Lessee’s obligation to make such payments shall be subject pay Basic Lease Rent hereunder due for any periods subsequent to the provisions date of SECTION 3.2(D)such payment shall terminate; or
(h) apply any amounts which are held by the Owner Lessor or the Lease Indenture Trustee under Section 10.2(c) as security for the Lessee’s obligations hereunder against any amounts owed by the Lessee hereunder or under any other Operative Document. In addition, the Facility Lessee shall be liable, except as otherwise provided above, for (i) any and all unpaid Basic Lease Rent or Renewal Rent due hereunder before, before or during the exercise of any of the foregoing remedies, and (ii) on an After-Tax Basis, for legal fees and other costs and expenses incurred by reason of the occurrence of any Lease Event of Default or the exercise of the Owner Lessor's ’s remedies with respect theretothereto (whether those remedies are exercised by the Owner Lessor, the Lease Indenture Trustee or a designee of either), including the repayment in full of any costs and expenses necessary to be expended in connection with the return of the Undivided Interest Network in accordance with SECTION Section 5 hereof, including, without limitation, and any costs and expenses incurred by the Owner Lessor, the Owner Participant and Participant, the Lease Indenture Trustee and the Pass Through Trustee in connection with retaking constructive possession of, or in repairing, the Undivided Interest Network in order to cause it to be in compliance with all maintenance standards imposed by this Facility Network Lease.
(g) upon . For the occurrence and during the continuance limited purpose of a Rent Default Event, permitting the Owner Lessor may from time to time withdraw amounts from exercise the Equity Account pursuant to Section 4.6(bremedies provided by paragraphs (b), (c) or (d) of this Section 18.1 in circumstances where the Amended Security Deposit Agreement and subject Lessee shall not have complied with its covenant set forth in paragraph (b) of this Section 18.1, (i) the Lessee grants to the posting Owner Lessor the right to enter upon premises owned by the Lessee or in which the Lessee has a possessory interest on which any Component of an Equity Letter the Network is located, (ii) the Lessee appoints the Owner Lessor as its agent for purposes of Credit required thereunderexercising its right to ingress and egress over any property in which the Lessee holds a possessory interest on which any Component of the Network is located and (iii) the Lessee appoints the Owner Lessor as its attorney-in-fact for purposes of exercising a right of ingress and egress over any property in which the Lessee holds a possessory interest on which any Component of the Network is located, in the case of clauses (i), (ii) and (iii), to the fullest extent permitted by Applicable Law.
Appears in 1 contract
Samples: Network Lease Agreement (Tennessee Valley Authority)
Remedies for Lease Event of Default. Upon the occurrence of any Lease Event of Default and at any time thereafter so long as the same shall be continuing, the Owner Lessor may, at its option, declare this Facility Lease to be in default by written notice to the Facility Lessee (PROVIDEDprovided, that this Facility Lease shall automatically be in default without the need for giving any notice upon the occurrence of a Lease Event of Default in clause (g) or (h) of SECTION 16) in respect of the Facility LesseeSection 17); and at any time thereafter, so long as the Facility ---------- Lessee shall not have remedied all outstanding Lease Events of Default, the Owner Lessor may, at the Facility Lessee's sole cost and expense, do one or more of the following as the Owner Lessor in its sole discretion shall elect, to the extent permitted by, and subject to compliance with any mandatory Requirements of Law then in effect:
(a) proceed by appropriate court action or actions, either at law or in equity, to enforce performance by the Facility Lessee of the applicable covenants and terms of this Facility Lease or to recover damages for breach thereof;
(b) by notice in writing to the Facility Lessee, terminate this Facility Lease whereupon all right of the Facility Lessee to the possession and use of the Undivided Interest under this Facility Lease shall absolutely cease and terminate but the Facility Lessee shall remain liable as hereinafter provided; and thereupon, the Owner Lessor may demand that the Facility Lessee, and the Facility Lessee shall, upon written demand of the Owner Lessor and at the Facility Lessee's sole cost and expense, forthwith return possession of the Undivided Interest to the Owner Lessor in the manner and condition required by, and otherwise in accordance with all of the provisions of SECTION Section 5, except --------- those provisions relating to periods of notice; and the Owner Lessor may thenceforth hold, possess and enjoy the same free from any right of the Facility Lessee, or its successor or assigns, to use the Undivided Interest for any purpose whatever;
(c) sell the Owner Lessor's Interest at public or private sale, as the Owner Lessor may determine, free and clear of any rights of the Facility Lessee under this Facility Lease and without any duty to account to the Facility Lessee with respect to such sale or for the proceeds thereof (except to the extent required by paragraph (f) below if the Owner Lessor elects to exercise its rights under said paragraph and by Requirements of Law), in which event (i) Allocated Rent shall cease to accrue and (ii) the Facility Lessee's obligation to pay Basic Periodic Lease Rent or Renewal Rent hereunder due for any periods subsequent to the date of such sale shall terminate (except to the extent that Basic Periodic Lease Rent or Renewal Rent is to be included in computations under paragraph (f) below if the Owner Lessor elects to exercise its rights under said paragraph) and in which event the Owner Lessor shall pay to the Facility Lessee the Lessor Section 467 Loan Balance, if any, determined as of such date, PROVIDED, HOWEVER, that the obligation of the Owner Lessor to make such payments shall be subject to the provisions of Section 3.2(d);
(d) hold, keep idle or lease to others the Owner Lessor's Interest as the Owner Lessor in its sole discretion may determine, free and clear of any rights of the Facility Lessee under this Facility Lease and without any duty to account to the Facility Lessee with respect to XXXXXXXXX FACILITY LEASE (L1) ----------------------------- such action or inaction or for any proceeds with respect thereto, except that the Facility Lessee's obligation to pay Basic Periodic Lease Rent or Renewal Rent with respect to the Undivided Interest due for any periods subsequent to the date upon which the Facility Lessee shall have been deprived of possession and use of the Undivided Interest pursuant to this SECTION 17 Section 18 shall be reduced by the net ---------- proceeds, if any, received by the Owner Lessor from leasing the Undivided Interest to any Person other than the Facility Lessee and in which event the Owner Lessor shall pay to the Facility Lessee the Lessor Section 467 Loan Balance, if any, determined as of such date, PROVIDED, HOWEVER, that the obligation of the Owner Lessor to make such payments shall be subject to the provisions of Section 3.2(d)Lessee;
(e) whether or not the Owner Lessor shall have exercised, or shall thereafter at any time exercise, any of its rights under paragraph (b) above with respect to the Undivided Interest, the Owner Lessor, by written notice to the Facility Lessee specifying a Termination Date that shall be not earlier than 10 days after the date of such notice, may demand that the Facility Lessee pay to the Owner Lessor, and the Facility Lessee shall pay to the Owner Lessor, on the Termination Date specified in such notice any due and unpaid, or accrued and unpaid, Basic Periodic Lease Rent or Renewal Rent due through before the Termination Date, any Supplemental Lease Rent due and payable as of the payment date specified in such notice, plus as liquidated damages for loss of a bargain and not as a penalty (in lieu of the Basic Periodic Lease Rent or Renewal Rent due after the Termination Date specified in such notice), (i) an amount equal to the excess, if any, of the sum of the Termination Value plus any Lessee Section 467 Loan Balance plus any Basic Lease Rent or Renewal Rent due and unpaid, in each case, computed as of the Termination Date specified in such notice over the Fair Market Sales Value of the Owner Lessor's Interest as of the Termination Date specified in such notice; or (ii) an amount equal to the excess, if any, of the sum of the Termination Value plus any Lessee Section 467 Loan Balance plus any Basic Lease Rent or Renewal Rent due and unpaid, in each case, computed as of the Termination Date specified in such notice over the Fair Market Rental Value of the Owner Lessor's Interest until the end of the Basic Lease Term or the then current Renewal Lease Term, after discounting such Fair Market Rental Value semi-annually to present value as of the Termination Date specified in such notice at a rate equal to the Discount Rate; or (iii) an amount equal to the Termination Value computed as of the Termination Date specified in such notice PROVIDED THAT provided that upon payment of such Termination Value by the Facility Lessee pursuant to this clause (iii) and all other Rent then due and unpaid, or accrued and unpaid by the Facility Lessee and the payment of the Lessee Section 467 Loan Balance as of such Termination DateLessee, the Owner Lessor shall proceed to exercise its commercially reasonable efforts promptly to sell the Undivided Interest at public or private sale and shall pay over to the Facility Lessee upon consummation of any such sale the net proceeds of such sale (after deducting from such proceeds all costs and expenses incurred by the Owner Lessor in connection therewith and all other amounts that may become payable to the Owner Lessor, the Security Agent Lease Indenture Trustee or any other Lease Financing Party) and the Facility Lessee waives all claims against the Owner Lessor and the Owner Participant in connection with the sale of the Undivided Interest or the use of commercially reasonable efforts pursuant to this proviso; PROVIDED FURTHER provided further that in lieu of paying an amount equal to the Termination Value pursuant to clause (iii) above, the Facility Lessee may make a rejectable offer in writing to the Owner Lessor (within 5 days following the Facility Lessee's receipt of notice by the Owner Lessor specifying a Termination Date) (an "OFFEROffer") to purchase the Undivided Interest at a purchase price equal ----- to or greater than Termination Value (the "OFFER PRICEOffer Price"). If the Owner Lessor ----------- rejects such Offer in writing, the Facility Lessee shall remain liable to pay Termination Value pursuant to clause (iii) above, all other Rent then due and unpaid, or accrued and unpaid, by the Facility Lessee and any Lessee Section 467 Loan Balance, determined as of the Termination Date PROVIDED THAT above provided that (1) the XXXXXXXXX FACILITY LEASE (L1) ----------------------------- Facility Lessee shall have no obligation to pay the costs and expenses incurred by the Owner Lessor solely in connection with any sale of the Undivided Interest and (2) the Owner Lessor shall proceed to exercise its best efforts promptly to sell the Undivided Interest at public or private sale and shall pay over to the Facility Lessee upon consummation of any such sale the proceeds of such sale, but not to exceed the sum of Termination Value paid by the Facility Lessee plus interest at the Applicable Rate from the Termination Date until the date of payment of such proceeds to the Facility Lessee. If the Facility Lessee has made an Offer and the Owner Lessor accepts such Offer or fails to respond to such Offer within two (2) Business Days prior to the date on which the Facility Lessee would have been required to pay Termination Value pursuant to clause (iii) above, the Facility Lessee shall pay to the Owner Lessor the Offer Price on or before the Termination Date and upon such payment of the Offer Price and all other Rent then due and unpaid, or accrued and unpaid, by the Facility Lessee and any Lessee Section 467 Loan Balance determined as of the Termination Date on the Termination DateLessee, the Facility Lessee shall no longer remain liable to pay Termination Value or other amounts pursuant to clause (iii) above and the Owner Lessor shall forthwith transfer to the Facility Lessee (or its designee) in accordance with this SECTION 17.1(ESection 18.1(e) hereof and SECTION Section 6 of the Facility Site Lease on an "as -------------- --------- is," "where is" and "with all faults" basis, without representation or warranty other than a warranty as to the absence of Owner Lessor Liens accompanied by a warranty of the Owner Participant as to the absence of the Owner Participant Liens, all of its interest in the Owner Lessor's Interest and execute, acknowledge and deliver, and record and file (as appropriate), appropriate releases, including a release from the Lien of the Lease Indenture, and all other documents or instructions necessary or desirable to effect the foregoing all in form and substance reasonably satisfactory to the Owner Lessor and at the cost and expense of the Facility Lessee, and upon payment of such amounts due under either clauses (i) and (ii) of this paragraph (e), (x) Allocated Rent shall cease to accrue, accrue and (y) this Facility Lease, and the Facility Lessee's obligation to pay Basic Periodic Lease Rent or Renewal Lease Rent hereunder, as the case may be, hereunder due for any periods subsequent to the date of such payment shall terminate and (z) the Owner Lessor shall pay to the Facility Lessee the Lessor Section 467 Loan Balance, if any, determined as of the relevant Termination Date. The obligation to make such payments shall be subject to the provisions of SECTION 3.2(D)terminate; and
(f) if the Owner Lessor shall have sold the Owner Lessor's Interest pursuant to paragraph (c) above, the Owner Lessor may, if it shall so elect, demand that the Facility Lessee pay to the Owner Lessor, and the Facility Lessee shall pay to the Owner Lessor, as liquidated damages for loss of a bargain and not as a penalty (in lieu of the Basic Periodic Lease Rent or Renewal Rent due for any periods subsequent to the date of such sale), an amount equal to (i) any unpaid Basic Periodic Lease Rent or Renewal Rent due and unpaid through before the Relevant Termination Date date of such sale plus (ii) any Lessee Section 467 Loan 45 Balance plus (iii) the amount, if any, by which the Termination Value computed as of the ---- Termination Date next preceding the date of such sale or, if such sale occurs on a Rent Payment Date or a Termination Date then computed as of such date, exceeds the net proceeds of such sale, and, upon payment of such amount, this Facility Lease and the Facility Lessee's obligation to pay Basic Periodic Lease Rent or Renewal Rent for any periods subsequent to the date of such payment shall terminate, Allocated Rent shall cease to accrue and the Owner Lessor shall pay to the Facility Lessee the Lessor Section 467 Loan Balance, if any, determined as of the relevant Termination Date. The obligation to make such payments shall be subject to the provisions of SECTION 3.2(D). In addition, the Facility Lessee shall be liable, except as otherwise provided above, for (i) any and all unpaid Basic Periodic Lease Rent or Renewal Rent due hereunder before, or during the exercise of any of the foregoing remedies, and (ii) on an After-Tax Basis, for legal fees and other costs and XXXXXXXXX FACILITY LEASE (L1) ----------------------------- expenses incurred by reason of the occurrence of any Lease Event of Default or the exercise of the Owner Lessor's remedies with respect thereto, including the repayment in full of any costs and expenses necessary to be expended in connection with the return of the Undivided Interest in accordance with SECTION Section ------- 5 hereof, including, without limitation, any costs and expenses incurred by the - Owner Lessor, the Owner Participant and Participant, the Equity Investor, the OP Guarantor, the Lease Indenture Trustee and the Pass Through Trustees in connection with retaking constructive possession of, or in repairing, the Undivided Interest in order to cause it to be in compliance with all maintenance standards imposed by this Facility Lease.
(g) upon the occurrence and during the continuance of a Rent Default Event, the Owner Lessor may from time to time withdraw amounts from the Equity Account pursuant to Section 4.6(b) of the Amended Security Deposit Agreement and subject to the posting of an Equity Letter of Credit required thereunder.
Appears in 1 contract
Remedies for Lease Event of Default. Upon the occurrence of any Lease Event of Default and at any time thereafter so long as the same shall be continuing, the Owner Lessor may, at its option, declare this Facility Lease to be in default by written notice to the Facility Lessee Lessee; provided that upon the occurrence of a Lease Event of Default described in paragraph (PROVIDEDg) or (h) of Section 16, that this Facility Lease shall automatically be deemed to be in default without the need for giving any notice upon the occurrence of a Lease Event of Default in clause (g) or (h) of SECTION 16) in respect of the Facility Lesseenotice; and at any time thereafter, so long as the Facility Lessee shall not have remedied all outstanding Lease Events of Default, the Owner Lessor may, at the Facility Lessee's sole cost and expense, may do one or more of the following following, as the Owner Lessor in its sole discretion shall elect, to the extent permitted by, and subject to compliance with any mandatory Requirements of requirements of, Applicable Law then in effect:
(a) proceed by appropriate court action or actions, either at law or in equity, to enforce performance by the Facility Lessee or the Guarantor, at the Lessee’s sole cost and expense, of the applicable covenants and terms of this Facility Lease or the other Operative Documents or to recover damages for breach thereof;
(b) by notice in writing to the Facility Lessee, terminate this Facility Lease whereupon all right rights of the Facility Lessee to the possession and use of the Undivided Interest under this Facility Lease shall absolutely cease and terminate but the Facility Lessee shall remain liable as hereinafter providedprovided in paragraph (c); and thereupon, the Owner Lessor may demand that the Facility Lessee, and the Facility Lessee shall, upon written demand of the Owner Lessor and at the Facility Lessee's sole cost and ’s expense, forthwith return possession of the Undivided Interest to the Owner Lessor in the manner and condition required by, and otherwise in accordance with all of the provisions of SECTION 5of, except those provisions relating to periods of notice; Section 5.2, and the Owner Lessor may thenceforth hold, possess and enjoy the same free from any right of the Facility Lessee, or its successor or assigns, to use the Undivided Interest for any purpose whatever;
(c) sell the Owner Lessor's ’s Interest at public or private sale, as the Owner Lessor may determine, free and clear of any rights of the Facility Lessee under this Facility Lease and without any duty to account to the Facility Lessee with respect to such sale or for the proceeds thereof (except to the extent required by paragraph (f) below if the Owner Lessor elects to exercise its rights under said paragraph and by Requirements of Applicable Law), in which event (i) Allocated Rent shall cease to accrue accrue, and (ii) the Facility Lessee's ’s obligation to pay Basic Lease Rent or Renewal Periodic Rent hereunder due for any periods subsequent to the date of such sale shall terminate (except to the extent that Basic Lease Rent or Renewal such Rent is to be included in computations under paragraph (f) below if the Owner Lessor elects to exercise its rights under said paragraph) and in which event the Owner Lessor shall pay to the Facility Lessee the Lessor Section 467 Loan Balance, if any, determined as of such date, PROVIDED, HOWEVER, that the obligation of the Owner Lessor to make such payments shall be subject to the provisions of Section 3.2(d);
(d) hold, keep idle or lease to others the Owner Lessor's ’s Interest as the Owner Lessor in its sole discretion may determine, free and clear of any rights of the Facility Lessee under this Facility Lease and without any duty to account to the Facility Lessee with respect to such action or inaction or for any proceeds with respect thereto, except to the extent required by Applicable Law, except that the Facility Lessee's ’s obligation to pay Basic Lease Periodic Rent or Renewal Rent with respect to the Undivided Interest due for any periods subsequent to the date upon which the Facility Lessee shall have been deprived of possession and use of the Undivided Interest Facility pursuant to this SECTION Section 17 shall be reduced by the net proceeds, if any, received by the Owner Lessor from leasing the Undivided Interest to any Person other than the Facility Lessee and in which event the Owner Lessor shall pay to the Facility Lessee (the Lessor Section 467 Loan Balance, if any, determined as of such date, PROVIDED, HOWEVER, that having no obligation to so lease the obligation of the Owner Lessor to make such payments shall be subject to the provisions of Section 3.2(dUndivided Interest);; and
(e) whether or not the Owner Lessor shall have exercised, or shall thereafter at any time exercise, any of its rights under paragraph (b) above with respect to the Undivided Interest, the Owner Lessor, by written notice to the Facility Lessee specifying a Termination Date that shall be not earlier than 10 ten days after the date of such notice, may demand that the Facility Lessee pay to the Owner Lessor, and the Facility Lessee shall pay to the Owner Lessor, on the Termination Date specified in such notice notice, (i) any due and unpaid, or accrued and unpaid, Basic Lease Rent or Renewal Rent due through the Termination Date, any Supplemental Lease unpaid Periodic Rent due and payable as of the payment date specified in before such noticeTermination Date, plus (ii) if such Termination Date shall be a Rent Payment Date, any Periodic Rent due and payable on such Rent Payment Date, plus (iii) as liquidated damages for loss of a bargain and not as a penalty (in lieu of the Basic Lease Rent or Renewal Periodic Rent due after the Termination Date specified in such notice), ) (ias the Lessor shall decide in its sole discretion) (A) an amount equal to the excess, if any, of the sum of the Termination Value plus any Lessee Section 467 Loan Balance plus any Basic Lease Rent or Renewal Rent due and unpaid, in each case, Amount computed as of the Termination Date specified in such notice over the Fair Market Sales Value of the Owner Lessor's ’s Interest as of the Termination Date specified in such notice; or (iiB) an amount equal to the excess, if any, of the sum of the Termination Value plus any Lessee Section 467 Loan Balance plus any Basic Lease Rent or Renewal Rent due and unpaid, in each case, Amount computed as of the Termination Date specified in such notice over the Fair Market Rental Value of the Owner Lessor's ’s Interest until the end of the Basic Lease Term or the then current Renewal Lease Term, as the case may be, after discounting such Fair Market Rental Value semi-annually semiannually to present value as of the Termination Date specified in such notice at a rate equal to the Discount Lease Debt Rate; , or (iiiC) an amount equal to the Termination Value Amount computed as of the Termination Date specified in such notice PROVIDED THAT provided that upon payment of such Termination Value Amount by the Facility Lessee pursuant to this clause (iiiC) and all other Rent then due and unpaid, or accrued and unpaid by the Facility Lessee, the Lessor shall appoint an independent sales agent reasonably satisfactory to the Lessee and the payment of the Lessee Section 467 Loan Balance as of cause such Termination Date, the Owner Lessor shall proceed sales agent to exercise its use commercially reasonable efforts promptly to sell obtain Qualifying Cash Bids. If one or more Qualifying Cash Bids is received within 90 days of the Undivided Interest at public or private appointment of the sale and shall pay over to the Facility Lessee upon consummation of any such sale the net proceeds of such sale (after deducting from such proceeds all costs and expenses incurred by the Owner Lessor in connection therewith and all other amounts that may become payable to the Owner Lessoragent, the Security Agent or any other Lease Financing Party) and the Facility Lessee waives all claims against the Owner Lessor and the Owner Participant in connection with the sale of the Undivided Interest or the use of commercially reasonable efforts pursuant to this proviso; PROVIDED FURTHER that in lieu of paying an amount equal to the Termination Value pursuant to clause (iii) above, the Facility Lessee may make a rejectable offer in writing to the Owner Lessor (within 5 days following the Facility Lessee's receipt of notice by the Owner Lessor specifying a Termination Date) (an "OFFER") to purchase the Undivided Interest at a purchase price equal to or greater than Termination Value (the "OFFER PRICE"). If the Owner Lessor rejects such Offer in writing, the Facility Lessee shall remain liable to pay Termination Value pursuant to clause (iii) above, all other Rent then due and unpaid, or accrued and unpaid, by the Facility Lessee and any Lessee Section 467 Loan Balance, determined as of the Termination Date PROVIDED THAT (1) the Facility Lessee shall have no obligation to pay the costs and expenses incurred by the Owner Lessor solely in connection with any sale of the Undivided Interest and (2) the Owner Lessor shall proceed to exercise its best efforts promptly to sell the Undivided Interest at public or private sale and shall pay over to the Facility Lessee upon consummation of any such sale the proceeds of such sale, but not to exceed the sum of Termination Value paid by the Facility Lessee plus interest at the Applicable Rate from the Termination Date until the date of payment of such proceeds to the Facility Lessee. If the Facility Lessee has made an Offer and the Owner Lessor accepts such Offer or fails to respond to such Offer within two (2) Business Days prior to the date on which the Facility Lessee would have been required to pay Termination Value pursuant to clause (iii) above, the Facility Lessee shall pay to the Owner Lessor the Offer Price on or before the Termination Date and upon such payment of the Offer Price and all other Rent then due and unpaid, or accrued and unpaid, by the Facility Lessee and any Lessee Section 467 Loan Balance determined as of the Termination Date on the Termination Date, the Facility Lessee shall no longer remain liable to pay Termination Value or other amounts pursuant to clause (iii) above and the Owner Lessor shall forthwith transfer to the Facility Lessee highest bidder (or its designee) in accordance with this SECTION 17.1(E) hereof and SECTION 6 of the Facility Site Lease on an "“as is," "”, “where is" ” and "“with all faults" ” basis, without representation representations or warranty warranties other than a warranty of the Lessor as to the absence of Owner Lessor Lessor’s Liens accompanied by a warranty and of the Owner Participant as to the absence of the Owner Participant Participant’s Liens, all of its right, title and interest in and to the Owner Lessor's Interest and execute, acknowledge and deliver’s Interest, and record and file the Lessor shall pay the net sales proceeds to the Lessee. Notwithstanding the foregoing, if in the case of clause (as appropriate), appropriate releases, including a release from A) or (B) above the Lien Lessor shall be unable to obtain constructive possession of the Lease Indenture, and all other documents or instructions necessary or desirable Undivided Interest sufficient to effect realize the foregoing all in form and substance reasonably satisfactory to the Owner Lessor and at the cost and expense economic benefit of the Facility LesseeLessor’s Interest, the Fair Market Rental Value and upon Fair Market Sales Value of the Lessor’s Interest shall be deemed equal to $0 (zero). Upon payment of such the amounts due under this paragraph specified in any of clause (eA), (xB) Allocated Rent shall cease to accrueor (C) above, (y) this Facility Lease, and the Facility Lessee's ’s obligation to pay Basic Lease Periodic Rent or Renewal Lease Rent hereunder, as the case may be, Termination Amount hereunder due for any periods subsequent to the date of such payment payment, shall terminate and (z) the Owner Lessor shall pay to the Facility Lessee the Lessor Section 467 Loan Balance, if any, determined as of the relevant Termination Date. The obligation to make such payments shall be subject to the provisions of SECTION 3.2(D)terminate; and
(f) if the Owner Lessor shall have sold the Owner Lessor's ’s Interest pursuant to paragraph (c) above, the Owner Lessor may, if it shall so elect, demand that the Facility Lessee pay to the Owner Lessor, and the Facility Lessee shall pay to the Owner Lessor, as liquidated damages for loss of a bargain and not as a penalty (in lieu of the Basic Lease Rent or Renewal Periodic Rent due for any periods subsequent to the date of such sale), an amount equal to (i) any unpaid Basic Lease Rent or Renewal Periodic Rent due and unpaid through payable before the Relevant date of such sale, plus (ii)(A) if that date is a Rent Payment Date, the Periodic Rent due on that date, or (B) if that date is not a Rent Payment Date or a Termination Date, the daily equivalent of Periodic Rent for the period from the preceding Termination Date plus (ii) any Lessee Section 467 Loan 45 Balance to the date of such sale, plus (iii) the amount, if any, by which the Termination Value Amount computed as of the Termination Date next preceding the date of such sale orsale, or if such sale occurs on a Rent Payment Date or a Termination Date Date, then computed as of such date, exceeds the net proceeds of such sale, and, upon payment of such amountamounts, this Facility Lease and the Facility Lessee's ’s obligation to pay Basic Lease Periodic Rent or Renewal Rent the Termination Amount for any periods subsequent to the date of such payment shall terminate, Allocated Rent . The Lessee’s liability in connection with the exercise of any or all of the foregoing remedies shall cease to accrue and be the Owner Lessor shall pay to the Facility Lessee the Lessor Section 467 Loan Balance, if any, determined Termination Amount computed as of the relevant Termination Date. The obligation Date occurring on or immediately prior to make such payments the date the Lessor declares this Facility Lease to be in default or it is otherwise deemed to be in default, except in the case of a Lease Event of Default resulting from a breach by the Lessee of its obligations under Section 5.12 of the Participation Agreement, in which case the Lessee’s liability shall be subject to the provisions of SECTION 3.2(D)PVRR Amount. In addition, the Facility Lessee shall be liable, except as otherwise provided above, liable for (i) any and all unpaid Basic Lease Periodic Rent or Renewal and Supplemental Rent (other than the Termination Amount) due hereunder before, before or during the exercise of any of the foregoing remedies, and (ii) ), if the Lessee’s liability shall be calculated by reference to the Termination Amount, on an After-Tax Basis, for reasonable and documented legal fees and other costs and expenses incurred by reason of the occurrence of any Lease Event of Default or the exercise of the Owner Lessor's ’s remedies with respect thereto, including the repayment in full of any reasonable and documented costs and expenses necessary to be expended in connection with the return of the Undivided Interest in accordance with SECTION 5 Section 5.2 hereof, including, without limitation, any reasonable and documented costs and expenses incurred by the Owner Lessor, the Owner Participant Participant, the Indenture Trustee and the Lease Indenture Pass Through Trustee in connection with retaking constructive possession of, or in repairing, the Undivided Interest in order to cause it to be in compliance with all maintenance standards imposed by this Facility Lease.
(g) upon the occurrence and during the continuance of a Rent Default Event, the Owner Lessor may from time to time withdraw amounts from the Equity Account pursuant to Section 4.6(b) of the Amended Security Deposit Agreement and subject to the posting of an Equity Letter of Credit required thereunder.
Appears in 1 contract
Remedies for Lease Event of Default. Upon the occurrence of any Lease Event of Default and at any time thereafter so long as the same shall be continuing, the Owner Lessor may, at its option, declare this Facility Lease to be in default by written notice to the Facility Lessee (PROVIDEDprovided, that this Facility Lease shall automatically be in default without the need for giving any notice upon the occurrence of a Lease Event of Default in clause (g) or (h) of SECTION Section 16) in respect of the Facility Lessee; and at any time thereafter, so long as the Facility Lessee shall not have remedied all outstanding Lease Events of Default, the Owner Lessor may, at the Facility Lessee's sole cost and expense, do one or more of the following as the Owner Lessor in its sole discretion shall elect, to the extent permitted by, and subject to compliance with any mandatory Requirements of Law then in effect:
(a) proceed by appropriate court action or actions, either at law or in equity, to enforce performance by the Facility Lessee of the applicable covenants and terms of this Facility Lease or to recover damages for breach thereof;
(b) by notice in writing to the Facility Lessee, terminate this Facility Lease whereupon all right of the Facility Lessee to the possession and use of the Undivided Interest under this Facility Lease shall absolutely cease and terminate but the Facility Lessee shall remain liable as hereinafter provided; and thereupon, the Owner Lessor may demand that the Facility Lessee, and the Facility Lessee shall, upon written demand of the Owner Lessor and at the Facility Lessee's sole cost and expense, forthwith return possession of the Undivided Interest to the Owner Lessor in the manner and condition required by, and otherwise in accordance with all of the provisions of SECTION Section 5, except those provisions relating to periods of notice; and the Owner Lessor may thenceforth hold, possess and enjoy the same free from any right of the Facility Lessee, or its successor or assigns, to use the Undivided Interest for any purpose whatever;
(c) sell the Owner Lessor's Interest at public or private sale, as the Owner Lessor may determine, free and clear of any rights of the Facility Lessee under this Facility Lease and without any duty to account to the Facility Lessee with respect to such sale or for the proceeds thereof (except to the extent required by paragraph (f) below if the Owner Lessor elects to exercise its rights under said paragraph and by Requirements of Law), in which event (i) Allocated Rent shall cease to accrue and (ii) the Facility Lessee's obligation to pay Basic Lease Rent or Renewal Rent hereunder due for any periods subsequent to the date of such sale shall terminate (except to the extent that Basic Lease Rent or Renewal Rent is to be included in computations under paragraph (f) below if the Owner Lessor elects to exercise its rights under said paragraph) and in which event the Owner Lessor shall pay to the Facility Lessee the Lessor Section 467 Loan Balance, if any, determined as of such date, PROVIDEDprovided, HOWEVERhowever, that the obligation of the Owner Lessor to make such payments shall be subject to the provisions of Section 3.2(d);
(d) hold, keep idle or lease to others the Owner Lessor's Interest as the Owner Lessor in its sole discretion may determine, free and clear of any rights of the Facility Lessee under this Facility Lease and without any duty to account to the Facility Lessee with respect to such action or inaction or for any proceeds with respect thereto, except that the Facility Lessee's obligation to pay Basic Lease Rent or Renewal Rent with respect to the Undivided Interest due for any periods subsequent to the date upon which the Facility Lessee shall have been deprived of possession and use of the Undivided Interest pursuant to this SECTION Section 17 shall be reduced by the net proceeds, if any, received by the Owner Lessor from leasing the Undivided Interest to any Person other than the Facility Lessee and in which event the Owner Lessor shall pay to the Facility Lessee the Lessor Section 467 Loan Balance, if any, determined as of such date, PROVIDEDprovided, HOWEVERhowever, that the obligation of the Owner Lessor to make such payments shall be subject to the provisions of Section 3.2(d);
(e) whether or not the Owner Lessor shall have exercised, or shall thereafter at any time exercise, any of its rights under paragraph (b) above with respect to the Undivided Interest, the Owner Lessor, by written notice to the Facility Lessee specifying a Termination Date that shall be not earlier than 10 days after the date of such notice, may demand that the Facility Lessee pay to the Owner Lessor, and the Facility Lessee shall pay to the Owner Lessor, on the Termination Date specified in such notice any due and unpaid, or accrued and unpaid, Basic Lease Rent or Renewal Rent due through the Termination Date, any Supplemental Lease Rent due and payable as of the payment date specified in such notice, plus as liquidated damages for loss of a bargain and not as a penalty (in lieu of the Basic Lease Rent or Renewal Rent due after the Termination Date specified in such notice), (i) an amount equal to the excess, if any, of the sum of the Termination Value plus any Lessee Section 467 Loan Balance plus any Basic Lease Rent or Renewal Rent due and unpaid, in each case, computed as of the Termination Date specified in such notice over the Fair Market Sales Value of the Owner Lessor's Interest as of the Termination Date specified in such notice; or (ii) an amount equal to the excess, if any, of the sum of the Termination Value plus any Lessee Section 467 Loan Balance plus any Basic Lease Rent or Renewal Rent due and unpaid, in each case, computed as of the Termination Date specified in such notice over the Fair Market Rental Value of the Owner Lessor's Interest until the end of the Basic Lease Term or the then current Renewal Lease Term, after discounting such Fair Market Rental Value semi-annually to present value as of the Termination Date specified in such notice at a rate equal to the Discount Rate; or (iii) an amount equal to the Termination Value computed as of the Termination Date specified in such notice PROVIDED THAT provided that upon payment of such Termination Value by the Facility Lessee pursuant to this clause (iii) and all other Rent then due and unpaid, or accrued and unpaid by the Facility Lessee and the payment of the Lessee Section 467 Loan Balance as of such Termination Date, the Owner Lessor shall proceed to exercise its commercially reasonable efforts promptly to sell the Undivided Interest at public or private sale and shall pay over to the Facility Lessee upon consummation of any such sale the net proceeds of such sale (after deducting from such proceeds all costs and expenses incurred by the Owner Lessor in connection therewith and all other amounts that may become payable to the Owner Lessor, the Security Agent or any other Lease Financing Party) and the Facility Lessee waives all claims against the Owner Lessor and the Owner Participant in connection with the sale of the Undivided Interest or the use of commercially reasonable efforts pursuant to this proviso; PROVIDED FURTHER provided further that in lieu of paying an amount equal to the Termination Value pursuant to clause (iii) above, the Facility Lessee may make a rejectable offer in writing to the Owner Lessor (within 5 days following the Facility Lessee's receipt of notice by the Owner Lessor specifying a Termination Date) (an "OFFEROffer") to purchase the Undivided Interest at a purchase price equal to or greater than Termination Value (the "OFFER PRICEOffer Price"). If the Owner Lessor rejects such Offer in writing, the Facility Lessee shall remain liable to pay Termination Value pursuant to clause (iii) above, all other Rent then due and unpaid, or accrued and unpaid, by the Facility Lessee and any Lessee Section 467 Loan Balance, determined as of the Termination Date PROVIDED THAT provided that (1) the Facility Lessee shall have no obligation to pay the costs and expenses incurred by the Owner Lessor solely in connection with any sale of the Undivided Interest and (2) the Owner Lessor shall proceed to exercise its best efforts promptly to sell the Undivided Interest at public or private sale and shall pay over to the Facility Lessee upon consummation of any such sale the proceeds of such sale, but not to exceed the sum of Termination Value paid by the Facility Lessee plus interest at the Applicable Rate from the Termination Date until the date of payment of such proceeds to the Facility Lessee. If the Facility Lessee has made an Offer and the Owner Lessor accepts such Offer or fails to respond to such Offer within two (2) Business Days prior to the date on which the Facility Lessee would have been required to pay Termination Value pursuant to clause (iii) above, the Facility Lessee shall pay to the Owner Lessor the Offer Price on or before the Termination Date and upon such payment of the Offer Price and all other Rent then due and unpaid, or accrued and unpaid, by the Facility Lessee and any Lessee Section 467 Loan Balance determined as of the Termination Date on the Termination Date, the Facility Lessee shall no longer remain liable to pay Termination Value or other amounts pursuant to clause (iii) above and the Owner Lessor shall forthwith transfer to the Facility Lessee (or its designee) in accordance with this SECTION 17.1(ESection 17.1(e) hereof and SECTION Section 6 of the Facility Site Lease on an "as is," "where is" and "with all faults" basis, without representation or warranty other than a warranty as to the absence of Owner Lessor Liens accompanied by a warranty of the Owner Participant as to the absence of the Owner Participant Liens, all of its interest in the Owner Lessor's Interest and execute, acknowledge and deliver, and record and file (as appropriate), appropriate releases, including a release from the Lien of the Lease Indenture, and all other documents or instructions necessary or desirable to effect the foregoing all in form and substance reasonably satisfactory to the Owner Lessor and at the cost and expense of the Facility Lessee, and upon payment of such amounts due under this paragraph (e), (x) Allocated Rent shall cease to accrue, (y) this Facility Lease, and the Facility Lessee's obligation to pay Basic Lease Rent or Renewal Lease Rent hereunder, as the case may be, due for any periods subsequent to the date of such payment shall terminate and (z) the Owner Lessor shall pay to the Facility Lessee the Lessor Section 467 Loan Balance, if any, determined as of the relevant Termination Date. The obligation to make such payments shall be subject to the provisions of SECTION 3.2(DSection 3.2(d); and
(f) if the Owner Lessor shall have sold the Owner Lessor's Interest pursuant to paragraph (c) above, the Owner Lessor may, if it shall so elect, demand that the Facility Lessee pay to the Owner Lessor, and the Facility Lessee shall pay to the Owner Lessor, as liquidated damages for loss of a bargain and not as a penalty (in lieu of the Basic Lease Rent or Renewal Rent due for any periods subsequent to the date of such sale), an amount equal to (i) any unpaid Basic Lease Rent or Renewal Rent due and unpaid through the Relevant Termination Date plus (ii) any Lessee Section 467 Loan 45 Balance plus (iii) the amount, if any, by which the Termination Value computed as of the Termination Date next preceding the date of such sale or, if such sale occurs on a Rent Payment Date or a Termination Date then computed as of such date, exceeds the net proceeds of such sale, and, upon payment of such amount, this Facility Lease and the Facility Lessee's obligation to pay Basic Lease Rent or Renewal Rent for any periods subsequent to the date of such payment shall terminate, Allocated Rent shall cease to accrue and the Owner Lessor shall pay to the Facility Lessee the Lessor Section 467 Loan Balance, if any, determined as of the relevant Termination Date. The obligation to make such payments shall be subject to the provisions of SECTION 3.2(DSection 3.2(d). In addition, the Facility Lessee shall be liable, except as otherwise provided above, for (i) any and all unpaid Basic Lease Rent or Renewal Rent due hereunder before, or during the exercise of any of the foregoing remedies, and (ii) on an After-Tax Basis, for legal fees and other costs and expenses incurred by reason of the occurrence of any Lease Event of Default or the exercise of the Owner Lessor's remedies with respect thereto, including the repayment in full of any costs and expenses necessary to be expended in connection with the return of the Undivided Interest in accordance with SECTION Section 5 hereof, including, without limitation, any costs and expenses incurred by the Owner Lessor, the Owner Participant and the Lease Indenture Trustee in connection with retaking constructive possession of, or in repairing, the Undivided Interest in order to cause it to be in compliance with all maintenance standards imposed by this Facility Lease.
(g) upon the occurrence and during the continuance of a Rent Default Event, the Owner Lessor may from time to time withdraw amounts from the Equity Account pursuant to Section 4.6(b) of the Amended Security Deposit Agreement and subject to the posting of an Equity Letter of Credit required thereunder.
Appears in 1 contract
Samples: Facility Lease Agreement (Eme Homer City Generation Lp)
Remedies for Lease Event of Default. Upon the occurrence of any Lease Event of Default and at any time thereafter so long as the same shall be continuing, the Owner Lessor may, at its option, declare this Facility Lease to be in default by written notice to the Facility Lessee (PROVIDED, that this Facility Lease shall automatically be in default without the need for giving any notice upon the occurrence of a Lease Event of Default in clause (g) or (h) of SECTION 16) in respect of the Facility Lessee; and at any time thereafter, so long as the Facility Lessee shall not have remedied all outstanding Lease Events of Default, the Owner Lessor may, at the Facility Lessee's sole cost and expense, may do one or more of the following as the Owner Lessor in its sole discretion shall elect, to the extent permitted by, and subject to compliance with any mandatory Requirements of Law then in effect:
(a) proceed by appropriate court action or actions, either at law or in equity, to enforce performance by the Facility Lessee of the applicable covenants and terms of this Facility Lease or to recover damages for breach thereof;
(b) by notice in writing to the Facility Lessee, terminate this Facility Lease whereupon all right of the Facility Lessee to the possession and use of the Undivided Interest under this Facility Lease shall absolutely cease and terminate but the Facility Lessee shall remain liable as hereinafter provided; and thereupon, the Owner Lessor may demand that the Facility Lessee, and the Facility Lessee shall, upon written demand of the Owner Lessor and at the Facility Lessee's sole cost and expense, forthwith return possession of the Undivided Interest to the Owner Lessor in the manner and condition required by, and otherwise in accordance with all of the provisions of SECTION Section 5, except those provisions relating to periods of notice; and the Owner Lessor may thenceforth hold, possess and enjoy the same free from any right of the Facility Lessee, or its successor or assigns, to use the Undivided Interest for any purpose whatever;
(c) sell the Owner Lessor's Interest at public or private sale, as the Owner Lessor may determine, free and clear of any rights of the Facility Lessee under this Facility Lease and without any duty to account to the Facility Lessee with respect to such sale or for the proceeds thereof (except to the extent required by paragraph (f) below if the Owner Lessor elects to exercise its rights under said paragraph and by Requirements of Law), in which event (i) Allocated Rent shall cease to accrue and (ii) the Facility Lessee's obligation to pay Basic Lease Rent or Renewal Rent hereunder due for any periods subsequent to the date of such sale shall terminate (except to the extent that Basic Lease Rent or Renewal Rent is to be included in computations under paragraph (f) below if the Owner Lessor elects to exercise its rights under said paragraph) and in which event the Owner Lessor shall pay to the Facility Lessee the Lessor Section 467 Loan Balance, if any, determined as of such date, PROVIDED, HOWEVER, that the obligation of the Owner Lessor to make such payments shall be subject to the provisions of Section 3.2(d);
(d) hold, keep idle or lease to others the Owner Lessor's Interest as the Owner Lessor in its sole discretion may determine, free and clear of any rights of the Facility Lessee under this Facility Lease and without any duty to account to the Facility Lessee with respect to such action or inaction or for any proceeds with respect thereto, except that the Facility Lessee's obligation to pay Basic Lease Rent or Renewal Rent with respect to the Undivided Interest due for any periods subsequent to the date upon which the Facility Lessee shall have been deprived of possession and use of the Undivided Interest pursuant to this SECTION Section 17 shall be reduced by the net proceeds, if any, received by the Owner Lessor from leasing the Undivided Interest to any Person other than the Facility Lessee and in which event the Owner Lessor shall pay to the Facility Lessee the Lessor Section 467 Loan Balance, if any, determined as of such date, PROVIDED, HOWEVER, that the obligation of the Owner Lessor to make such payments shall be subject to the provisions of Section 3.2(d)Lessee;
(e) whether or not the Owner Lessor shall have exercised, or shall thereafter at any time exercise, any of its rights under paragraph (b) above with respect to the Undivided Interest, the Owner Lessor, by written notice to the Facility Lessee specifying a Termination Date that shall be not earlier than 10 days after the date of such notice, may demand that the Facility Lessee pay to the Owner Lessor, and the Facility Lessee shall pay to the Owner Lessor, on the Termination Date specified in such notice notice, any due and unpaid, or accrued and unpaid, unpaid Basic Lease Rent or Renewal due before such Termination Date and, if such Termination Date shall be a Rent Payment Date, any Basic Lease Rent due through the Termination and payable on such Rent Payment Date, any Supplemental Lease Rent due and payable unpaid as of the payment date specified in such notice, plus as liquidated damages for loss of a bargain and not as a penalty (in lieu of the Basic Lease Rent or Renewal Rent due after the Termination Date specified in such notice), (i) an amount equal to the excess, if any, of the sum of the Termination Value plus any Lessee Section 467 Loan Balance plus any Basic Lease Rent or Renewal Rent due and unpaid, in each case, computed as of the Termination Date specified in such notice over the Fair Market Sales Value of the Owner Lessor's Interest as of the Termination Date specified in such notice; or (ii) an amount equal to the excess, if any, of the sum of the Termination Value plus any Lessee Section 467 Loan Balance plus any Basic Lease Rent or Renewal Rent due and unpaid, in each case, computed as of the Termination Date specified in such notice over the Fair Market Rental Value of the Owner Lessor's Interest until the end of the Basic Lease Term or the then current Renewal Lease Term, after discounting such Fair Market Rental Value semi-annually quarterly to present value as of the Termination Date specified in such notice at a rate equal to the Discount Rate; or (iii) an amount equal to the Termination Value computed as of the Termination Date specified in such notice PROVIDED THAT and, upon payment of such Termination Value by the Facility Lessee pursuant to this clause (iii) and all other Rent then due and unpaid, or accrued and unpaid by the Facility Lessee and the payment of the Lessee Section 467 Loan Balance as of such Termination DateLessee, the Owner Lessor shall proceed to exercise its commercially reasonable efforts promptly to sell the Undivided Interest at public or private sale and shall pay over to the Facility Lessee upon consummation of any such sale the net proceeds of such sale (after deducting from such proceeds all costs and expenses incurred by the Owner Lessor in connection therewith and all other amounts that may become payable to the Owner Lessor, the Security Agent or any other Lease Financing Party) and the Facility Lessee waives all claims against the Owner Lessor and the Owner Participant in connection with the sale of the Undivided Interest or the use of commercially reasonable efforts pursuant to this proviso; PROVIDED FURTHER that in lieu of paying an amount equal to the Termination Value pursuant to clause (iii) above, the Facility Lessee may make a rejectable offer in writing to the Owner Lessor (within 5 days following the Facility Lessee's receipt of notice by the Owner Lessor specifying a Termination Date) (an "OFFER") to purchase the Undivided Interest at a purchase price equal to or greater than Termination Value (the "OFFER PRICE"). If the Owner Lessor rejects such Offer in writing, the Facility Lessee shall remain liable to pay Termination Value pursuant to clause (iii) above, all other Rent then due and unpaid, or accrued and unpaid, by the Facility Lessee and any Lessee Section 467 Loan Balance, determined as of the Termination Date PROVIDED THAT (1) the Facility Lessee shall have no obligation to pay the costs and expenses incurred by the Owner Lessor solely in connection with any sale of the Undivided Interest and (2) the Owner Lessor shall proceed to exercise its best efforts promptly to sell the Undivided Interest at public or private sale and shall pay over to the Facility Lessee upon consummation of any such sale the proceeds of such sale, but not to exceed the sum of Termination Value paid by the Facility Lessee plus interest at the Applicable Rate from the Termination Date until the date of payment of such proceeds to the Facility Lessee. If the Facility Lessee has made an Offer and the Owner Lessor accepts such Offer or fails to respond to such Offer within two (2) Business Days prior to the date on which the Facility Lessee would have been required to pay Termination Value pursuant to clause (iii) above, the Facility Lessee shall pay to the Owner Lessor the Offer Price on or before the Termination Date and upon such payment of the Offer Price and all other Rent then due and unpaid, or accrued and unpaid, by the Facility Lessee and any Lessee Section 467 Loan Balance determined as of the Termination Date on the Termination Date, the Facility Lessee shall no longer remain liable to pay Termination Value or other amounts pursuant to clause (iii) above and the Owner Lessor shall will forthwith transfer to the Facility Lessee (or its designee) in accordance with this SECTION 17.1(ESection 17.1(e) hereof and SECTION Section 6 of the Facility Site Lease on an "as is," ", "where is" and "with all faults" basis, without representation or warranty other than a warranty as to the absence of Owner Lessor Lessor's Liens accompanied by a warranty of the Owner Participant as to the absence of the Owner Participant Participant's Liens, all of its interest in the Owner Lessor's Interest and execute, acknowledge and deliver, and record and file (as appropriate), appropriate releases, including a release from the Lien of the Lease IndentureSecurity Documents, and all other documents or instructions necessary or desirable to effect the foregoing all in form and substance reasonably satisfactory to the Owner Lessor and at the cost and expense of the Facility Lessee, and upon payment of such amounts due under either clauses (i) and (ii) of this paragraph (e), (x) Allocated Rent shall cease to accrue, (y) this Facility Lease, and the Facility Lessee's obligation to pay Basic Lease Rent or Renewal Lease Rent hereunder, as the case may be, hereunder due for any periods subsequent to the date of such payment shall terminate and (z) the Owner Lessor shall pay to the Facility Lessee the Lessor Section 467 Loan Balance, if any, determined as of the relevant Termination Date. The obligation to make such payments shall be subject to the provisions of SECTION 3.2(D)terminate; and
(f) if the Owner Lessor shall have sold the Owner Lessor's Interest pursuant to paragraph (c) above, the Owner Lessor may, if it shall so elect, demand that the Facility Lessee pay to the Owner Lessor, and the Facility Lessee shall pay to the Owner Lessor, as liquidated damages for loss of a bargain and not as a penalty (in lieu of the Basic Lease Rent or Renewal Rent due for any periods subsequent to the date of such sale), an amount equal to (iA) any unpaid Basic Lease Rent or Renewal due before the date of such sale PLUS (B) if that date is a Rent Payment Date, the Basic Lease Rent due and unpaid through the Relevant Termination Date plus on that date, PLUS (ii) any Lessee Section 467 Loan 45 Balance plus (iiiC) the amount, if any, by which the Termination Value computed as of the Termination Date next preceding the date of such sale or, if such sale occurs on a Rent Payment Date or a Termination Date then computed as of such date, exceeds the net proceeds of such sale, and, upon payment of such amount, this Facility Lease and the Facility Lessee's obligation to pay Basic Lease Rent or Renewal Rent for any periods subsequent to the date of such payment shall terminate, Allocated Rent shall cease to accrue and the Owner Lessor shall pay to the Facility Lessee the Lessor Section 467 Loan Balance, if any, determined as of the relevant Termination Date. The obligation to make such payments shall be subject to the provisions of SECTION 3.2(D). In addition, the Facility Lessee shall be liable, except as otherwise provided above, for (i) any and all unpaid Basic Lease Rent or Renewal Rent due hereunder before, or during the exercise of any of the foregoing remedies, (ii) the amount of any Incidental Costs payable under Section 2.15 of the Lessor Loan Agreement, and (iiiii) on an After-Tax Basis, for legal fees and other costs and expenses incurred by reason of the occurrence of any Lease Event of Default or the exercise of the Owner Lessor's remedies with respect thereto, including the repayment in full of any costs and expenses necessary to be expended in connection with the return of the Undivided Interest in accordance with SECTION 5 Section 5.2 hereof, including, without limitation, any costs and expenses incurred by the Owner Lessor, the Owner Participant Participant, the Holder Representative and the other Lease Indenture Trustee Financing Parties in connection with retaking constructive possession of, or in repairing, the Undivided Interest in order to cause it to be in compliance with all maintenance standards imposed by this Facility Lease.
(g) upon the occurrence and during the continuance of a Rent Default Event, the Owner Lessor may from time to time withdraw amounts from the Equity Account pursuant to Section 4.6(b) of the Amended Security Deposit Agreement and subject to the posting of an Equity Letter of Credit required thereunder.
Appears in 1 contract
Remedies for Lease Event of Default. Upon the occurrence of any Lease Event of Default and at any time thereafter so long as the same shall be continuing, the Owner Lessor may, at its option, declare this Facility Lease to be in default by written notice to the Facility Lessee Lessee; provided that upon the occurrence of a Lease Event of Default described in paragraph (PROVIDEDg) or (h) of Section 16, that this Facility Lease shall automatically be deemed to be in default without the need for giving any notice upon the occurrence of a Lease Event of Default in clause (g) or (h) of SECTION 16) in respect of the Facility Lesseenotice; and at any time thereafter, so long as the Facility Lessee shall not have remedied all outstanding Lease Events of Default, the Owner Lessor may, at the Facility Lessee's sole cost and expense, may do one or more of the following as the Owner Lessor in its sole discretion shall elect, to the extent permitted by, and subject to compliance with any mandatory Requirements of requirements of, Applicable Law then in effect:
(a) proceed by appropriate court action or actions, either at law or in equity, to enforce performance by the Facility Lessee Lessee, at the Facility Lessee's sole cost and expense, of the applicable covenants and terms of this Facility Lease or to recover damages for breach thereof;
(b) by notice in writing to the Facility Lessee, terminate this Facility Lease whereupon all right of the Facility Lessee to the possession and use under this Facility Lease of the Undivided Interest under this Facility Lease shall absolutely cease and terminate but the Facility Lessee shall remain liable as hereinafter provided; and thereupon, the Owner Lessor may demand that the Facility Lessee, and the Facility Lessee shall, upon written demand of the Owner Lessor and at the Facility Lessee's sole cost and expense, forthwith return possession of the Undivided Interest to the Owner Lessor in the manner and condition required by, and otherwise in accordance with all of the provisions of SECTION Section 5, except those provisions relating to periods of notice; and the Owner Lessor may thenceforth hold, possess and enjoy the same free from any right of the Facility Lessee, or its successor or assigns, to use the Undivided Interest for any purpose whatever;
(c) sell the Owner Lessor's Interest at public or private sale, as the Owner Lessor may determine, free and clear of any rights of the Facility Lessee under this Facility Lease and without any duty to account to the Facility Lessee with respect to such sale or for the proceeds thereof (except to the extent required by paragraph (f) below if the Owner Lessor elects to exercise its rights under said paragraph and by Requirements of Applicable Law), in which event (i) Allocated Rent shall cease to accrue and (ii) the Facility Lessee's obligation to pay Basic Periodic Lease Rent or Renewal Rent hereunder due for any periods subsequent to the date of such sale shall terminate (except to the extent that Basic Periodic Lease Rent or and Renewal Lease Rent is to be included in computations under paragraph (e) or (f) below if the Owner Lessor elects to exercise its rights under said paragraph) and in which event the Owner Lessor shall pay to the Facility Lessee the Lessor Section 467 Loan Balance, if any, determined as of such date, PROVIDED, HOWEVER, that the obligation of the Owner Lessor to make such payments shall be subject to the provisions of Section 3.2(dparagraphs);
(d) hold, keep idle or lease to others the Owner Lessor's Interest as the Owner Lessor in its sole discretion may determine, free and clear of any rights of the Facility Lessee under this Facility Lease and without any duty to account to the Facility Lessee with respect to such action or inaction or for any proceeds with respect thereto, except that the Facility Lessee's obligation to pay Basic Periodic Lease Rent or and Renewal Lease Rent with respect to the Undivided Interest due for any periods subsequent to the date upon which the Facility Lessee shall have been deprived of possession and use of the Undivided Interest pursuant to this SECTION Section 17 shall be reduced by the net proceeds, if any, received by the Owner Lessor from leasing the Undivided Interest to any Person other than the Facility Lessee and in which event the Owner Lessor shall pay to the Facility Lessee the Lessor Section 467 Loan Balance, if any, determined as of such date, PROVIDED, HOWEVER, that the obligation of the Owner Lessor to make such payments shall be subject to the provisions of Section 3.2(d)Lessee;
(e) whether or not the Owner Lessor shall have exercised, or shall thereafter at any time exercise, any of its rights under paragraph (b) above with respect to the Undivided Interest, the Owner Lessor, by written notice to the Facility Lessee specifying a Termination Date that shall be not earlier than 10 days after the date of such notice, may demand that the Facility Lessee pay to the Owner Lessor, and the Facility Lessee shall pay to the Owner Lessor, on the Termination Date specified in such notice notice, any due and unpaid, or accrued and unpaid, Basic unpaid Periodic Lease Rent or and Renewal Lease Rent due through the before such Termination Date, any Supplemental Lease Rent due and payable as of the payment date specified in such notice, the Lessee Section 467 Loan Balance, if any, computed as of the Termination Date, plus as liquidated damages for loss of a bargain and not as a penalty (in lieu of the Basic Periodic Lease Rent or and Renewal Lease Rent due after the Termination Date specified in such notice), (i) an amount equal to the excess, if any, of the sum of the Termination Value plus any Lessee Section 467 Loan Balance plus any Basic Lease Rent or Renewal Rent due and unpaid, in each case, for the Undivided Interest computed as of the Termination Date specified in such notice over the Fair Market Sales Value of the Owner Lessor's Interest as of the Termination Date specified in such notice; , or (ii) an amount equal to the excess, if any, of the sum of the Termination Value plus any Lessee Section 467 Loan Balance plus any Basic Lease Rent or Renewal Rent due and unpaid, in each case, for the Undivided Interest computed as of the Termination Date specified in such notice over the Fair Market Rental Value of the Owner Lessor's Interest until the end of the Basic Lease Term or the then current Renewal Lease Term, after discounting such Fair Market Rental Value semi-annually semiannually to present value as of the Termination Date specified in such notice at a rate equal to the Discount Lease Debt Rate; or (iii) an amount equal to the Termination Value computed as of the Termination Date specified in such notice PROVIDED THAT upon payment of such Termination Value by the Facility Lessee pursuant to this clause (iii) and all other Rent then due and unpaid, or accrued and unpaid by the Facility Lessee and the payment of the Lessee Section 467 Loan Balance as of such Termination Date, the Owner Lessor shall proceed to exercise its commercially reasonable efforts promptly to sell the Undivided Interest at public or private sale and shall pay over to the Facility Lessee upon consummation of any such sale the net proceeds of such sale (after deducting from such proceeds all costs and expenses incurred by the Owner Lessor in connection therewith and all other amounts that may become payable to the Owner Lessor, the Security Agent or any other Lease Financing Party) and the Facility Lessee waives all claims against the Owner Lessor and the Owner Participant in connection with the sale of the Undivided Interest or the use of commercially reasonable efforts pursuant to this proviso; PROVIDED FURTHER that in lieu of paying an amount equal to the Termination Value pursuant to clause (iii) above, the Facility Lessee may make a rejectable offer in writing to the Owner Lessor (within 5 days following the Facility Lessee's receipt of notice by the Owner Lessor specifying a Termination Date) (an "OFFER") to purchase the Undivided Interest at a purchase price equal to or greater than Termination Value (the "OFFER PRICE"). If the Owner Lessor rejects such Offer in writing, the Facility Lessee shall remain liable to pay Termination Value pursuant to clause (iii) above, all other Rent then due and unpaid, or accrued and unpaid, by the Facility Lessee and any Lessee Section 467 Loan Balance, determined as of the Termination Date PROVIDED THAT (1) the Facility Lessee shall have no obligation to pay the costs and expenses incurred by the Owner Lessor solely in connection with any sale of the Undivided Interest and (2) the Owner Lessor shall proceed to exercise its best efforts promptly to sell the Undivided Interest at public or private sale and shall pay over to the Facility Lessee upon consummation of any such sale the proceeds of such sale, but not to exceed the sum of Termination Value paid by the Facility Lessee plus interest at the Applicable Rate from the Termination Date until the date of payment of such proceeds to the Facility Lessee. If the Facility Lessee has made an Offer and the Owner Lessor accepts such Offer or fails to respond to such Offer within two (2) Business Days prior to the date on which the Facility Lessee would have been required to pay Termination Value pursuant to clause (iii) above, the Facility Lessee shall pay to the Owner Lessor the Offer Price on or before the Termination Date and upon such payment of the Offer Price and all other Rent then due and unpaid, or accrued and unpaid, by the Facility Lessee and any Lessee Section 467 Loan Balance determined as of the Termination Date on the Termination Date, the Facility Lessee shall no longer remain liable to pay Termination Value or other amounts pursuant to clause (iii) above and the Owner Lessor shall forthwith transfer to the Facility Lessee (or its designee) in accordance with this SECTION 17.1(E) hereof and SECTION 6 of the Facility Site Lease on an "as is," "where is" and "with all faults" basis, without representation or warranty other than a warranty as to the absence of Owner Lessor Liens accompanied by a warranty of the Owner Participant as to the absence of the Owner Participant Liens, all of its interest in the Owner Lessor's Interest and execute, acknowledge and deliver, and record and file (as appropriate), appropriate releases, including a release from the Lien of the Lease Indenture, and all other documents or instructions necessary or desirable to effect the foregoing all in form and substance reasonably satisfactory to the Owner Lessor and at the cost and expense of the Facility Lessee, and upon payment of such amounts due excess amount under either clause (i) or (ii) of this paragraph (e), (x) Allocated Rent shall cease to accrue, (y) this Facility Lease, and the Facility Lessee's obligation to pay Basic Periodic Lease Rent or Renewal Lease Rent hereunder, as the case may be, hereunder due for any periods subsequent to the date of such payment shall terminate and (z) the Owner Lessor shall pay to the Facility Lessee the Lessor Section 467 Loan Balance, if any, determined as of the relevant Termination Date. The obligation to make such payments shall be subject to the provisions of SECTION 3.2(D); andterminate;
(f) if the Owner Lessor shall have sold the Owner Lessor's Interest pursuant to paragraph (c) above, the Owner Lessor may, if it shall so elect, demand that the Facility Lessee pay to the Owner Lessor, and the Facility Lessee shall pay to the Owner Lessor, as liquidated damages for loss of a bargain and not as a penalty (in lieu of the Basic Periodic Lease Rent or and Renewal Lease Rent due for any periods subsequent to the date of such sale), an amount equal to (i) any unpaid Basic Periodic Lease Rent and Renewal Lease Rent due before the date of such sale and, (ii) if that date is not a Termination Date, the daily equivalent of Periodic Lease Rent or Renewal Lease Rent due and unpaid through for the Relevant period from the preceding Termination Date plus (ii) any Lessee Section 467 Loan 45 Balance to the date of such sale, plus (iii) the amount, if any, by which the Termination Value for the Undivided Interest computed as of the Termination Date next preceding the date of such sale or, if such sale occurs on a Rent Payment Date or a Termination Date then computed as of such date, exceeds the net proceeds of such sale, plus (iv) the Lessee Section 467 Loan Balance, if any, computed as of such date or if that date is not a Termination Date, as of the Termination Date next preceding the date of such sale and, upon payment of such amount, this Facility Lease and the Facility Lessee's obligation to pay Basic Periodic Lease Rent or and Renewal Lease Rent for any periods subsequent to the date of such payment shall terminate, Allocated Rent shall cease to accrue and ;
(g) apply any amounts which are held by the Owner Lessor shall pay to or the Lease Indenture Trustee under Section 10.2(d) or 11.7 as security for the Facility Lessee's obligations hereunder against any amounts owed by the Facility Lessee hereunder or under any other Operative Document; or
(h) exercise its rights under any Qualifying Letter of Credit and apply the Lessor Section 467 Loan Balance, if any, determined as of proceeds thereof against any amounts owed by the relevant Termination Date. The obligation to make such payments shall be subject to the provisions of SECTION 3.2(D)Facility Lessee hereunder or under any other Operative Document. In addition, the Facility Lessee shall be liable, except as otherwise provided above, for (i) any and all unpaid Basic Periodic Lease Rent or and Renewal Lease Rent due hereunder before, before or during the exercise of any of the foregoing remedies, (ii) in the case of a Lease Event of Default described in Section 16(j), any Change of Control Premium payable under Section 4.2(a) of the Lease Indenture, and (iiiii) on an After-Tax Basis, for legal fees and other costs and expenses incurred by reason of the occurrence of any Lease Event of Default or the exercise of the Owner Lessor's remedies with respect thereto, including the repayment in full of any costs and expenses necessary to be expended in connection with the return of the Undivided Interest in accordance with SECTION Section 5 hereof, including, without limitation, any costs and expenses incurred by the Owner Lessor, the Owner Participant and Participant, the Lease Indenture Trustee and the Pass Through Trustee in connection with 38 44 retaking constructive possession of, or in repairing, the such Undivided Interest in order to cause it to be in compliance with all maintenance standards imposed by this Facility Lease.
. Upon termination of this Facility Lease pursuant to clause (gb) upon the occurrence and during the continuance of a Rent Default Event, or an election by the Owner Lessor may from time to time withdraw receive liquidated damages under clauses (e) or (f), then on the Applicable Date the Facility Lessee shall (without duplication of the amounts from paid under clause (e) or (f) above) pay to the Equity Account Owner Lessor the Lessee Section 467 Loan Balance calculated as of the Applicable Date or if the Applicable Date is not a Termination Date, as of the next preceding Termination Date, and the Owner Lessor shall pay to the Facility Lessee the Lessor Section 467 Loan Balance calculated as of the Applicable Date, or if the Applicable Date is not a Termination Date, the Termination Date, next preceding the Applicable Date. The Applicable Date shall be the earlier to occur of (i) the date this Facility Lease is terminated pursuant to Section 4.6(bclause (b), (ii) the Termination Date specified in any notice pursuant to clause (e), or (iii) the date of the Amended Security Deposit Agreement and any sale pursuant to clause (e). The obligation to make such payments shall be subject to the posting provisions of an Equity Letter Section 3.3(d), and all payments of Credit Rent under this Section 10.2(a) shall, to the extent required thereunderby Section 3.6(a), be made to the Lease Indenture Trustee.
Appears in 1 contract
Remedies for Lease Event of Default. Upon the occurrence of any Lease Event of Default and at any time thereafter so long as the same shall be continuing, the Owner Lessor may, at its option, declare this Facility Lease to be in default by written notice to the Facility Lessee (PROVIDED, that this Facility Lease shall automatically be in default without the need for giving any such declaration or delivery of such notice upon the occurrence of a Lease Event of Default in clause (gf) or (hg) of SECTION Section 16) in respect of the Facility Lessee); and at any time thereafter, so long as the Facility Lessee shall not have remedied all outstanding Lease Events of Default, the Owner Lessor may, at the Facility Lessee's sole cost and expense, may do one or more of the following as the Owner Lessor in its sole discretion shall elect, to the extent permitted permit xxx by, and subject to compliance with any mandatory Requirements of Law then in effecteffect and subject to Section 17.2 below:
(a) proceed by appropriate court action or actions, either at law or in equity, to enforce performance by the Facility Lessee of the applicable covenants and terms of this Facility Lease or to recover damages for breach thereof;
(b) by notice in writing to the Facility Lessee, terminate this Facility Lease whereupon all right of the Facility Lessee to the possession and use of the Undivided Interest under this Facility Lease shall absolutely cease and terminate but the Facility Lessee shall remain liable as hereinafter provided; and thereupon, the Owner Lessor may demand that the Facility Lessee, and the Facility Lessee shall, upon written demand of the Owner Lessor and at the Facility Lessee's sole cost and expenseLessor, forthwith return possession of the Undivided Interest to the Owner Lessor in the manner and condition required by, and otherwise in accordance with all of the provisions of SECTION Section 5, except those provisions relating to periods of notice; and the Owner Lessor may thenceforth hold, possess and enjoy the same free from any right of the Facility Lessee, or its successor or assigns, to use the Undivided Interest for any purpose whatever;
(c) sell the Owner Lessor's Interest at public or private sale, as the Owner Lessor may determine, free and clear of any rights of the Facility Lessee under this Facility Lease and without any duty to account to the Facility Lessee with respect to such sale or for the proceeds thereof (except to the extent required by paragraph (f) below if the Owner Lessor elects to exercise its rights under said paragraph and by Requirements of Law), in which event (i) Allocated Rent shall cease to accrue and (ii) the Facility Lessee's obligation to pay Basic Lease Rent or Renewal Rent hereunder due for any periods subsequent to the date of such sale shall terminate (except to the extent that Basic Lease Rent or Renewal Rent is to be included in computations under paragraph (f) below if the Owner Lessor elects to exercise its rights under said paragraph) and in which event the Owner Lessor shall pay to the Facility Lessee the Lessor Section 467 Loan Balance, if any, determined as of such date, PROVIDED, HOWEVER, that the obligation of the Owner Lessor to make such payments shall be subject to the provisions of Section 3.2(d);
(d) hold, keep idle or lease to others the Owner Lessor's Interest as the Owner Lessor in its sole discretion may determine, free and clear of any rights of the Facility Lessee under this Facility Lease and without any duty to account to the Facility Lessee with respect to such action or inaction or for any proceeds with respect thereto, except that the Facility Lessee's obligation to pay Basic Lease Rent or Renewal Rent with respect to the Undivided Interest due for any periods subsequent to the date upon which the Facility Lessee shall have been deprived of possession and use of the Undivided Interest pursuant to this SECTION Section 17 shall be reduced by the net proceeds, if any, received by the Owner Lessor from leasing the Undivided Interest to any Person other than the Facility Lessee and in which event the Owner Lessor shall pay to the Facility Lessee the Lessor Section 467 Loan Balance, if any, determined as of such date, PROVIDED, HOWEVER, that the obligation of the Owner Lessor to make such payments shall be subject to the provisions of Section 3.2(d)Lessee;
(e) whether or not the Owner Lessor shall have exercised, or shall thereafter at any time exercise, any of its rights under paragraph (b) above with respect to the Undivided Interest, the Owner Lessor, by written notice to the Facility Lessee specifying a Termination Date that shall be not earlier than 10 days after the date of such notice, may demand that the Facility Lessee pay to the Owner Lessor, and the Facility Lessee shall pay to the Owner Lessor, on the Termination Date specified in such notice any (or immediately upon the occurrence of a Lease Event of Default described in clause (f) or (g) of Section 16, in which case no such written notice or demand shall be required under this Section 17.1(e) for the amounts described in this Section 17.1(e) to become due and unpaidpayable by the Facility Lessee), or accrued and unpaid, any unpaid Basic Lease Rent or Renewal due before such Termination Date and, if such Termination Date shall be a Rent Payment Date, any Basic Lease Rent due through the Termination and payable on such Rent Payment Date, any Supplemental Lease Rent due and payable unpaid as of the payment date specified in such notice, plus as liquidated damages for loss of a bargain and not as a penalty (in lieu of the Basic Lease Rent or Renewal Rent due after the Termination Date specified in such notice), (i) an amount equal to the excess, if any, of the sum of the Termination Value plus any Lessee Section 467 Loan Balance plus any Basic Lease Rent or Renewal Rent due and unpaid, in each case, computed as of the Termination Date specified in such notice over the Fair Market Sales Value of the Owner Lessor's Interest as of the Termination Date specified in such notice; or (ii) an amount equal to the excess, if any, of the sum of the Termination Value plus any Lessee Section 467 Loan Balance plus any Basic Lease Rent or Renewal Rent due and unpaid, in each case, computed as of the Termination Date specified in such notice over the Fair Market Rental Value of the Owner Lessor's Interest until the end of the Basic Lease Term or the then current Renewal Lease Term, after discounting such Fair Market Rental Value semi-annually quarterly to present value as of the Termination Date specified in such notice at a rate equal to the Discount Rate; or (iii) an amount equal to the Termination Value computed as of the Termination Date specified in such notice PROVIDED THAT and, upon payment of such Termination Value by the Facility Lessee pursuant to this clause (iii) and all other Rent then due and unpaid, or accrued and unpaid by the Facility Lessee and the payment of the Lessee Section 467 Loan Balance as of such Termination DateLessee, the Owner Lessor shall proceed to exercise its commercially reasonable efforts promptly to sell the Undivided Interest at public or private sale and shall pay over to the Facility Lessee upon consummation of any such sale the net proceeds of such sale (after deducting from such proceeds all costs and expenses incurred by the Owner Lessor in connection therewith and all other amounts that may become payable to the Owner Lessor, the Security Agent or any other Lease Financing Party) and the Facility Lessee waives all claims against the Owner Lessor and the Owner Participant in connection with the sale of the Undivided Interest or the use of commercially reasonable efforts pursuant to this proviso; PROVIDED FURTHER that in lieu of paying an amount equal to the Termination Value pursuant to clause (iii) above, the Facility Lessee may make a rejectable offer in writing to the Owner Lessor (within 5 days following the Facility Lessee's receipt of notice by the Owner Lessor specifying a Termination Date) (an "OFFER") to purchase the Undivided Interest at a purchase price equal to or greater than Termination Value (the "OFFER PRICE"). If the Owner Lessor rejects such Offer in writing, the Facility Lessee shall remain liable to pay Termination Value pursuant to clause (iii) above, all other Rent then due and unpaid, or accrued and unpaid, by the Facility Lessee and any Lessee Section 467 Loan Balance, determined as of the Termination Date PROVIDED THAT (1) the Facility Lessee shall have no obligation to pay the costs and expenses incurred by the Owner Lessor solely in connection with any sale of the Undivided Interest and (2) the Owner Lessor shall proceed to exercise its best efforts promptly to sell the Undivided Interest at public or private sale and shall pay over to the Facility Lessee upon consummation of any such sale the proceeds of such sale, but not to exceed the sum of Termination Value paid by the Facility Lessee plus interest at the Applicable Rate from the Termination Date until the date of payment of such proceeds to the Facility Lessee. If the Facility Lessee has made an Offer and the Owner Lessor accepts such Offer or fails to respond to such Offer within two (2) Business Days prior to the date on which the Facility Lessee would have been required to pay Termination Value pursuant to clause (iii) above, the Facility Lessee shall pay to the Owner Lessor the Offer Price on or before the Termination Date and upon such payment of the Offer Price and all other Rent then due and unpaid, or accrued and unpaid, by the Facility Lessee and any Lessee Section 467 Loan Balance determined as of the Termination Date on the Termination Date, the Facility Lessee shall no longer remain liable to pay Termination Value or other amounts pursuant to clause (iii) above and the Owner Lessor shall will forthwith transfer to the Facility Lessee (or its designee) in accordance with this SECTION 17.1(ESection 17.1(e) hereof and SECTION Section 6 of the Facility Site Lease on an "as is," "where is" and "with all faults" basis, without representation or warranty other than a warranty as to the absence of Owner Lessor Lessor's Liens accompanied by a warranty of the Owner Participant as to the absence of the Owner Participant Participant's Liens, all of its interest in the Owner Lessor's Interest and execute, acknowledge and deliver, and record and file (as appropriate), appropriate releases, including a release from the Lien of the Lease Indenture, and all other documents or instructions necessary or desirable to effect the foregoing all in form and substance reasonably satisfactory to the Owner Lessor and at the cost and expense of the Facility Lessee, and upon payment of such amounts due under either clauses (i) and (ii) of this paragraph (e), (x) Allocated Rent shall cease to accrue, (y) this Facility Lease, and the Facility Lessee's obligation to pay Basic Lease Rent or Renewal Lease Rent hereunder, as the case may be, hereunder due for any periods subsequent to the date of such payment shall terminate and (z) the Owner Lessor shall pay to the Facility Lessee the Lessor Section 467 Loan Balance, if any, determined as of the relevant Termination Date. The obligation to make such payments shall be subject to the provisions of SECTION 3.2(D)terminate; and
(f) if the Owner Lessor shall have sold the Owner Lessor's Interest pursuant to paragraph (c) above, the Owner Lessor may, if it shall so elect, demand that the Facility Lessee pay to the Owner Lessor, and the Facility Lessee shall pay to the Owner Lessor, as liquidated damages for loss of a bargain and not as a penalty (in lieu of the Basic Lease Rent or Renewal Rent due for any periods subsequent to the date of such sale), an amount equal to (i) any unpaid Basic Lease Rent or Renewal Rent due and unpaid through the Relevant Termination Date plus (ii) any Lessee Section 467 Loan 45 Balance plus (iii) the amount, if any, by which the Termination Value computed as of the Termination Date next preceding the date of such sale or, if such sale occurs on a Rent Payment Date or a Termination Date then computed as of such date, exceeds the net proceeds of such sale, and, upon payment of such amount, this Facility Lease and the Facility Lessee's obligation to pay Basic Lease Rent or Renewal Rent for any periods subsequent to the date of such payment shall terminate, Allocated Rent shall cease to accrue and the Owner Lessor shall pay to the Facility Lessee the Lessor Section 467 Loan Balance, if any, determined as of the relevant Termination Date. The obligation to make such payments shall be subject to the provisions of SECTION 3.2(D). In addition, the Facility Lessee shall be liable, except as otherwise provided above, for (i) any and all unpaid Basic Lease Rent or Renewal Rent due hereunder before, or during the exercise of any of the foregoing remedies, and (ii) on an After-Tax Basis, for legal fees and other costs and expenses incurred by reason of the occurrence of any Lease Event of Default or the exercise of the Owner Lessor's remedies with respect thereto, including the repayment in full of any costs and expenses necessary to be expended in connection with the return of the Undivided Interest in accordance with SECTION 5 Section 5.2 hereof, including, without limitation, any costs and expenses incurred by the Owner Lessor, the Owner Participant and Participant, the Lease Indenture Trustee and other Lease Financing Parties in connection with retaking constructive possession of, or in repairing, the Undivided Interest in order to cause it to be in compliance with all maintenance standards imposed by this Facility Lease.
(g) upon the occurrence and during the continuance of a Rent Default Event, the Owner Lessor may from time to time withdraw amounts from the Equity Account pursuant to Section 4.6(b) of the Amended Security Deposit Agreement and subject to the posting of an Equity Letter of Credit required thereunder.
Appears in 1 contract
Remedies for Lease Event of Default. Upon the occurrence of any Lease Event of Default and at any time thereafter so long as the same shall be continuing, the Owner Lessor may, at its option, declare this Facility Lease to be in default by written notice to the Facility Lessee (PROVIDED, that this Facility Lease shall automatically be in default without the need for giving any such declaration or delivery of such notice upon the occurrence of a Lease Event of Default in clause (gf) or (hg) of SECTION Section 16) in respect of the Facility Lessee); and at any time thereafter, so long as the Facility Lessee shall not have remedied all outstanding Lease Events of Default, the Owner Lessor may, at the Facility Lessee's sole cost and expense, may do one or more of the following as the Owner Lessor in its sole discretion shall elect, to the extent permitted by, and subject to compliance with any mandatory Requirements of Law then in effecteffect and subject to Section 17.2 below:
(a) proceed by appropriate court action or actions, either at law or in equity, to enforce performance by the Facility Lessee of the applicable covenants and terms of this Facility Lease or to recover damages for breach thereof;
(b) by notice in writing to the Facility Lessee, terminate this Facility Lease whereupon all right of the Facility Lessee to the possession and use of the Undivided Interest under this Facility Lease shall absolutely cease and terminate but the Facility Lessee shall remain liable as hereinafter provided; and thereupon, the Owner Lessor may demand that the Facility Lessee, and the Facility Lessee shall, upon written demand of the Owner Lessor and at the Facility Lessee's sole cost and expenseLessor, forthwith return possession of the Undivided Interest to the Owner Lessor in the manner and condition required by, and otherwise in accordance with all of the provisions of SECTION Section 5, except those provisions relating to periods of notice; and the Owner Lessor may thenceforth hold, possess and enjoy the same free from any right of the Facility Lessee, or its successor or assigns, to use the Undivided Interest for any purpose whatever;
(c) sell the Owner Lessor's Interest at public or private sale, as the Owner Lessor may determine, free and clear of any rights of the Facility Lessee under this Facility Lease and without any duty to account to the Facility Lessee with respect to such sale or for the proceeds thereof (except to the extent required by paragraph (f) below if the Owner Lessor elects to exercise its rights under said paragraph and by Requirements of Law), in which event (i) Allocated Rent shall cease to accrue and (ii) the Facility Lessee's obligation to pay Basic Lease Rent or Renewal Rent hereunder due for any periods subsequent to the date of such sale shall terminate (except to the extent that Basic Lease Rent or Renewal Rent is to be included in computations under paragraph (f) below if the Owner Lessor elects to exercise its rights under said paragraph) and in which event the Owner Lessor shall pay to the Facility Lessee the Lessor Section 467 Loan Balance, if any, determined as of such date, PROVIDED, HOWEVER, that the obligation of the Owner Lessor to make such payments shall be subject to the provisions of Section 3.2(d);
(d) hold, keep idle or lease to others the Owner Lessor's Interest as the Owner Lessor in its sole discretion may determine, free and clear of any rights of the Facility Lessee under this Facility Lease and without any duty to account to the Facility Lessee with respect to such action or inaction or for any proceeds with respect thereto, except that the Facility Lessee's obligation to pay Basic Lease Rent or Renewal Rent with respect to the Undivided Interest due for any periods subsequent to the date upon which the Facility Lessee shall have been deprived of possession and use of the Undivided Interest pursuant to this SECTION Section 17 shall be reduced by the net proceeds, if any, received by the Owner Lessor from leasing the Undivided Interest to any Person other than the Facility Lessee and in which event the Owner Lessor shall pay to the Facility Lessee the Lessor Section 467 Loan Balance, if any, determined as of such date, PROVIDED, HOWEVER, that the obligation of the Owner Lessor to make such payments shall be subject to the provisions of Section 3.2(d)Lessee;
(e) whether or not the Owner Lessor shall have exercised, or shall thereafter at any time exercise, any of its rights under paragraph (b) above with respect to the Undivided Interest, the Owner Lessor, by written notice to the Facility Lessee specifying a Termination Date that shall be not earlier than 10 days after the date of such notice, may demand that the Facility Lessee pay to the Owner Lessor, and the Facility Lessee shall pay to the Owner Lessor, on the Termination Date specified in such notice any (or immediately upon the occurrence of a Lease Event of Default described in clause (f) or (g) of Section 16, in which case no such written notice or demand shall be required under this Section 17.1(e) for the amounts described in this Section 17.1(e) to become due and unpaidpayable by the Facility Lessee), or accrued and unpaid, any unpaid Basic Lease Rent or Renewal due before such Termination Date and, if such Termination Date shall be a Rent Payment Date, any Basic Lease Rent due through the Termination and payable on such Rent Payment Date, any Supplemental Lease Rent due and payable unpaid as of the payment date specified in such notice, plus as liquidated damages for loss of a bargain and not as a penalty (in lieu of the Basic Lease Rent or Renewal Rent due after the Termination Date specified in such notice), (i) an amount equal to the excess, if any, of the sum of the Termination Value plus any Lessee Section 467 Loan Balance plus any Basic Lease Rent or Renewal Rent due and unpaid, in each case, computed as of the Termination Date specified in such notice over the Fair Market Sales Value of the Owner Lessor's Interest as of the Termination Date specified in such notice; or (ii) an amount equal to the excess, if any, of the sum of the Termination Value plus any Lessee Section 467 Loan Balance plus any Basic Lease Rent or Renewal Rent due and unpaid, in each case, computed as of the Termination Date specified in such notice over the Fair Market Rental Value of the Owner Lessor's Interest until the end of the Basic Lease Term or the then current Renewal Lease Term, after discounting such Fair Market Rental Value semi-annually quarterly to present value as of the Termination Date specified in such notice at a rate equal to the Discount Rate; or (iii) an amount equal to the Termination Value computed as of the Termination Date specified in such notice PROVIDED THAT and, upon payment of such Termination Value by the Facility Lessee pursuant to this clause (iii) and all other Rent then due and unpaid, or accrued and unpaid by the Facility Lessee and the payment of the Lessee Section 467 Loan Balance as of such Termination DateLessee, the Owner Lessor shall proceed to exercise its commercially reasonable efforts promptly to sell the Undivided Interest at public or private sale and shall pay over to the Facility Lessee upon consummation of any such sale the net proceeds of such sale (after deducting from such proceeds all costs and expenses incurred by the Owner Lessor in connection therewith and all other amounts that may become payable to the Owner Lessor, the Security Agent or any other Lease Financing Party) and the Facility Lessee waives all claims against the Owner Lessor and the Owner Participant in connection with the sale of the Undivided Interest or the use of commercially reasonable efforts pursuant to this proviso; PROVIDED FURTHER that in lieu of paying an amount equal to the Termination Value pursuant to clause (iii) above, the Facility Lessee may make a rejectable offer in writing to the Owner Lessor (within 5 days following the Facility Lessee's receipt of notice by the Owner Lessor specifying a Termination Date) (an "OFFER") to purchase the Undivided Interest at a purchase price equal to or greater than Termination Value (the "OFFER PRICE"). If the Owner Lessor rejects such Offer in writing, the Facility Lessee shall remain liable to pay Termination Value pursuant to clause (iii) above, all other Rent then due and unpaid, or accrued and unpaid, by the Facility Lessee and any Lessee Section 467 Loan Balance, determined as of the Termination Date PROVIDED THAT (1) the Facility Lessee shall have no obligation to pay the costs and expenses incurred by the Owner Lessor solely in connection with any sale of the Undivided Interest and (2) the Owner Lessor shall proceed to exercise its best efforts promptly to sell the Undivided Interest at public or private sale and shall pay over to the Facility Lessee upon consummation of any such sale the proceeds of such sale, but not to exceed the sum of Termination Value paid by the Facility Lessee plus interest at the Applicable Rate from the Termination Date until the date of payment of such proceeds to the Facility Lessee. If the Facility Lessee has made an Offer and the Owner Lessor accepts such Offer or fails to respond to such Offer within two (2) Business Days prior to the date on which the Facility Lessee would have been required to pay Termination Value pursuant to clause (iii) above, the Facility Lessee shall pay to the Owner Lessor the Offer Price on or before the Termination Date and upon such payment of the Offer Price and all other Rent then due and unpaid, or accrued and unpaid, by the Facility Lessee and any Lessee Section 467 Loan Balance determined as of the Termination Date on the Termination Date, the Facility Lessee shall no longer remain liable to pay Termination Value or other amounts pursuant to clause (iii) above and the Owner Lessor shall will forthwith transfer to the Facility Lessee (or its designee) in accordance with this SECTION 17.1(ESection 17.1(e) hereof and SECTION Section 6 of the Facility Site Lease on an "as is," "where is" and "with all faults" basis, without representation or warranty other than a warranty as to the absence of Owner Lessor Lessor's Liens accompanied by a warranty of the Owner Participant as to the absence of the Owner Participant Participant's Liens, all of its interest in the Owner Lessor's Interest and execute, acknowledge and deliver, and record and file (as appropriate), appropriate releases, including a release from the Lien of the Lease Indenture, and all other documents or instructions necessary or desirable to effect the foregoing all in form and substance reasonably satisfactory to the Owner Lessor and at the cost and expense of the Facility Lessee, and upon payment of such amounts due under either clauses (i) and (ii) of this paragraph (e), (x) Allocated Rent shall cease to accrue, (y) this Facility Lease, and the Facility Lessee's obligation to pay Basic Lease Rent or Renewal Lease Rent hereunder, as the case may be, hereunder due for any periods subsequent to the date of such payment shall terminate and (z) the Owner Lessor shall pay to the Facility Lessee the Lessor Section 467 Loan Balance, if any, determined as of the relevant Termination Date. The obligation to make such payments shall be subject to the provisions of SECTION 3.2(D)terminate; and
(f) if the Owner Lessor shall have sold the Owner Lessor's Interest pursuant to paragraph (c) above, the Owner Lessor may, if it shall so elect, demand that the Facility Lessee pay to the Owner Lessor, and the Facility Lessee shall pay to the Owner Lessor, as liquidated damages for loss of a bargain and not as a penalty (in lieu of the Basic Lease Rent or Renewal Rent due for any periods subsequent to the date of such sale), an amount equal to (iA) any unpaid Basic Lease Rent or Renewal due before the date of such sale PLUS (B) if that date is a Rent Payment Date, the Basic Lease Rent due and unpaid through the Relevant Termination Date plus on that date, PLUS (ii) any Lessee Section 467 Loan 45 Balance plus (iiiC) the amount, if any, by which the Termination Value computed as of the Termination Date next preceding the date of such sale or, if such sale occurs on a Rent Payment Date or a Termination Date then computed as of such date, exceeds the net proceeds of such sale, and, upon payment of such amount, this Facility Lease and the Facility Lessee's obligation to pay Basic Lease Rent or Renewal Rent for any periods subsequent to the date of such payment shall terminate, Allocated Rent shall cease to accrue and the Owner Lessor shall pay to the Facility Lessee the Lessor Section 467 Loan Balance, if any, determined as of the relevant Termination Date. The obligation to make such payments shall be subject to the provisions of SECTION 3.2(D). In addition, the Facility Lessee shall be liable, except as otherwise provided above, for (i) any and all unpaid Basic Lease Rent or Renewal Rent due hereunder before, or during the exercise of any of the foregoing remedies, and (ii) on an After-Tax Basis, for legal fees and other costs and expenses incurred by reason of the occurrence of any Lease Event of Default or the exercise of the Owner Lessor's remedies with respect thereto, including the repayment in full of any costs and expenses necessary to be expended in connection with the return of the Undivided Interest in accordance with SECTION 5 Section 5.2 hereof, including, without limitation, any costs and expenses incurred by the Owner Lessor, the Owner Participant and Participant, the Lease Indenture Trustee and other Lease Financing Parties in connection with retaking constructive possession of, or in repairing, the Undivided Interest in order to cause it to be in compliance with all maintenance standards imposed by this Facility Lease.
(g) upon the occurrence and during the continuance of a Rent Default Event, the Owner Lessor may from time to time withdraw amounts from the Equity Account pursuant to Section 4.6(b) of the Amended Security Deposit Agreement and subject to the posting of an Equity Letter of Credit required thereunder.
Appears in 1 contract
Remedies for Lease Event of Default. Upon the occurrence of any Lease Event of Default and at any time thereafter so long as the same shall be continuing, the Owner Lessor may, at its option, declare this Facility Lease to be in default by written notice to the Facility Lessee Lessee; provided that upon the occurrence of a Lease Event of Default described in paragraph (PROVIDEDg) of Section 16, that this Facility Lease shall automatically be deemed to be in default without the need for giving any notice upon the occurrence of a Lease Event of Default in clause (g) or (h) of SECTION 16) in respect of the Facility Lesseenotice; and at any time thereafter, so long as the Facility Lessee shall not have remedied all outstanding Lease Events of Default, the Owner Lessor may, at the Facility Lessee's sole cost and expense, may do one or more of the following as the Owner Lessor in its sole discretion shall elect, to the extent permitted by, and subject to compliance with any mandatory Requirements of requirements of, Applicable Law then in effect:
(a) proceed by appropriate court action or actions, either at law or in equity, to enforce performance by the Facility Lessee Lessee, at the Lessee's sole cost and expense, of the applicable covenants and terms of this Facility Lease or to recover damages for breach thereof;
(b) by notice in writing to the Facility Lessee, terminate this Facility Lease whereupon all right of the Facility Lessee to the possession and use of the Undivided Interest under this Facility Lease of the Facility shall absolutely cease and terminate but the Facility Lessee shall remain liable as hereinafter provided; and thereupon, the Owner Lessor may demand that the Facility Lessee, and the Facility Lessee shall, shall upon written demand of the Owner Lessor and at the Facility Lessee's sole cost and expense, forthwith return possession of the Undivided Interest Facility to the Owner Lessor in the manner and condition required by, and otherwise in accordance with all of the provisions of SECTION Section 5, except those provisions relating to periods of notice; and the Owner Lessor may thenceforth hold, possess and enjoy the same free from any right of the Facility Lessee, or its successor or assigns, to use the Undivided Interest Facility for any purpose whatever;
(c) sell the Owner Lessor's Interest at public or private sale, as the Owner Lessor may determine, free and clear of any rights of the Facility Lessee under this Facility Lease and without any duty to account to the Facility Lessee with respect to such sale or for the proceeds thereof (except to the extent required by paragraph (f) below if the Owner Lessor elects to exercise its rights under said paragraph and by Requirements of Applicable Law), in which event (i) Allocated Rent shall cease to accrue and (ii) the Facility Lessee's obligation to pay Basic Lease Rent or and Renewal Lease Rent hereunder due for any periods subsequent to the date of such sale shall terminate (except to the extent that Basic Lease Rent or and Renewal Lease Rent is to be included in computations under paragraph (e) or (f) below if the Owner Lessor elects to exercise its rights under said paragraph) and in which event the Owner Lessor shall pay to the Facility Lessee the Lessor Section 467 Loan Balance, if any, determined as of such date, PROVIDED, HOWEVER, that the obligation of the Owner Lessor to make such payments shall be subject to the provisions of Section 3.2(dparagraphs);
(d) hold, keep idle or lease to others the Owner Lessor's Interest as the Owner Lessor in its sole discretion may determine, free and clear of any rights of the Facility Lessee under this Facility Lease and without any duty to account to the Facility Lessee with respect to such action or inaction or for any proceeds with respect thereto, except that the Facility Lessee's obligation to pay Basic Lease Rent or and Renewal Lease Rent with respect to the Undivided Interest due for any periods subsequent to the date upon which the Facility Lessee shall have been deprived of possession and use of the Undivided Interest Facility pursuant to this SECTION Section 17 shall be reduced by the net proceeds, if any, received by the Owner Lessor from leasing the Undivided Interest Facility to any Person other than the Facility Lessee and in which event the Owner Lessor shall pay to the Facility Lessee the Lessor Section 467 Loan Balance, if any, determined as of such date, PROVIDED, HOWEVER, that the obligation of the Owner Lessor to make such payments shall be subject to the provisions of Section 3.2(d)Lessee;
(e) whether or not the Owner Lessor shall have exercised, or shall thereafter at any time exercise, any of its rights under paragraph (b) above with respect to the Undivided InterestFacility, the Owner Lessor, by written notice to the Facility Lessee specifying a Termination Date that shall be not earlier than 10 days after the date of such notice, may demand that the Facility Lessee pay to the Owner Lessor, and the Facility Lessee shall pay to the Owner Lessor, on the Termination Date specified in such notice notice, if such Termination Date is also a Rent Payment Date, any due and unpaid, or accrued and unpaid, Basic Lease Rent or Renewal Lease Rent due through the and payable on such Termination Date, plus any unpaid Basic Lease Rent and Renewal Lease Rent due before such Termination Date, plus any Accrued Supplemental Lease Rent due and payable as of the payment date specified in such notice, plus as liquidated damages for loss of a bargain and not as a penalty (in lieu of the Basic Lease Rent or and Renewal Lease Rent due after the Termination Date specified in such notice), (i) an amount equal to the excess, if any, of the sum of the Termination Value plus any Lessee Section 467 Loan Balance plus any Basic Lease Rent or Renewal Rent due and unpaid, in each case, for the Facility computed as of the Termination Date specified in such notice over the Fair Market Sales Value of the Owner Lessor's Interest as of the Termination Date specified in such notice; , or (ii) an amount equal to the excess, if any, of the sum of the Termination Value plus any Lessee Section 467 Loan Balance plus any Basic Lease Rent or Renewal Rent due and unpaid, in each case, for the Facility computed as of the Termination Date specified in such notice over the Fair Market Rental Value of the Owner Lessor's Interest until the end of the Basic Lease Term or the then current Renewal Lease Term, after discounting such Fair Market Rental Value semi-annually to present value as of the Termination Date specified in such notice at a rate equal to the Discount Lease Debt Rate; , or (iii) an amount equal to the Termination Value computed as of the Termination Date specified in such notice PROVIDED THAT notice; provided that upon payment of such Termination Value by the Facility Lessee pursuant to this clause (iii) ), above, and all other Rent then due and unpaid, or accrued and unpaid unpaid, by the Facility Lessee and the payment of the Lessee Section 467 Loan Balance as of such Termination DateLessee, the Owner Lessor shall proceed to exercise its commercially reasonable efforts promptly to sell the Undivided Owner Lessor's Interest at public or private sale and shall pay over to the Facility Lessee upon consummation of any such sale the net proceeds of such sale (after deducting from such proceeds all costs and expenses incurred by the Owner Lessor in connection therewith and all other amounts that may become payable to the Owner Lessor, the Security Agent Owner Trustee, the Owner Participant, the Indenture Trustee or any other Lease Financing Partythe Pass Through Trustee) but not to exceed the sum of Termination Value paid by the Lessee and the Facility Lessee waives all claims against the Owner Lessor and the Owner Participant in connection with the sale of the Undivided Owner Lessor's Interest or the use of commercially reasonable efforts pursuant to this proviso; PROVIDED FURTHER provided further that in lieu of paying an amount equal to the Termination Value pursuant to clause (iii) above, the Facility Lessee may make a rejectable offer in writing to the Owner Lessor (within 5 days following the Facility Lessee's receipt of notice by the Owner Lessor specifying a Termination Date) (an "OFFEROffer") to purchase the Undivided Interest Facility at a purchase price equal to or greater than Termination Value (the "OFFER PRICEOffer Price"). If the Owner Lessor rejects such Offer in writing, the Facility Lessee shall remain liable to pay Termination Value pursuant to clause (iii) above, all other Rent then due and unpaid, or accrued and unpaid, by the Facility Lessee and any Lessee Section 467 Loan Balance, determined as of the Termination Date PROVIDED THAT above provided that (1) the Facility Lessee shall have no obligation to pay the costs and expenses incurred by the Owner Lessor solely in connection with any sale of the Undivided Owner Lessor's Interest and (2) the Owner Lessor shall proceed to exercise its best efforts promptly to sell the Undivided Owner Lessor's Interest at public or private sale and shall pay over to the Facility Lessee upon consummation of any such sale the proceeds of such sale, but not to exceed the sum of Termination Value paid by the Facility Lessee plus interest at the Applicable Rate from the Termination Date until the date of payment of such proceeds to the Facility Lessee. If the Facility Lessee has made an Offer and the Owner Lessor accepts such Offer or fails to respond to such Offer within two (2) Business Days prior to the date on which the Facility Lessee would have been required to pay Termination Value pursuant to clause (iii) above, the Facility Lessee shall pay to the Owner Lessor the Offer Price on or before the Termination Date and upon such payment of the Offer Price and all other Rent then due and unpaid, or accrued and unpaid, by the Facility Lessee and any Lessee Section 467 Loan Balance determined as of the Termination Date on the Termination DateLessee, the Facility Lessee shall no longer remain liable to pay Termination Value or other amounts pursuant to clause (iii) above and the Owner Lessor shall forthwith transfer to the Facility Lessee (or its designee) in accordance with this SECTION 17.1(ESection 17.1(e) hereof and SECTION 6 Section 2.4 of the Facility Site Lease on an "as is," "where is" and "with all faults" basis, without representation or warranty other than a warranty as to the absence of Owner Trustee's Liens attributable to the Owner Lessor Liens accompanied by a warranty of the Owner Participant as to the absence of the Owner Participant Participant's Liens, all of its interest in the Owner Lessor's Interest and execute, acknowledge and deliver, and record and file (as appropriate), appropriate releases, including a releases and shall use all reasonable efforts to cause the Indenture Trustee to release from the Lien of the Lease Indenture, and all other documents or instructions instruments necessary or desirable to effect the foregoing all in form and substance reasonably satisfactory to the Owner Lessor and at the cost and expense of the Facility Lessee, and upon payment of such amounts due amount under either clause (i), (ii) or (iii) of this paragraph (e), (x) Allocated Rent shall cease to accrue, (y) this Facility Lease, Lease and the Facility Lessee's obligation to pay Basic Lease Rent or and Renewal Lease Rent hereunder, as the case may be, hereunder due for any periods subsequent to the date of such payment shall terminate and (z) the Owner Lessor shall pay to the Facility Lessee the Lessor Section 467 Loan Balance, if any, determined as of the relevant Termination Date. The obligation to make such payments shall be subject to the provisions of SECTION 3.2(D); andterminate;
(f) if the Owner Lessor shall have sold the Owner Lessor's Interest pursuant to paragraph (c) above, the Owner Lessor may, if it shall so elect, demand that the Facility Lessee pay to the Owner Lessor, and the Facility Lessee shall pay to the Owner Lessor, as liquidated damages for loss of a bargain and not as a penalty (in lieu of the Basic Lease Rent or and Renewal Lease Rent due for any periods subsequent to the date of such sale), an amount equal to (i) any unpaid Basic Lease Rent or and Renewal Lease Rent due and unpaid through before the Relevant Termination Date date of such sale plus (ii) any Lessee Section 467 Loan 45 Balance if that date is not a Termination Date, the daily equivalent of Basic Lease Rent or Renewal Lease Rent for the period from the preceding Termination Date to the date of such sale and if such date is a Rent Payment Date, Basic Lease Rent or Renewal Lease Rent due and payable on such date, plus (iii) the amount, if any, by which the Termination Value for the Facility computed as of the Termination Date next preceding the date of such sale or, if such sale occurs on a Rent Payment Date or a Termination Date then computed as of such date, exceeds the net proceeds of such sale, and, upon payment of such amount, this Facility Lease and the Facility Lessee's obligation to pay Basic Lease Rent or and Renewal Lease Rent for any periods subsequent to the date of such payment shall terminate, Allocated Rent shall cease to accrue and ; or
(g) apply any amounts that are held by the Owner Lessor shall pay to or the Facility Indenture Trustee as security for the Lessee's obligations hereunder or under any Operative Document against any amounts owed by the Lessee the Lessor Section 467 Loan Balance, if any, determined as of the relevant Termination Date. The obligation to make such payments shall be subject to the provisions of SECTION 3.2(D)hereunder or under any other Operative Document. In addition, the Facility Lessee shall be liable, except as otherwise provided above, for (i) for any and all unpaid Basic Lease Rent or and Renewal Lease Rent due hereunder before, before or during the exercise of any of the foregoing remedies, and (ii) on an After-Tax Basis, for reasonable legal fees and other reasonable, documented out-of-pocket costs and expenses incurred by reason of the occurrence of any Lease Event of Default or the exercise of the Owner Lessor's remedies with respect thereto, including the repayment in full of any costs and expenses necessary to be expended in connection with the return of the Undivided Interest Facility in accordance with SECTION Section 5 hereof, including, without limitation, any costs and expenses incurred by the Owner Lessor, the Owner Participant Trustee, the Owner Participant, the Indenture Trustee and the Lease Indenture Pass Through Trustee in connection with retaking constructive possession of, or in repairing, the Undivided Interest Facility in order to cause it to be in compliance with all maintenance standards imposed by this Facility Lease.
(g) upon the occurrence and during the continuance . Upon any termination of this Facility Lease in consequence of a Lease Event of Default in circumstances where Termination Value (or an amount determined by reference thereto, including any Offer Price) is not payable by the Lessee under this Section 17.1, the Lessee shall pay to the Owner Lessor any excess of any Underpayment of Basic Lease Rent Default Eventas of the Termination Date on which this Facility Lease so terminates over any Interest on Prepaid Rent accrued and unpaid as of such Termination Date, or the Owner Lessor shall pay to the Lessee (but only after the Lessee and the Guarantor shall have fully satisfied all of their obligations to the Owner Lessor, the Owner Lessor may from time to time withdraw amounts from Trustee, the Owner Participant and the Equity Account pursuant to Section 4.6(bInvestor under the Operative Documents) the sum of any Overpayment of Basic Lease Rent as of the Amended Security Deposit Agreement Termination Date on which this Facility Lease so terminates and subject any Interest on Prepaid Rent as of such Termination Date, as the case may be, provided that in the event this Facility Lease shall terminate on a Basic Lease Rent Payment Date, the Interest on Prepaid Rent accrued and unpaid as of the applicable Termination Date shall be deemed to be zero, and provided further, that in the event this Facility Lease shall terminate on a date other than a Termination Date, the applicable amounts in respect of Underpayment of Basic Lease Rent and Overpayment of Basic Lease Rent and Interest on Prepaid Rent shall be interpolated as between the Termination Date immediately preceding and the Termination Date immediately succeeding such date of termination. All payments of Rent (other than Excepted Payments) under this Section 17.1 shall, so long as the Lien of the Indenture shall not have been terminated or discharged, be made to the posting of an Equity Letter of Credit required thereunderIndenture Trustee.
Appears in 1 contract
Remedies for Lease Event of Default. Upon the occurrence of any Lease Event of Default and at any time thereafter so long as the same shall be continuing, the Owner Lessor may, at its option, declare this Facility Lease to be in default by written notice to the Facility Lessee (PROVIDEDprovided that upon the occurrence of a Lease Event of Default described in paragraph (g) or (h) of Section 16, that this Facility Lease shall automatically be deemed to be in default without the need for giving any notice upon the occurrence of a Lease Event of Default in clause (gnotice) or (h) of SECTION 16) in respect of the Facility Lessee; and at any time thereafter, so long as the Facility Lessee shall not have remedied all outstanding Lease Events of Default, the Owner Lessor may, at the Facility Lessee's sole cost and expense, may do one or more of the following as the Owner Lessor in its sole discretion shall elect, to the extent permitted by, and subject to compliance with any mandatory Requirements of requirements of, Applicable Law then in effect:
(a) proceed by appropriate court action or actions, either at law or in equity, to enforce performance by the Facility Lessee at the Facility Lessee's sole cost and expense, of the applicable covenants and terms of this Facility Lease or to recover damages for breach thereof;
(b) by notice in writing to the Facility Lessee, terminate this Facility Lease whereupon all right of the Facility Lessee to the possession and use of the Undivided Facility Interest under this Facility Lease shall absolutely cease and terminate but the Facility Lessee shall remain liable as hereinafter provided; and thereupon, the Owner Lessor may demand that the Facility Lessee, and the Facility Lessee shall, upon written demand of the Owner Lessor and at the Facility Lessee's sole cost and expense, forthwith return possession of the Undivided Facility Interest to the Owner Lessor Lessor, in the manner and condition required by, and otherwise in accordance with all of the provisions of SECTION 5, Section 5 except those provisions relating to periods of notice; and the Owner Lessor may thenceforth hold, possess and enjoy the same free from any right of the Facility Lessee, or its successor or assigns, to use the Undivided Facility Interest for any purpose whateverwhatever and on the date of such termination, the balance of the Lessor Section 467 Loan Balance or the Lessee Section 467 Loan Balance (as the case may be) shall be reduced to zero and shall be fully discharged for all purposes;
(c) sell the Owner Lessor's Interest at public or private sale, as the Owner Lessor may determine, free and clear of any rights of the Facility Lessee under this Facility Lease and without any duty to account to the Facility Lessee with respect to such sale or for the proceeds thereof (except to the extent required by paragraph (f) below if the Owner Lessor elects to exercise its rights under said paragraph and by Requirements of Applicable Law), in which event (i) Allocated Rent shall cease to accrue and (ii) the Facility Lessee's obligation to pay Basic Periodic Lease Rent or Renewal Lease Rent hereunder due for any periods subsequent to the date of such sale shall terminate (except to the extent that Basic Periodic Lease Rent or Renewal Lease Rent is to be included in computations under paragraph (e) or (f) below if the Owner Lessor elects to exercise its rights under said paragraph) paragraphs), and in which event on the Owner Lessor shall pay to date of such sale, the Facility Lessee balance of the Lessor Section 467 Loan Balance, if any, determined Balance or the Lessee Section 467 Loan Balance (as of such date, PROVIDED, HOWEVER, that the obligation of the Owner Lessor to make such payments case may be) shall be subject reduced to the provisions of Section 3.2(d);zero and shall be fully discharged for all purposes; Conemaugh Facility Lease 45 50
(d) hold, keep idle or lease to others the Owner Lessor's Interest as the Owner Lessor in its sole discretion may determine, free and clear of any rights of the Facility Lessee under this Facility Lease and without any duty to account to the Facility Lessee with respect to such action or inaction or for any proceeds with respect thereto, except that the Facility Lessee's obligation to pay Basic Periodic Lease Rent or Renewal Lease Rent with respect to the Undivided Facility Interest due for any periods subsequent to the date upon which the Facility Lessee shall have been deprived of possession and use of the Undivided Facility Interest pursuant to this SECTION Section 17 shall be reduced by the net proceeds, if any, received by the Owner Lessor from leasing the Undivided Facility Interest to any Person other than the Facility Lessee and in which event the Owner Lessor shall pay to the Facility Lessee the Lessor Section 467 Loan Balance, if any, determined as of such date, PROVIDED, HOWEVER, that the obligation of the Owner Lessor to make such payments shall be subject to the provisions of Section 3.2(d)Lessee;
(e) whether or not the Owner Lessor shall have exercised, or shall thereafter at any time exercise, any of its rights under paragraph (b) above with respect to the Undivided Facility Interest, the Owner Lessor, by written notice to the Facility Lessee specifying a Termination Date that shall be not earlier than 10 days after the date of such notice, may demand that the Facility Lessee pay to the Owner Lessor, and the Facility Lessee shall pay to the Owner Lessor, on the Termination Date specified in such notice notice, any due and unpaid, unpaid or accrued and unpaid, Basic unpaid Periodic Lease Rent or Renewal Lease Rent due through before the Termination Date, any Supplemental Lease Rent due and payable as of the payment date specified in such notice, plus as liquidated damages for loss of a bargain and not as a penalty (in lieu of the Basic Periodic Lease Rent or Renewal Lease Rent due after for any periods subsequent to the Termination Date specified in date of such noticesale), (i) an amount equal to the excess, if any, of the sum of the Termination Value plus any Lessee Section 467 Loan Balance plus any Basic Lease Rent or Renewal Rent due and unpaid, in each case, computed as of the Termination Date specified in such notice over the Fair Market Sales Value of the Owner Lessor's Interest as of the Termination Date specified in such notice; , or (ii) an amount equal to the excess, if any, of the sum of the Termination Value plus any Lessee Section 467 Loan Balance plus any Basic Lease Rent or Renewal Rent due and unpaid, in each case, computed as of the Termination Date specified in such notice over the Fair Market Rental Value of the Owner Lessor's Interest until the end of the Basic Lease Term or the then current Renewal Lease Term, after discounting such Fair Market Rental Value semi-annually semiannually to present value as of the Termination Date specified in such notice at a rate equal to the Discount Lease Debt Rate; , or (iii) an amount equal to the Termination Value computed as of the Termination Date specified in such notice PROVIDED THAT and, upon payment of such Termination Value by the Facility Lessee pursuant to this the clause (iii) and all other Rent then due and unpaid, unpaid or accrued and unpaid by the Facility Lessee and the payment of the Lessee Section 467 Loan Balance as of such Termination DateLessee, the Owner Lessor shall proceed to exercise its commercially reasonable efforts promptly to sell the Undivided Interest at public or private sale and shall pay over to the Facility Lessee upon consummation of any such sale the net proceeds of such sale (after deducting from such proceeds all costs and expenses incurred by the Owner Lessor in connection therewith and all other amounts that may become payable to the Owner Lessor, the Security Agent or any other Lease Financing Party) and the Facility Lessee waives all claims against the Owner Lessor and the Owner Participant in connection with the sale of the Undivided Interest or the use of commercially reasonable efforts pursuant to this proviso; PROVIDED FURTHER that in lieu of paying an amount equal to the Termination Value pursuant to clause (iii) above, the Facility Lessee may make a rejectable offer in writing to the Owner Lessor (within 5 days following the Facility Lessee's receipt of notice by the Owner Lessor specifying a Termination Date) (an "OFFER") to purchase the Undivided Interest at a purchase price equal to or greater than Termination Value (the "OFFER PRICE"). If the Owner Lessor rejects such Offer in writing, the Facility Lessee shall remain liable to pay Termination Value pursuant to clause (iii) above, all other Rent then due and unpaid, or accrued and unpaid, by the Facility Lessee and any Lessee Section 467 Loan Balance, determined as of the Termination Date PROVIDED THAT (1) the Facility Lessee shall have no obligation to pay the costs and expenses incurred by the Owner Lessor solely in connection with any sale of the Undivided Interest and (2) the Owner Lessor shall proceed to exercise its best efforts promptly to sell the Undivided Interest at public or private sale and shall pay over to the Facility Lessee upon consummation of any such sale the proceeds of such sale, but not to exceed the sum of Termination Value paid by the Facility Lessee plus interest at the Applicable Rate from the Termination Date until the date of payment of such proceeds to the Facility Lessee. If the Facility Lessee has made an Offer and the Owner Lessor accepts such Offer or fails to respond to such Offer within two (2) Business Days prior to the date on which the Facility Lessee would have been required to pay Termination Value pursuant to clause (iii) above, the Facility Lessee shall pay to the Owner Lessor the Offer Price on or before the Termination Date and upon such payment of the Offer Price and all other Rent then due and unpaid, or accrued and unpaid, by the Facility Lessee and any Lessee Section 467 Loan Balance determined as of the Termination Date on the Termination Date, the Facility Lessee shall no longer remain liable to pay Termination Value or other amounts pursuant to clause (iii) above and the Owner Lessor shall will forthwith transfer to the Facility Lessee (or its designee) in accordance with this SECTION 17.1(ESection 17.1(e) hereof and SECTION 6 of the Facility Site Lease on an "as is," ", "where is" and "with all faults" basis, without representation or warranty other than a warranty as to the absence of Owner Lessor Lessor's Liens accompanied by a warranty of the Owner Participant as to the absence of the Owner Participant Participant's Liens, all of its interest in the Owner Lessor's Interest and execute, acknowledge and deliver, and record and file (as appropriate), ) appropriate releases, including a release from of the Lien of the Lease Indenture, and all other documents or instructions necessary or desirable to effect the foregoing all in form and substance reasonably satisfactory to the Owner Lessor and at the cost and expense of the Facility Lessee, and upon payment of such amounts due under either clauses (i) and (ii) of this paragraph (e), (x) Allocated Rent shall cease to accrue, (y) this Facility Lease, and the Facility Lessee's obligation to pay Basic Periodic Lease Rent or Renewal Lease Rent hereunder, as the case may be, hereunder due for any periods subsequent to the date of such payment shall terminate and (z) terminate; provided that on the Owner Lessor shall pay to Termination Date specified above, the Facility Lessee balance of the Lessor Section 467 Loan Balance, if any, determined Balance or the Lessee Section 467 Loan Balance (as of the relevant Termination Date. The obligation to make such payments case may be) shall be subject reduced to the provisions of SECTION 3.2(D)zero and shall be fully discharged for all purposes; and
(f) if the Owner Lessor shall have sold the Owner Lessor's Interest pursuant to paragraph (c) above, the Owner Lessor may, if it shall so elect, demand that the Facility Lessee pay to the Owner Lessor, and the Facility Lessee shall pay to the Owner Lessor, as liquidated damages for loss of a bargain and not as a penalty (in lieu of the Basic Periodic Lease Rent or Renewal Lease Rent due for any periods subsequent to the date of such sale), an amount equal to (i) any unpaid Basic Periodic Lease Rent or Renewal Lease Rent due or accrued and unpaid through before the Relevant Termination Date date of such sale, plus (ii) any Lessee Section 467 Loan 45 Balance plus (iii) the amount, if any, by which the Termination Value computed as of the Termination Date next preceding the date of such sale or, if such sale occurs on a Rent Payment Date or a Termination Date then computed as of such date, exceeds the net proceeds of such sale, and, upon payment of such amount, this Facility Lease and the Facility Lessee's obligation to pay Basic Periodic Lease Rent or Renewal Lease Rent for any periods subsequent to the date of such payment shall terminate, Allocated Rent shall cease to accrue and the Owner Lessor shall pay to the Facility Lessee the Lessor Section 467 Loan Balance, if any, determined as of the relevant Termination Date. The obligation to make such payments shall be subject to the provisions of SECTION 3.2(D). In addition, the Facility Lessee shall be liable, except as otherwise provided above, for (i) any and all unpaid Basic Periodic Lease Rent or Renewal Lease Rent due hereunder before, before or during the exercise of any of the foregoing remedies, (ii) in the case of a Lease Event of Default described in Section 16(j), any Change of Control Premium payable under Section 4.2(a) of the Lease Indenture, and (iiiii) on an After-Tax Basis, for legal fees and other costs and expenses incurred by reason of the occurrence of any Lease Event of Default or the exercise of the Owner Lessor's remedies with respect thereto, including the repayment in full of any costs and expenses necessary to be expended in connection with the return of the Undivided Facility Interest in accordance with SECTION 5 hereofSection 5, including, without limitation, any costs and expenses incurred by the Owner Lessor, the Owner Participant and Participant, the Lease Indenture Trustee or the Pass Through Trustee in connection with retaking constructive possession of, or in repairing, the Undivided Facility Interest in order to cause it to be in compliance with all maintenance standards imposed by this Facility Lease.
(g) upon the occurrence and during the continuance of a Rent Default Event, the Owner Lessor may from time to time withdraw amounts from the Equity Account pursuant to Section 4.6(b) of the Amended Security Deposit Agreement and subject to the posting of an Equity Letter of Credit required thereunder.
Appears in 1 contract
Samples: Facility Lease Agreement (Reliant Energy Mid Atlantic Power Services Inc)
Remedies for Lease Event of Default. Upon the occurrence of any Lease Event of Default and at any time thereafter so long as the same shall be continuing, the Owner Lessor may, at its option, declare this Facility Lease to be in default by written notice to the Facility Lessee (PROVIDEDprovided, that this Facility Lease shall automatically be in default without the need for giving any notice upon the occurrence of a Lease Event of Default in clause (g) or (h) of SECTION 16) in respect of the Facility Lessee; and at any time thereafter, so long as the Facility Lessee shall not have remedied all outstanding Lease Events of Default, the Owner Lessor may, at the Facility Lessee's sole cost and expense, do one or more of the following as the Owner Lessor in its sole discretion shall elect, to the extent permitted by, and subject to compliance with any mandatory Requirements of Law then in effect:
(a) proceed by appropriate court action or actions, either at law or in equity, to enforce performance by the Facility Lessee of the applicable covenants and terms of this Facility Lease or to recover damages for breach thereof;
(b) by notice in writing to the Facility Lessee, terminate this Facility Lease whereupon all right of the Facility Lessee to the possession and use of the Undivided Interest under this Facility Lease shall absolutely cease and terminate but the Facility Lessee shall remain liable as hereinafter provided; and thereupon, the Owner Lessor may demand that the Facility Lessee, and the Facility Lessee shall, upon written demand of the Owner Lessor and at the Facility Lessee's sole cost and expense, forthwith return possession of the Undivided Interest to the Owner Lessor in the manner and condition required by, and otherwise in accordance with all of the provisions of SECTION 5, except those provisions relating to periods of notice; and the Owner Lessor may thenceforth hold, possess and enjoy the same free from any right of the Facility Lessee, or its successor or assigns, to use the Undivided Interest for any purpose whatever;
(c) sell the Owner Lessor's Interest at public or private sale, as the Owner Lessor may determine, free and clear of any rights of the Facility Lessee under this Facility Lease and without any duty to account to the Facility Lessee with respect to such sale or for the proceeds thereof (except to the extent required by paragraph (f) below if the Owner Lessor elects to exercise its rights under said paragraph and by Requirements of Law), in which event (i) Allocated Rent shall cease to accrue and (ii) the Facility Lessee's obligation to pay Basic Lease Rent or Renewal Rent hereunder due for any periods subsequent to the date of such sale shall terminate (except to the extent that Basic Lease Rent or Renewal Rent is to be included in computations under paragraph (f) below if the Owner Lessor elects to exercise its rights under said paragraph) and in which event the Owner Lessor shall pay to the Facility Lessee the Lessor Section 467 Loan Balance, if any, determined as of such date, PROVIDED, HOWEVER, that the obligation of the Owner Lessor to make such payments shall be subject to the provisions of Section 3.2(d);
(d) hold, keep idle or lease to others the Owner Lessor's Interest as the Owner Lessor in its sole discretion may determine, free and clear of any rights of the Facility Lessee under this Facility Lease and without any duty to account to the Facility Lessee with respect to such action or inaction or for any proceeds with respect thereto, except that the Facility Lessee's obligation to pay Basic Lease Rent or Renewal Rent with respect to the Undivided Interest due for any periods subsequent to the date upon which the Facility Lessee shall have been deprived of possession and use of the Undivided Interest pursuant to this SECTION 17 shall be reduced by the net proceeds, if any, received by the Owner Lessor from leasing the Undivided Interest to any Person other than the Facility Lessee and in which event the Owner Lessor shall pay to the Facility Lessee the Lessor Section 467 Loan Balance, if any, determined as of such date, PROVIDED, HOWEVER, that the obligation of the Owner Lessor to make such payments shall be subject to the provisions of Section 3.2(d)Lessee;
(e) whether or not the Owner Lessor shall have exercised, or shall thereafter at any time exercise, any of its rights under paragraph (b) above with respect to the Undivided Interest, the Owner Lessor, by written notice to the Facility Lessee specifying a Termination Date that shall be not earlier than 10 days after the date of such notice, may demand that the Facility Lessee pay to the Owner Lessor, and the Facility Lessee shall pay to the Owner Lessor, on the Termination Date specified in such notice any due and unpaid, or accrued and unpaid, Basic Lease Rent or Renewal Rent due through the Termination Date, any Supplemental Lease Rent due and payable as of the payment date specified in such notice, plus as liquidated damages for loss of a bargain and not as a penalty (in lieu of the Basic Lease Rent or Renewal Rent due after the Termination Date specified in such notice), (i) an amount equal to the excess, if any, of the sum of the Termination Value plus any Lessee Section 467 Loan Balance plus any Basic Lease Rent or Renewal Rent due and unpaid, in each case, computed as of the Termination Date specified in such notice over the Fair Market Sales Value of the Owner Lessor's Interest as of the Termination Date specified in such notice; or (ii) an amount equal to the excess, if any, of the sum of the Termination Value plus any Lessee Section 467 Loan Balance plus any Basic Lease Rent or Renewal Rent due and unpaid, in each case, computed as of the Termination Date specified in such notice over the Fair Market Rental Value of the Owner Lessor's Interest until the end of the Basic Lease Term or the then current Renewal Lease Term, after discounting such Fair Market Rental Value semi-annually to present value as of the Termination Date specified in such notice at a rate equal to the Discount Rate; or (iii) an amount equal to the Termination Value computed as of the Termination Date specified in such notice PROVIDED THAT provided that upon payment of such Termination Value by the Facility Lessee pursuant to this clause (iii) and all other Rent then due and unpaid, or accrued and unpaid by the Facility Lessee and the payment of the Lessee Section 467 Loan Balance as of such the Termination Date, the Owner Lessor shall proceed to exercise its commercially reasonable efforts promptly to sell the Undivided Interest at public or private sale and shall pay over to the Facility Lessee upon consummation of any such sale the net proceeds of such sale (after deducting from such proceeds all costs and expenses incurred by the Owner Lessor in connection therewith and all other amounts that may become payable to the Owner Lessor, the Security Agent or any other Lease Financing Party) and the Facility Lessee waives all claims against the Owner Lessor and the Owner Participant in connection with the sale of the Undivided Interest or the use of commercially reasonable efforts pursuant to this proviso; PROVIDED FURTHER that in lieu of 42 paying an amount equal to the Termination Value pursuant to clause (iii) above, the Facility Lessee may make a rejectable offer in writing to the Owner Lessor (within 5 days following the Facility Lessee's receipt of notice by the Owner Lessor specifying a Termination Date) (an "OFFER") to purchase the Undivided Interest at a purchase price equal to or greater than Termination Value (the "OFFER PRICE"). If the Owner Lessor rejects such Offer in writing, the Facility Lessee shall remain liable to pay Termination Value pursuant to clause (iii) above, all other Rent then due and unpaid, or accrued and unpaid, by the Facility Lessee and any the Lessee Section 467 Loan Balance, determined as of the Termination Date PROVIDED THAT Balance provided that (1) the Facility Lessee shall have no obligation to pay the costs and expenses incurred by the Owner Lessor solely in connection with any sale of the Undivided Interest and (2) the Owner Lessor shall proceed to exercise its best efforts promptly to sell the Undivided Interest at public or private sale and shall pay over to the Facility Lessee upon consummation of any such sale the proceeds of such sale, but not to exceed the sum of Termination Value paid by the Facility Lessee plus interest at the Applicable Rate from the Termination Date until the date of payment of such proceeds to the Facility Lessee. If the Facility Lessee has made an Offer and the Owner Lessor accepts such Offer or fails to respond to such Offer within two (2) Business Days prior to the date on which the Facility Lessee would have been required to pay Termination Value pursuant to clause (iii) above, the Facility Lessee shall pay to the Owner Lessor the Offer Price on or before the Termination Date and upon such payment of the Offer Price and all other Rent then due and unpaid, or accrued and unpaid, by the Facility Lessee and any the Lessee Section 467 Loan Balance determined as of the Termination Date on the Termination Date, the Facility Lessee shall no longer remain liable to pay Termination Value or other amounts pursuant to clause (iii) above and the Owner Lessor shall forthwith transfer to the Facility Lessee (or its designee) in accordance with this SECTION 17.1(E17.1(e) hereof and SECTION 6 of the Facility Site Lease on an "as is," "where is" and "with all faults" basis, without representation or warranty other than a warranty as to the absence of Owner Lessor Liens accompanied by a warranty of the Owner Participant as to the absence of the Owner Participant Liens, all of its interest in the Owner Lessor's Interest and execute, acknowledge and deliver, and record and file (as appropriate), appropriate releases, including a release from the Lien of the Lease Indenture, and all other documents or instructions necessary or desirable to effect the foregoing all in form and substance reasonably satisfactory to the Owner Lessor and at the cost and expense of the Facility Lessee, and upon payment of such amounts due under this paragraph (e), (x) Allocated Rent shall cease to accrue, (y) this Facility Lease, and the Facility Lessee's obligation to pay Basic Lease Rent or Renewal Lease Rent hereunder, as the case may be, hereunder due for any periods subsequent to the date of such payment shall terminate and (z) the Owner Lessor shall pay to the Facility Lessee the Lessor Section 467 Loan Balance, if any, determined as of the relevant Termination Datesuch date. The obligation to make such payments shall be subject to the provisions of SECTION 3.2(D3.2(d); and
(f) if the Owner Lessor shall have sold the Owner Lessor's Interest pursuant to paragraph (c) above, the Owner Lessor may, if it shall so elect, demand that the Facility Lessee pay to the Owner Lessor, and the Facility Lessee shall pay to the Owner Lessor, as liquidated damages for loss of a bargain and not as a penalty (in lieu of the Basic Lease Rent or Renewal Rent due for any periods subsequent to the date of such sale), an amount equal to (i) any unpaid Basic Lease Rent or Renewal Rent due and unpaid through the Relevant Termination Date date of such sale plus (ii) any the Lessee Section 467 Loan 45 Balance plus (iii) the amount, if any, by which the Termination Value computed as of the Termination 43 Date next preceding the date of such sale or, if such sale occurs on a Rent Payment Date or a Termination Date then computed as of such date, exceeds the net proceeds of such sale, and, upon payment of such amount, this Facility Lease and the Facility Lessee's obligation to pay Basic Lease Rent or Renewal Rent for any periods subsequent to the date of such payment shall terminate, Allocated Rent shall cease to accrue and the Owner Lessor shall pay to the Facility Lessee the Lessor Section 467 Loan Balance, if any, determined as of the relevant Termination Datesuch date. The obligation to make such payments shall be subject to the provisions of SECTION 3.2(D3.2(d). In addition, the Facility Lessee shall be liable, except as otherwise provided above, for (i) any and all unpaid Basic Lease Rent or Renewal Rent due hereunder before, or during the exercise of any of the foregoing remedies, and (ii) on an After-Tax Basis, for legal fees and other costs and expenses incurred by reason of the occurrence of any Lease Event of Default or the exercise of the Owner Lessor's remedies with respect thereto, including the repayment in full of any costs and expenses necessary to be expended in connection with the return of the Undivided Interest in accordance with SECTION 5 hereof, including, without limitation, any costs and expenses incurred by the Owner Lessor, the Owner Participant and the Lease Indenture Trustee in connection with retaking constructive possession of, or in repairing, the Undivided Interest in order to cause it to be in compliance with all maintenance standards imposed by this Facility Lease.
(g) upon the occurrence and during the continuance of a Rent Default Event, the Owner Lessor may from time to time withdraw amounts from the Equity Account pursuant to Section 4.6(b7.1(g) of the Amended Security Deposit Agreement and subject to the posting of an Equity Letter of Credit required thereunder.
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Samples: Facility Lease Agreement (Eme Homer City Generation Lp)
Remedies for Lease Event of Default. Upon the occurrence of any Lease Event of Default and at any time thereafter so long as the same shall be continuing, the Owner Lessor may, at its option, declare this Facility Lease to be in default by written notice to the Facility Lessee (PROVIDEDprovided, that this Facility Lease shall automatically be in default without the need for giving any notice upon the occurrence of a Lease Event of Default in clause (g) or (h) of SECTION 16) in respect of the Facility LesseeSection 17); and at any time thereafter, so long as the Facility ---------- Lessee shall not have remedied all outstanding Lease Events of Default, the Owner Lessor may, at the Facility Lessee's sole cost and expense, do one or more of the following as the Owner Lessor in its sole discretion shall elect, to the extent permitted by, and subject to compliance with any mandatory Requirements of Law then in effect:
(a) proceed by appropriate court action or actions, either at law or in equity, to enforce performance by the Facility Lessee of the applicable covenants and terms of this Facility Lease or to recover damages for breach thereof;
(b) by notice in writing to the Facility Lessee, terminate this Facility Lease whereupon all right of the Facility Lessee to the possession and use of the Undivided Interest under this Facility Lease shall absolutely cease and terminate but the Facility Lessee shall remain liable as hereinafter provided; and thereupon, the Owner Lessor may demand that the Facility Lessee, and the Facility Lessee shall, upon written demand of the Owner Lessor and at the Facility Lessee's sole cost and expense, forthwith return possession of the Undivided Interest to the Owner Lessor in the manner and condition required by, and otherwise in accordance with all of the provisions of SECTION Section 5, except --------- those provisions relating to periods of notice; and the Owner Lessor may thenceforth hold, possess and enjoy the same free from any right of the Facility Lessee, or its successor or assigns, to use the Undivided Interest for any purpose whatever;
(c) sell the Owner Lessor's Interest at public or private sale, as the Owner Lessor may determine, free and clear of any rights of the Facility Lessee under this Facility Lease and without any duty to account to the Facility Lessee with respect to such sale or for the proceeds thereof (except to the extent required by paragraph (f) below if the Owner Lessor elects to exercise its rights under said paragraph and by Requirements of Law), in which event (i) Allocated Rent shall cease to accrue and (ii) the Facility Lessee's obligation to pay Basic Periodic Lease Rent or Renewal Rent hereunder due for any periods subsequent to the date of such sale shall terminate (except to the extent that Basic Periodic Lease Rent or Renewal Rent is to be included in computations under paragraph (f) below if the Owner Lessor elects to exercise its rights under said paragraph) and in which event the Owner Lessor shall pay to the Facility Lessee the Lessor Section 467 Loan Balance, if any, determined as of such date, PROVIDED, HOWEVER, that the obligation of the Owner Lessor to make such payments shall be subject to the provisions of Section 3.2(d);
(d) hold, keep idle or lease to others the Owner Lessor's Interest as the Owner Lessor in its sole discretion may determine, free and clear of any rights of the Facility Lessee under this Facility Lease and without any duty to account to the Facility Lessee with respect to such action or inaction or for any proceeds with respect thereto, except that the Facility Lessee's obligation to pay Basic Periodic Lease Rent or Renewal Rent with respect to the Undivided Interest due for any periods subsequent to the date upon which the Facility Lessee shall have been deprived of possession and use of the Undivided Interest pursuant to this SECTION 17 Section 18 shall be reduced by the net proceeds, if any, ---------- received by the Owner Lessor from leasing the Undivided Interest to any Person other than the Facility Lessee and in which event the Owner Lessor shall pay to the Facility Lessee the Lessor Section 467 Loan Balance, if any, determined as of such date, PROVIDED, HOWEVER, that the obligation of the Owner Lessor to make such payments shall be subject to the provisions of Section 3.2(d)Lessee;
(e) whether or not the Owner Lessor shall have exercised, or shall thereafter at any time exercise, any of its rights under paragraph (b) above with respect to the Undivided Interest, the Owner Lessor, by written notice to the Facility Lessee specifying a Termination Date that shall be not earlier than 10 days after the date of such notice, may demand that the Facility Lessee pay to the Owner Lessor, and the Facility Lessee shall pay to the Owner Lessor, on the Termination Date specified in such notice any due and unpaid, or accrued and unpaid, Basic Periodic Lease Rent or Renewal Rent due through before the Termination Date, any Supplemental Lease Rent due and payable as of the payment date specified in such notice, plus as liquidated damages for loss of a bargain and not as a penalty (in lieu of the Basic Periodic Lease Rent or Renewal Rent due after the Termination Date specified in such notice), (i) an amount equal to the excess, if any, of the sum of the Termination Value plus any Lessee Section 467 Loan Balance plus any Basic Lease Rent or Renewal Rent due and unpaid, in each case, computed as of the Termination Date specified in such notice over the Fair Market Sales Value of the Owner Lessor's Interest as of the Termination Date specified in such notice; or (ii) an amount equal to the excess, if any, of the sum of the Termination Value plus any Lessee Section 467 Loan Balance plus any Basic Lease Rent or Renewal Rent due and unpaid, in each case, computed as of the Termination Date specified in such notice over the Fair Market Rental Value of the Owner Lessor's Interest until the end of the Basic Lease Term or the then current Renewal Lease Term, after discounting such Fair Market Rental Value semi-annually to present value as of the Termination Date specified in such notice at a rate equal to the Discount Rate; or (iii) an amount equal to the Termination Value computed as of the Termination Date specified in such notice PROVIDED THAT provided that upon payment of such Termination Value by the Facility Lessee pursuant to this clause (iii) and all other Rent then due and unpaid, or accrued and unpaid by the Facility Lessee and the payment of the Lessee Section 467 Loan Balance as of such Termination DateLessee, the Owner Lessor shall proceed to exercise its commercially reasonable efforts promptly to sell the Undivided Interest at public or private sale and shall pay over to the Facility Lessee upon consummation of any such sale the net proceeds of such sale (after deducting from such proceeds all costs and expenses incurred by the Owner Lessor in connection therewith and all other amounts that may become payable to the Owner Lessor, the Security Agent Lease Indenture Trustee or any other Lease Financing Party) and the Facility Lessee waives all claims against the Owner Lessor and the Owner Participant in connection with the sale of the Undivided Interest or the use of commercially reasonable efforts pursuant to this proviso; PROVIDED FURTHER provided further that in lieu of paying an amount equal to the Termination Value pursuant to clause (iii) above, the Facility Lessee may make a rejectable offer in writing to the Owner Lessor (within 5 days following the Facility Lessee's receipt of notice by the Owner Lessor specifying a Termination Date) (an "OFFEROffer") to purchase the Undivided Interest at a purchase price equal ----- to or greater than Termination Value (the "OFFER PRICEOffer Price"). If the Owner Lessor ----------- rejects such Offer in writing, the Facility Lessee shall remain liable to pay Termination Value pursuant to clause (iii) above, all other Rent then due and unpaid, or accrued and unpaid, by the Facility Lessee and any Lessee Section 467 Loan Balance, determined as of the Termination Date PROVIDED THAT above provided that (1) the Facility Lessee shall have no obligation to pay the costs and expenses incurred by the Owner Lessor solely in connection with any sale of the Undivided Interest and (2) the Owner Lessor shall proceed to exercise its best efforts promptly to sell the Undivided Interest at public or private sale and shall pay over to the Facility Lessee upon consummation of any such sale the proceeds of such sale, but not to exceed the sum of Termination Value paid by the Facility Lessee plus interest at the Applicable Rate from the Termination Date until the date of payment of such proceeds to the Facility Lessee. If the Facility Lessee has made an Offer and the Owner Lessor accepts such Offer or fails to respond to such Offer within two (2) Business Days prior to the date on which the Facility Lessee would have been required to pay Termination Value pursuant to clause (iii) above, the Facility Lessee shall pay to the Owner Lessor the Offer Price on or before the Termination Date and upon such payment of the Offer Price and all other Rent then due and unpaid, or accrued and unpaid, by the Facility Lessee and any Lessee Section 467 Loan Balance determined as of the Termination Date on the Termination DateLessee, the Facility Lessee shall no longer remain liable to pay Termination Value or other amounts pursuant to clause (iii) above and the Owner Lessor shall forthwith transfer to the Facility Lessee (or its designee) in accordance with this SECTION 17.1(ESection 18.1(e) hereof and SECTION Section 6 of the Facility Site Lease on an "as --------------- --------- is," "where is" and "with all faults" basis, without representation or warranty other than a warranty as to the absence of Owner Lessor Liens accompanied by a warranty of the Owner Participant as to the absence of the Owner Participant Liens, all of its interest in the Owner Lessor's Interest and execute, acknowledge and deliver, and record and file (as appropriate), appropriate releases, including a release from the Lien of the Lease Indenture, and all other documents or instructions necessary or desirable to effect the foregoing all in form and substance reasonably satisfactory to the Owner Lessor and at the cost and expense of the Facility Lessee, and upon payment of such amounts due under either clauses (i) and (ii) of this paragraph (e), (x) Allocated Rent shall cease to accrue, accrue and (y) this Facility Lease, and the Facility Lessee's obligation to pay Basic Periodic Lease Rent or Renewal Lease Rent hereunder, as the case may be, hereunder due for any periods subsequent to the date of such payment shall terminate and (z) the Owner Lessor shall pay to the Facility Lessee the Lessor Section 467 Loan Balance, if any, determined as of the relevant Termination Date. The obligation to make such payments shall be subject to the provisions of SECTION 3.2(D)terminate; and
(f) if the Owner Lessor shall have sold the Owner Lessor's Interest pursuant to paragraph (c) above, the Owner Lessor may, if it shall so elect, demand that the Facility Lessee pay to the Owner Lessor, and the Facility Lessee shall pay to the Owner Lessor, as liquidated damages for loss of a bargain and not as a penalty (in lieu of the Basic Periodic Lease Rent or Renewal Rent due for any periods subsequent to the date of such sale), an amount equal to (i) any unpaid Basic Periodic Lease Rent or Renewal Rent due and unpaid through before the Relevant Termination Date date of such sale plus (ii) any Lessee Section 467 Loan 45 Balance plus (iii) the amount, if any, by which the Termination Value computed as of the ---- Termination Date next preceding the date of such sale or, if such sale occurs on a Rent Payment Date or a Termination Date then computed as of such date, exceeds the net proceeds of such sale, and, upon payment of such amount, this Facility Lease and the Facility Lessee's obligation to pay Basic Periodic Lease Rent or Renewal Rent for any periods subsequent to the date of such payment shall terminate, Allocated Rent shall cease to accrue and the Owner Lessor shall pay to the Facility Lessee the Lessor Section 467 Loan Balance, if any, determined as of the relevant Termination Date. The obligation to make such payments shall be subject to the provisions of SECTION 3.2(D). In addition, the Facility Lessee shall be liable, except as otherwise provided above, for (i) any and all unpaid Basic Periodic Lease Rent or Renewal Rent due hereunder before, or during the exercise of any of the foregoing remedies, and (ii) on an After-Tax Basis, for legal fees and other costs and expenses incurred by reason of the occurrence of any Lease Event of Default or the exercise of the Owner Lessor's remedies with respect thereto, including the repayment in full of any costs and expenses necessary to be expended in connection with the return of the Undivided Interest in accordance with SECTION Section 5 hereof, including, without --------- limitation, any costs and expenses incurred by the Owner Lessor, the Owner Participant and Participant, the Equity Investor, the OP Guarantor, the Lease Indenture Trustee and the Pass Through Trustees in connection with retaking constructive possession of, or in repairing, the Undivided Interest in order to cause it to be in compliance with all maintenance standards imposed by this Facility Lease.
(g) upon the occurrence and during the continuance of a Rent Default Event, the Owner Lessor may from time to time withdraw amounts from the Equity Account pursuant to Section 4.6(b) of the Amended Security Deposit Agreement and subject to the posting of an Equity Letter of Credit required thereunder.
Appears in 1 contract
