Common use of Solicitation of Offers; Payments Upon Termination Clause in Contracts

Solicitation of Offers; Payments Upon Termination. (a) Upon receipt of a termination notice from the Lessee pursuant to Section 13.1, the Owner Lessor may, but shall be under no obligation to, sell the Owner Lessor's Leasehold Interest and, at the request of the Owner Lessor, the Lessee will, as non-exclusive agent for the Owner Lessor, use commercially reasonable efforts to obtain cash bids for the Owner Lessor's Leasehold Interest. In connection with such termination, the Lessee may, but shall be under no obligation to, make an offer to purchase the Owner Lessor's Leasehold Interest. Only bona fide bids, whether from the Lessee or a third party, to purchase the Owner Lessor's Leasehold Interest for cash on the Burdensome Termination Date on an "as is, where is" and "with all faults" basis without any representation, other than by the Owner Lessor as to the absence of Owner Lessor's Liens and a warranty of the Equity Investor as to the absence of Equity Investor's Liens, shall be "Qualifying Cash Bids". All the proceeds of any such sale shall be for the account of the Owner Lessor; provided that so long as the Lien of the Indenture shall not have been terminated and fully discharged, the proceeds of such sale shall be paid directly to or at the direction of the Indenture Trustee. The Owner Lessor shall be under no obligation to accept any Qualifying Cash Bid. If the Owner Lessor receives any Qualifying Cash Bids, the Owner Lessor shall be deemed to have accepted the highest such bid received by 10 Business Days prior to the Burdensome Termination Date unless the Owner Lessor rejects such bid and elects to retain the Owner Lessor's Leasehold Interest in writing prior to the earlier of (x) the expiration date of such bid and (y) the date at least 45 days prior to the Burdensome Termination Date. (b) If the Owner Lessor receives any Qualifying Cash Bid (regardless of whether or not such Qualifying Cash Bid is accepted by the Owner Lessor) on the Burdensome Termination Date, the Lessee shall pay the Owner Lessor (i) the amount, if any, by which the Termination Value determined as of the Burdensome Termination Date exceeds the sales price of the highest Qualifying Cash Bid actually received by the Owner Lessor, whether from the Lessee or a third party (net of the fees, commissions and costs of any broker engaged by the Lessee or any Affiliate thereof), plus (ii) all other amounts due and payable under clauses (a), (b) and (c) of Section 13.3; provided that so long as the Lien of the Indenture shall not have been terminated and fully discharged, such amounts shall be paid directly to or at the direction of the Indenture Trustee. (c) If no Qualifying Cash Bids are received by the Termination Date or if a Qualifying Cash Bid is accepted (or deemed accepted) by the Owner Lessor but does not, other than as a result of the Owner Lessor's failure to transfer the Owner Lessor's Leasehold Interest free and clear of Owner Lessor's Liens or the Equity Investor's failure to provide a warranty as to the absence of Equity Investor's Liens, result in a sale of the Owner Lessor's Leasehold Interest, the Owner Lessor may elect in writing to retain the Owner Lessor's Leasehold Interest (and to forego its right to receive payment of Termination Value) and require the Lessee to pay to the Owner Lessor on the Burdensome Termination Date all amounts due and payable under clauses (a), (b) and (c) of Section 13.3 (but not Termination Value); provided, however, that the Owner Lessor may not elect to retain the Owner Lessor's Leasehold Interest unless it shall provide to the Indenture Trustee an irrevocable commitment to pay, and reasonable assurances of its ability to pay, the principal, premium and interest on the Senior Notes in full on the Burdensome Termination Date. In the event the Owner Lessor does not elect to retain the Owner Lessor's Leasehold Interest, the Lessee may, in its sole discretion, (except as provided in the last sentence of this last paragraph (c)), (i) withdraw its Burdensome Termination Notice (provided such withdrawal is prior to the date on which the notice to prepay Senior Notes is irrevocable in accordance with the terms of the Indenture), in which event this Project Lease shall continue, any notice of prepayment of Senior Notes pursuant to the Indenture shall be withdrawn and the Lessee shall pay on an After-Tax Basis all reasonable, documented out-of-pocket costs and expenses of the Owner Lessor, the Equity Investor and the Indenture Trustee in connection with

Solicitation of Offers; Payments Upon Termination. (a) Upon receipt of a termination notice from the Lessee pursuant to Section 13.1, the Owner Lessor may, but shall be under no obligation to, sell the Owner Lessor's Leasehold Interest and, at the request of the Owner Lessor, the Lessee will, as non-exclusive agent for the Owner Lessor, use commercially reasonable efforts to obtain cash bids for the Owner Lessor's Leasehold Interest. In connection with such termination, the Lessee may, but shall be under no obligation to, make an offer to purchase the Owner Lessor's Leasehold InterestInterest and shall have a right of first refusal (pursuant to the terms and conditions set forth in Section 13.2 of the Participation Agreement, mutatis mutandis) with respect to any offer received from an unaffiliated third party (which may be exercised any time prior to the Burdensome Termination Date), in connection with such sale. Only bona fide bids, whether from the Lessee or a third party, to purchase the Owner Lessor's Leasehold Interest for cash on the Burdensome Termination Date on an "as is, where is" and "with all faults" basis without any representation, other than by the Owner Lessor as to the absence of Owner LessorTrustee's Liens attributable to the Owner Lessor and a warranty of the Equity Investor Owner Participant as to the absence of Equity InvestorOwner Participant's Liens, shall be "Qualifying Cash Bids". All the proceeds of any such sale shall be for the account of the Owner Lessor; provided that so long as the Lien of the Indenture shall not have been terminated and fully or discharged, the proceeds of such sale sale, other than any Excepted Payments, shall be paid directly to or at the direction of the Indenture Trustee. The Owner Lessor shall be under no obligation to accept any Qualifying Cash Bid. If the Owner Lessor receives any Qualifying Cash Bids, the Owner Lessor shall be deemed to have accepted the highest such bid received by the date which is 10 Business Days prior to the Burdensome Termination Date unless the Owner Lessor rejects such bid and elects to retain the Owner Lessor's Leasehold Interest in writing prior to the earlier of (xy) the expiration date of such bid and (yz) the date at least 45 days (15 days if the Lessee has given less than 60 days notice of its election to terminate pursuant to Section 13.1(a)) prior to the Burdensome Termination Date. (b) If the Owner Lessor receives any Qualifying Cash Bid (regardless of whether or not such Qualifying Cash Bid is accepted by the Owner Lessor) ), on the Burdensome Termination Date, the Lessee shall pay the Owner Lessor (i) the amount, if any, by which the Termination Value determined as of the Burdensome Termination Date exceeds the sales price of the highest Qualifying Cash Bid actually received by the Owner Lessor, whether from the Lessee or a third party (net of the fees, commissions and costs of any broker engaged by the Lessee or any Affiliate thereof), plus (ii) all other amounts due and payable by the Lessee under clauses (a), (b) and (c) of Section 13.3; provided that so long as the Lien of the Indenture shall not have been terminated and fully or discharged, such amounts (other than Excepted Payments) shall be paid directly to or at the direction of the Indenture Trustee. (c) If no Qualifying Cash Bids are received by the Termination Date or if a Qualifying Cash Bid is accepted (or deemed accepted) by the Owner Lessor but does not, other than as a result of the Owner Lessor's failure to transfer the Owner Lessor's Leasehold Interest free and clear of Owner LessorTrustee's Liens attributable to the Owner Lessor or the Equity InvestorOwner Participant's failure to provide a warranty as to the absence of Equity InvestorOwner Participant's Liens, result in a sale of the Owner Lessor's Leasehold InterestFacility, the Owner Lessor may elect in writing to retain the Owner Lessor's Leasehold Interest (and to forego its right to receive payment of Termination Value) and require the Lessee to pay to the Owner Lessor on the Burdensome Termination Date any Underpayment of Basic Lease Rent as of the Burdensome Termination Date plus all amounts due and payable by the Lessee under clauses (a), (b) and (c) of Section 13.3 (but not Termination Value); provided, however, that the Owner Lessor may not elect to retain the Owner Lessor's Leasehold Interest unless it shall provide to pay the Indenture Trustee an irrevocable commitment to pay, and reasonable assurances of its ability to pay, the principal, premium principal and interest on the Senior Notes in full pursuant to Section 2.10(a) of the Indenture and shall pay to the Lessee on the Burdensome Termination Date the sum of any Overpayment of Basic Lease Rent as of such Burdensome Termination Date plus, unless such Burdensome Termination Date is a Basic Lease Rent Payment Date, any Interest on Prepaid Rent accrued and unpaid as of such Burdensome Termination Date. In the event the Owner Lessor does elects not elect to retain the Owner Lessor's Leasehold Interest, the Lessee may, in its sole discretion, (except as provided in the last sentence of this last paragraph (c)), (i) withdraw its Burdensome Termination Notice (provided such withdrawal is prior subject, however, to the date on which the notice to prepay Senior Notes is irrevocable in accordance with the terms Section 5.10 of the IndentureParticipation Agreement), in which event this Project Facility Lease shall continue, any notice of prepayment of Senior Notes pursuant to the Indenture shall be withdrawn continue and the Lessee shall pay on an After-Tax Basis all reasonable, documented out-of-pocket costs and expenses of the Owner Lessor, the Equity Investor and Owner Trustee, the Owner Participant, the Indenture Trustee and the Pass Through Trustee in connection withwith the giving (and subsequent withdrawal) of the Burdensome Termination Notice, or (ii) as non-exclusive agent for the Owner Lessor, use commercially reasonable efforts to sell the Owner Lessor's Interest, in which case the Lessee shall be required to pay the Termination Value determined as of the Burdensome Termination Date plus all amounts due and payable under clauses (a), (b) and (c) of Section 13.

Solicitation of Offers; Payments Upon Termination. (a) Upon receipt of a termination notice from the Facility Lessee pursuant to Section 13.1, the Owner Lessor may, but shall be under no obligation to, sell the Owner Lessor's Leasehold Interest and, at the request of the Owner Lessor, the Facility Lessee will, as non-exclusive agent for the Owner Lessor, use commercially reasonable efforts to obtain cash bids for the Owner Lessor's Leasehold Interest. In connection with such termination, the Facility Lessee may, but shall be under no obligation to, make an offer to purchase the Owner Lessor's Leasehold Interest. Only bona fide bids, whether from Interest on the Lessee or a third party, to purchase Termination Date set forth in the Owner Lessor's Leasehold Interest termination notice for cash in an amount at least equal to the Termination Value for the Undivided Interest on the Burdensome such Termination Date Date, on an "as is", "where is" and "with all faults" basis without any representation, other than by the Owner Lessor as to that the absence Owner Lessor's Interest is free of Owner Lessor's Liens and a warranty of the Equity Investor Owner Participant as to the absence of Equity InvestorOwner Participant's Liens, Liens (any such offer by the Facility Lessee shall be a "Qualifying Cash BidsBid"). All If the proceeds of any such sale shall be for the account of Facility Lessee makes a Qualifying Cash Bid and the Owner Lessor; provided that so long as the Lien of the Indenture shall not have been terminated and fully dischargedLessor accepts such offer, the proceeds Facility Lessee shall pay the Owner Lessor on the Termination Date (a) the amount of such sale Qualifying Cash Bid plus (b) all amounts due and payable under Section 13.3 (but shall be paid directly to or at the direction of the Indenture Trustee. The Owner Lessor shall be under have no obligation to accept any Qualifying Cash Bidpay Termination Value). If the Owner Lessor receives any (x) rejects a Qualifying Cash BidsBid from the Facility Lessee, the Owner Lessor shall be deemed to have accepted the highest such bid received by 10 Business Days prior to the Burdensome Termination Date unless the Owner Lessor rejects such bid and (y) accepts an offer from a third party, or (z) elects to retain the Owner Lessor's Leasehold Interest in writing prior to the earlier of (x) the expiration date of such bid and (y) the date at least 45 days prior to the Burdensome Termination Date. (b) If the Owner Lessor receives any Qualifying Cash Bid (regardless of whether or not such Qualifying Cash Bid is accepted by the Owner Lessor) on the Burdensome Termination Date, the Lessee shall pay the Owner Lessor (i) the amount, if any, by which the Termination Value determined as of the Burdensome Termination Date exceeds the sales price of the highest Qualifying Cash Bid actually received by the Owner Lessor, whether from the Lessee or a third party (net of the fees, commissions and costs of any broker engaged by the Lessee or any Affiliate thereof), plus (ii) all other amounts due and payable under clauses (a), (b) and (c) of Section 13.3; provided that so long as the Lien of the Indenture shall not have been terminated and fully discharged, such amounts shall be paid directly to or at the direction of the Indenture Trustee. (c) If no Qualifying Cash Bids are received by the Termination Date or if a Qualifying Cash Bid is accepted (or deemed accepted) by the Owner Lessor but does not, other than as a result of the Owner Lessor's failure to transfer the Owner Lessor's Leasehold Interest free and clear of Owner Lessor's Liens or the Equity Investor's failure to provide a warranty as to the absence of Equity Investor's Liens, result in a sale of the Owner Lessor's Leasehold Interest, the Owner Lessor may elect in writing to retain the Owner Lessor's Leasehold Interest (and to forego its right to receive payment of Termination Value) and require the Facility Lessee to shall pay to the Owner Lessor on the Burdensome Termination Date all amounts due and payable under clauses (a), (b) and (c) of Section 13.3 (but not shall have no obligation to pay Termination Value); provided. Any transfer to a third party shall be subject to the Project Agreements. If, howeverwithin 10 days of the Termination Date set forth in the notice of termination, that the Owner Lessor may does not (1) receive a Qualifying Cash Bid from the Facility Lessee, (2) accept an offer from a third party, or (3) elect to retain the Owner Lessor's Leasehold Interest unless it shall provide to the Indenture Trustee an irrevocable commitment to pay, and reasonable assurances of its ability to pay, the principal, premium and interest on the Senior Notes in full on the Burdensome Termination Date. In the event the Owner Lessor does not elect to retain the Owner Lessor's Leasehold Interest, the Lessee may, in its sole discretion, (except as provided in the last sentence of this last paragraph (c)), (i) withdraw its Burdensome Termination Notice (provided such withdrawal is prior to the date on which the notice to prepay Senior Notes is irrevocable in accordance with the terms of the Indenture), in which event this Project Facility Lease shall continue, the Facility Lessee will lose its right to terminate this Facility Lease for such burdensome event, and any notice of prepayment of Senior Notes pursuant and all rights that the Owner Lessor had immediately prior to the Indenture shall be withdrawn and the Lessee shall pay on an After-Tax Basis all reasonable, documented out-of-pocket costs and expenses receipt of the Owner Lessor, the Equity Investor termination notice referred to in Section 13.1 above (including any right to indemnification which may have given rise to such burdensome termination option) shall remain in full force and the Indenture Trustee effect in connection withall respects.

Solicitation of Offers; Payments Upon Termination. (a) Upon receipt of a termination notice from The Lessee shall, as soon as practicable following the Lessee pursuant Burdensome Termination Notice, appoint an independent sales agent reasonably satisfactory to Section 13.1, the Owner Lessor may, but shall be under no obligation to, sell the Owner Lessor's Leasehold Interest and, at the request of the Owner Lessor, the Lessee will, as non-exclusive Participant and cause such sales agent for the Owner Lessor, to use commercially reasonable efforts to obtain cash bids for Qualifying Cash Bids. The Lessor shall elect within 180 days of receipt of the Owner Lessor's Leasehold Burdensome Termination Notice whether to sell or retain the Undivided Interest. In connection with such terminationThe Lessor shall provide prompt notice of its election to sell or retain the Undivided Interest to the Lessee. If the Lessor has elected to sell the Undivided Interest, the Lessee may, but shall be under no obligation to, make an offer to purchase the Owner Lessor's Leasehold Interest. Only bona fide bids, whether from the Lessee or then have a third party, to purchase the Owner Lessor's Leasehold Interest for cash on the Burdensome Termination Date on an "as is, where is" and "with all faults" basis without any representation, other than by the Owner Lessor as right of first refusal (pursuant to the absence of Owner Lessor's Liens terms and a warranty conditions set forth in Section 7.6 of the Equity Investor as Participation Agreement, mutatis mutandis) with respect to the absence of Equity Investor's Liens, shall be "any Qualifying Cash Bids"Bid that the Lessor intends to accept. All the proceeds of any such sale shall be for the account of the Owner Lessor; provided provided, that so long as the Lien of the Indenture shall not have been terminated and fully or discharged, the proceeds of such sale amounts (other than Excepted Payments) shall be paid directly to or at the direction of the Indenture Trustee. The Owner Lessor shall be under no obligation to accept any Qualifying Cash Bid. If the Owner Lessor receives any Qualifying Cash Bids, the Owner Lessor shall be deemed to have accepted the highest such bid received by 10 Business Days prior to the Burdensome Termination Date unless the Owner Lessor rejects such bid and elects to retain the Owner Lessor's Leasehold Interest in writing prior to the earlier of (x) the expiration date of such bid and (y) the date at least 45 days prior to the Burdensome Termination Date. (b) If the Owner Lessor receives any accepts a Qualifying Cash Bid (regardless and the sale of whether the Undivided Interest is consummated on or not such Qualifying Cash Bid is accepted by before the Owner Lessor) Burdensome Termination Date, or if the Lessee has exercised its right of first refusal, then on the Burdensome Termination Date, the Lessee shall pay the Owner Lessor Lessor, without duplication, (i) the amount, if any, by which the Termination Value Amount determined as of the Burdensome Termination Date exceeds the sales price of the highest Qualifying Cash Bid actually received by the Owner Lessor, whether net cash proceeds from the Lessee or a third party (net of the fees, commissions and costs of any broker engaged by the Lessee or any Affiliate thereof)sale, plus (ii) all other amounts due and payable by the Lessee under clauses (a), (b) and (c) of Section 13.3; , provided, that so long as the Lien of the Indenture shall not have been terminated or discharged, such amounts (other than Excepted Payments) shall be paid directly to the Indenture Trustee. (c) If no Qualifying Cash Bid is received by the date that is 90 days prior to the Burdensome Termination Date (provided that the sales agent has not failed to conduct the bid process diligently and in good faith), then the Lessor shall be deemed to have accepted a Qualifying Cash Bid of zero dollars. The Lessee shall have a right of first refusal (pursuant to the terms and conditions set forth in Section 7.6 of the Participation Agreement, mutatis mutandis). If the Lessee exercises its right of first refusal, the Lessee shall pay the Lessor, without duplication, (i) the Termination Amount plus (ii) all other amounts due and payable by the Lessee under clauses (a), (b) and (c) of Section 13.3, provided that so long as the Lien of the Indenture shall not have been terminated and fully or discharged, such amounts (other than Excepted Payments) shall be paid directly to or at the direction of the Indenture Trustee. If the Lessee does not exercise its right of first refusal, then the Facility Lease shall continue as if such Burdensome Termination Notice had not been given. If the Lessee notifies the Lessor that the sales agent has failed to conduct the bid process diligently and in good faith, then the new Burdensome Termination Date shall be that date that is 120 days after the originally designated Burdensome Termination Date, the Lessee shall appoint a new sales agent who shall conduct a subsequent bid process and the terms of this Section 13.2 shall apply to such subsequent bid process. (cd) If one or more Qualifying Cash Bids is received by the date that is 90 days prior to the Burdensome Termination Date (provided that the sales agent has not failed to conduct the bid process diligently and in good faith), but the Lessor has rejected all such bids, the Burdensome Termination Date shall be that date that is 90 days after the originally designated Burdensome Termination Date and the Lessee shall cause the sales agent to conduct a subsequent bid process to be concluded within 90 days, by which point Lessor shall accept a Qualifying Cash Bid which need not be the highest Qualifying Cash Bid. If no Qualifying Cash Bids are received by in such subsequent bid process, then the provisions of Section 13.2(c) (except for the last sentence) shall apply. If the Lessee notifies the Lessor that the sales agent has failed to conduct the bid process diligently in good faith, then the Burdensome Termination Date or shall become that date that is 120 days after the originally designated Burdensome Termination Date, the Lessee shall appoint a new sales agent who shall conduct a subsequent bid process and the terms of this Section 13.2 shall apply as if such subsequent bid process were the original bid process. (e) If the Lessor accepts a Qualifying Cash Bid is accepted (or deemed accepted) by but the Owner Lessor but does not, other than as a result of the Owner Lessor's failure to transfer the Owner Lessor's Leasehold Interest free and clear of Owner Lessor's Liens or the Equity Investor's failure to provide a warranty as to the absence of Equity Investor's Liens, result in a sale of the Owner Lessor's Leasehold Interest’s Interest is not consummated within 90 days of accepting such bid (provided that the Lessor has not failed to negotiate such sale in good faith), the Owner Lessor may elect in writing to retain the Owner Lessor's Leasehold Interest (and to forego its right to receive payment of Termination Value) and require then the Lessee to pay to the Owner Lessor on the Burdensome Termination Date all amounts due and payable under clauses (a), (b) and (c) of Section 13.3 (but not Termination Value); provided, however, that the Owner Lessor may not elect to retain the Owner Lessor's Leasehold Interest unless it shall provide to the Indenture Trustee an irrevocable commitment to pay, and reasonable assurances of its ability to pay, the principal, premium and interest on the Senior Notes in full on the Burdensome Termination Date. In the event the Owner Lessor does not elect to retain the Owner Lessor's Leasehold Interest, the Lessee mayshall, in its sole discretion, (except as provided in the last sentence of this last paragraph (c)), elect whether to (i) withdraw its grant the Lessor additional time to complete the sale of the Lessor’s Interest, or (ii) provide a new Burdensome Termination Notice to the Lessor. In such case, the provisions of this Section 13 shall apply to such new Burdensome Termination Notice (provided except that the requirement that such withdrawal is prior to the date on which the notice to prepay Senior Notes is irrevocable in accordance with the terms Burdensome Termination Notice be given within 180 days of the Indenture), in which event this Project Lease shall continue, any Lessee receiving notice of prepayment of Senior Notes pursuant to the Indenture shall be withdrawn and the Lessee shall pay on an After-Tax Basis all reasonable, documented out-of-pocket costs and expenses or having Actual Knowledge of the Owner Lessor, the Equity Investor and the Indenture Trustee in connection withBurdensome Termination Event shall not apply).