PARTY THERETO OTHER THAN THE SENIOR SECURED PARTIES; AND
(IV)
ANY LIENS AGAINST ANY OF THE COLLATERAL CEASE TO BE A
FIRST-PRIORITY, PERFECTED SECURITY INTEREST IN FAVOR OF THE COLLATERAL AGENT, OR
THE ENFORCEABILITY THEREOF IS CONTESTED BY ANY LOAN PARTY OR ANY PARTY (OTHER
THAN A SENIOR SECURED PARTY) TO THE INTERCREDITOR AGREEMENT, OR ANY OF THE
SECURITY DOCUMENTS CEASES TO PROVIDE THE SECURITY INTENDED TO BE CREATED THEREBY
WITH THE PRIORITY PURPORTED TO BE CREATED THEREBY.
(M)
ENVIRONMENTAL MATTERS. (I) (A) ANY ENVIRONMENTAL CLAIM HAS OCCURRED
WITH RESPECT TO THE BORROWER, THE PROJECT OR ANY ENVIRONMENTAL AFFILIATE,
(B) ANY RELEASE, THREAT OF RELEASE, EMISSION, DISCHARGE OR DISPOSAL OF ANY
MATERIAL OF ENVIRONMENTAL CONCERN OCCURS, AND SUCH EVENT COULD REASONABLY BE
EXPECTED TO FORM THE BASIS OF AN ENVIRONMENTAL CLAIM AGAINST THE BORROWER, THE
PROJECT OR ANY ENVIRONMENTAL AFFILIATE, OR (C) ANY VIOLATION OR ALLEGED
VIOLATION OF ANY ENVIRONMENTAL LAW OR ENVIRONMENTAL APPROVAL OCCURS THAT WOULD
REASONABLY RESULT IN AN ENVIRONMENTAL CLAIM AGAINST THE BORROWER OR THE PROJECT
OR, TO THE EXTENT THE BORROWER MAY HAVE LIABILITY, ANY ENVIRONMENTAL AFFILIATE
THAT, IN THE CASE OF ANY OF SECTION 8.01(M)(I)(A), (B) OR (C), COULD REASONABLY
BE EXPECTED TO RESULT IN LIABILITY FOR THE BORROWER IN AN AMOUNT GREATER THAN
TWO HUNDRED FIFTY THOUSAND DOLLARS ($250,000) FOR ANY SINGLE CLAIM OR FIVE
HUNDRED FIFTY THOUSAND DOLLARS ($500,000) FOR ALL SUCH CLAIMS DURING ANY TWELVE
(12) MONTH PERIOD OR COULD OTHERWISE REASONABLY BE EXPECTED TO RESULT IN A
MATERIAL ADVERSE EFFECT; PROVIDED THAT SUCH AN OCCURRENCE SHALL NOT CONSTITUTE
AN EVENT OF DEFAULT IF (X) THE ESTIMATED LIABILITY ASSOCIATED THEREWITH IS
REASONABLY EXPECTED TO BE LESS THAN ONE MILLION DOLLARS ($1,000,000) NET OF ANY
INSURANCE PROCEEDS THAT HAVE ACTUALLY BEEN PAID TO, AND RECEIVED BY, THE
BORROWER OR THE COLLATERAL AGENT AS LOSS PAYEE IN CONNECTION THEREWITH, OR AS
REDUCED BY TAKING INTO ACCOUNT ANY AMOUNTS THAT THE BORROWER DEMONSTRATES, TO
THE REASONABLE SATISFACTION OF THE ADMINISTRATIVE AGENT, WITHIN TEN
(10) BUSINESS DAYS FOLLOWING SUCH OCCURRENCE, WILL BE AVAILABLE AS AND WHEN
NEEDED, WITHOUT CONDITIONS, FROM SOURCES (INCLUDING INSURANCE PROCEEDS AND
DOCUMENTED VOLUNTARY EQUITY CONTRIBUTIONS MADE TO THE BORROWER FOR THE PURPOSE
OF COVERING SUCH COSTS) OTHER THAN CASH FLOW OR LOAN PROCEEDS, TO COVER SUCH
COSTS (AND SUCH OCCURRENCE COULD NOT OTHERWISE REASONABLY BE EXPECTED TO RESULT
IN A MATERIAL ADVERSE EFFECT) AND, WITHIN NINETY (90) DAYS OF SUCH OCCURRENCE,
SUCH LIABILITY IS REDUCED BELOW THE THRESHOLD SET FORTH ABOVE THIS PROVISO FROM
SOURCES OTHER THAN CASH FLOW OR LOAN PROCEEDS, (Y) THERE HAVE BEEN NO MORE THAN
TWO (2) OCCURRENCES OF THE NATURE DESCRIBED IN THIS SECTION 8.01(M) DURING THE
IMMEDIATELY PRECEDING TWELVE (12) MONTH PERIOD AND (Z) DURING SUCH CURE PERIOD,
THE BORROWER UNDERTAKES ANY REMEDIAL OR RESPONSIVE ACTIONS THEN REQUIRED TO BE
UNDERTAKEN UNDER APPLICABLE LAW;
94
(II)
THE BORROWER OR ANY ENVIRONMENTAL AFFILIATE FAILS TO
OBTAIN ANY ENVIRONMENTAL APPROVALS NECESSARY FOR THE MANAGEMENT, USE, CONTROL,
OWNERSHIP, OR OPERATION OF ITS BUSINESS, PROPERTY OR ASSETS, AND (A)