SPECIAL LESSEE TRANSFER. In the case of a Regulatory Event of Loss or Burdensome Buyout Event under the Facility Lease, the Facility Lessee (or its designee), so long as the Facility Lessee shall remain liable under the Facility Lease to pay Basic Lease Rent and all other payments under the Facility Lease, upon not less than thirty (30) days’ written notice to the Owner Participant and the Lease Indenture Trustee, on the applicable Termination Date, may purchase the Owner Participant’s Beneficial Interest, or, in the case of a Burdensome Buyout Event, the membership interest in the Owner Participant, and keep the Facility Lease in place; provided that (i) the Owner Participant shall not suffer any detriment (including tax or book consequences) from such purchase (as compared to that which would have resulted had the Facility Lessee terminated the Facility Lease and purchased the Owner Lessor’s Interest), (ii) the Facility Lessee satisfies the transferee requirements contained in Section 12.1 hereof applicable to transfers by the Owner Participant, if applicable and (iii) NRG pays all expenses incurred by the other Lease Financing Parties in connection therewith. If the Facility Lessee chooses to purchase the Owner Participant’s Beneficial Interest or the membership interest in the Owner Participant, as the case may be, pursuant to the preceding sentence, on the applicable Termination Date, NRG (or its designee) shall pay to the Owner Participant or to the Equity Investor, as the case may be, the Special Lessee Transfer Amount determined as of such date, plus all amounts due and payable to the Owner Participant or Equity Investor, as the case may be, on such date under the Operative Documents. Concurrently with the payment of all sums required to be paid pursuant to this Section 17 (or on such later date of transfer of the Owner Participant’s Beneficial Interest or membership interest in the Owner Participant, as the case may be, in accordance with clause (ii) below) (i) the Facility Lessee shall cease to have any liability to the Owner Participant with respect to the Operative Documents, except for obligations surviving pursuant to the express terms of any Operative Document or which have otherwise accrued but not been paid as of such date and (ii) the Owner Participant or the Equity Investor, as the case may be, will transfer (by an appropriate instrument of transfer in form and substance reasonably satisfactory to the Owner Lessor and prepared and recorded at NRG’s expense) the Owner Participant’s Beneficial Interest or membership interest in the Owner Participant, as the case may be, to the Facility Lessee (or its designee); provided, however, that if the Lien of the Lease Indenture has not been terminated or discharged, such transfer shall not be made to the Facility Lessee, but shall be made to the Facility Lessee’s designee promptly upon the Facility Lessee’s designation of such designee and such designee will agree not to transfer the Owner Participant’s Beneficial Interest or the membership interest in the Owner Participant, as the case may be, to the Facility Lessee until such Lien is discharged. The Owner Participant or Equity Investor, as the case may be, shall make any transfer under this Section 17 on an “as is,” “where is” basis, without warranty other than as to the absence of Owner Lessor’s Liens and Owner Participant’s Liens on the Owner Participant’s Beneficial Interest or the membership interest in the Owner Participant, as the case may be. It is understood and agreed among the parties hereto that the transaction contemplated by this Section 17 shall not effect a merger of the Facility Lessee’s leasehold interest in the Facility and subleasehold interest in the Facility Site with the Owner Lessor’s Interest. NRG will pay all reasonable costs and expenses of the Lease Financing Parties in connection with any transfer pursuant to this Section 17. Subsequent to such transfer, the Facility Lessee and the Owner Lessor may, without the consent of the Lease Indenture Trustee or the Pass Through Trustee, waive the Regulatory Event of Loss or Burdensome Buyout Event that gave rise to the right to purchase the Owner Participant’s Beneficial Interest or the membership interest in the Owner Participant, as the case may be, and the Facility Lease shall continue in full force and effect in accordance with its terms.
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Samples: Participation Agreement (Midwest Generation LLC), Participation Agreement (Midwest Generation LLC), Participation Agreement (Midwest Generation LLC)
SPECIAL LESSEE TRANSFER. In the case of a Regulatory Event of Loss or Burdensome Buyout Event under the Facility Lease, the Facility Lessee (or its designee), so long as the Facility Lessee shall remain liable under the Facility Lease to pay Basic Lease Rent and all other payments under the Facility Lease, upon not less than thirty (30) 30 days’ ' written notice to the Owner Participant and the Lease Indenture Trustee, on the applicable Termination Date, may purchase the Owner Participant’s 's Beneficial Interest, or, in the case of a Burdensome Buyout Event, the membership interest in the Owner Participant, and keep the Facility Lease in place; provided PROVIDED, that (i) the Owner Participant shall not suffer any detriment (including tax or book consequences) from such purchase (as compared to that which would have resulted had the Facility Lessee terminated the Facility Lease and purchased the Owner Lessor’s 's Interest), (ii) the Facility Lessee satisfies the transferee requirements contained in Section SECTION 12.1 hereof applicable to transfers by the Owner Participant, if applicable and (iii) NRG EME pays all expenses incurred by the other Lease Financing Parties in connection therewith. If the Facility Lessee chooses to purchase the Owner Participant’s 's Beneficial Interest or the membership interest in the Owner Participant, as the case may be, pursuant to the preceding sentence, on the applicable Termination Date, NRG EME (or its designee) shall pay to the Owner Participant or to the Equity Investor, as the case may be, the Special Lessee Transfer Amount determined as of such date, plus all amounts due and payable to the Owner Participant or Equity Investor, as the case may be, on such date under the Operative Documents. Concurrently with the payment of all sums required to be paid pursuant to this Section SECTION 17 (or on such later date of transfer of the Owner Participant’s 's Beneficial Interest or membership interest in the Owner Participant, as the case may be, in accordance with clause (ii) below) (i) the Facility Lessee shall cease to have any liability to the Owner Participant with respect to the Operative Documents, except for obligations surviving pursuant to the express terms of any Operative Document or which have otherwise accrued but not been paid as of such date and (ii) the Owner Participant or the Equity Investor, as the case may be, will transfer (by an appropriate instrument of transfer in form and substance reasonably satisfactory to the Owner Lessor and prepared and recorded at NRG’s EME's expense) the Owner Participant’s 's Beneficial Interest or membership interest in the Owner Participant, as the case may be, to the Facility Lessee (or its designee); providedPROVIDED, howeverHOWEVER, that if the Lien of the Lease Indenture has not been terminated or discharged, such transfer shall not be made to the Facility Lessee, but shall be made to the Facility Lessee’s 's designee promptly upon the Facility Lessee’s 's designation of such designee and such designee will agree not to transfer the Owner Participant’s 's Beneficial Interest or the membership interest in the Owner Participant, as the case may be, to the Facility Lessee until such Lien is discharged. The Owner Participant or Equity Investor, as the case may be, shall make any transfer under this Section SECTION 17 on an “"as is,” “" "where is” " basis, without warranty other than as to the absence of Owner Lessor’s 's Liens and Owner Participant’s 's Liens on the Owner Participant’s 's Beneficial Interest or the membership interest in the Owner Participant, as the case may be. It is understood and agreed among the parties hereto that the transaction contemplated by this Section SECTION 17 shall not effect a merger of the Facility Lessee’s 's leasehold interest in the Facility and subleasehold interest in the Facility Site with the Owner Lessor’s 's Interest. NRG EME will pay all reasonable costs and expenses of the Lease Financing Parties in connection with any transfer pursuant to this Section SECTION 17. Subsequent to such transfer, the Facility Lessee and the Owner Lessor may, without the consent of the Lease Indenture Trustee or the Pass Through TrusteeTrustees, waive the Regulatory Event of Loss or Burdensome Buyout Event that gave rise to the right to purchase the Owner Participant’s 's Beneficial Interest or the membership interest in the Owner Participant, as the case may be, and the Facility Lease shall continue in full force and effect in accordance with its terms.
Appears in 2 contracts
Samples: Participation Agreement (Edison Mission Energy), Participation Agreement (Edison Mission Energy)
SPECIAL LESSEE TRANSFER. In the case of a Regulatory Event of Loss or Burdensome Buyout Event under the Facility Lease, the Facility Lessee (or its designee), so long as the Facility Lessee shall remain liable under the Facility Lease to pay Basic Lease Rent and all other payments under the Facility Lease, upon not less than thirty (30) 30 days’ ' written notice to the Owner Participant and the Lease Indenture TrusteeHolder Representative, on the applicable Termination Date, may purchase the Owner Participant’s 's Beneficial Interest, or, in the case of a Burdensome Buyout Event, the membership interest in the Owner Participant, and keep the Facility Lease (and the Lessor Loan) in place; provided PROVIDED, that (i) the Owner Participant shall not suffer any detriment (including tax or book consequences) from such purchase (as compared to that which would have resulted had the Facility Lessee terminated the Facility Lease and purchased the Owner Lessor’s 's Interest), (ii) the Facility Lessee satisfies the transferee requirements contained in Section SECTION 12.1 hereof applicable to transfers by the Owner Participant, if applicable and (iii) NRG the Facility Lessee pays all expenses incurred by the other Lease Financing Parties in connection therewith. If the Facility Lessee chooses to purchase the Owner Participant’s 's Beneficial Interest or the membership interest in the Owner Participant, as the case may be, pursuant to the preceding sentence, on the applicable Termination Date, NRG the Facility Lessee (or its designee) shall pay to the Owner Participant or to the Equity Investor, as the case may be, the Special Lessee Transfer Amount determined as of such date, plus all amounts due and payable to the Owner Participant or Equity Investor, as the case may be, on such date under the Operative Documents. Concurrently with the payment of all sums required to be paid pursuant to this Section 17 SECTION 19 (or on such later date of transfer of the Owner Participant’s 's Beneficial Interest or membership interest in the Owner Participant, as the case may be, in accordance with clause (ii) below) (i) the Facility Lessee shall cease to have any liability to the Owner Participant with respect to the Operative Documents, except for obligations (including those under SECTIONS 14.1 and 14.2 hereof and the Tax Indemnity Agreement) surviving pursuant to the express terms of any Operative Document or which have otherwise accrued but not been paid as of such date and (ii) the Owner Participant or the Equity Investor, as the case may be, will transfer (by an appropriate instrument of transfer in form and substance reasonably satisfactory to the Owner Lessor and prepared and recorded at NRG’s the Facility Lessee's expense) the Owner Participant’s 's Beneficial Interest or membership interest in the Owner Participant, as the case may be, to the Facility Lessee (or its designee); providedPROVIDED, howeverHOWEVER, that if the Lien of the Lease Indenture has not been terminated or dischargedLessor Notes are outstanding, such transfer shall not be made to the Facility Lessee, but shall be made to the Facility Lessee’s 's designee promptly upon the Facility Lessee’s 's designation of such designee and such designee will agree not to transfer the Owner Participant’s 's Beneficial Interest or the membership interest in the Owner Participant, as the case may be, to the Facility Lessee until such Lien is dischargedfor as long as the Lessor Notes are outstanding. The Owner Participant or Equity Investor, as the case may be, shall make any transfer under this Section 17 SECTION 19 on an “"as is,” “" "where is” " basis, without warranty other than as to the absence of Owner Lessor’s 's Liens and Owner Participant’s 's Liens on the Owner Participant’s 's Beneficial Interest or the membership interest in the Owner Participant, as the case may be. It is understood and agreed among the parties hereto that the transaction contemplated by this Section 17 SECTION 19 shall not effect a merger of the Facility Lessee’s 's leasehold interest in the Facility and subleasehold interest in the Facility Site with the Owner Lessor’s 's Interest. NRG The Facility Lessee will pay all reasonable costs and expenses of the Lease Financing Parties in connection with any transfer pursuant to this Section 17SECTION 19. Subsequent to such transfer, the Facility Lessee and the Owner Lessor may, without the consent of the Lease Indenture Trustee or the Pass Through TrusteeHolder Representative, waive the Regulatory Event of Loss or Burdensome Buyout Event that gave rise to the right to purchase the Owner Participant’s 's Beneficial Interest or the membership interest in the Owner Participant, as the case may be, and the Facility Lease shall continue in full force and effect in accordance with its terms.
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SPECIAL LESSEE TRANSFER. In the case of a Regulatory Event of Loss or Burdensome Buyout Event under the Facility Lease, the Facility Lessee (or its designee), so long as the Facility Lessee shall remain liable under the Facility Lease to pay Basic Lease Rent and all other payments under the Facility Lease, upon not less than thirty (30) days’ written notice to the Owner Participant and or the Lease Indenture TrusteeEquity Investor, on the as applicable Termination Date, may purchase the Owner Participant’s Beneficial Interest, or, in the case of a Burdensome Buyout Event(either such Person, the "Selling Party") shall have the right, but ------------- shall be under no obligation to, sell the Lessor Membership Interest or all of the outstanding membership interest interests in the Owner Participant, and keep respectively (either such interests or interest, the "Applicable Member Interest"), in which -------------------------- event the Facility Lease (and the Lessor Notes) shall remain in place; provided that place (i) a "Special Lessee Transfer"). At the Owner Participant shall request of the Selling Party, the Facility ------------------------ Lessee will, as nonexclusive agent for such Selling Party, use commercially reasonable efforts to obtain cash bids from unaffiliated third parties for the sale of the Applicable Member Interest. Upon not suffer any detriment (including tax or book consequences) from such purchase (as compared less than 30 days' written notice to that which would have resulted had the Selling Party, the Facility Lessee terminated may, but shall be under no obligation to, make an offer to purchase the Facility Lease Applicable Member Interest and purchased shall have a right of first refusal with respect to any offer received from an unaffiliated third party (which may be exercised any time prior to the Owner Lessor’s InterestTermination Date), (ii) in connection with such sale. Only bona fide bids, whether from the Facility Lessee satisfies the transferee requirements contained in Section 12.1 hereof applicable to transfers by the Owner Participantor a third party, if applicable and (iii) NRG pays all expenses incurred by the other Lease Financing Parties in connection therewith. If the Facility Lessee chooses to purchase the Owner Participant’s Beneficial Applicable Member Interest or the membership interest in the Owner Participant, as the case may be, pursuant to the preceding sentence, for cash on the applicable Termination DateDate on an "as is, NRG (or its designee) shall pay to where is" basis without any representation, other than by the Owner Participant or as to the Equity Investorabsence of Owner Participant Liens, as shall be qualifying cash bids ("Qualifying ---------- Special Lessee Transfer Bids") and all the case may beproceeds of any such Qualifying ---------------------------- Special Lessee Transfer Bid shall be for the account of the applicable Selling Party. If a Qualifying Special Lessee Transfer Bid is received and such Selling Party accepts such bid in writing, the Facility Lessee shall pay such Selling Party on the Termination Date (i) the Special Lessee Transfer Amount determined as of such dateTermination Date, less the cash actually received by such Selling Party in connection with such Qualifying Special Lessee Transfer Bid (or, if the amount of such cash actually received by such Selling Party from such Qualifying Special Lessee Transfer Bid is equal to or greater than the Special Lessee Transfer Amount, zero) plus all amounts due and payable to the Owner Participant or Equity Investor, as the case may be, on such date under the Operative Documents. Concurrently with the payment of all sums required to be paid pursuant to this Section 17 (or on such later date of transfer of the Owner Participant’s Beneficial Interest or membership interest in the Owner Participant, as the case may be, in accordance with clause (ii) below) (i) the Facility Lessee shall cease to have any liability to the Owner Participant with respect to the Operative Documentsother payment due and unpaid, except for obligations surviving pursuant to the express terms of or accrued ---- and unpaid, under any Operative Document or which have otherwise accrued but not been paid as of such date and (ii) the Owner Participant or the Equity Investor, as the case may be, will transfer (by an appropriate instrument of transfer in form and substance reasonably satisfactory to the Owner Lessor and prepared and recorded at NRG’s expense) the Owner Participant’s Beneficial Interest or membership interest in the Owner Participant, as the case may be, to the Facility Lessee (or its designee); provided, however, that if the Lien of the Lease Indenture has not been terminated or discharged, such transfer shall not be made to the Facility Lessee, but shall be made to the Facility Lessee’s designee promptly upon the Facility Lessee’s designation of such designee and such designee will agree not to transfer the Owner Participant’s Beneficial Interest or the membership interest in the Owner Participant, as the case may be, to the Facility Lessee until such Lien is discharged. The Owner Participant or Equity Investor, as the case may be, shall make any transfer under this Section 17 on an “as is,” “where is” basis, without warranty other than as to the absence of Owner Lessor’s Liens and Owner Participant’s Liens Periodic Lease Rent or Renewal payable on the Owner Participant’s Beneficial Interest or the membership interest in the Owner Participant, as the case may be. It is understood and agreed among the parties hereto that the transaction contemplated by this Section 17 shall not effect a merger of the Facility Lessee’s leasehold interest in the Facility and subleasehold interest in the Facility Site with the Owner Lessor’s Interest. NRG will pay all reasonable costs and expenses of the Lease Financing Parties in connection with any transfer pursuant to this Section 17. Subsequent to after such transfer, the Facility Lessee and the Owner Lessor may, without the consent of the Lease Indenture Trustee or the Pass Through Trustee, waive the Regulatory Event of Loss or Burdensome Buyout Event that gave rise to the right to purchase the Owner Participant’s Beneficial Interest or the membership interest in the Owner Participant, as the case may be, and the Facility Lease shall continue in full force and effect in accordance with its terms.Termination Date)(the "Additional Transfer ------------------- Amounts"
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SPECIAL LESSEE TRANSFER. In Upon the occurrence and during the continuance of a Special Lessee Transfer Event, AEE (or its designee as provided below) may, in lieu of performing its obligation to purchase the Lessor's Interest pursuant to Section 10.2 of the Lease (in the case of a Regulatory Event of Loss Loss) or exercising its right to purchase the Lessor's Interest pursuant to Section 13.1 or 13.2 of the Lease (in the case of a Burdensome Buyout Event under Event) and notwithstanding the Facility Lease, the Facility Lessee (or its designee), so long as the Facility Lessee shall remain liable under the Facility Lease to pay Basic Lease Rent and all other payments under the Facility Leaselimitations set forth in Section 8.1, upon not less than thirty (30) 30 days’ ' written notice to the Owner Participant and the Lease Indenture Trustee, purchase all (but not less than all) of the Owner Participant's Beneficial Interest (the "Special Lessee Transfer") on the applicable Termination Date at a price equal to the Special Lessee Transfer Amount determined as of the date of such transfer and keep the Lease in effect. On the applicable Termination Date, may purchase the Owner Participant’s Beneficial Interest, or, in the case of a Burdensome Buyout Event, the membership interest in the Owner Participant, and keep the Facility Lease in place; provided that (i) the Owner Participant shall not suffer any detriment (including tax or book consequences) from such purchase (as compared to that which would have resulted had the Facility Lessee terminated the Facility Lease and purchased the Owner Lessor’s Interest), (ii) the Facility Lessee satisfies the transferee requirements contained in Section 12.1 hereof applicable to transfers by the Owner Participant, if applicable and (iii) NRG pays all expenses incurred by the other Lease Financing Parties in connection therewith. If the Facility Lessee chooses to purchase the Owner Participant’s Beneficial Interest or the membership interest in the Owner Participant, as the case may be, pursuant to the preceding sentence, on the applicable Termination Date, NRG (or its designee) AEE shall pay to the Owner Participant or to the Equity Investor, as the case may be, the Special Lessee Transfer Amount determined as of such date, plus all amounts due and payable to the Owner Participant or Equity Investor, as the case may be, on such date under (including, without 76 83 limitation, all costs and expenses of the Operative DocumentsOwner Participant and all sales, use, value added and other Taxes covered by Section 10.2 hereof associated with the Special Lessee Transfer pursuant to this Section 14.1, to the extent such amounts have not otherwise been reimbursed pursuant to this Section 14.1). Concurrently with the payment of all sums required to be paid pursuant to this Section 17 14.1 (or on such later date of transfer of the Owner Participant’s 's Beneficial Interest or membership interest in the Owner Participant, as the case may be, in accordance with clause (ii) below) (i) the Facility Lessee AEE shall cease to have any liability to the Owner Participant with respect to the Operative Documents, except for obligations (including, without limitation, Sections 10.1 and 10.2 hereof and the Tax Indemnity Agreement) surviving pursuant to the express terms of any Operative Document or which have otherwise accrued but not been paid as of such date and (ii) the Owner Participant or the Equity Investor, as the case may be, will transfer (by an appropriate instrument of transfer in form and substance reasonably satisfactory to the Owner Lessor and prepared and recorded at NRG’s expensetransfer) the Owner Participant’s 's Beneficial Interest or membership interest in the Owner Participant, as the case may be, to the Facility Lessee (or its designee)AEE; provided, however, that if the Lien of the Lease Indenture has not been terminated or discharged, such transfer shall not be made to the Facility LesseeAEE, but shall be made to the Facility Lessee’s AEE's designee promptly upon the Facility Lessee’s AEE's designation of such designee and such designee will agree not to transfer the Owner Participant’s 's Beneficial Interest or the membership interest in the Owner Participant, as the case may be, to the Facility Lessee AEE until such Lien is terminated or discharged. The Owner Participant or Equity Investor, as the case may be, shall make In connection with any transfer under this Section 17 14.1 the Owner Participant shall transfer the Beneficial Interest on an “"as is,” “" "where is” basis, " basis without representation and warranty other than a warranty of the Owner Trust as to the absence of Lessor's Liens and a warranty of the Owner Participant as to the absence of Owner Lessor’s Liens and Owner Participant’s Liens on the Owner Participant’s Beneficial Interest or the membership interest in the Owner Participant, as the case may be's Liens. It is understood and agreed among the parties hereto that the transaction contemplated by this Section 17 14.1 shall not effect a merger of the Facility Lessee’s leasehold AEE's ownership interest in the Facility and subleasehold interest in the Facility Site with the Owner Lessor’s 's Interest. NRG AEE will pay all reasonable costs and expenses of the Lease Financing Parties parties (including reasonable attorneys' fees and disbursements) in connection with any transfer pursuant to this Section 17. Subsequent 14.1 Notwithstanding the foregoing, in the event that the Lessee shall have failed to such transfer, either purchase the Facility Lessee and Beneficial Interest in accordance with this Section 14.1 or the Owner Lessor may, without the consent Lessor's Interest in accordance with Section 10.2 of the Lease Indenture Trustee or the Pass Through TrusteeLease, waive the in each case only in connection with a Regulatory Event of Loss or Burdensome Buyout Event that gave rise (and only to the right to purchase extent the transfer hereinafter described shall eliminate such Regulatory Event of Loss), then the Owner Participant’s Participant shall have the option (exercisable in its sole discretion) to transfer the Beneficial Interest to AEE (or its designee) on an "as is", "where is" basis, without recourse, representation or warranty, but free and clear of Owner Participant's Liens and Lessor's Liens, for a purchase price equal to the membership interest Special Lessee Transfer Amount (together with all other amounts due and payable to the Owner Participant hereunder or under the other Operative Documents); provided, however, that such purchase price shall be payable in installments and evidenced by a note of AEE (or its designee), subordinated (in the case of any obligation of AEE) in right of payment to any senior Permitted Indebtedness of AEE (including Basic Rent) and payable in installments only to the extent amounts that would 77 84 otherwise be payable to the Owner Participant, as the case may be, and the Facility Lease shall continue in full force and effect Participant in accordance with its termsthe Operative Documents; provided further, however, that, if the Lien of the Indenture shall not have been terminated or discharged, (i) such transfer shall (A) not be made to AEE, but shall be made to AEE's designee (and AEE shall promptly designate such designee) and such designee shall agree not to transfer the Beneficial Interest to AEE until such Lien shall have been terminated or discharged and (B) not limit or otherwise alter any of the rights or remedies of the Indenture Trustee under any of the Operative Documents including, without limitation, the exercise of remedies by the Indenture Trustee under the Lease in respect of any Lease Event of Default and (ii) AEE (or such designee) shall have no right to exercise any rights or remedies as Owner Participant under the Lease or the other Operative Documents.
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