Sublease. Except as provided in this Section 19.1, the Facility Lessee shall not assign, transfer or sublease all or any portion of its rights in the Owner Lessor's Undivided Interest under this Facility Lease. Pursuant to the provisions of the Operative Documents, the Facility Lessee shall have the right to sublease the Undivided Interest without the consent of any other Lease Financing Party if: (a) the EME Guarantee, the Reimbursement Agreement and the EME OP Guarantee remain in full force and effect; (b) the sublessee (i) is a solvent corporation, partnership, business trust, limited liability company or other entity (but not individuals) not subject to bankruptcy proceedings, (ii) is not involved in material litigation with the Owner Participant, and (iii) is, or its operating, maintenance and use obligations under the sublease are guaranteed by, or such obligations are contracted to be performed by, an experienced, reputable operator of electric generating assets similar to the Facility; (c) the sublease does not extend beyond the scheduled expiration of the applicable Basic Lease Term or any Renewal Lease Term then in effect or already elected by the Facility Lessee (and may be terminated upon early termination of the Facility Lease) and is expressly subject and subordinate to the Facility Lease; (d) all terms and conditions of the Facility Lease and the other Operative Documents remain in effect and the Facility Lessee remains fully and primarily liable for its obligations thereunder but subject to Section 17.2 of this Facility Lease and Section 18.19 of the Participation Agreement; (e) no Lease Event of Default under the Facility Lease shall have occurred and be continuing; (f) the sublease prohibits further assignment or subletting; (g) the sublease requires the sublessee to operate and maintain the Undivided Interest in a manner not less favorable than that required under the Facility Lease and the other Operative Documents; (h) the sublessee does not cause the Facility to become "tax-exempt use property" within the meaning of Section 168(h) of the Code (unless the Facility sublessee shall make a payment to the Owner Participant contemporaneously with the execution of the sublease that, in reasonable judgement of the Owner Participant, compensates such Owner Participant for the adverse tax consequences resulting from the classification of the Facility as "tax-exempt use property"); (i) the Owner Lessor (and so long as the Lessor Notes are outstanding, the Pass-Through Trustee and the Lease Indenture Trustee) shall have received an opinion of counsel, which opinion of counsel shall be reasonably acceptable to each such recipient, to the effect that all regulatory approvals required to enter into such sublease shall have been obtained; (j) the Facility sublessee shall pay all reasonable documented out-of-pocket expenses incurred by the other Lease Financing Parties in connection with such sublease; and (k) the Owner Participant shall have received an opinion reasonably satisfactory to it from Hunton & ▇▇▇▇▇▇▇▇ or from a nationally recognized tax counsel selected by the Owner Participant and reasonably acceptable to the Facility Lessee, to the effect that such sublease would not result in any material indemnified, or any unindemnified, incremental tax risk to the Owner Participant. As a condition precedent to such sublease, the Facility Lessee shall provide the Owner Lessor, the Owner Participant, and, so long as the Lessor Notes are outstanding, the Lease Indenture Trustee and Pass Through Trustees with all documentation in respect of such sublease and an opinion of counsel to the effect that such sublease complies with the provisions of this Section 19.1 (such documentation, counsel and opinion to be reasonably satisfactory to such recipients).
Appears in 2 contracts
Sources: Facility Lease Agreement (Edison Mission Energy), Facility Lease Agreement (Edison Mission Energy)
Sublease. Except as provided in this Section 19.1, the Facility Lessee shall not assign, transfer or sublease all or any portion of its rights in the Owner Lessor's Undivided Interest under this Facility Lease. Pursuant to the provisions of the Operative Documents, the Facility Lessee shall have the right to sublease the Undivided Interest without the consent of any other Lease Financing Party if(a) The Parties acknowledge that:
(ai) Queensland Rail’s interest in all or part of the land on which the Network is located and over which the Train Services will operate is or will be held under:
(A) the EME GuaranteeSublease; or
(B) a lease, easement, licence, statutory right or other arrangement or right other than the Reimbursement Agreement Sublease, (Land Tenure); and
(ii) this agreement is subject to the terms and conditions (including all reservations), whether express or implied, of the EME OP Guarantee remain in full force Sublease (or the Head Lease) and effect;any other Land Tenure.
(b) Queensland Rail must do either or both of the sublessee following:
(i) is give the Access Holder and the Operator a solvent corporation, partnership, business trust, limited liability company or other entity copy of any Land Tenure (but not individuals) not subject together with any relevant amendments from time to bankruptcy proceedings, time); or
(ii) is not involved notify the Access Holder and the Operator of any requirements that the Operator must comply with in material litigation relation to that Land Tenure (together with the Owner Participant, and any amendments from time to time) (iii) is, or its operating, maintenance and use obligations under the sublease are guaranteed by, or such obligations are contracted to be performed by, an experienced, reputable operator of electric generating assets similar to the Facility;Tenure Requirements).
(c) Despite any other clause in this agreement and to the sublease does not extend beyond extent that the scheduled expiration Operator operates Train Services on any part of the applicable Basic Lease Term Network on land, or otherwise accesses land, that is the subject of any Renewal Lease Term then Land Tenure, the Operator must:
(i) observe and comply with all relevant obligations of Queensland Rail under that Land Tenure and the Tenure Requirements; and
(ii) not act, omit to act or permit, cause or contribute to any act or omission that may result in effect Queensland Rail:
(A) breaching a term of any Land Tenure; or
(B) incurring (directly or already elected by the Facility Lessee (and may be terminated upon early termination of the Facility Leaseindirectly) and is expressly subject and subordinate to the Facility Lease;any costs or expenses in complying with a Land Tenure that Queensland Rail would not otherwise have incurred.
(d) all If there is an inconsistency between the terms of this agreement and conditions the terms of any Land Tenure or Tenure Requirements which means that Queensland Rail or the Operator cannot comply with both this agreement and that Land Tenure or those Tenure Requirements, then the terms of that Land Tenure or those Tenure Requirements (as applicable) prevail to the extent of the Facility Lease inconsistency and the other Operative Documents remain in effect and the Facility Lessee remains fully and primarily liable for its obligations thereunder but subject to Section 17.2 provisions of this Facility Lease and Section 18.19 of the Participation Agreement;agreement will be construed accordingly.
(e) no Lease Event of Default under the Facility Lease shall have occurred and be continuing;
(f) the sublease prohibits further assignment or subletting;
(g) the sublease requires the sublessee to operate and maintain the Undivided Interest in a manner not less favorable than that required under the Facility Lease and the other Operative Documents;
(h) the sublessee does not cause the Facility to become "tax-exempt use property" within the meaning of Section 168(h) of the Code (unless the Facility sublessee shall make a payment to the Owner Participant contemporaneously with the execution of the sublease that, in reasonable judgement of the Owner Participant, compensates such Owner Participant for the adverse tax consequences resulting from the classification of the Facility as "tax-exempt use property");
(i) the Owner Lessor (and so long as the Lessor Notes are outstanding, the Pass-Through Trustee and the Lease Indenture Trustee) shall have received an opinion of counsel, which opinion of counsel shall be reasonably acceptable to each such recipient, to the effect that all regulatory approvals required to enter into such sublease shall have been obtained;
(j) the Facility sublessee shall pay all reasonable documented out-of-pocket expenses incurred by the other Lease Financing Parties in connection with such sublease; and
(k) the Owner Participant shall have received an opinion reasonably satisfactory to it from Hunton & ▇▇▇▇▇▇▇▇ or from a nationally recognized tax counsel selected by the Owner Participant and reasonably acceptable to the Facility Lessee, to the effect that such sublease would not result in any material indemnified, or any unindemnified, incremental tax risk to the Owner Participant. As a condition precedent to such sublease, the Facility Lessee shall provide the Owner Lessor, the Owner Participant, and, so long as the Lessor Notes are outstanding, the Lease Indenture Trustee and Pass Through Trustees with all documentation If Queensland Rail’s rights in respect of such sublease the Land Tenure are terminated for any reason other than the default of Queensland Rail of any agreement that affects Queensland Rail’s use of that Land Tenure or other than by agreement between Queensland Rail and an opinion of counsel the relevant land owner, then Queensland Rail may by notice to the effect Access Holder and the Operator suspend and/or terminate this agreement insofar as it relates to that such sublease complies part of Network which is situated on that Land Tenure (in which case the Access Holder’s obligation to pay Access Charges is suspended and/or terminated commensurate with the provisions of this Section 19.1 (such documentation, counsel and opinion to be reasonably satisfactory to such recipientsthat suspension or termination).
Appears in 2 contracts
Sources: Access Agreement, Access Agreement
Sublease. Except as provided in this Section 19.1, Without the Facility Lessee shall not assign, transfer or sublease all or any portion of its rights in the Owner Lessor's Undivided Interest under this Facility Lease. Pursuant to the provisions of the Operative Documents, the Facility Lessee shall have the right to sublease the Undivided Interest without the prior written consent of Lessor, Lessee may sublease any other Lease Financing Party if:
Unit to any wholly-owned Subsidiary of Lessee (including without limitation downstream Subsidiaries) or to Piedmont Coca-Cola Bottling Partnership; provided, (a) no Lease Default or Lease Event of Default has occurred and be continuing at such time and (b) such sublease is a Permitted Sublease. Except as otherwise expressly set forth in the EME Guaranteeimmediately preceding sentence, Lessee will not, without the Reimbursement prior written consent of Lessor (which shall be given or withheld in Lessor's reasonable discretion), assign, sublease (provided, unless expressly stated otherwise by Lessor at such time, each such sublease must be a Permitted Sublease) or otherwise transfer its rights or obligations with respect to this Lease, any other Operative Agreement or any of the Equipment and any attempted assignment, sublease or other transfer by Lessee without such Lessor consent shall be null and void. Any sublease referenced in this Lease shall only be deemed a "Permitted Sublease" if at the EME OP Guarantee time Lessee enters into such sublease, all of the following conditions shall have been satisfied: (a) no such sublease by Lessee will (i) adversely affect the insurance coverage provided under Section 12, (ii) reduce any of the obligations of Lessee hereunder or under any Operative Agreement or (iii) adversely affect the rights of Lessor hereunder, (b) all obligations of Lessee hereunder shall be and remain primary and shall continue in full force and effect;
(b) effect as the sublessee (i) is obligations of a solvent corporationprincipal and not of a guarantor or surety, partnership, business trust, limited liability company or other entity (but not individuals) not subject to bankruptcy proceedings, (ii) is not involved in material litigation with the Owner Participant, and (iii) is, or its operating, maintenance and use obligations under the sublease are guaranteed by, or such obligations are contracted to be performed by, an experienced, reputable operator of electric generating assets similar to the Facility;
(c) each such sublease, and the sublease does not extend beyond the scheduled expiration rights and interests of the applicable Basic Lease Term or any Renewal Lease Term then sublessee thereunder shall in effect or already elected by the Facility Lessee (and may all events be terminated upon early termination of the Facility Lease) and is expressly subject and subordinate to this Lease, the Facility Lease;
rights and interests of Lessor, the Holders, the Lenders, the Bank Lenders and the Agent (in each case under the Operative Agreements), (d) all terms and conditions of such sublease shall not include any term or provision which would require or permit the Facility sublessee thereunder to take any actions inconsistent with this Lease and or the other Operative Documents remain in effect and the Facility Lessee remains fully and primarily liable for its obligations thereunder but subject to Section 17.2 of this Facility Lease and Section 18.19 of the Participation Agreement;
Agreements, (e) the term of any such sublease shall in no event exceed the then remaining portion of the Term and (f) no Lease Default or Lease Event of Default under the Facility Lease shall have occurred and be continuing;
(f) . Lessee hereby grants a Lien to Lessor respecting all right, title and interest of Lessee, now or hereafter arising, in the sublease prohibits further assignment or subletting;
(g) the sublease requires the sublessee above-referenced subleases and in connection therewith if Lessor hereafter requests, Lessee will take all actions necessary to operate perfect and maintain the Undivided Interest a first priority Lien in favor of Lessor respecting such subleases. Lessee shall make, or cause to be made, in a manner not less favorable than that required under the Facility Lease and the other Operative Documents;
(h) the sublessee does not cause the Facility to become "tax-exempt use property" within the meaning of Section 168(h) of the Code (unless the Facility sublessee shall make a payment to the Owner Participant contemporaneously with the execution of the sublease that, in reasonable judgement of the Owner Participant, compensates such Owner Participant for the adverse tax consequences resulting from the classification of the Facility as "tax-exempt use property");
(i) the Owner Lessor (and so long as the Lessor Notes are outstanding, the Pass-Through Trustee and the Lease Indenture Trustee) shall have received an opinion of counsel, which opinion of counsel shall be reasonably acceptable to each such recipient, to the effect that all regulatory approvals required to enter into such sublease shall have been obtained;
(j) the Facility sublessee shall pay timely fashion all reasonable documented out-of-pocket expenses incurred by filings with respect to any such Permitted Sublease necessary to protect the other Lease Financing Parties rights of Lessor in connection with such sublease; and
(k) the Owner Participant shall have received an opinion reasonably satisfactory to it from Hunton & ▇▇▇▇▇▇▇▇ or from a nationally recognized tax counsel selected by the Owner Participant and reasonably acceptable to the Facility Lessee, to the effect that such sublease would not result in any material indemnified, or any unindemnified, incremental tax risk to the Owner Participant. As a condition precedent Unit subject to such sublease, the Facility Lessee shall provide the Owner Lessor, the Owner Participant, and, so long as the Lessor Notes are outstanding, the Lease Indenture Trustee and Pass Through Trustees with all documentation in respect of such sublease and an opinion of counsel to the effect that such sublease complies with the provisions of this Section 19.1 (such documentation, counsel and opinion to be reasonably satisfactory to such recipients)Permitted Sublease.
Appears in 2 contracts
Sources: Master Equipment Lease Agreement (Coca Cola Bottling Co Consolidated /De/), Master Equipment Lease Agreement (Coca Cola Bottling Co Consolidated /De/)
Sublease. Except as provided in this Section 19.1(a) The Lessor hereby consents to the Lessee subleasing the Extension Infrastructure to the Sublessee, immediately upon the Facility leasing of that Extension Infrastructure by the Lessor to the Lessee shall not assign, transfer or sublease all or any portion of its rights in the Owner Lessor's Undivided Interest under this Facility Lease. Pursuant to Agreement, on terms (a Sublease) that are not inconsistent with the provisions rights and obligations of the Operative DocumentsLessee and the Sublessee under this Agreement or the Integrated Network Deed, the Facility Lessee shall have the right to sublease the Undivided Interest without the consent of any other Lease Financing Party ifand under which:
(ai) the EME Guarantee, Lessee and the Reimbursement Sublessee expressly acknowledge the rights of the Lessor under this Agreement and the EME OP Guarantee remain in full force Integrated Network Deed and effect;
(b) the sublessee (i) is a solvent corporation, partnership, business trust, limited liability company or other entity (but not individuals) not subject to bankruptcy proceedings, (ii) is not involved in material litigation with the Owner Participant, and (iii) is, or its operating, maintenance and use obligations under the sublease that their rights are guaranteed by, or such obligations are contracted to be performed by, an experienced, reputable operator of electric generating assets similar to the Facility;
(c) the sublease does not extend beyond the scheduled expiration of the applicable Basic Lease Term or any Renewal Lease Term then in effect or already elected by the Facility Lessee (and may be terminated upon early termination of the Facility Lease) and is expressly subject and subordinate to the Facility Lease;rights of the Lessor under this Agreement and the Integrated Network Deed; and
(dii) all terms and conditions of the Facility Lease and Sublease terminates at the other Operative Documents remain in effect and the Facility Lessee remains fully and primarily liable for its obligations thereunder but subject to Section 17.2 of same time as this Facility Lease and Section 18.19 of the Participation Agreement;Agreement terminates.
(eb) no Lease Event of Default under the Facility Lease shall have occurred The Parties acknowledge and be continuing;
(f) the sublease prohibits further assignment or subletting;
(g) the sublease requires the sublessee to operate and maintain the Undivided Interest in a manner not less favorable than that required under the Facility Lease and the other Operative Documents;
(h) the sublessee does not cause the Facility to become "tax-exempt use property" within the meaning of Section 168(h) of the Code (unless the Facility sublessee shall make a payment to the Owner Participant contemporaneously with the execution of the sublease agree that, in reasonable judgement of the Owner Participant, compensates such Owner Participant for the adverse tax consequences resulting from the classification of the Facility as "tax-exempt use property");:
(i) the Owner Lessor (and so long as Sublease will form part of an agreement between the Lessor Notes are outstanding, the Pass-Through Trustee Lessee and the Lease Indenture Trustee) shall have received an opinion of counsel, Sublessee which opinion of counsel shall be reasonably acceptable extends to each such recipient, to matters other than just the effect that all regulatory approvals required to enter into such sublease shall have been obtainedSublease;
(jii) a reference to the Facility sublessee shall pay all reasonable documented out-of-pocket expenses incurred by Sublease in this Agreement is a reference only to those terms of such agreement between the Lessee and Sublessee which give effect to the Sublease and is not a reference to any other Lease Financing Parties in connection with terms of such subleaseagreement; and
(kiii) the Owner Participant shall have received an opinion reasonably satisfactory to it from Hunton & ▇▇▇▇▇▇▇▇ or from a nationally recognized tax counsel selected by the Owner Participant and reasonably acceptable reference to the Facility Lessee, termination of the Sublease in this Agreement is a reference to the termination of the operation of those terms of such agreement between the Lessee and Sublessee which give effect that to the Sublease, whether or not such sublease would not result agreement in any material indemnifiedits entirety has been terminated.
(c) Except as provided in clause 3.2(d), or any unindemnified, incremental tax risk to with the Owner Participant. As a condition precedent to such sublease, prior written consent of the Facility Lessee shall provide the Owner Lessor, the Owner ParticipantLessee must not:
(i) create or allow to subsist a Security Interest (other than a Permitted Lien) over any of its rights under the Sublease; or
(ii) assign or transfer all or any of its rights or obligations under the Sublease.
(d) The Lessee:
(i) may assign and transfer all (but not part only) of its rights and obligations under the Sublease to a person to whom it assigns or transfers at the same time all (but not part only) of its rights and obligations under this Agreement, the Integrated Network Deed and any Land Licence; and
(ii) must assign and transfer all of its rights and obligations under the Sublease to a person to whom it assigns or transfers any of its rights or obligations under this Agreement, the Integrated Network Deed or any Land Licence.
(e) Except as provided in clause 3.2(f), or with the prior written consent of the Lessor (such consent not to be unreasonably withheld or delayed or given subject to unreasonable conditions), the Sublessee must not:
(i) create or allow to subsist a Security Interest (other than a Permitted Lien) over any of its rights under the Sublease; or
(ii) assign or transfer all or any of its rights or obligations under the Sublease.
(f) The Sublessee:
(i) may assign and transfer all (but not part only) of its rights and obligations under the Sublease to a person to whom it assigns or transfers at the same time all (but not part only) of its rights and obligations under this Agreement, the Integrated Network Deed and any Land Licence; and
(ii) must assign and transfer all of its rights and obligations under the Sublease to a person to whom it assigns or transfers any of its rights or obligations under this Agreement, the Integrated Network Deed or any Land Licence.
(g) The Lessor agrees and acknowledges to each other Party that:
(i) certain obligations are imposed directly on, and certain rights are granted directly to, the Sublessee under this Agreement while the Sublease is on foot;
(ii) except as provided in clause 3.2(g)(iii), the obligations imposed directly on, and the rights granted directly to, the Sublessee under this Agreement are only obligations and rights of the Sublessee to the extent that, and only for so long as the Lessor Notes are outstandingas, the Lease Indenture Trustee Sublease is on foot;
(iii) if the Sublease terminates for any reason, the obligations imposed directly on, and Pass Through Trustees with all documentation the rights granted directly to, the Sublessee under this Agreement will (except for the obligation contained in respect of such sublease clause 15.2(e)) be deemed to be novated and an opinion of counsel transferred to the effect Lessee and will be the obligations and rights of the Lessee on and from the date the Sublease terminates; and
(iv) each of the Lessee and the Sublessee is responsible (and only responsible) for and liable only for those obligations expressly imposed on that such sublease complies with Party under this Agreement.
(h) The Lessee agrees and acknowledges to each other Party that:
(i) except as provided in clause 3.2(h)(ii), the provisions obligations imposed directly on, and the rights granted directly to, the Sublessee under this Agreement are only obligations and rights of the Sublessee to the extent that, and only for so long as, the Sublease is on foot; and
(ii) if the Sublease terminates for any reason, the obligations imposed directly on, and the rights granted directly to, the Sublessee under this Section 19.1 Agreement will (such documentation, counsel and opinion except for the obligation contained in clause 15.2(e)) be deemed to be reasonably satisfactory novated and transferred to such recipients)the Lessee and will be the obligations and rights of the Lessee on and from the date the Sublease terminates.
Appears in 2 contracts
Sources: User Funding – Extension Infrastructure Agreement, User Funding – Extension Infrastructure Agreement
Sublease. Except as provided The Parties acknowledge that: Queensland Rail’s interest in this Section 19.1, the Facility Lessee shall not assign, transfer or sublease all or any portion part of its rights in the Owner Lessor's Undivided Interest under land on which the Network is located and over which the Train Services will operate is or will be held under: the Sublease; or a lease, easement, licence, statutory right or other arrangement or right other than the Sublease, (Land Tenure); and this Facility Lease. Pursuant agreement is subject to the provisions terms and conditions (including all reservations), whether express or implied, of the Operative Documents, Sublease (or the Facility Lessee shall have the right to sublease the Undivided Interest without the consent of any other Lease Financing Party if:
(a) the EME Guarantee, the Reimbursement Agreement and the EME OP Guarantee remain in full force and effect;
(b) the sublessee (i) is a solvent corporation, partnership, business trust, limited liability company or other entity (but not individuals) not subject to bankruptcy proceedings, (ii) is not involved in material litigation with the Owner Participant, and (iii) is, or its operating, maintenance and use obligations under the sublease are guaranteed by, or such obligations are contracted to be performed by, an experienced, reputable operator of electric generating assets similar to the Facility;
(c) the sublease does not extend beyond the scheduled expiration of the applicable Basic Lease Term or any Renewal Lease Term then in effect or already elected by the Facility Lessee (and may be terminated upon early termination of the Facility Head Lease) and is expressly subject any other Land Tenure. Queensland Rail must do either or both of the following: give the Access Holder and subordinate the Operator a copy of any Land Tenure (together with any relevant amendments from time to time); or notify the Access Holder and the Operator of any requirements that the Operator must comply with in relation to that Land Tenure (together with any amendments from time to time) (Tenure Requirements). Despite any other clause in this agreement and to the Facility Lease;
(d) all terms and conditions extent that the Operator operates Train Services on any part of the Facility Lease Network on land, or otherwise accesses land, that is the subject of any Land Tenure, the Operator must: observe and comply with all relevant obligations of Queensland Rail under that Land Tenure and the other Operative Documents remain Tenure Requirements; and not act, omit to act or permit, cause or contribute to any act or omission that may result in effect Queensland Rail: breaching a term of any Land Tenure; or incurring (directly or indirectly) any costs or expenses in complying with a Land Tenure that Queensland Rail would not otherwise have incurred. If there is an inconsistency between the terms of this agreement and the Facility Lessee remains fully terms of any Land Tenure or Tenure Requirements which means that Queensland Rail or the Operator cannot comply with both this agreement and primarily liable for its obligations thereunder but subject that Land Tenure or those Tenure Requirements, then the terms of that Land Tenure or those Tenure Requirements (as applicable) prevail to Section 17.2 of this Facility Lease and Section 18.19 the extent of the Participation Agreement;
(e) no Lease Event of Default under the Facility Lease shall have occurred inconsistency and be continuing;
(f) the sublease prohibits further assignment or subletting;
(g) the sublease requires the sublessee to operate and maintain the Undivided Interest in a manner not less favorable than that required under the Facility Lease and the other Operative Documents;
(h) the sublessee does not cause the Facility to become "tax-exempt use property" within the meaning of Section 168(h) of the Code (unless the Facility sublessee shall make a payment to the Owner Participant contemporaneously with the execution of the sublease that, in reasonable judgement of the Owner Participant, compensates such Owner Participant for the adverse tax consequences resulting from the classification of the Facility as "tax-exempt use property");
(i) the Owner Lessor (and so long as the Lessor Notes are outstanding, the Pass-Through Trustee and the Lease Indenture Trustee) shall have received an opinion of counsel, which opinion of counsel shall be reasonably acceptable to each such recipient, to the effect that all regulatory approvals required to enter into such sublease shall have been obtained;
(j) the Facility sublessee shall pay all reasonable documented out-of-pocket expenses incurred by the other Lease Financing Parties in connection with such sublease; and
(k) the Owner Participant shall have received an opinion reasonably satisfactory to it from Hunton & ▇▇▇▇▇▇▇▇ or from a nationally recognized tax counsel selected by the Owner Participant and reasonably acceptable to the Facility Lessee, to the effect that such sublease would not result in any material indemnified, or any unindemnified, incremental tax risk to the Owner Participant. As a condition precedent to such sublease, the Facility Lessee shall provide the Owner Lessor, the Owner Participant, and, so long as the Lessor Notes are outstanding, the Lease Indenture Trustee and Pass Through Trustees with all documentation in respect of such sublease and an opinion of counsel to the effect that such sublease complies with the provisions of this Section 19.1 agreement will be construed accordingly. If Queensland Rail’s rights in respect of the Land Tenure are terminated for any reason other than the default of Queensland Rail of any agreement that affects Queensland Rail’s use of that Land Tenure or other than by agreement between Queensland Rail and the relevant land owner, then Queensland Rail may by notice to the Access Holder and the Operator suspend and/or terminate this agreement insofar as it relates to that part of Network which is situated on that Land Tenure (such documentationin which case the Access Holder’s obligation to pay Access Charges is suspended and/or terminated commensurate with that suspension or termination). The Access Holder may (acting reasonably) notify Queensland Rail that it believes that: Queensland Rail has entered into an access agreement with another Network Participant for a Train service whose characteristics are alike and are provided to service the same end market as a Train Service is provided (Like Train Service); and the access charges applicable to the Like Train Service have been developed in contravention of the price differentiation provisions under the relevant Access Undertaking’s pricing principles that applied to the development of those access charges (Price Differentiation Provisions), counsel and opinion provide Queensland Rail with reasons why the Access Holder considers this to be reasonably satisfactory to the case. Within 20 Business Days after receiving such recipients).a notice, Queensland Rail must notify the Access Holder: whether it agrees that the access agreement with the other Network Participant is for a Like Train Service including, if it does not agree, its reasons; and
Appears in 1 contract
Sources: Access Agreement
Sublease. Except as provided set forth in Section 25.4 below, Tenant may not sublease, license or grant concession rights as to (for convenience in this Section 19.1ARTICLE 25, the Facility Lessee shall not assign, transfer or sublease all or “sublease”) any portion of its rights in the Owner Lessor's Undivided Interest Premises without the Port’s prior written consent, which consent shall not be unreasonably withheld, conditioned, or delayed and which consent shall be given if the proposed subtenant is financially capable of performing the obligations of the Tenant under this Facility LeaseAgreement for the portion of the Premises or portion of the Term being subleased. Pursuant Tenant shall at the time the Tenant requests the consent of the Port, deliver to the Port such information in writing as the Port may reasonably require respecting the proposed subtenant, including, without limitation, the name, address, nature of business, ownership, financial responsibility and standing of such proposed subtenant and the proposed documentation for the transfer as described below. In determining whether to grant such a consent to a sublease, the Port may consider all factors which Lessor reasonably determines in good faith are relevant to its decision. Within twenty (20) days after receipt of all required information, the Port shall, in its sole discretion, elect one of the following: (a) to consent to such proposed sublease or (b) to refuse such consent. Any such sublease shall be subject to all of the covenants, conditions, agreements and terms of this Agreement.
25.1.1 No sublease by Tenant shall relieve Tenant of any obligation under this Agreement, including Tenant’s obligation to pay Base Rent, fees or Additional Rent hereunder. Any purported sublease contrary to the provisions of the Operative Documents, the Facility Lessee shall have the right to sublease the Undivided Interest without the hereof (or for which consent of any other Lease Financing Party if:
(a) the EME Guarantee, the Reimbursement Agreement and the EME OP Guarantee remain in full force and effect;
(b) the sublessee (i) is a solvent corporation, partnership, business trust, limited liability company or other entity (but not individuals) not subject to bankruptcy proceedings, (ii) is not involved in material litigation with the Owner Participant, and (iiispecifically obtained) is, or its operating, maintenance and use obligations under the shall be void. Any sublease are guaranteed by, or such obligations are contracted to shall specifically be performed by, an experienced, reputable operator of electric generating assets similar to the Facility;
(c) the sublease does not extend beyond the scheduled expiration of the applicable Basic Lease Term or any Renewal Lease Term then in effect or already elected by the Facility Lessee (and may be terminated upon early termination of the Facility Lease) and is expressly subject and subordinate at all times to this Agreement, and to all of its covenants, agreements, terms, provisions, and conditions.
25.1.2 Tenant agrees that any sublease will contain a provision in substance that if there is any termination whatsoever of this Agreement then the subtenant, licensee or concessionaire, at the request of the Port, will attorn to the Facility Lease;Port and the subtenant, licensee or concessionaire, if the Port so requests, shall continue in effect with the Port. Nothing herein shall be deemed to require the Port to accept such attornment.
(d) all terms 25.1.3 Tenant further agrees that any sublease will contain a provision in substance requiring each and conditions every subtenant, licensee or concessionaire to maintain commercial liability insurance protecting against claims for bodily injury including death, personal injury and property damage in such amounts, and on such forms, as is commercially reasonable in light of the Facility Lease then-existing insurance and the other Operative Documents remain in effect and the Facility Lessee remains fully and primarily liable for its obligations thereunder but subject to Section 17.2 of this Facility Lease and Section 18.19 of the Participation Agreement;real estate markets.
(e) no Lease Event of Default under the Facility Lease shall have occurred and be continuing;
(f) the sublease prohibits further assignment or subletting;
(g) the sublease requires the sublessee to operate and maintain the Undivided Interest in a manner not less favorable than that required under the Facility Lease and the other Operative Documents;
(h) the sublessee does not cause the Facility to become "tax-exempt use property" within the meaning of Section 168(h) of the Code (unless the Facility sublessee shall make a payment to the Owner Participant contemporaneously with the execution of the sublease that, in reasonable judgement of the Owner Participant, compensates such Owner Participant for the adverse tax consequences resulting from the classification of the Facility as "tax-exempt use property");
(i) the Owner Lessor (and so long as the Lessor Notes are outstanding, the Pass-Through Trustee and the Lease Indenture Trustee) shall have received an opinion of counsel, which opinion of counsel shall be reasonably acceptable to each such recipient, to the effect that all regulatory approvals required to enter into such sublease shall have been obtained;
(j) the Facility sublessee shall pay all reasonable documented out-of-pocket expenses incurred by the other Lease Financing Parties in connection with such sublease; and
(k) the Owner Participant shall have received an opinion reasonably satisfactory to it from Hunton & ▇▇25.1.4 ▇▇▇▇▇▇ agrees that the Port is not, and will not be, responsible for the payment of any brokerage commissions, or finder’s fees or similar charges of any nature in connection with any sublease, and ▇▇▇▇▇▇ agrees to indemnify and hold the Port harmless from a nationally recognized tax counsel selected and against any claims liability, losses or expenses, including reasonable attorneys’ fees, incurred by the Owner Participant Port in connection with any claims for a commission by any broker or agent in connection with any sublease (including any direct relationship with any subtenant, licensee or concessionaire that may result by way of attornment).
25.1.5 In the event that any portion of the Premises is sublet or occupied by anyone other than Tenant, the Port may, upon the default of Tenant, collect rent from the subtenant, licensee, concessionaire or occupant and reasonably acceptable apply the amount collected to the Facility Lessee, to Rent reserved under the effect that such sublease would not result in any material indemnified, or any unindemnified, incremental tax risk to the Owner Participant. As a condition precedent to such sublease, the Facility Lessee shall provide the Owner Lessor, the Owner Participant, and, so long as the Lessor Notes are outstanding, the Lease Indenture Trustee and Pass Through Trustees with all documentation in respect of such sublease and an opinion of counsel to the effect that such sublease complies with the provisions terms of this Section 19.1 (such documentationAgreement, counsel and opinion to be reasonably satisfactory to such recipients)but without thereby affecting Tenant’s liability under this Agreement.
Appears in 1 contract
Sources: Ground Lease Agreement
Sublease. Except as provided in this Section 19.1, the Facility Lessee shall not assign, transfer or sublease all or any portion of its rights in the Owner Lessor's Undivided Interest under this Facility Lease. Pursuant to the provisions of the Operative Documents, the Facility Lessee shall have the right to sublease the Undivided Interest without the consent of any other Lease Financing Party if:
(a) The Parties acknowledge that:
(i) Queensland Rail’s interest in all or part of the EME Guaranteeland on which the Network is located and over which the Train Services will operate is or will be held under:
(A) the Sublease; or
(B) a lease, easement, licence, statutory right or other arrangement or right other than the Reimbursement Agreement Sublease, (Land Tenure); and
(ii) this agreement is subject to the terms and conditions (including all reservations), whether express or implied, of the EME OP Guarantee remain in full force Sublease (or the Head Lease) and effect;any other Land Tenure.
(b) Queensland Rail must do either or both of the sublessee following:
(i) is give the Access Holder and the Operator a solvent corporation, partnership, business trust, limited liability company or other entity copy of any Land Tenure (but not individuals) not subject together with any relevant amendments from time to bankruptcy proceedings, time); or
(ii) is not involved notify the Access Holder and the Operator of any requirements that the Operator must comply with in material litigation relation to that Land Tenure (together with the Owner Participant, and any amendments from time to time) (iii) is, or its operating, maintenance and use obligations under the sublease are guaranteed by, or such obligations are contracted to be performed by, an experienced, reputable operator of electric generating assets similar to the Facility;Tenure Requirements).
(c) Despite any other clause in this agreement and to the sublease does not extend beyond extent that the scheduled expiration Operator operates Train Services on any part of the applicable Basic Lease Term Network on land, or otherwise accesses land, that is the subject of any Renewal Lease Term then Land Tenure, the Operator must:
(i) observe and comply with all relevant obligations of Queensland Rail under that Land Tenure and the Tenure Requirements; and
(ii) not act, omit to act or permit, cause or contribute to any act or omission that may result in effect Queensland Rail:
(A) breaching a term of any Land Tenure; or
(B) incurring (directly or already elected by the Facility Lessee (and may be terminated upon early termination of the Facility Leaseindirectly) and is expressly subject and subordinate to the Facility Lease;any costs or expenses in complying with a Land Tenure that Queensland Rail would not otherwise have incurred.
(d) all If there is an inconsistency between the terms of this agreement and conditions the terms of any Land Tenure or Tenure Requirements which means that Queensland Rail or the Operator cannot comply with both this agreement and that Land Tenure or those Tenure Requirements, then the terms of that Land Tenure or those Tenure Requirements (as applicable) prevail to the extent of the Facility Lease inconsistency and the other Operative Documents remain in effect and the Facility Lessee remains fully and primarily liable for its obligations thereunder but subject to Section 17.2 provisions of this Facility Lease and Section 18.19 of the Participation Agreement;agreement will be construed accordingly.
(e) no Lease Event of Default under the Facility Lease shall have occurred and be continuing;
(f) the sublease prohibits further assignment or subletting;
(g) the sublease requires the sublessee to operate and maintain the Undivided Interest in a manner not less favorable than that required under the Facility Lease and the other Operative Documents;
(h) the sublessee does not cause the Facility to become "tax-exempt use property" within the meaning of Section 168(h) of the Code (unless the Facility sublessee shall make a payment to the Owner Participant contemporaneously with the execution of the sublease that, in reasonable judgement of the Owner Participant, compensates such Owner Participant for the adverse tax consequences resulting from the classification of the Facility as "tax-exempt use property");
(i) the Owner Lessor (and so long as the Lessor Notes are outstanding, the Pass-Through Trustee and the Lease Indenture Trustee) shall have received an opinion of counsel, which opinion of counsel shall be reasonably acceptable to each such recipient, to the effect that all regulatory approvals required to enter into such sublease shall have been obtained;
(j) the Facility sublessee shall pay all reasonable documented out-of-pocket expenses incurred by the other Lease Financing Parties in connection with such sublease; and
(k) the Owner Participant shall have received an opinion reasonably satisfactory to it from Hunton & ▇▇▇▇▇▇▇▇ or from a nationally recognized tax counsel selected by the Owner Participant and reasonably acceptable to the Facility Lessee, to the effect that such sublease would not result in any material indemnified, or any unindemnified, incremental tax risk to the Owner Participant. As a condition precedent to such sublease, the Facility Lessee shall provide the Owner Lessor, the Owner Participant, and, so long as the Lessor Notes are outstanding, the Lease Indenture Trustee and Pass Through Trustees with all documentation If Queensland Rail’s rights in respect of such sublease the Land Tenure are terminated for any reason other than the default of Queensland Rail of any agreement that affects Queensland Rail’s use of that Land Tenure or other than by agreement between Queensland Rail and an opinion of counsel the relevant land owner, then Queensland Rail may by notice to the effect Access Holder and the Operator suspend and/or terminate this agreement insofar as it relates to that such sublease complies part of Network which is situated on that Land Tenure (in which case the Access Holder’s obligation to pay Access Charges is suspended and/or terminated commensurate with the provisions of this Section 19.1 (such documentation, counsel and opinion to be reasonably satisfactory to such recipientsthat suspension or termination).
Appears in 1 contract
Sources: Access Agreement
Sublease. Except as provided in this Section 19.1, the Facility Lessee shall not assign, transfer or sublease all or any portion of its rights in the Owner Lessor's Undivided Interest under this Facility Lease. Pursuant to the provisions of the Operative Documents, the The Facility Lessee shall have the right to sublease the Undivided Interest without the consent of any other the Owner Lessor, the Owner Participant, the Security Agent or the Lease Financing Party Indenture Trustee if:
(a) the EME Guarantee, sublessee is a United States Person within the Reimbursement Agreement and meaning of Section 7701(a)(30) of the EME OP Guarantee remain in full force and effect;
(b) the sublessee Code that (i) is a solvent corporation, partnership, business trust, limited liability company or other person or entity (but not individuals) not then subject to bankruptcy proceedings, ; and (ii) is not involved in material pending or unresolved litigation with the Owner Participant, Participant or any of its Affiliates; and (iii) is, or its operating, maintenance and use obligations under the sublease are guaranteed by, or such obligations are contracted to be performed by, an experienced, reputable experienced operator of United States based, coal-fired electric generating assets facilities similar to the Facility;
(b) The Owner Lessor, the Owner Participant, so long as the Lessor Notes are outstanding, the Security Agent and the Bondholder Trustee shall have received an opinion of counsel, which opinion of counsel shall be reasonably acceptable to the recipients thereof, to the effect that all material regulatory approvals required to enter into the sublease have been obtained;
(c) the sublease does not extend beyond the scheduled expiration of the applicable Basic Lease Term or any Renewal Lease Term then in effect or already irrevocably elected by the Facility Lessee (and may be terminated upon early termination of the this Facility Lease) and is expressly subject and subordinate to the this Facility Lease;
(d) all terms and conditions of the this Facility Lease and the other Operative Documents and Project Documents remain in effect and the Facility Lessee remains fully and primarily liable for its obligations thereunder but subject to Section 17.2 of under this Facility Lease Lease, the other Operative Documents and Section 18.19 of the Participation AgreementProject Documents;
(e) no Lease Default or Lease Event of Default under the Facility Lease shall have occurred and be continuingcontinuing or be created as a result of such sublease;
(f) the sublease prohibits further assignment or subletting;
(g) the sublease requires the sublessee to operate and maintain the Undivided Interest (or to cause the Undivided Interest to be operated and maintained) in a manner not less favorable than that required under the consistent with this Facility Lease and the other Operative DocumentsLease;
(h) the sublessee sublease does not cause the Facility to become "tax-exempt use property" within the meaning of Section 168(h) of the Code (unless the Facility sublessee Lessee shall make a payment to the Owner Participant contemporaneously with the execution of the sublease that, in the reasonable judgement judgment of the Owner Participant, compensates such the Owner Participant for the adverse tax consequences resulting from the classification of the Facility as "tax-exempt use property");
(i) Neither the sublease nor the sublessee shall jeopardize the Owner Lessor (and so long as the Lessor Notes are outstandingLessor's, the Pass-Through Trustee Owner Participant's and the Lease Indenture Lender or Bondholder Trustee) shall have received an opinion of counsel's exemption from regulation under PUHCA and other laws relating to electric utilities, which opinion of counsel shall be reasonably acceptable to each such recipientgenerators, to the effect that all regulatory approvals required to enter into such sublease shall have been obtained;wholesalers or retailers; and
(j) the Facility sublessee shall pay all reasonable documented out-of-pocket expenses incurred by the other Lease Financing Parties in connection with such sublease; and
(k) the Owner Participant shall have received an opinion reasonably satisfactory to it from Hunton & ▇▇▇▇▇▇▇▇ or from a nationally recognized tax counsel selected by the Owner Participant and reasonably acceptable to the Facility Lessee, to the effect that such sublease would not result in any material indemnified, or any unindemnified, incremental tax risk to the Owner Participant. As a condition precedent to such sublease, the Facility Lessee shall provide the Owner Lessor, the Owner Participant, Participant and, so long as the Lessor Notes are outstanding, outstanding and the Lien of the Lease Indenture Trustee and Pass Through Trustees shall not have been terminated or discharged, the Security Agent with all documentation in respect of such sublease and an opinion of counsel to the effect that such sublease complies with the provisions of this Section 19.1 19 (such documentation, counsel and opinion to be reasonably satisfactory to each such recipientsrecipient).
Appears in 1 contract
Sources: Facility Lease Agreement (Eme Homer City Generation Lp)
Sublease. Except for the Permitted Subleases, Tenant may not sublease, license or grant concession rights as provided to (for convenience in this Section 19.1ARTICLE 25, the Facility Lessee shall not assign, transfer or sublease all or “sublease”) any portion of its rights in the Owner Lessor's Undivided Interest Premises without the Port’s prior written consent, which consent shall not be unreasonably withheld, conditioned, or delayed and which consent shall be given if the proposed subtenant is financially capable of performing the obligations of the Tenant under this Facility LeaseAgreement for the portion of the Premises or portion of the Term being subleased. Pursuant Tenant shall at the time the Tenant requests the consent of the Port, deliver to the Port such information in writing as the Port may reasonably require respecting the proposed subtenant, including, without limitation, the name, address, nature of business, ownership, financial responsibility and standing of such proposed subtenant and the proposed documentation for the transfer as described below. In determining whether to grant such a consent to a sublease, the Port may consider all factors which Lessor reasonably determines in good faith are relevant to its decision. Within twenty (20) days after receipt of all required information, the Port shall, in its sole discretion, elect one of the following: (a) to consent to such proposed sublease or (b) to refuse such consent. Any such sublease shall be subject to all of the covenants, conditions, agreements and terms of this Agreement.
25.1.1 No sublease by Tenant shall relieve Tenant of any obligation under this Agreement, including Tenant’s obligation to pay Base Rent, fees or Additional Rent hereunder. Any purported sublease contrary to the provisions of the Operative Documents, the Facility Lessee shall have the right to sublease the Undivided Interest without the hereof (or for which consent of any other Lease Financing Party if:
(a) the EME Guarantee, the Reimbursement Agreement and the EME OP Guarantee remain in full force and effect;
(b) the sublessee (i) is a solvent corporation, partnership, business trust, limited liability company or other entity (but not individuals) not subject to bankruptcy proceedings, (ii) is not involved in material litigation with the Owner Participant, and (iiispecifically obtained) is, or its operating, maintenance and use obligations under the shall be void. Any sublease are guaranteed by, or such obligations are contracted to shall specifically be performed by, an experienced, reputable operator of electric generating assets similar to the Facility;
(c) the sublease does not extend beyond the scheduled expiration of the applicable Basic Lease Term or any Renewal Lease Term then in effect or already elected by the Facility Lessee (and may be terminated upon early termination of the Facility Lease) and is expressly subject and subordinate at all times to this Agreement, and to all of its covenants, agreements, terms, provisions, and conditions.
25.1.2 Tenant agrees that any sublease will contain a provision in substance that if there is any termination whatsoever of this Agreement then the subtenant, licensee or concessionaire, at the request of the Port, will attorn to the Facility Lease;Port and the subtenant, licensee or concessionaire, if the Port so requests, shall continue in effect with the Port. Nothing herein shall be deemed to require the Port to accept such attornment.
(d) all terms 25.1.3 Tenant further agrees that any sublease will contain a provision in substance requiring each and conditions every subtenant, licensee or concessionaire to maintain commercial liability insurance protecting against claims for bodily injury including death, personal injury and property damage in such amounts, and on such forms, as is commercially reasonable in light of the Facility Lease then-existing insurance and real estate markets.
25.1.4 Tenant agrees that the other Operative Documents remain in effect Port is not, and the Facility Lessee remains fully and primarily liable for its obligations thereunder but subject to Section 17.2 of this Facility Lease and Section 18.19 of the Participation Agreement;
(e) no Lease Event of Default under the Facility Lease shall have occurred and be continuing;
(f) the sublease prohibits further assignment or subletting;
(g) the sublease requires the sublessee to operate and maintain the Undivided Interest in a manner will not less favorable than that required under the Facility Lease and the other Operative Documents;
(h) the sublessee does not cause the Facility to become "tax-exempt use property" within the meaning of Section 168(h) of the Code (unless the Facility sublessee shall make a payment to the Owner Participant contemporaneously with the execution of the sublease thatbe, in reasonable judgement of the Owner Participant, compensates such Owner Participant responsible for the adverse tax consequences resulting from the classification payment of the Facility as "tax-exempt use property");
(i) the Owner Lessor (and so long as the Lessor Notes are outstandingany brokerage commissions, the Pass-Through Trustee and the Lease Indenture Trustee) shall have received an opinion or finder’s fees or similar charges of counsel, which opinion of counsel shall be reasonably acceptable to each such recipient, to the effect that all regulatory approvals required to enter into such sublease shall have been obtained;
(j) the Facility sublessee shall pay all reasonable documented out-of-pocket expenses incurred by the other Lease Financing Parties any nature in connection with such any sublease; and
(k) the Owner Participant shall have received an opinion reasonably satisfactory to it from Hunton & ▇▇, and ▇▇▇▇▇▇ agrees to indemnify and hold the Port harmless from and against any claims liability, losses or from a nationally recognized tax counsel selected expenses, including reasonable attorneys’ fees, incurred by the Owner Participant and reasonably acceptable Port in connection with any claims for a commission by any broker or agent in connection with any sublease (including any direct relationship with any subtenant, licensee or concessionaire that may result by way of attornment).
25.1.5 Subject to the Facility Lesseeterms of a Leasehold Mortgage, in the event that any portion of the Premises is sublet or occupied by anyone other than Tenant, the Port may, upon the default of Tenant, collect rent from the subtenant, licensee, concessionaire or occupant and apply the amount collected to the effect that such sublease would not result in any material indemnified, or any unindemnified, incremental tax risk to Rent reserved under the Owner Participant. As a condition precedent to such sublease, the Facility Lessee shall provide the Owner Lessor, the Owner Participant, and, so long as the Lessor Notes are outstanding, the Lease Indenture Trustee and Pass Through Trustees with all documentation in respect of such sublease and an opinion of counsel to the effect that such sublease complies with the provisions terms of this Section 19.1 (such documentationAgreement, counsel and opinion to be reasonably satisfactory to such recipients)but without thereby affecting Tenant’s liability under this Agreement.
Appears in 1 contract
Sources: Ground Lease Agreement
Sublease. Except for the Permitted Subleases, Tenant may not sublease, license or grant concession rights as provided to (for convenience in this Section 19.1ARTICLE 25, the Facility Lessee shall not assign, transfer or sublease all or “sublease”) any portion of its rights in the Owner Lessor's Undivided Interest Premises without the Port’s prior written consent, which consent shall not be unreasonably withheld, conditioned, or delayed and which consent shall be given if the proposed subtenant is financially capable of performing the obligations of the Tenant under this Facility LeaseAgreement for the portion of the Premises or portion of the Term being subleased. Pursuant Tenant shall at the time the Tenant requests the consent of the Port, deliver to the Port such information in writing as the Port may reasonably require respecting the proposed subtenant, including, without limitation, the name, address, nature of business, ownership, financial responsibility and standing of such proposed subtenant and the proposed documentation for the transfer as described below. In determining whether to grant such a consent to a sublease, the Port may consider all factors which Lessor reasonably determines in good faith are relevant to its decision. Within twenty (20) days after receipt of all required information, the Port shall, in its sole discretion, elect one of the following: (a) to consent to such proposed sublease or (b) to refuse such consent. Any such sublease shall be subject to all of the covenants, conditions, agreements and terms of this Agreement.
25.1.1 No sublease by Tenant shall relieve Tenant of any obligation under this Agreement, including Tenant’s obligation to pay Base Rent, fees or Additional Rent hereunder. Any purported sublease contrary to the provisions of the Operative Documents, the Facility Lessee shall have the right to sublease the Undivided Interest without the hereof (or for which consent of any other Lease Financing Party if:
(a) the EME Guarantee, the Reimbursement Agreement and the EME OP Guarantee remain in full force and effect;
(b) the sublessee (i) is a solvent corporation, partnership, business trust, limited liability company or other entity (but not individuals) not subject to bankruptcy proceedings, (ii) is not involved in material litigation with the Owner Participant, and (iiispecifically obtained) is, or its operating, maintenance and use obligations under the shall be void. Any sublease are guaranteed by, or such obligations are contracted to shall specifically be performed by, an experienced, reputable operator of electric generating assets similar to the Facility;
(c) the sublease does not extend beyond the scheduled expiration of the applicable Basic Lease Term or any Renewal Lease Term then in effect or already elected by the Facility Lessee (and may be terminated upon early termination of the Facility Lease) and is expressly subject and subordinate at all times to this Agreement, and to all of its covenants, agreements, terms, provisions, and conditions.
25.1.2 Tenant agrees that any sublease will contain a provision in substance that if there is any termination whatsoever of this Agreement then the subtenant, licensee or concessionaire, at the request of the Port, will attorn to the Facility Lease;Port and the subtenant, licensee or concessionaire, if the Port so requests, shall continue in effect with the Port. Nothing herein shall be deemed to require the Port to accept such attornment.
(d) all terms 25.1.3 Tenant further agrees that any sublease will contain a provision in substance requiring each and conditions every subtenant, licensee or concessionaire to maintain commercial liability insurance protecting against claims for bodily injury including death, personal injury and property damage in such amounts, and on such forms, as is commercially reasonable in light of the Facility Lease then-existing insurance and real estate markets.
25.1.4 Tenant agrees that the other Operative Documents remain in effect Port is not, and the Facility Lessee remains fully and primarily liable for its obligations thereunder but subject to Section 17.2 of this Facility Lease and Section 18.19 of the Participation Agreement;
(e) no Lease Event of Default under the Facility Lease shall have occurred and be continuing;
(f) the sublease prohibits further assignment or subletting;
(g) the sublease requires the sublessee to operate and maintain the Undivided Interest in a manner will not less favorable than that required under the Facility Lease and the other Operative Documents;
(h) the sublessee does not cause the Facility to become "tax-exempt use property" within the meaning of Section 168(h) of the Code (unless the Facility sublessee shall make a payment to the Owner Participant contemporaneously with the execution of the sublease thatbe, in reasonable judgement of the Owner Participant, compensates such Owner Participant responsible for the adverse tax consequences resulting payment of any brokerage commissions, or finder’s fees or similar charges of any nature in connection with any sublease, and Tenant agrees to indemnify and hold the Port harmless from the classification of the Facility as "tax-exempt use property");
(i) the Owner Lessor (and so long as the Lessor Notes are outstandingagainst any claims liability, the Pass-Through Trustee and the Lease Indenture Trustee) shall have received an opinion of counsellosses or expenses, which opinion of counsel shall be reasonably acceptable to each such recipientincluding reasonable attorneys’ fees, to the effect that all regulatory approvals required to enter into such sublease shall have been obtained;
(j) the Facility sublessee shall pay all reasonable documented out-of-pocket expenses incurred by the other Lease Financing Parties Port in connection with such sublease; andany claims for a commission by any broker or agent in connection with any sublease (including any direct relationship with any subtenant, licensee or concessionaire that may result by way of attornment).
(k) the Owner Participant shall have received an opinion reasonably satisfactory to it from Hunton & ▇▇▇▇▇▇▇▇ or from a nationally recognized tax counsel selected by the Owner Participant and reasonably acceptable 25.1.5 Subject to the Facility Lesseeterms of a Leasehold Mortgage, in the event that any portion of the Premises is sublet or occupied by anyone other than Tenant, the Port may, upon the default of Tenant, collect rent from the subtenant, licensee, concessionaire or occupant and apply the amount collected to the effect that such sublease would not result in any material indemnified, or any unindemnified, incremental tax risk to Rent reserved under the Owner Participant. As a condition precedent to such sublease, the Facility Lessee shall provide the Owner Lessor, the Owner Participant, and, so long as the Lessor Notes are outstanding, the Lease Indenture Trustee and Pass Through Trustees with all documentation in respect of such sublease and an opinion of counsel to the effect that such sublease complies with the provisions terms of this Section 19.1 (such documentationAgreement, counsel and opinion to be reasonably satisfactory to such recipients)but without thereby affecting Tenant’s liability under this Agreement.
Appears in 1 contract
Sources: Ground Lease Agreement
Sublease. Except as provided in this Section 19.1accordance with the following conditions, the Facility Lessee shall not assign, transfer or sublease all or any portion of its rights in the Owner Lessor's Undivided Interest under this Facility Lease. Pursuant to the provisions of the Operative Documents, the Facility Lessee shall have the right to sublease the Undivided Interest without the consent of any other Lease Financing Party ifthe Lessor, the Owner Participant and, so long as the Lien of the Indenture shall not have been terminated or discharged, the Indenture Trustee:
(a) the EME Guarantee, the Reimbursement Agreement and the EME OP Guarantee remain in full force and effect;
(b) the sublessee is (i) is a United States person within the meaning of Section 7701(a)(30) of the Code, (ii) solvent corporation, partnership, business trust, limited liability company or other entity (but not individuals) and not subject to bankruptcy proceedings, (iiiii) is not involved in any material litigation with the Owner Participant, and (iiiiv) is, or its operating, maintenance and use obligations under the sublease are guaranteed by, or such obligations are contracted to be performed by, an experienced, reputable operator of electric generating assets similar to assets, or its operating and maintenance obligations under the Facilitysublease are guaranteed by an experienced, reputable operator of electric generating assets;
(cb) the sublease does not have a term of more than 10 years and during the Lease Basic Term does not extend beyond the scheduled date 36 months prior to the expiration of the applicable Lease Basic Lease Term or any Renewal Lease Term then in effect or already elected by the Facility Lessee (and may be terminated upon early termination of the Facility this Lease) and is expressly subject and subordinate subordinated to the Facility this Lease;
(dc) all terms and conditions of the Facility this Lease and the other Operative Documents remain in effect and the Facility Lessee remains fully and primarily liable for its obligations thereunder but subject to Section 17.2 of under this Facility Lease and Section 18.19 of the Participation Agreementother Operative Documents;
(ed) no Lease Material Default or Lease Event of Default under the Facility Lease shall have occurred and be then continuing;
(fe) the sublease prohibits further assignment or subletting;
(gf) the sublease requires the sublessee to operate and maintain the Undivided Interest Facility in a manner not less favorable than that required under the Facility Lease and the other Operative Documentsconsistent with this Lease;
(hg) the sublessee does such sublease shall not cause the Facility property to become "tax-exempt use property" within the meaning of Section 168(h) of the Code (unless the Facility sublessee Lessee shall make a payment to the Owner Participant contemporaneously with the execution of such sublease that in the sublease that, in reasonable judgement judgment of the Owner Participant, Participant compensates such the Owner Participant for the adverse tax consequences resulting from the classification of the Facility property as "tax-exempt use property");
(ih) the Owner Lessor (and so long as the Lessor Notes are outstanding, the Pass-Through Trustee and the Lease Indenture Trustee) shall have received an opinion of counsel, which opinion of counsel shall be reasonably acceptable to each such recipient, to the effect that all regulatory approvals required to enter into such sublease shall have been obtained;
(j) the Facility sublessee shall pay all reasonable documented out-of-pocket expenses incurred by the other Lease Financing Parties in connection with such sublease; and
(k) the Owner Participant shall have received an opinion reasonably satisfactory to it from Hunton & ▇▇▇▇▇▇▇▇ or from a nationally recognized tax counsel selected by the Owner Participant and reasonably acceptable to the Facility Lessee, to the effect that such sublease would not result in any material indemnified, or any unindemnified, incremental tax risk to the Owner Participant. As a condition precedent to such sublease, the Facility Lessee shall provide the Owner Lessor, the Owner Participant, and, so long as the Lessor Notes are outstanding, the Lease Indenture Trustee and the Pass Through Trustees with shall have received (i) all documentation in respect of such sublease and (ii) an opinion of counsel to the effect that all regulatory approvals relating to such sublease have been obtained and that such sublease complies with the provisions of this Section 19.1 19 (such documentation, counsel and opinion to be reasonably in form, scope and substance satisfactory to such recipients);
44 49 (i) all amounts to be paid under the sublease are deposited directly into the Revenue Account;
(j) the rights of the Lessee as sublessor under the sublease are collaterally assigned as security to the Lessor;
(i) the execution of the sublease does not result in any (A) diminution in any then applicable projected Pro Forma Coverage Ratios for the remainder of the Lease Term beyond a de minimis amount and in no event below any Required Coverage Ratio or (B) reduction in cash flows available to the Lessee (as though the Lessee had not subleased the Facility) as calculated by the then applicable Pro Forma projections for the balance of the Lease Term or (C) downgrade in any then current rating of the Pass Through Certificates (as confirmed in writing by the Rating Agencies); (ii) rental payments under the sublease exceed all Basic Rent payments; and (iii) there is no prepayment of rent or any other lump sum or advance payments payable to the Lessee under the sublease; and
(l) the Lessee shall have concurrently subleased the Related Facility pursuant to terms of the Related Leases. The Lessee shall pay, on an After-Tax Basis, all reasonable costs and expenses incurred by the Lessor, Owner Participant, Indenture Trustee and the Pass Through Trustees in connection with any sublease or proposed sublease.
Appears in 1 contract
Sublease. Except as provided in this Section 19.1for herein, the Facility Lessee shall not assignsublet the Premises or any part thereof to any third party (other than affiliates of Lessee) without the prior written consent of Lessors, transfer which consent shall not be unreasonably withheld, conditioned or delayed. Notwithstanding the foregoing, Lessee is permitted, without obtaining Lessors' consent, to sublease the Premises in part to any third party so long as the aggregate amount of space so subleased within the Hospital does not exceed thirty percent (30%) of the total square footage of the Hospital. Any sublease of all or any portion of its rights the Premises shall provide that it is subordinate to this Lease and to the matters to which this Lease is or shall be subordinate, and that in the Owner Lessorevent of termination of this Lease, Lessors may, at Lessors' option, take over all of the right, title and interest of Lessee, as sublessor under such sublease, and the sublessee under such sublease shall, at Lessors' option, attorn, to Lessors and Lessors shall acknowledge sublessee's Undivided Interest rights in, to and under such sublease, except that neither Lessors nor any mortgagee of the Land, as holder of a mortgage or as Lessors under this Facility Lease. Pursuant Lease if such mortgagee succeeds to that position, shall (a) be liable for any act or omission of Lessee under such sublease, (b) be subject to any credit, counterclaim, offset or defense which theretofore accrued to such sublessee against Lessee, (c) be bound by any previous modification of such sublease, (d) be bound by any covenant of Lessee to undertake or complete any construction project on the Premises, (e) be required to account for any security deposit of the sublessee other than any security deposit actually delivered to Lessors by Lessee, (f) be bound by any obligation to make any payment to such sublessee or grant any credits, except for services, repairs, maintenance and restoration provided for under the sublease to be performed after the date of such attornment, (g) be responsible for any monies owing by Lessors to the provisions credit of Lessee, or (h) be required to remove any person occupying the Premises or any part thereof; and such sublease shall provide that the sublessee thereunder shall, at the request of Lessors, execute a suitable instrument in confirmation of such agreement so to attorn to Lessors. No subletting shall in any way impair the continuing primary liability of Lessee hereunder, and no consent (to the extent consent is required) to any subletting in a particular instance shall be deemed to be a waiver of the Operative Documents, obligation to obtain the Facility Lessee shall have Lessors' written approval in the right to sublease the Undivided Interest without the consent case of any other Lease Financing Party if:
(a) or further subletting. No assignment, subletting or occupancy shall affect the EME Guaranteepermitted use of the Premises. Any subletting, the Reimbursement Agreement and the EME OP Guarantee remain in full force and effect;
(b) the sublessee (i) is a solvent corporation, partnership, business trust, limited liability company assignment or other entity (but not individuals) not subject to bankruptcy proceedings, (ii) is not involved transfer of Lessee's interest in material litigation with the Owner Participant, and (iii) is, or its operating, maintenance and use obligations under the sublease are guaranteed by, or such obligations are contracted to be performed by, an experienced, reputable operator of electric generating assets similar to the Facility;
(c) the sublease does not extend beyond the scheduled expiration of the applicable Basic this Lease Term or any Renewal Lease Term then in effect or already elected by the Facility Lessee (and may be terminated upon early termination of the Facility Lease) and is expressly subject and subordinate to the Facility Lease;
(d) all terms and conditions of the Facility Lease and the other Operative Documents remain in effect and the Facility Lessee remains fully and primarily liable for its obligations thereunder but subject to Section 17.2 of this Facility Lease and Section 18.19 of the Participation Agreement;
(e) no Lease Event of Default under the Facility Lease shall have occurred and be continuing;
(f) the sublease prohibits further assignment or subletting;
(g) the sublease requires the sublessee to operate and maintain the Undivided Interest in a manner not less favorable than that required under the Facility Lease and the other Operative Documents;
(h) the sublessee does not cause the Facility to become "tax-exempt use property" within the meaning of Section 168(h) of the Code (unless the Facility sublessee shall make a payment to the Owner Participant contemporaneously with the execution of the sublease that, in reasonable judgement of the Owner Participant, compensates such Owner Participant for the adverse tax consequences resulting from the classification of the Facility as "tax-exempt use property");
(i) the Owner Lessor (and so long as the Lessor Notes are outstanding, the Pass-Through Trustee and the Lease Indenture Trustee) shall have received an opinion of counsel, which opinion of counsel shall be reasonably acceptable to each such recipient, to the effect that all regulatory approvals required to enter into such sublease shall have been obtained;
(j) the Facility sublessee shall pay all reasonable documented out-of-pocket expenses incurred by the other Lease Financing Parties in connection with such sublease; and
(k) the Owner Participant shall have received an opinion reasonably satisfactory to it from Hunton & ▇▇▇▇▇▇▇▇ or from a nationally recognized tax counsel selected by the Owner Participant and reasonably acceptable to the Facility Lessee, to the effect that such sublease would not result in any material indemnified, or any unindemnified, incremental tax risk to the Owner Participant. As a condition precedent to such sublease, the Facility Lessee shall provide the Owner Lessor, the Owner Participant, and, so long as the Lessor Notes are outstanding, the Lease Indenture Trustee and Pass Through Trustees with all documentation in respect of such sublease and an opinion of counsel to the effect that such sublease complies with the provisions contravention of this Section 19.1 (such documentation, counsel and opinion to 8.2 shall be reasonably satisfactory to such recipients)voidable at Lessors' option.
Appears in 1 contract
Sublease. Except as provided The Parties acknowledges that: Queensland Rail’s interest in this Section 19.1, the Facility Lessee shall not assign, transfer or sublease all or any portion part of its rights in the Owner Lessor's Undivided Interest under land on which the Network is located and over which the Train Services will operate is or will be held under: the Sublease; or a lease, easement, licence, statutory right or other arrangement or right other than the Sublease, (Land Tenure); and this Facility Lease. Pursuant agreement is subject to the provisions terms and conditions (including all reservations), whether express or implied, of the Operative Documents, Sublease (or the Facility Lessee shall have the right to sublease the Undivided Interest without the consent of any other Lease Financing Party if:
(a) the EME Guarantee, the Reimbursement Agreement and the EME OP Guarantee remain in full force and effect;
(b) the sublessee (i) is a solvent corporation, partnership, business trust, limited liability company or other entity (but not individuals) not subject to bankruptcy proceedings, (ii) is not involved in material litigation with the Owner Participant, and (iii) is, or its operating, maintenance and use obligations under the sublease are guaranteed by, or such obligations are contracted to be performed by, an experienced, reputable operator of electric generating assets similar to the Facility;
(c) the sublease does not extend beyond the scheduled expiration of the applicable Basic Lease Term or any Renewal Lease Term then in effect or already elected by the Facility Lessee (and may be terminated upon early termination of the Facility Head Lease) and is expressly subject any other Land Tenure. Queensland Rail must do either or both of the following: give the Access Holder and subordinate the Operator a copy of any Land Tenure (together with any relevant amendments from time to time); or notify the Access Holder and the Operator of any requirements that the Operator must comply with in relation to that Land Tenure (together with any amendments from time to time) (Tenure Requirements). Despite any other clause in this agreement and to the Facility Lease;
(d) all terms and conditions extent that the Operator operates Train Services on any part of the Facility Lease Network on land, or otherwise accesses land, that is the subject of any Land Tenure, the Operator must: observe and comply with all relevant obligations of Queensland Rail under that Land Tenure and the other Operative Documents remain Tenure Requirements; and not act, omit to act or permit, cause or contribute to any act or omission that may result in effect Queensland Rail: breaching a term of any Land Tenure; or incurring (directly or indirectly) any costs or expenses in complying with a Land Tenure that Queensland Rail would not otherwise have incurred. If there is an inconsistency between the terms of this agreement and the Facility Lessee remains fully terms of any Land Tenure or Tenure Requirements which means that Queensland Rail or the Operator cannot comply with both this agreement and primarily liable for its obligations thereunder but subject that Land Tenure or those Tenure Requirements, then the terms of that Land Tenure or those Tenure Requirements (as applicable) prevail to Section 17.2 of this Facility Lease and Section 18.19 the extent of the Participation Agreement;
(e) no Lease Event of Default under the Facility Lease shall have occurred inconsistency and be continuing;
(f) the sublease prohibits further assignment or subletting;
(g) the sublease requires the sublessee to operate and maintain the Undivided Interest in a manner not less favorable than that required under the Facility Lease and the other Operative Documents;
(h) the sublessee does not cause the Facility to become "tax-exempt use property" within the meaning of Section 168(h) of the Code (unless the Facility sublessee shall make a payment to the Owner Participant contemporaneously with the execution of the sublease that, in reasonable judgement of the Owner Participant, compensates such Owner Participant for the adverse tax consequences resulting from the classification of the Facility as "tax-exempt use property");
(i) the Owner Lessor (and so long as the Lessor Notes are outstanding, the Pass-Through Trustee and the Lease Indenture Trustee) shall have received an opinion of counsel, which opinion of counsel shall be reasonably acceptable to each such recipient, to the effect that all regulatory approvals required to enter into such sublease shall have been obtained;
(j) the Facility sublessee shall pay all reasonable documented out-of-pocket expenses incurred by the other Lease Financing Parties in connection with such sublease; and
(k) the Owner Participant shall have received an opinion reasonably satisfactory to it from Hunton & ▇▇▇▇▇▇▇▇ or from a nationally recognized tax counsel selected by the Owner Participant and reasonably acceptable to the Facility Lessee, to the effect that such sublease would not result in any material indemnified, or any unindemnified, incremental tax risk to the Owner Participant. As a condition precedent to such sublease, the Facility Lessee shall provide the Owner Lessor, the Owner Participant, and, so long as the Lessor Notes are outstanding, the Lease Indenture Trustee and Pass Through Trustees with all documentation in respect of such sublease and an opinion of counsel to the effect that such sublease complies with the provisions of this Section 19.1 agreement will be construed accordingly. If Queensland Rail’s rights in respect of the Land Tenure are terminated for any reason other than the default of Queensland Rail of any agreement that affects Queensland Rail’s use of that Land Tenure or other than by agreement between Queensland Rail and the relevant land owner, then Queensland Rail may by notice to the Access Holder and the Operator suspend and/or terminate this agreement insofar as it relates to that part of Network which is situated on that Land Tenure (such documentationin which case the Access Holder’s obligation to pay Access Charges is suspended and/or terminated commensurate with that suspension or termination). The Access Holder may (acting reasonably) notify Queensland Rail that it believes that: Queensland Rail has entered into an access agreement with another Network Participant for a Train service whose characteristics are alike and are provided to service the same end market that transports the same commodity in the same geographic area as a Train Service is provided (Like Train Service); and the access charges applicable to the Like Train Service have been developed in contravention of the price differentiation provisions under the relevant Access Undertaking’s pricing principles that applied to the development of those access charges (Price Differentiation Provisions), counsel and opinion provide Queensland Rail with reasons why the Access Holder considers this to be reasonably satisfactory to the case. Within 20 Business Days after receiving such recipients).a notice, Queensland Rail must notify the Access Holder: whether it agrees that the access agreement with the other Network Participant is for a Like Train Service including, if it does not agree, its reasons; and
Appears in 1 contract
Sources: Access Agreement
Sublease. Except Provided Lessor shall not have declared the -------- Lease to be in default (or the Lease shall be deemed to have been declared in default) pursuant to Section 15.1 hereof, Lessee shall be entitled, without the prior approval of Lessor, to enter into a sublease for any Unit or Units (pursuant to a car service contract or otherwise) to, or to grant permission for the use thereof under car contracts by, (i) a railroad company or companies incorporated under the laws of the United States of America or any state thereof or the District of Columbia, Canada or any province thereof, or Mexico or any state thereof, upon lines of railroad owned or operated by such railroad company or companies or over which such railroad company or companies have trackage rights or rights for operation of their trains, and upon connecting and other carriers in the usual interchange of traffic or (ii) responsible companies (i.e., a company with which Lessee would do business in the ordinary course of Lessee's business with respect to railcars which it owns, leases or manages) other than railroad companies for use in their business (leases to such sublessees being herein referred to as provided in this Section 19.1"Permitted Subleases") provided, the Facility however, ------------------- ----------------- that Lessee shall not assign, transfer or sublease all more than 15% of the Units to a sublessee formed under the laws of Mexico or any portion of its rights in the Owner Lessor's Undivided Interest under this Facility Leasestate thereof. Pursuant to the All subleases shall include appropriate provisions of the Operative Documentsso that such subleases, the Facility Lessee shall have the right to sublease the Undivided Interest without the consent of any other Lease Financing Party if:
(a) the EME Guarantee, the Reimbursement Agreement and the EME OP Guarantee remain in full force and effect;
(b) the sublessee (i) is shall in all events be subject and subordinate to this Lease and the rights and interests of Lessor and its respective successors and assigns hereunder and shall confirm such subordination by a solvent corporationprovision substantially in the form currently contained in Lessee's standard car service contract delivered to Lessor and the Indenture Trustee prior to the Closing Date, partnership, business trust, limited liability company or other entity (but not individuals) not subject otherwise as satisfactory to bankruptcy proceedingsLessor and the Indenture Trustee, (ii) is shall not involved in material litigation with be for a term which extends beyond the Owner ParticipantBasic Term and any agreed upon Renewal Term, and (iii) isshall not include any term or provision which could reasonably be expected to result in material adverse consequences to Lessor, Owner Participant or its operatingthe Indenture Trustee. In the event Lessee desires to sublease one or more Units for a term which extends beyond the Basic Term or any agreed upon Renewal Term, maintenance and use obligations under Lessee will have the sublease are guaranteed by, option to replace such Unit on or such obligations are contracted to be performed by, an experienced, reputable operator of electric generating assets similar prior to the Facility;
(c) the sublease does not extend beyond the scheduled expiration of the applicable Basic Lease Term or any Renewal Lease Term then Term, with another Unit in effect or already elected by the Facility Lessee (accordance with and may be terminated upon early termination of the Facility Lease) and is expressly subject and subordinate to the Facility Lease;
(d) all terms and conditions of the Facility Lease and the other Operative Documents remain in effect and the Facility Lessee remains fully and primarily liable for its obligations thereunder but subject to Section 17.2 of this Facility Lease and Section 18.19 of the Participation Agreement;
(e) no Lease Event of Default under the Facility Lease shall have occurred and be continuing;
(f) the sublease prohibits further assignment or subletting;
(g) the sublease requires the sublessee to operate and maintain the Undivided Interest in a manner not less favorable than that required under the Facility Lease and the other Operative Documents;
(h) the sublessee does not cause the Facility to become "tax-exempt use property" within the meaning of Section 168(h) of the Code (unless the Facility sublessee shall make a payment to the Owner Participant contemporaneously with the execution of the sublease that, in reasonable judgement of the Owner Participant, compensates such Owner Participant for the adverse tax consequences resulting from the classification of the Facility as "tax-exempt use property");
(i) the Owner Lessor (and so long as the Lessor Notes are outstanding, the Pass-Through Trustee and the Lease Indenture Trustee) shall have received an opinion of counsel, which opinion of counsel shall be reasonably acceptable to each such recipient, to the effect that all regulatory approvals required to enter into such sublease shall have been obtained;
(j) the Facility sublessee shall pay all reasonable documented out-of-pocket expenses incurred by the other Lease Financing Parties in connection with such sublease; and
(k) the Owner Participant shall have received an opinion reasonably satisfactory to it from Hunton & ▇▇▇▇▇▇▇▇ or from a nationally recognized tax counsel selected by the Owner Participant and reasonably acceptable to the Facility Lessee, to the effect that such sublease would not result in any material indemnified, or any unindemnified, incremental tax risk to the Owner Participant. As a condition precedent to such sublease, the Facility Lessee shall provide the Owner Lessor, the Owner Participant, and, so long as the Lessor Notes are outstanding, the Lease Indenture Trustee and Pass Through Trustees with all documentation in respect of such sublease and an opinion of counsel to the effect that such sublease complies with the provisions of this Section 19.1 (such documentation11.2(i), counsel 11.3 and opinion to be reasonably satisfactory to such recipients)11.
Appears in 1 contract
Sublease. Except as provided in this Section 19.1, the Facility Lessee shall not assign, transfer or sublease all or any portion of its rights in the Owner Lessor's Undivided Interest under this Facility Lease. Pursuant to the provisions of the Operative Documents, the Facility Lessee shall have the right to sublease the Undivided Interest without the consent of any other Lease Financing Party if:
(a) Effective on the EME GuaranteeEffective Date, as defined in Section 3(b), through and including January 31, 2004, Pharmacia subleases to Metrum-D the Reimbursement Agreement Premises under the terms and conditions of the EME OP Guarantee remain in full force Lease as if Pharmacia were the "Landlord" and effect;Metrum-D the "Tenant" thereunder, other than as modified herein as to rent and other matters, excluding, however, any options under Articles XXVII and XXIX of the Lease, which options are hereby exclusively reserved to Pharmacia. Effective on the Effective Date, through and including January 31, 2004, Metrum-D accepts the sublease and further covenants and agrees to pay and perform and abide by all of the covenants, terms, conditions, agreements and other obligations on the part of the Tenant to be performed, paid or observed under the Lease as relates to the Premises, other than as modified herein as to rent and other matters. Notwithstanding anything herein to the contrary, Metrum- D's covenants, agreements and obligations hereunder shall relate only to the Premises and not to any other portion of the Leased Premises.
(b) the sublessee The Premises are subleased to Metrum-D in their present condition by Pharmacia, without representation or warranty, express or implied, subject and subordinate to (i) is a solvent corporationall easements, partnershipagreements, business trust, limited liability company or other entity (but not individuals) not subject to bankruptcy proceedingscovenants and recorded matters, (ii) is all taxes not involved in material litigation with the Owner Participantyet due and payable, and (iii) isall applicable zoning rules, restrictions, regulations, resolutions and ordinances and building restrictions and governmental regulations now or its operating, maintenance hereafter in effect. Metrum-D has examined the Lease and use obligations under the sublease are guaranteed by, or such obligations are contracted Premises and the title to be performed by, an experienced, reputable operator of electric generating assets similar to each and has found the Facility;same satisfactory.
(c) the sublease does not extend beyond the scheduled expiration of the applicable Basic Lease Term or any Renewal Lease Term then in effect or already elected Pharmacia will continue to pay all rent and other monetary obligations required by the Facility Lessee (and may be terminated upon early termination of the Facility Lease) and is expressly subject and subordinate Lease to the Facility Lease;Landlord.
(d) Metrum-D shall make payment of all terms rents and conditions other sums due under this Sublease directly to Pharmacia. All notices, reports, negotiations and any other miscellaneous matters may be accomplished by direct dealing between Metrum-D and Landlord, provided that Metrum-D shall send a copy of the Facility Lease and the any such notices or other Operative Documents remain in effect and the Facility Lessee remains fully and primarily liable for its obligations thereunder but subject correspondence or reports sent or received to Section 17.2 of this Facility Lease and Section 18.19 of the Participation Agreement;Pharmacia.
(e) no For each and every term of the Lease Event as relates to the Premises, Metrum-D shall be deemed to be "Tenant" thereunder. Metrum-D acknowledges that it has received and reviewed a copy of Default said Lease. Metrum-D agrees that, except for issues relating to rent and Lease Term, after obtaining the consent of the Landlord as contemplated by Section 3(a)(ii) hereof, it will look primarily to Landlord and not to Pharmacia for satisfaction of all rights and obligations under the Facility Lease shall have occurred and be continuing;Lease.
(f) Metrum-D shall periodically render to Pharmacia reports showing that the sublease prohibits further assignment Lease as relates to the Premises is being kept free from default by Metrum-D. Such reports shall be provided on a quarterly basis, commencing three months after the Effective Date, within thirty days of the close of each quarterly period. Additionally, Metrum-D shall notify Pharmacia immediately in the event Metrum-D permits any default (or subletting;
(galleged or possible default) the sublease requires the sublessee to operate and maintain the Undivided Interest in a manner not less favorable than that required under the Facility Lease and the other Operative Documents;
(h) the sublessee does not cause the Facility to become "tax-exempt use property" within the meaning of Section 168(h) of the Code (unless the Facility sublessee shall make a payment as relates to the Owner Participant contemporaneously with the execution of the sublease that, in reasonable judgement of the Owner Participant, compensates such Owner Participant for the adverse tax consequences resulting from the classification of the Facility as "tax-exempt use property");
(i) the Owner Lessor (and so long as the Lessor Notes are outstanding, the Pass-Through Trustee and the Lease Indenture Trustee) shall have received an opinion of counsel, which opinion of counsel shall be reasonably acceptable Premises to each such recipient, to the effect that all regulatory approvals required to enter into such sublease shall have been obtained;
(j) the Facility sublessee shall pay all reasonable documented out-of-pocket expenses incurred by the other Lease Financing Parties in connection with such sublease; and
(k) the Owner Participant shall have received an opinion reasonably satisfactory to it from Hunton & ▇▇▇▇▇▇▇▇ or from a nationally recognized tax counsel selected by the Owner Participant and reasonably acceptable to the Facility Lessee, to the effect that such sublease would not result in any material indemnified, or any unindemnified, incremental tax risk to the Owner Participant. As a condition precedent to such sublease, the Facility Lessee shall provide the Owner Lessor, the Owner Participant, and, so long as the Lessor Notes are outstanding, the Lease Indenture Trustee and Pass Through Trustees with all documentation in respect of such sublease and an opinion of counsel to the effect that such sublease complies with the provisions of this Section 19.1 (such documentation, counsel and opinion to be reasonably satisfactory to such recipients)occur.
Appears in 1 contract
Sources: Sublease (Sypris Solutions Inc)
Sublease. Except as provided The Lessee, but only with the prior written consent of the Lessor (and, unless the Lien of the Indenture shall have been discharged in this Section 19.1accordance with the terms thereof, the Facility Lessee Indenture Trustee) (which consent shall not assignbe unreasonably withheld) and upon receipt by the Lessor of an Officer s Certificate of Bayer addressed to the Lessor pursuant to which Bayer expressly consents to the proposed sublease and the sublessor, transfer or shall be entitled to sublease all or any a portion of its rights in the Owner Lessor's Undivided Interest under this Facility Lease. Pursuant Units to the provisions of the Operative Documents, the Facility Lessee shall have the right to sublease the Undivided Interest without the consent of any other Lease Financing Party if:
a business entity (aeach a "Permitted Sublease") the EME Guarantee, the Reimbursement Agreement and the EME OP Guarantee remain in full force and effect;
(b) the sublessee so long as: (i) on the effective date of any such sublease, no Lease Default or Lease Event of Default has occurred and is a solvent corporation, partnership, business trust, limited liability company or other entity (but not individuals) continuing and such sublessee is not subject to bankruptcy any bankruptcy, insolvency or similar proceedings, ; (ii) is not involved in material litigation with the Owner Participantany sublease, and (iii) isthe rights and interest of any sublessee thereunder, or its operating, maintenance and use obligations under the sublease are guaranteed by, or such obligations are contracted to shall be performed by, an experienced, reputable operator of electric generating assets similar to the Facility;
(c) the sublease does not extend beyond the scheduled expiration of the applicable Basic Lease Term or any Renewal Lease Term then in effect or already elected by the Facility Lessee (and may be terminated upon early termination of the Facility Lease) and is expressly all events subject and subordinate to the Facility Lease;
(d) all terms and conditions of the Facility this Lease and the other Operative Documents remain in effect rights and interests of the Lessor and its respective successors and assigns hereunder, and the Facility Lessee remains fully shall remain primarily and primarily directly liable for the performance of its obligations thereunder but hereunder; (iii) any sublease shall not be for a term which extends beyond the Lease Term; (iv) such sublease will prohibit further subleasing by the sublessee; (v) all filings of any such sublease necessary to protect the rights of the Lessor (including, without limitation, filings necessary to comply with Section 7) and the Lien of the Indenture shall have been made in a timely fashion; (vi) without limiting the foregoing clause (ii), any such sublease shall include appropriate provision (whether by requiring such obligations to be performed by the sublessee, the Lessee or both) for the operation, maintenance and insurance in accordance with the terms hereof of the Units subleased thereby; (vii) any sublease of any Unit shall require that each Unit subject to Section 17.2 of this Facility Lease such sublease shall at all times be located on the Premises; and Section 18.19 (viii) the Lessor (and, unless the Lien of the Participation Agreement;
(e) no Lease Event of Default under the Facility Lease Indenture shall have occurred and be continuing;
(f) the sublease prohibits further assignment or subletting;
(g) the sublease requires the sublessee to operate and maintain the Undivided Interest been discharged in a manner not less favorable than that required under the Facility Lease and the other Operative Documents;
(h) the sublessee does not cause the Facility to become "tax-exempt use property" within the meaning of Section 168(h) of the Code (unless the Facility sublessee shall make a payment to the Owner Participant contemporaneously accordance with the execution of the sublease that, in reasonable judgement of the Owner Participant, compensates such Owner Participant for the adverse tax consequences resulting from the classification of the Facility as "tax-exempt use property");
(i) the Owner Lessor (and so long as the Lessor Notes are outstandingterms thereof, the Pass-Through Trustee and the Lease Indenture Trustee) shall have received an opinion of counselbe satisfied that the Bayer Letter and, which opinion of counsel shall be reasonably acceptable to each such recipient, prior to the expiration thereof pursuant to its terms, the Bayer Support Agreement, as the case may be, remain fully in effect after giving effect to any such sublease. No sublease shall permit the sublessee thereunder to take any action inconsistent with the terms of this Lease or any other Operative Agreement. The Lessee shall provide to the Lessor and the Indenture Trustee not less than 30 days prior written notice of such sublease, such notice to identify the sublessee and to specify the term of the sublease and confirm that the location at which any Unit or Units are to be used under the sublease is at the Premises. In addition, if the term of any sublease exceeds one year, the Lessee shall promptly, and in any event within 45 days of the execution and delivery of such sublease, deliver a true, correct and complete copy of such sublease to the Lessor and the Indenture Trustee. Throughout the term of any such sublease, all regulatory approvals required of the terms and provisions of this Lease shall continue to enter into be applicable thereto and no such sublease shall have been obtained;
(j) relieve the Facility sublessee Lessee of any of its liabilities or obligations hereunder, which shall pay all reasonable documented out-of-pocket expenses incurred by the other Lease Financing Parties in connection with such sublease; and
(k) the Owner Participant shall have received an opinion reasonably satisfactory to it from Hunton & ▇▇▇▇▇▇▇▇ or from be and remain those of a nationally recognized tax counsel selected by the Owner Participant principal and reasonably acceptable to the Facility Lessee, to the effect that such sublease would not result in any material indemnified, or any unindemnified, incremental tax risk to the Owner Participant. As a condition precedent to such sublease, the Facility Lessee shall provide the Owner Lessor, the Owner Participant, and, so long as the Lessor Notes are outstanding, the Lease Indenture Trustee and Pass Through Trustees with all documentation in respect of such sublease and an opinion of counsel to the effect that such sublease complies with the provisions of this Section 19.1 (such documentation, counsel and opinion to be reasonably satisfactory to such recipients)surety.
Appears in 1 contract
Sources: Lease Agreement (LSB Industries Inc)
Sublease. Except as provided in this Section 19.1, the Facility Lessee shall not assign, transfer or sublease all or any portion of its rights in the Owner Lessor's Undivided Interest under this Facility Lease. Pursuant to the provisions of the Operative Documents, the Facility Lessee shall have the right to sublease the Undivided Interest without the consent of any other Lease Financing Party if(a) The Parties acknowledges that:
(ai) Queensland Rail’s interest in all or part of the land on which the Network is located and over which the Train Services will operate is or will be held under:
(A) the EME GuaranteeSublease; or
(B) a lease, easement, licence, statutory right or other arrangement or right other than the Reimbursement Agreement Sublease, (Land Tenure); and
(ii) this agreement is subject to the terms and conditions (including all reservations), whether express or implied, of the EME OP Guarantee remain in full force Sublease (or the Head Lease) and effect;any other Land Tenure.
(b) Queensland Rail must do either or both of the sublessee following:
(i) is give the Access Holder and the Operator a solvent corporation, partnership, business trust, limited liability company or other entity copy of any Land Tenure (but not individuals) not subject together with any relevant amendments from time to bankruptcy proceedings, time); or
(ii) is not involved notify the Access Holder and the Operator of any requirements that the Operator must comply with in material litigation relation to that Land Tenure (together with the Owner Participant, and any amendments from time to time) (iii) is, or its operating, maintenance and use obligations under the sublease are guaranteed by, or such obligations are contracted to be performed by, an experienced, reputable operator of electric generating assets similar to the Facility;Tenure Requirements).
(c) Despite any other clause in this agreement and to the sublease does not extend beyond extent that the scheduled expiration Operator operates Train Services on any part of the applicable Basic Lease Term Network on land, or otherwise accesses land, that is the subject of any Renewal Lease Term then Land Tenure, the Operator must:
(i) observe and comply with all relevant obligations of Queensland Rail under that Land Tenure and the Tenure Requirements; and
(ii) not act, omit to act or permit, cause or contribute to any act or omission that may result in effect Queensland Rail:
(A) breaching a term of any Land Tenure; or
(B) incurring (directly or already elected by the Facility Lessee (and may be terminated upon early termination of the Facility Leaseindirectly) and is expressly subject and subordinate to the Facility Lease;any costs or expenses in complying with a Land Tenure that Queensland Rail would not otherwise have incurred.
(d) all If there is an inconsistency between the terms of this agreement and conditions the terms of any Land Tenure or Tenure Requirements which means that Queensland Rail or the Operator cannot comply with both this agreement and that Land Tenure or those Tenure Requirements, then the terms of that Land Tenure or those Tenure Requirements (as applicable) prevail to the extent of the Facility Lease inconsistency and the other Operative Documents remain in effect and the Facility Lessee remains fully and primarily liable for its obligations thereunder but subject to Section 17.2 provisions of this Facility Lease and Section 18.19 of the Participation Agreement;agreement will be construed accordingly.
(e) no Lease Event of Default under the Facility Lease shall have occurred and be continuing;
(f) the sublease prohibits further assignment or subletting;
(g) the sublease requires the sublessee to operate and maintain the Undivided Interest in a manner not less favorable than that required under the Facility Lease and the other Operative Documents;
(h) the sublessee does not cause the Facility to become "tax-exempt use property" within the meaning of Section 168(h) of the Code (unless the Facility sublessee shall make a payment to the Owner Participant contemporaneously with the execution of the sublease that, in reasonable judgement of the Owner Participant, compensates such Owner Participant for the adverse tax consequences resulting from the classification of the Facility as "tax-exempt use property");
(i) the Owner Lessor (and so long as the Lessor Notes are outstanding, the Pass-Through Trustee and the Lease Indenture Trustee) shall have received an opinion of counsel, which opinion of counsel shall be reasonably acceptable to each such recipient, to the effect that all regulatory approvals required to enter into such sublease shall have been obtained;
(j) the Facility sublessee shall pay all reasonable documented out-of-pocket expenses incurred by the other Lease Financing Parties in connection with such sublease; and
(k) the Owner Participant shall have received an opinion reasonably satisfactory to it from Hunton & ▇▇▇▇▇▇▇▇ or from a nationally recognized tax counsel selected by the Owner Participant and reasonably acceptable to the Facility Lessee, to the effect that such sublease would not result in any material indemnified, or any unindemnified, incremental tax risk to the Owner Participant. As a condition precedent to such sublease, the Facility Lessee shall provide the Owner Lessor, the Owner Participant, and, so long as the Lessor Notes are outstanding, the Lease Indenture Trustee and Pass Through Trustees with all documentation If Queensland Rail’s rights in respect of such sublease the Land Tenure are terminated for any reason other than the default of Queensland Rail of any agreement that affects Queensland Rail’s use of that Land Tenure or other than by agreement between Queensland Rail and an opinion of counsel the relevant land owner, then Queensland Rail may by notice to the effect Access Holder and the Operator suspend and/or terminate this agreement insofar as it relates to that such sublease complies part of Network which is situated on that Land Tenure (in which case the Access Holder’s obligation to pay Access Charges is suspended and/or terminated commensurate with the provisions of this Section 19.1 (such documentation, counsel and opinion to be reasonably satisfactory to such recipientsthat suspension or termination).
Appears in 1 contract
Sources: Access Agreement