Common use of Sale of Roseton and Danskammer Facilities Clause in Contracts

Sale of Roseton and Danskammer Facilities. The Debtors, with the cooperation of the PSEG Entities (which cooperation shall include, without limitation, taking any and all actions necessary to effect a transfer of title in connection with any sale), shall use their commercially reasonable efforts to sell the Roseton and Danskammer power generation facilities (including all of the power generation units and other structures and equipment, the related land and all other assets related to the operation thereof) (all such assets together, the “Facilities”), including all of the Debtors’ and the PSEG Entities’ interests in the Facilities, as soon as reasonably practicable; provided, that neither the Debtors nor the PSEG Entities shall execute a binding sale agreement or related ancillary agreements with respect to the Facilities (or any portion thereof) without the prior written consent of the Lease Trustee and the Creditors’ Committee (if in existence) and without prior consultation with the Consenting Senior Noteholders, which consent and consultation shall not be unreasonably withheld, delayed, or conditioned. The terms of any sale process shall be mutually agreed upon among the Debtors, the Creditors’ Committee (if in existence), RCM and the Lease Trustee, shall be contingent on receipt of all required regulatory approvals, and shall include the following: 1. in any sale of the PSEG Entities’ interests in the Roseton Facility together with the Debtors’ interests in such Facility, the consideration to be attributed to the PSEG Entities’ interests shall equal the product of the percentage of PSEG Entities’ interests in such Facility (based on the value of the PSEG Entities’ interests in such Facility) and the total consideration for such Facility; provided, that the percentages of the PSEG Entities’ and the Debtors’ respective interests in such Facility shall be determined by and among the Debtors, the PSEG Entities, the Creditors’ Committee and the Lease Trustee, in consultation with the Consenting Senior Noteholders, based on the values of the Debtors’ and the PSEG Entities’ respective interests in such Facility, and in the event of any dispute, the Bankruptcy Court shall have jurisdiction to resolve such dispute; 2. in any sale of the PSEG Entities’ interests in the Danskammer Facility together with the Debtors’ interests in such Facility, the consideration to be attributed to the PSEG Entities’ interests shall equal the product of the percentage of PSEG Entities’ interests in such Facility (based on the value of the PSEG Entities’ interests in such Facility) and the total consideration for such Facility; provided, that the percentages of the PSEG Entities’ and the Debtors’ respective interests in such Facility shall be determined by and among the Debtors, the PSEG Entities, the Creditors’ Committee and the Lease Trustee, in consultation with the Consenting Senior Noteholders, based on the values of the Debtors’ and the PSEG Entities’ respective interests in such Facility, and in the event of any dispute, the Bankruptcy Court shall have jurisdiction to resolve such dispute; and 3. in any sale of the Roseton facility together with the Danskammer Facility, the portion of consideration to be attributed to the Roseton Facility and the portion of consideration to be attributed to the Danskammer Facility, with the consideration attributable to the PSEG Entities for each such Facility to be determined as set forth in clauses 1 and 2 immediately above, and with the Bankruptcy Court having jurisdiction to resolve any allocation dispute. The Debtors, the Lease Trustee and the PSEG Entities agree to cooperate with one another with respect to obtaining all necessary regulatory approvals, including, without limitation, from the Federal Energy Regulatory Commission (“FERC”) and the New York Public Service Commission (“NYPSC”), for the transfer of ownership and operation of the Facilities in connection with any sale of the Facilities, including the making of joint or coordinated filings with FERC, the NYPSC, or any other regulatory body so as to ensure that all necessary regulatory approvals are obtained on a timely basis. For the avoidance of doubt, no other transactions and no actions, obligations or rights of any of the Parties under this Agreement (including, without limitation, in respect of the transfer of the DCH Membership Interests, the termination of the Undertaking Agreement and DH Note, the dismissal of the Prepetition Litigation and the Adversary Proceeding, and the releases set forth in Sections II.h., II.i., II.j. and II.k. hereof) are or shall be conditioned upon the consummation of the proposed sale of the Facilities pursuant to this Section II.d.(iii).