After an Event of Default. the Lessor may sell its interest in the Project upon any terms that the Lessor deems satisfactory, free of any rights of the Lessee or any Person claiming through or under the Lessee (including, without limitation, any rights hereunder or under the Agreement for Lease). In the event of any such sale, the Lessor shall be entitled to recover from the Lessee, as liquidated damages and not as a penalty, and subject to the second succeeding sentence, an amount equal to the Adjusted Acquisition Cost. Proceeds of sale received by the Lessor in excess of the Adjusted Acquisition Cost shall be credited against the amounts the Lessee is required to pay under this Section 19 and any other provision hereof. If such proceeds plus the Adjusted Acquisition Cost, exceed the sum of (i) the Adjusted Acquisition Cost and (ii) any Unrecovered Liabilities and Judgments, and if the Lessee has indefeasibly paid the Adjusted Acquisition Cost, plus all Unrecovered Liabilities and Judgments and all other amounts required to be paid under this Section 19 and any other provision hereof, such excess shall be paid by the Lessor to the Lessee; provided, however, that the Lessee shall remain liable for any Unrecovered Liabilities and Judgments that arise after the payment of such excess proceeds to the extent such Unrecovered Liabilities and Judgments arise from or relate to acts or omissions occurring, or circumstances or conditions created or existing at any time as of or prior to the expiration or termination of this Lease. As an alternative to any such sale, the Lessor may require the Lessee to pay to the Lessor, and the Lessee shall pay to the Lessor, as liquidated damages and not as a penalty, an amount equal to the Adjusted Acquisition Cost. If the Lessor subsequently sells its interest in the Project, the proceeds of any such sale shall be distributed as provided in the third and fourth sentences of this paragraph. If the Lessee converts the Project or any part thereof after an Event of Default, or if the Project suffers an Event of Loss or is otherwise lost or destroyed at the time of the Event of Default the Lessor may require the Lessee to pay to the Lessor, and the Lessee shall pay to the Lessor, as liquidated damages and not as a penalty, an amount equal to the Adjusted Acquisition Cost. In the event the Lessor receives indefeasible payment from the Lessee of the Adjusted Acquisition Cost of the Project and all Unrecovered Liabilities and Judgments, the Lessor shall transfer all of the Lessor's right, title and interest in and to the Project, the Ground Lease, the Easements, the EPC Contract and any other Project Contract to the Lessee. In the event of a sale pursuant to this Section 19, upon indefeasible receipt by the Lessor of the amounts payable hereunder, the Lessor shall transfer all of the Lessor's right, title and interest in and to the Project to a purchaser other than the Lessee or to the Lessee, as the case may be. In the event the Lessor is not paid an amount equal to the Adjusted Acquisition Cost and all Unrecovered Liabilities and Judgments, then, in addition to the Lessor's other rights in this Section 19, the Lessee shall upon the Lessor's request (i) assign (or if not legally assignable, cooperate and assist to the extent necessary or required in the transfer or reissuance thereof) to the Lessor (or to an assignee designated by the Lessor or Assignee), at no cost, all right, title and interest of the Lessee in, to and under all Governmental Actions and Intellectual Property Rights needed for the equipping, maintenance, operation or use of the Project and obtained and held by the Lessee at that time, (ii) assign to the Lessor (or to a foreclosure purchaser designated by the Lessor or Assignee), at no cost, all right, title and interest of the Lessee in, to and under the Project Contracts, and in the event any additional consent of any party to a Project Contract is required as a precondition thereunder to an assignment to any other third party assignee designated by the Lessor or Assignee, use its best efforts to obtain any such required consent to such proposed non-foreclosure assignment and assumption of the Project Contracts; and (iii) assign to the Lessor, at no cost, all right, title and interest of the Lessee in, to and under all service agreements in existence at the time of such sale and transferable by the Lessee and any easements available to the Lessee and transferable by the Lessee in connection with the equipping, maintenance, operation or use of the Project. The Lessee acknowledges that it would be difficult to ascertain the value to the Lessor of the Lessee's agreement to assign, transfer or have reissued to the Lessor such Governmental Actions and Intellectual Property Rights, to assign such Project Contracts (and, if necessary, to obtain such consents to such assignment) and to assign to the Lessor such service agreements and easements or to adequately compensate the Lessor by an award of damages for the Lessee's failure to assign to the Lessor such Governmental Actions and Intellectual Property Rights, to assign such Project Contracts (and, if necessary, to obtain such consents to such assignment) and to assign to the Lessor such service agreements and easements, and that therefore the Lessor would not have an adequate remedy at law for breach by the Lessee of its agreement hereunder to the Lessor. Accordingly, the Lessee acknowledges that the Lessor shall be entitled to obtain specific performance of the Lessee's obligation to assign to the Lessor such Governmental Actions and Intellectual Property Rights, to obtain such consents to such assignment and to assign to the Lessor the service agreements and easements. In the event the Lessee fails to obtain any consents required in clause (ii) of the third preceding sentence, at the request of the Lessor or such purchaser, as the case may be, the Lessee shall agree to (A) at the expense of such purchaser or the Lessor, as the case may be, continue to perform under and maintain in full force and effect the Project Contracts and pay all sums received under the Project Contracts to such third party or the Lessor, as the case may be, (B) at the expense of such third party or the Lessor, as the case may be, and subject to the receipt of indemnification reasonably acceptable to the Lessee, take all actions requested by such third party or the Lessor, as the case may be, with respect to such Project Contracts (including all actions with respect to the enforcement of the Lessee's rights and remedies under such Project Contracts), and (C) not amend, modify, supplement, waive a provision of, grant any consent under or terminate any such Project Contract without the prior written consent of such third party or the Lessor, as the case may be. In addition to its other rights in this Section 19, the Lessor may exercise its various rights under the Facility Support Agreement or transfer such rights to the purchaser in a sale and the Lessee acknowledges hereby its agreement to perform its obligations thereunder. No remedy referred to in this Section 19 is intended to be exclusive, but each shall be cumulative and in addition to any other remedy referred to above or otherwise available to the Lessor at law or in equity, and the exercise in whole or in part by the Lessor of any one or more of such remedies shall not preclude the simultaneous or later exercise by the Lessor of any or all such other remedies. No waiver by the Lessor of any Event of Default hereunder shall in any way be, or be construed to be, a waiver of any future or subsequent Event of Default. With respect to the termination of this Lease as a result of an Event of Default, the Lessee hereby waives service of any notice of intention to re-enter. The Lessee hereby waives any and all rights to recover or regain possession of the Project or to reinstate this Lease as permitted or provided by or under any statute, law or decision now or hereafter in force and effect.
Appears in 1 contract
After an Event of Default. the Lessor Owner may sell its interest in the Project upon any terms that the Lessor Owner deems satisfactory, free of any rights of the Lessee Agent or any Person claiming through or under the Lessee Agent (including, without limitation, any rights hereunder or under the Agreement for LeaseLease or the Project Contracts). In the event of any such sale, in addition to the Lessor Accrued Default Obligations, Owner shall be entitled to recover from the LesseeAgent, as liquidated damages and not as a penalty, and subject to the second succeeding sentence, an amount equal to the Adjusted Acquisition Cost, minus the proceeds of such sale received by Owner. Proceeds of sale received by the Lessor Owner in excess of the Adjusted Acquisition Cost shall be credited against the amounts the Lessee Accrued Default Obligations Agent is required to pay under this Section 19 and any other provision hereofsubsection 11.2. If such excess proceeds and/or such amounts exceed the Accrued Default Obligations plus the Adjusted Acquisition Cost, exceed the sum of (i) the Adjusted Acquisition Cost and (ii) any Unrecovered Liabilities and Judgments, and if the Lessee Agent has indefeasibly paid the Adjusted Acquisition Cost, plus all Unrecovered Liabilities and Judgments and all other amounts required to be paid under this Section 19 and any other provision hereofsubsection 11.2, such excess shall be paid by the Lessor Owner to the LesseeAgent; provided, however, that the Lessee Agent shall remain be liable for any Unrecovered Liabilities and Judgments that arise after the payment of such excess proceeds to the extent such Unrecovered Liabilities and Judgments arise from or relate to acts or omissions occurring, or circumstances or conditions created or existing existing, at any time as of or prior to the expiration or termination of this LeaseAgreement. As an alternative to any such sale, or if Agent converts the Lessor Project after an Event of Default, or if the Project is lost or destroyed after an Event of Default has occurred, in addition to the Accrued Default Obligations, Owner may require the Lessee cause Agent to pay to the LessorOwner, and the Lessee Agent shall pay to the LessorOwner, as liquidated damages and not as a penalty, an amount equal to the Adjusted Acquisition Cost. If the Lessor subsequently sells its interest in the Project, the proceeds of any such sale shall be distributed as provided in the third and fourth sentences of this paragraph. If the Lessee converts the Project or any part thereof after an Event of Default, or if the Project suffers an Event of Loss or is otherwise lost or destroyed at the time of the Event of Default the Lessor may require the Lessee to pay to the Lessor, and the Lessee Owner shall pay have no further obligation to the Lessor, as liquidated damages and not as a penalty, an amount equal to the Adjusted Acquisition Costreimburse Agent for any Unreimbursed Project Costs. In the event the Lessor Owner receives indefeasible payment from the Lessee of the Adjusted Acquisition Cost of Cost, the Project Accrued Default Obligations and all the Unrecovered Liabilities and Judgments, the Lessor Owner shall transfer all of the LessorOwner's right, title and interest in and to the Project, the Ground Leaseincluding without limitation, the Easementsdelivery of the documents contemplated in Section 14 below, the EPC Contract and any other Project Contract to the LesseeAgent. In the event of a sale pursuant to this Section 19subsection 11.2, upon indefeasible receipt by the Lessor Owner of the amounts payable hereunder, the Lessor Owner shall transfer all of the LessorOwner's right, title and interest in and to the Project to a purchaser other than the Lessee Agent or to the LesseeAgent, as the case may be. In the event the Lessor Owner is not paid an amount equal to the Adjusted Acquisition Cost plus the Accrued Default Obligations and all Unrecovered Liabilities and Judgments, then, in addition to the LessorOwner's other rights in this Section 19subsection 11.2, the Lessee Agent shall upon the LessorOwner's request (i) assign (or if not legally assignable, cooperate and assist to the extent necessary or required in the transfer or reissuance thereof) to the Lessor Owner (or to an assignee designated by the Lessor Owner or Assignee), at no cost, all right, title and interest of the Lessee Agent in, to and under all Construction Documents, Governmental Actions and Intellectual Property Rights needed for the equipping, maintenance, operation or use of the Project and obtained and held by the Lessee Agent at that time, (ii) assign to the Lessor Owner (or to a foreclosure purchaser designated by the Lessor Owner or Assignee), at no cost, all right, title and interest of the Lessee Agent in, to and under the Project Contracts, and in the event any additional consent of any party to a Project Contract is required as a precondition thereunder to an assignment to any other third party assignee designated by the Lessor Owner or Assignee, use its best efforts to obtain any such required consent to such proposed non-foreclosure assignment and assumption of the Project Contracts; Contracts and (iii) assign to the LessorOwner, at no cost, all right, title and interest of the Lessee Agent in, to and under all service agreements in existence at the time of such sale and transferable by the Lessee Agent and any easements available to the Lessee Agent and transferable by the Lessee Agent in connection with the equipping, maintenance, operation or use of the Project. The Lessee Agent acknowledges that it would be difficult to ascertain the value to the Lessor Owner of the LesseeAgent's agreement to assign, transfer or have reissued to the Lessor Owner such Construction Documents, Governmental Actions and Intellectual Property Rights, to assign such Project Contracts (and, if necessary, to obtain such consents to such assignment) and to assign to the Lessor Owner such service agreements and easements or to adequately compensate the Lessor Owner by an award of damages for the LesseeAgent's failure to assign to the Lessor Owner such Construction Documents, Governmental Actions and Intellectual Property Rights, to assign such Project Contracts (and, if necessary, to obtain such consents to such assignment) and to assign to the Lessor Owner such service agreements and easements, and that therefore the Lessor Owner would not have an adequate remedy at law for breach by the Lessee Agent of its agreement hereunder to the LessorOwner. Accordingly, the Lessee Agent acknowledges that the Lessor Owner shall be entitled to obtain specific performance of the LesseeAgent's obligation to assign to the Lessor Owner such Construction Documents, Governmental Actions and Intellectual Property Rights, to obtain such consents to such assignment and to assign to the Lessor Owner the service agreements and easements. In the event the Lessee Agent fails to obtain any consents required in clause (ii) of the third preceding sentence, at the request of the Lessor Owner or such purchaser, as the case may be, the Lessee Agent shall agree to (A1) at the expense of such purchaser or the LessorOwner, as the case may be, continue to perform under and maintain in full force and effect the Project Contracts and pay all sums received under the Project Contracts to such third party or the LessorOwner, as the case may be, (B2) at the expense of such third party or the LessorOwner, as the case may be, and subject to the receipt of indemnification reasonably acceptable to the LesseeAgent, take all actions requested by such third party or the LessorOwner, as the case may be, with respect to such Project Contracts (including all actions with respect to the enforcement of the LesseeAgent's rights and remedies under such Project Contracts), and (C3) not amend, modify, supplement, waive a provision of, grant any consent under or terminate any such Project Contract without the prior written consent of such third party or the LessorOwner, as the case may be. In addition to its other rights in this Section 19subsection 11.2, the Lessor Owner may exercise its various rights under the Facility Support Agreement or transfer such rights to the purchaser in a sale and the Lessee Agent acknowledges hereby its agreement to perform its obligations thereunder. No remedy referred to in this Section 19 subsection 11.2 is intended to be exclusive, but each shall be cumulative and in addition to any other remedy referred to above or otherwise available to the Lessor Owner at law or in equity, and the exercise in whole or in part by the Lessor Owner of any one or more of such remedies shall not preclude the simultaneous or later exercise by the Lessor Owner of any or all such other remedies. No waiver by the Lessor Owner of any Event of Default hereunder shall in any way be, or be construed to be, a waiver of any future or subsequent Event of Default. With respect to the termination of this Lease Agreement as a result of an Event of Default, the Lessee Agent hereby waives service of any notice of intention to re-enter. The Lessee To the extent permitted by applicable law, Agent hereby waives any and all rights to recover or regain possession of the Project or to reinstate this Lease Agreement as permitted or provided by or under any statute, law or decision now or hereafter in force and effect.
Appears in 1 contract
After an Event of Default. the Lessor may sell its interest in the Project any Property and Equipment in any commercially reasonable manner upon any terms that the Lessor deems satisfactory, free of any rights of the Lessee or any Person claiming through or under the Lessee (including, without limitation, any rights hereunder or under the Agreement for Lease)Lessee. In the event of any such salesale or in the event the Lessor elects not to sell any Property or Equipment, in addition to the Accrued Default Obligations, the Lessor shall be entitled to recover from the Lessee, as liquidated damages damages, and not as a penalty, and subject to the second succeeding sentence, an amount equal to eighty-five percent (85%) of the Adjusted Acquisition CostCost of any Property or Equipment under this Lease. Proceeds of any such sale received by the Lessor, or, in the event the Lessor elects not to sell, proceeds at any time thereafter received by the Lessor from any sale, occupation, operation, use or lease of any Property or Equipment (net of all reasonable costs and expenses incurred by the Lessor in connection with any sale, 56 58 THIS AMENDED AND RESTATED AGREEMENT FOR LEASE IS CONFIDENTIAL AND PROPRIETARY occupation, operation, use or lease of any Property or Equipment) in excess of fifteen percent (15%) of the Adjusted Acquisition Cost of such Property or Equipment, shall be credited against the amounts Accrued Default Obligations the Lessee is required to pay under this Section 19 and any other provision hereof19. If such excess proceeds plus the Adjusted Acquisition Cost, exceed the sum of (i) the Adjusted Acquisition Cost and (ii) any Unrecovered Liabilities and JudgmentsAccrued Default Obligations, and or, if the Lessee has indefeasibly paid the Adjusted Acquisition Cost, plus all Unrecovered Liabilities and Judgments and all other amounts required to be paid under this Section 19 and any other provision hereof19, such excess shall be paid by the Lessor to the Lessee; provided, however, that . If the Lessee shall remain liable for converts any Unrecovered Liabilities and Judgments that arise such Property or Equipment after the payment an Event of Default, or if such excess proceeds Property or Equipment is lost or destroyed, in addition to the extent such Unrecovered Liabilities and Judgments arise from or relate to acts or omissions occurring, or circumstances or conditions created or existing at any time as of or prior to the expiration or termination of this Lease. As an alternative to any such saleAccrued Default Obligations, the Lessor may require cause the Lessee to pay to the Lessor, and the Lessee shall pay to the Lessor, as liquidated damages and not as a penalty, an amount equal to the Adjusted Acquisition Cost. If the Lessor subsequently sells its interest in the Project, the proceeds of any such sale shall be distributed as provided in the third and fourth sentences of this paragraph. If the Lessee converts the Project or any part thereof after an Event of Default, or if the Project suffers an Event of Loss or is otherwise lost or destroyed at the time eighty-five percent (85%) of the Event of Default the Lessor may require the Lessee to pay to the Lessor, and the Lessee shall pay to the Lessor, as liquidated damages and not as a penalty, an amount equal to the Adjusted Acquisition Cost. In the event the Lessor receives indefeasible payment from the Lessee of the Adjusted Acquisition Cost of the Project and all Unrecovered Liabilities and Judgments, the Lessor shall transfer all of the Lessor's right, title and interest in and to the Project, the Ground Lease, the Easements, the EPC Contract and any other Project Contract to the Lessee. In the event of a sale pursuant to this Section 19, upon indefeasible receipt by the Lessor of the amounts payable hereunder, the Lessor shall transfer all of the Lessor's right, title and interest in and to the Project to a purchaser other than the Lessee such Property or to the Lessee, as the case may be. In the event the Lessor is not paid an amount equal to the Adjusted Acquisition Cost and all Unrecovered Liabilities and Judgments, then, in addition to the Lessor's other rights in this Section 19, the Lessee shall upon the Lessor's request (i) assign (or if not legally assignable, cooperate and assist to the extent necessary or required in the transfer or reissuance thereof) to the Lessor (or to an assignee designated by the Lessor or Assignee), at no cost, all right, title and interest of the Lessee in, to and under all Governmental Actions and Intellectual Property Rights needed for the equipping, maintenance, operation or use of the Project and obtained and held by the Lessee at that time, (ii) assign to the Lessor (or to a foreclosure purchaser designated by the Lessor or Assignee), at no cost, all right, title and interest of the Lessee in, to and under the Project Contracts, and in the event any additional consent of any party to a Project Contract is required as a precondition thereunder to an assignment to any other third party assignee designated by the Lessor or Assignee, use its best efforts to obtain any such required consent to such proposed non-foreclosure assignment and assumption of the Project Contracts; and (iii) assign to the Lessor, at no cost, all right, title and interest of the Lessee in, to and under all service agreements in existence at the time of such sale and transferable by the Lessee and any easements available to the Lessee and transferable by the Lessee in connection with the equipping, maintenance, operation or use of the Project. The Lessee acknowledges that it would be difficult to ascertain the value to the Lessor of the Lessee's agreement to assign, transfer or have reissued to the Lessor such Governmental Actions and Intellectual Property Rights, to assign such Project Contracts (and, if necessary, to obtain such consents to such assignment) and to assign to the Lessor such service agreements and easements or to adequately compensate the Lessor by an award of damages for the Lessee's failure to assign to the Lessor such Governmental Actions and Intellectual Property Rights, to assign such Project Contracts (and, if necessary, to obtain such consents to such assignment) and to assign to the Lessor such service agreements and easements, and that therefore the Lessor would not have an adequate remedy at law for breach by the Lessee of its agreement hereunder to the Lessor. Accordingly, the Lessee acknowledges that the Lessor shall be entitled to obtain specific performance of the Lessee's obligation to assign to the Lessor such Governmental Actions and Intellectual Property Rights, to obtain such consents to such assignment and to assign to the Lessor the service agreements and easements. In the event the Lessee fails to obtain any consents required in clause (ii) of the third preceding sentence, at the request of the Lessor or such purchaser, as the case may be, the Lessee shall agree to (A) at the expense of such purchaser or the Lessor, as the case may be, continue to perform under and maintain in full force and effect the Project Contracts and pay all sums received under the Project Contracts to such third party or the Lessor, as the case may be, (B) at the expense of such third party or the Lessor, as the case may be, and subject to the receipt of indemnification reasonably acceptable to the Lessee, take all actions requested by such third party or the Lessor, as the case may be, with respect to such Project Contracts (including all actions with respect to the enforcement of the Lessee's rights and remedies under such Project Contracts), and (C) not amend, modify, supplement, waive a provision of, grant any consent under or terminate any such Project Contract without the prior written consent of such third party or the Lessor, as the case may be. In addition to its other rights in this Section 19, the Lessor may exercise its various rights under the Facility Support Agreement or transfer such rights to the purchaser in a sale and the Lessee acknowledges hereby its agreement to perform its obligations thereunder. No remedy referred to in this Section 19 is intended to be exclusive, but each shall be cumulative and in addition to any other remedy referred to above or otherwise available to the Lessor at law or in equity, and the exercise in whole or in part by the Lessor of any one or more of such remedies shall not preclude the simultaneous or later exercise by the Lessor of any or all such other remedies. No waiver by the Lessor of any Event of Default hereunder shall in any way be, or be construed to be, a waiver of any future or subsequent Event of Default. With respect to the termination of this Lease as a result of an Event of Default, the Lessee hereby waives service of any notice of intention to re-enter. The Lessee hereby waives any and all rights to recover or regain possession of the Project or to reinstate this Lease as permitted or provided by or under any statute, law or decision now or hereafter in force and effectEquipment.
Appears in 1 contract
Sources: Lease Agreement (Potash Corporation of Saskatchewan Inc)
After an Event of Default. the Lessor Owner may sell its interest in the Project any Unit Premises, Unit Improvements, Unit FF&E, and Unit upon any terms that the Lessor Owner deems satisfactory, free of any rights of the Lessee Agent or any Person claiming through or under the Lessee (including, without limitation, any rights hereunder or under the Agreement for Lease)Agent. In the event of any such sale, in addition to the Lessor Accrued Default Obligations, Owner shall be entitled to recover from the LesseeAgent, as liquidated damages damages, and not as a penalty, and subject to the second succeeding sentence, an amount equal to the Adjusted Unit Acquisition CostCost of any Unit Premises, Unit Improvements, Unit FF&E or Unit so sold, minus the proceeds of such sale received by Owner. Proceeds of sale received by the Lessor Owner in excess of the Adjusted Unit Acquisition Cost of such Unit Premises, Unit Improvements, Unit FF&E or Unit sold shall be credited against the amounts the Lessee Accrued Default Obligations Agent is required to pay under this Section 19 and any other provision hereofsubsection 11.2. If such proceeds plus the Adjusted Acquisition Cost, exceed the sum of (i) the Adjusted Acquisition Cost and (ii) any Unrecovered Liabilities and JudgmentsAccrued Default Obligations, and or, if the Lessee Agent has indefeasibly paid the Adjusted Acquisition Cost, plus all Unrecovered Liabilities and Judgments and all other amounts required to be paid under this Section 19 and any other provision hereofsubsection 11.2, such excess shall be paid by the Lessor Owner to the Lessee; provided, however, that the Lessee shall remain liable for any Unrecovered Liabilities and Judgments that arise after the payment of such excess proceeds to the extent such Unrecovered Liabilities and Judgments arise from or relate to acts or omissions occurring, or circumstances or conditions created or existing at any time as of or prior to the expiration or termination of this LeaseAgent. As an alternative to any such sale, or if Agent converts any Unit Premises, Unit Improvements, Unit FF&E THIS AGREEMENT FOR LEASE IS CONFIDENTIAL AND PROPRIETARY or Unit after an Event of Default, or if such Unit Premises, Unit Improvements, Unit FF&E or Unit is lost or destroyed, in addition to the Lessor Accrued Default Obligations, Owner may require the Lessee cause Agent to pay to the LessorOwner, and the Lessee Agent shall pay to the LessorOwner, as liquidated damages and not as a penalty, an amount equal to the Adjusted Unit Acquisition Cost. If the Lessor subsequently sells its interest in the ProjectCost of such Unit Premises, the proceeds of any such sale shall be distributed as provided in the third and fourth sentences of this paragraph. If the Lessee converts the Project Unit Improvements, Unit FF&E or any part thereof after an Event of Default, or if the Project suffers an Event of Loss or is otherwise lost or destroyed at the time of the Event of Default the Lessor may require the Lessee to pay to the Lessor, and the Lessee shall pay to the Lessor, as liquidated damages and not as a penalty, an amount equal to the Adjusted Acquisition CostUnit. In the event Owner receives payment pursuant to the Lessor receives indefeasible payment from the Lessee previous sentence of the Adjusted Acquisition Cost of the Project and all Unrecovered Liabilities and Judgmentsthis paragraph, the Lessor Owner shall transfer all of the LessorOwner's right, title and interest in and to the ProjectUnit Premises, the Ground LeaseUnit Improvements, the Easements, the EPC Contract Unit FF&E and any other Project Contract Unit to the LesseeAgent. In the event of a sale pursuant to this Section 19subsection 11.2, upon indefeasible receipt by the Lessor Owner of the amounts payable hereunder, the Lessor Owner shall transfer all of the LessorOwner's right, title and interest in and to the Project Unit Premises, Unit Improvements, Unit FF&E and Unit to Agent or a purchaser other than the Lessee or to the LesseeAgent, as the case may be. In the event the Lessor is not paid an amount equal to the Adjusted Acquisition Cost and all Unrecovered Liabilities and Judgments, then, in addition to the Lessor's other rights in this Section 19, the Lessee shall upon the Lessor's request (i) assign (or if not legally assignable, cooperate and assist to the extent necessary or required in the transfer or reissuance thereof) to the Lessor (or to an assignee designated by the Lessor or Assignee), at no cost, all right, title and interest of the Lessee in, to and under all Governmental Actions and Intellectual Property Rights needed for the equipping, maintenance, operation or use of the Project and obtained and held by the Lessee at that time, (ii) assign to the Lessor (or to a foreclosure purchaser designated by the Lessor or Assignee), at no cost, all right, title and interest of the Lessee in, to and under the Project Contracts, and in the event any additional consent of any party to a Project Contract is required as a precondition thereunder to an assignment to any other third party assignee designated by the Lessor or Assignee, use its best efforts to obtain any such required consent to such proposed non-foreclosure assignment and assumption of the Project Contracts; and (iii) assign to the Lessor, at no cost, all right, title and interest of the Lessee in, to and under all service agreements in existence at the time of such sale and transferable by the Lessee and any easements available to the Lessee and transferable by the Lessee in connection with the equipping, maintenance, operation or use of the Project. The Lessee acknowledges that it would be difficult to ascertain the value to the Lessor of the Lessee's agreement to assign, transfer or have reissued to the Lessor such Governmental Actions and Intellectual Property Rights, to assign such Project Contracts (and, if necessary, to obtain such consents to such assignment) and to assign to the Lessor such service agreements and easements or to adequately compensate the Lessor by an award of damages for the Lessee's failure to assign to the Lessor such Governmental Actions and Intellectual Property Rights, to assign such Project Contracts (and, if necessary, to obtain such consents to such assignment) and to assign to the Lessor such service agreements and easements, and that therefore the Lessor would not have an adequate remedy at law for breach by the Lessee of its agreement hereunder to the Lessor. Accordingly, the Lessee acknowledges that the Lessor shall be entitled to obtain specific performance of the Lessee's obligation to assign to the Lessor such Governmental Actions and Intellectual Property Rights, to obtain such consents to such assignment and to assign to the Lessor the service agreements and easements. In the event the Lessee fails to obtain any consents required in clause (ii) of the third preceding sentence, at the request of the Lessor or such purchaser, as the case may be, the Lessee shall agree to (A) at the expense of such purchaser or the Lessor, as the case may be, continue to perform under and maintain in full force and effect the Project Contracts and pay all sums received under the Project Contracts to such third party or the Lessor, as the case may be, (B) at the expense of such third party or the Lessor, as the case may be, and subject to the receipt of indemnification reasonably acceptable to the Lessee, take all actions requested by such third party or the Lessor, as the case may be, with respect to such Project Contracts (including all actions with respect to the enforcement of the Lessee's rights and remedies under such Project Contracts), and (C) not amend, modify, supplement, waive a provision of, grant any consent under or terminate any such Project Contract without the prior written consent of such third party or the Lessor, as the case may be. In addition to its other rights in this Section 19, the Lessor may exercise its various rights under the Facility Support Agreement or transfer such rights to the purchaser in a sale and the Lessee acknowledges hereby its agreement to perform its obligations thereunder. No remedy referred to in this Section 19 subsection 11.2 is intended to be exclusive, but each shall be cumulative and in addition to any other remedy referred to above or otherwise available to the Lessor Owner at law or in equity, and the exercise in whole or in part by the Lessor Owner of any one or more of such remedies shall not preclude the simultaneous or later exercise by the Lessor Owner of any or all such other remedies. No waiver by the Lessor Owner of any Event of Default hereunder shall in any way be, or be construed to be, a waiver of any future or subsequent Event of Default. With respect to the termination of this Lease Agreement as to any Unit Premises, Unit Improvements, Unit FF&E, or Unit as a result of an Event of Default, the Lessee Agent hereby waives service of any notice of intention to re-enter. The Lessee Agent hereby waives any and all rights to recover or regain possession of the Project any Unit Premises, Unit Improvements, Unit FF&E, or Unit or to reinstate this Lease Agreement as permitted or provided by or under any statute, law or decision now or hereafter in force and effect.
Appears in 1 contract