Option to Remarket. Subject to the fulfillment of each of the conditions set forth in this Section 20.1 and Section 20.2 (collectively, the "Return Conditions"), the Lessee shall have the option (the "Remarketing Option") to remarket and complete the sale of all of the Properties for the Lessor Trust. The Lessee's effective exercise and consummation of the Remarketing Option shall be subject to the due and timely fulfillment of each of the following provisions and the provisions of Section 20.2 as to each of the Properties as of the dates set forth below. (a) Unless a longer period is called for pursuant to any Requirement of Law, on the date not later than three hundred sixty-five (365) days prior to the Expiration Date, the Lessee shall give to the Agent Certificate Holder and the Administrative Agent written notice of the Lessee's exercise of the Remarketing Option. (b) Not later than one hundred and twenty (120) days prior to the Expiration Date, the Lessee shall deliver to the Agent Certificate Holder an Environmental Audit for each Property. Such Environmental Audit shall be prepared by an environmental consultant selected by the Agent Certificate Holder in the Agent Certificate Holder's discretion and shall contain conclusions satisfactory to the Agent Certificate Holder as to the environmental status of each Property. If any such Environmental Audit indicates any exceptions calling for a Phase Two environmental assessment, the Lessee shall have also delivered prior to the Expiration Date a Phase Two environmental assessment by such environmental consultant and a written statement by such environmental consultant indicating that all such exceptions have been remedied in compliance with Applicable Law. (c) On the date of the Lessee's notice to the Agent Certificate Holder of the Lessee's exercise of the Remarketing Option, no Lease Event of Default or Lease Default shall exist, and, thereafter, no Lease Event of Default or Lease Default shall occur. (d) The Completion Date shall have occurred with respect to each Property prior to the Lessee's delivery of notice of its intention to exercise the Remarketing Option, and each parcel of Land subject to any ground lease shall be a separate tax lot. (e) The Lessee shall have substantially completed all Modifications, restoration and rebuilding of the relevant Properties pursuant to Sections 10.1 and 14.1 (as the case may be) and shall have fulfilled all of the conditions and requirements in connection therewith pursuant to such Sections, in each case prior to the date on which the Agent Certificate Holder receives the Lessee's notice of the Lessee's intention to exercise the Remarketing Option (time being of the essence), regardless of whether the same shall be within the Lessee's control. Lessee shall have also paid the cost of all Modifications commenced prior to the Expiration Date. Lessee shall not have been excused pursuant to Section 12.1 from complying with any Applicable Law that involved the extension of the ultimate imposition of such Applicable Law beyond the Expiration Date. Any Permitted Property Liens (other than Lessor Liens) on any Property that were contested by Lessee shall have been removed and the Agent Certificate Holder shall have received evidence satisfactory to it that all Liens (other than Lessor Liens and uncontested Permitted Property Liens of the type described in clauses (i), (vii), (ix) and (x) of the definition thereof) have been removed.
Appears in 2 contracts
Sources: Participation Agreement (Mondavi Robert Corp), Participation Agreement (Mondavi Robert Corp)
Option to Remarket. Subject to the fulfillment of each of the conditions set forth in this Section 20.1 and Section 20.2 (collectively14.6, the "Return Conditions"), the Lessee shall have the option to market all of, but not less than all of, the Leased Properties for Lessor (the "Remarketing Option") to remarket and complete the sale of all of the Properties for the Lessor Trust). The Lessee's effective exercise and consummation of the Remarketing Option shall be subject to the due and timely fulfillment of each of the following provisions provisions, the failure of any of which, unless waived in writing by Lessor and the provisions of Lenders, shall render the Remarketing Option and Lessee's exercise thereof null and void, in which event, Lessee shall be obligated to perform its obligations under Section 20.2 as to each of the Properties as of the dates set forth below14.2.
(a) Unless a longer period is called for pursuant to any Requirement of Law, on the date not Not later than three hundred sixty-five (365) days twelve months prior to the Expiration Lease Termination Date, the Lessee shall give to the Agent Certificate Holder Lessor and the Administrative Agent written notice of the Lessee's exercise of the Remarketing Option, which exercise shall be irrevocable.
(b) Not later than one hundred ten (10) Business Days prior to the Lease Termination Date, Lessee shall deliver to Lessor and twenty the Agent an environmental assessment of each Leased Property dated not later than forty-five (12045) days prior to the Expiration Lease Termination Date, the Lessee shall deliver to the Agent Certificate Holder an Environmental Audit for each Property. Such Environmental Audit environmental assessment shall be prepared by an environmental consultant selected by the Agent Certificate Holder Required Funding Parties, shall be in the Agent Certificate Holder's discretion form, detail and shall contain conclusions substance reasonably satisfactory to the Agent Certificate Holder as to Required Funding Parties, and shall otherwise indicate the environmental status condition of each Property. If any such Leased Property to be the same as described in the related Environmental Audit indicates any exceptions calling for a Phase Two environmental assessment, the Lessee shall have also delivered prior to the Expiration Date a Phase Two environmental assessment by such environmental consultant and a written statement by such environmental consultant indicating that all such exceptions have been remedied in compliance with Applicable LawAudit.
(c) On the date of the Lessee's notice to Lessor and the Agent Certificate Holder of the Lessee's exercise of the Remarketing Option, Option each of the Construction Conditions shall have been timely satisfied and no Lease Event of Default or Lease Potential Event of Default shall exist, and, and thereafter, no Lease Event of Default or Lease Potential Event of Default shall occurexist under this Lease.
(d) The Completion Date shall have occurred with respect to each Property prior to the Lessee's delivery of notice of its intention to exercise the Remarketing Option, and each parcel of Land subject to any ground lease shall be a separate tax lot.
(e) The Lessee shall have substantially completed all ModificationsAlterations, restoration and rebuilding of the relevant Leased Properties pursuant to Sections 10.1 6.1, 6.2, 10.3 and 14.1 10.4 (as the case may be) and shall have fulfilled all of the conditions and requirements in connection therewith pursuant to such said Sections, in each case prior to by the date on which Lessor and the Agent Certificate Holder receives the receive Lessee's notice of the Lessee's intention to exercise of the Remarketing Option (time being of the essence), regardless of whether the same shall be within the Lessee's control.
(e) Lessee shall promptly provide any maintenance records relating to each Leased Property to Lessor, the Agent and any potential purchaser upon request, and shall otherwise do all things necessary to deliver possession of such Leased Property to the potential purchaser. Lessee shall have also paid allow Lessor, the Agent and any potential purchaser access to any Leased Property for the purpose of inspecting the same.
(f) On the Lease Termination Date, Lessee shall surrender the Leased Properties in accordance with Section 14.8 hereof.
(g) In connection with any such sale of the Leased Properties, Lessee will provide to the purchaser all customary "seller's" indemnities, representations and warranties regarding title, absence of Liens (except Lessor Liens) and the condition of the Leased Properties, including, without limitation, an environmental indemnity. Lessee shall fulfill all of the requirements set forth in clause (b) of Section 14.5, and such requirements are incorporated herein by reference. As to Lessor, any such sale shall be made on an "as is, with all faults" basis without representation or warranty by Lessor, other than the absence of Lessor Liens.
(h) In connection with any such sale of Leased Properties, Lessee shall pay directly, and not from the sale proceeds, all prorations, credits, costs and expenses of the sale of the Leased Properties, whether incurred by Lessor, any Lender, the Agent or Lessee, including without limitation, the cost of all Modifications commenced title insurance, surveys, environmental reports, appraisals, transfer taxes, Lessor's and the Agent's attorneys' fees, Lessee's attorneys' fees, commissions, escrow fees, recording fees, and all applicable documentary and other transfer taxes.
(i) Lessee shall pay to the Agent on the Lease Termination Date (or to such other Person as Agent shall notify Lessee in writing, or in the case of Supplemental Rent, to the Person entitled thereto) an amount equal to the Recourse Deficiency Amount, plus all accrued and unpaid Basic Rent and Supplemental Rent, and all other amounts hereunder which have accrued prior to the Expiration Date. Lessee shall not have been excused pursuant to Section 12.1 from complying with any Applicable Law that involved the extension of the ultimate imposition or as of such Applicable Law beyond the Expiration Date. Any Permitted Property Liens (other than Lessor Liens) on any Property that were contested by Lessee shall have been removed and the Agent Certificate Holder shall have received evidence satisfactory to it that all Liens (other than Lessor Liens and uncontested Permitted Property Liens of date, in the type described of funds specified in clauses (i), (vii), (ix) and (x) of the definition thereof) have been removed.Section 3.3
Appears in 1 contract
Sources: Master Agreement (Ruby Tuesday Inc)
Option to Remarket. Subject to the fulfillment of each of the conditions set forth in this Section 20.1 and Section 20.2 (collectively, the "Return Conditions")24.1, the Lessee shall have the option beginning on the second anniversary of the Start-Up Day (the "Remarketing Option") to remarket market and complete the sale of all of the Properties Property for the Lessor TrustLessor. The Lessee's effective exercise and consummation of the Remarketing Option shall be subject to the due and timely fulfillment of each of the following provisions and the provisions of Section 20.2 as to each of the Properties Property as of the dates set forth below.
(a) Unless a longer period is called for pursuant to any Requirement of Law, on the date not Not later than three one hundred sixty-five eighty (365180) days prior to the Expiration Date, the Lessee shall give to the Agent Certificate Holder and the Administrative Agent Lessor written notice of the Lessee's exercise of the Remarketing Option, which exercise shall be irrevocable. If Lessee does not deliver a notice of its intention not to renew this Lease as provided in Section 23.1 and fails to timely provide the Remarketing Notice, then this Lease shall be renewed for a Renewal Term as provided in Section 23.
1. If Lessee delivers the notice of its intention not to renew this Lease as provided in Section 23.1 and fails to timely provide the Remarketing Notice, then Lessee shall be deemed to have elected to exercise its Purchase Option under Section 22.1(i).
(b) Not later than one hundred and twenty (120) days prior to the Expiration Date, the Lessee shall deliver to the Agent Certificate Holder Lessor an Environmental Audit for each the Property. Such Environmental Audit shall be prepared by an environmental consultant selected by the Agent Certificate Holder Lessor in the Agent Certificate HolderLessor's reasonable discretion and shall contain conclusions reasonably satisfactory to the Agent Certificate Holder Lessor as to the environmental status of each the Property. If any such Environmental Audit indicates any exceptions calling for with respect to which a Phase Two environmental assessmentenvironment assessment is recommended, the Lessee shall have also delivered prior to the Expiration Date deliver (i) a Phase Two environmental assessment by such environmental consultant within thirty (30) days prior to the Expiration Date and (ii) a written statement by certificate of such environmental consultant indicating that prior to the Expiration Date showing the completion of all such exceptions have been remedied remedial action in compliance with Applicable Law.
(c) On the date of the Lessee's notice to the Agent Certificate Holder Lessor of the Lessee's exercise of the Remarketing Option, and on the Expiration Date, no Lease Event of Default or Lease Default shall exist, and, thereafter, no Lease Event of Default or Lease Default shall occur.
(d) The Completion Date shall have occurred with respect to each Property prior to the Lessee's delivery of notice of its intention to exercise the Remarketing Option, and each parcel of Land subject to any ground lease shall be a separate tax lot.
(e) The Lessee shall have substantially completed in all Material respects all Modifications, restoration and rebuilding of the relevant Properties Property pursuant to Sections 10.1 14.1 and 14.1 18.1 (as the case may be) and shall have fulfilled in all Material respects all of the conditions and requirements in connection therewith pursuant to such said Sections, in each case prior to by the date on which the Agent Certificate Holder Lessor receives the Lessee's notice of the Lessee's intention to exercise of the Remarketing Option (time being of the essence), regardless of whether the same shall be within the Lessee's control. The Lessee shall have also paid the cost of all Modifications commenced prior to the Expiration Date. The Lessee shall not have been excused pursuant to Section 12.1 16.1 from complying with any Applicable Law that involved the extension of the ultimate imposition of such Applicable Law beyond the Expiration Datelast day of the Term. Any Permitted Property Liens (other than Lessor Liens) on any the Property that were contested by the Lessee shall have been removed removed.
(e) During the Marketing Period, the Lessee shall, as nonexclusive agent for the Lessor, use best efforts to sell the Lessor's interest in the Property and will attempt to obtain the highest purchase price therefor and for not less than the Fair Market Sales Value of the Property. The Lessee will be responsible for hiring brokers and making the Property available for inspection by prospective purchasers. The Lessee shall promptly upon request permit inspection of the Property and any maintenance records relating to the Property by the Lessor and any potential purchasers, and shall otherwise do all things reasonably necessary to sell and deliver possession of the Property to any purchaser. All such marketing of the Property shall be at the Lessee's sole expense. The Lessee shall allow the Lessor and any potential qualified purchaser reasonable access to the Property for the purpose of inspecting the same.
(f) The Lessee shall submit all bids to the Lessor, and the Agent Certificate Holder Lessor will have the right to submit any one or more bids. The Lessee shall deliver to the Lessor, not less than thirty (30) days prior to the Expiration Date, binding written unconditional (except as set forth below), irrevocable offer or offers by such purchaser or purchasers offering the highest bid to purchase the Property. No such purchaser shall be the Lessee or an Affiliate of the Lessee. The written offer must specify the Expiration Date as the closing date unless the Lessor shall otherwise agree in its reasonable discretion. Any sale by the Lessee shall be for the highest cash bid submitted to the Lessor. The determination of the highest bid shall be made by the Lessor prior to the end of the Marketing Period, but in any event, the Lessor shall have received evidence satisfactory no obligation to it that approve any bid unless the aggregate amount of the highest bids for the Property equals or exceeds an amount equal to the Lease Balance minus the Contingent Rental Adjustment determined as of the Expiration Date. All bids shall be on an all-cash basis unless the Lessor shall otherwise agree in its sole discretion.
(g) In connection with any such sale of the Property, the Lessee will provide to each Purchaser all customary "seller's" indemnities, representations and warranties regarding absence of Liens (other than Lessor Liens) and the condition of the Property. The Lessee shall have obtained, at its cost and expense, all required governmental and regulatory consents and approvals and shall have made all filings as required by Applicable Law in order to carry out and complete the transfer of the Property. As to the Lessor, any such sale shall be made on an "as is, with all faults" basis without representation or warranty by the Lessor other than the absence of Lessor Liens. Any agreement as to such sale shall be made subject to the Lessor's rights hereunder.
(h) The Lessee shall pay directly, and not from the sale proceeds, all prorations, credits, costs and expenses of the sale of the Property, whether incurred by the Lessor or the Lessee, including without limitation, the cost of all title insurance, surveys, environmental reports, appraisals, transfer taxes, the Lessor's reasonable attorneys' fees, the Lessee's attorneys' fees, commissions, escrow fees, recording fees, and all applicable documentary and other transfer taxes.
(i) The Lessee shall pay to the Lessor on or prior to the Expiration Date (or to such other Person as the Lessor shall notify the Lessee in writing) an amount equal to the Contingent Rental Adjustment for the Property plus all Basic Rent and all other amounts hereunder which have accrued or will accrue prior to or as of the Expiration Date or such other closing date approved by the parties, in the type of funds specified in Section 7.4 hereof.
(j) The Lessee shall pay to the Lessor on or prior to the Expiration Date the amounts, if any, required to be paid pursuant to Section 26.2 hereof.
(k) If the Lessor approves any bid for the Property, the purchase of the Property shall be consummated on or before the Expiration Date and the gross proceeds (the "Gross Proceeds") of the sale of the Property, less the documented expenses incurred by the Lessee under clause (h) shall be paid directly to the Lessor; provided, however, that if the sum of (x) the remaining Gross Proceeds from such sale or sales plus (y) the Contingent Rental Adjustment received by the Lessor pursuant to clause (i) plus (z) amounts received by the Lessor pursuant to Section 26.2 hereof exceeds the Lease Balance as of such date, then the excess shall be paid to the Lessee on the Expiration Date or such other closing date approved by the parties.
(l) All reconstruction, refurbishment and repair to the Property resulting from a Casualty or Condemnation shall have been completed prior to the end of the Marketing Period. If one or more of the foregoing provisions shall not be fulfilled as of the date set forth above with respect to the Property, then the Lessor shall declare by written notice to the Lessee the Remarketing Option to be null and void (whether or not it has been theretofore exercised by the Lessee), in which event all of the Lessee's rights under this Section 24.1 shall immediately terminate and the Lessee shall be obligated to purchase the Property pursuant to Section 22.1 on the Expiration Date. Notwithstanding anything in this Lease to the contrary, in the event that the second anniversary of the Start-Up Day has not occurred prior to the Expiration Date, the Lessee shall pay the Equity Balance to the Lessor on the Expiration Date. If the Lessee effectively elects the Remarketing Option and no sale of the Property is consummated prior to the end of the Marketing Period, the Lessee shall, in addition to making the payment required pursuant to Section 24.1(i) above, return the Property to the Lessor (or to any other Person specified by the Lessor). In connection with any such return of the Property, the Lessee shall, at its own cost and expense, do each of the following:
(i) the Lessee shall, on or prior to the Expiration Date, execute and deliver to the Lessor (or to the Lessor's designee) (A) a deed with respect to the Property containing representations and warranties of grantor to the Lessor (or such other Person) regarding the absence of Liens and uncontested (other than Permitted Property Liens of the type described in clauses (i) and (iii) of the definition thereof), (viiB) a ▇▇▇▇ of sale with respect to any Equipment then located on the Property and (C) an assignment of the Lessee's entire interest in the Property (which shall include an assignment of all of the Lessee's right, title and interest in and to any Net Proceeds with respect to the Property not previously received by the Lessee and an assignment of leases of the Property), in each case in recordable form and otherwise in conformity with local custom and free and clear of any Liens attributable to the Lessee;
(ixii) the Lessee shall execute and deliver to Lessor and the Lessor's title insurance company an affidavit as to the absence of any Liens (other than Permitted Liens of the type described in clauses (i) and (xiii) of the definition thereof) and shall execute and deliver to the Lessor a statement of termination of this Lease to the extent relating to the Property;
(iii) the Lessee shall, on the Expiration Date, transfer possession of the Property to the Lessor or any Person designated by the Lessor, by surrendering the same into the possession of the Lessor or such Person, as the case may be, in the condition required by this Section 24.1 and in compliance with Applicable Law;
(iv) the Lessee shall, for a period of up to one year after the Expiration Date, cooperate reasonably with the Lessor and/or any Person designated by the Lessor to receive the Property, which cooperation shall include reasonable efforts with respect to the following, all of which the Lessee shall do on or before the Expiration Date or as soon thereafter as is reasonably practicable: providing copies of all books and records regarding the maintenance and ownership of the Property and all know-how, data and technical information relating thereto, granting or assigning all licenses necessary for the operation and maintenance of the Property and cooperating reasonably in seeking and obtaining all necessary Governmental Action. The obligations of the Lessee under this paragraph shall survive the expiration or termination of this Lease; and
(v) no subleases with respect to the Property or any portion thereof shall be in effect on the Expiration Date. Except as expressly set forth herein, the Lessee shall have been removedno right, power or authority to bind the Lessor in connection with any proposed sale or sales of the Property.
Appears in 1 contract
Option to Remarket. Subject to the fulfillment of each of the conditions set forth in this Section 20.1 and Section 20.2 (collectively, the "Return Conditions")SECTION 24.1, the Lessee shall have the option (the "Remarketing OptionREMARKETING OPTION") to remarket market and complete the sale of Lessor's interest in all of the Properties for Leased Assets on the Lessor TrustExpiration Date. The Lessee's effective exercise and consummation of the Remarketing Option shall be subject to the due and timely fulfillment of each of the following provisions and the provisions of Section 20.2 as to each of the Properties as of the dates set forth below.
(a) Unless a longer period is called for pursuant to any Requirement of Law, on the date not Not later than three hundred sixty-five six (3656) days months prior to the Expiration Date, the Lessee shall give to the Agent Certificate Holder and the Administrative Agent Lessor written notice of the Lessee's exercise of the Remarketing Option, which exercise shall be irrevocable. On the date of the Lessee's notice to the Lessor of the Lessee's exercise of the Remarketing Option, no Event of Default shall exist and, in the case of each Construction Property, the Improvements on such Property shall have been constructed in accordance with the Plans and Specifications and shall have achieved Substantial Completion.
(b) Not later more than one hundred eighty (180) and twenty not less than ninety (12090) days prior to the Expiration Date, the Lessee shall deliver to the Agent Certificate Holder Lessor an Environmental Audit for each Property. Such Environmental Audit shall be prepared by an environmental consultant selected by the Agent Certificate Holder Lessee and approved in advance by the Agent Certificate Holder's discretion Lessor and shall contain conclusions reasonably satisfactory to the Agent Certificate Holder Lessor as to the environmental status of each such Property. If any such Environmental Audit indicates any exceptions calling for a Phase Two environmental assessmentexceptions, the Lessee shall have also delivered prior to the Expiration Date a Phase Two environmental assessment by such environmental consultant and a written statement by such environmental consultant indicating that all prior to the Expiration Date showing the completion of the remediation of such exceptions have been remedied in compliance with Applicable all Requirements of Law.
(c) On the date of the Lessee's notice to the Agent Certificate Holder of the Lessee's exercise of the Remarketing OptionExpiration Date, no Lease Event of Default or Lease Default shall exist, and, thereafter, no Lease Event exist and none of Default or Lease Default the Leased Assets shall occurbe subject to a Permitted Contest.
(d) The Completion Date shall have occurred with respect to each Property prior to On the Lessee's delivery of notice of its intention to exercise Expiration Date, the Remarketing Option, and each parcel of Land subject to any ground lease shall be a separate tax lot.
(e) The Lessee shall have substantially completed in all material respects all Modifications, restoration and rebuilding of the relevant Properties Leased Assets pursuant to Sections 10.1 SECTION 14.1 and 14.1 18.1 (as the case may be) and shall have fulfilled in all material respects all of the conditions and requirements in connection therewith pursuant to such said Sections, in each case prior to the date on which the Agent Certificate Holder receives the Lessee's notice of the Lessee's intention to exercise the Remarketing Option (time being of the essence), regardless of whether the same shall be within the Lessee's control. The Lessee shall have also paid the cost of all Modifications commenced prior to the Expiration Date. The Lessee shall not have been excused pursuant to Section 12.1 SECTION 16.1 from complying with any Applicable Requirements of Law that involved the extension of the ultimate imposition of such Applicable Requirements of Law beyond the Expiration Date.
(e) During the Marketing Period, the Lessee shall use best efforts to sell the Lessor's interest in the Leased Assets and will attempt to obtain the highest purchase price therefor and for not less than the Fair Market Sales Value of the Leased Assets. Any Permitted Property The Lessee will be responsible for hiring brokers and making the Leased Assets available for inspection by prospective purchasers. The Lessee shall promptly upon request permit inspection of the Leased Assets and any maintenance records relating to the Leased Assets by any potential purchasers, and shall otherwise do all things necessary to sell and deliver possession of the Leased Assets to any purchaser. All such marketing of the Leased Assets shall be at the Lessee's sole expense. The Lessee's agency under this clause shall, for the first three (3) months of the Marketing Period, be on an exclusive basis. In the event the Lessee is unable to procure during such period a bona fide bid from a non-Affiliated Person with demonstrable financial capacity to consummate such bid for any Leased Asset, from and after such third month, the agency hereunder shall be on a non-exclusive basis.
(f) The Lessee shall submit all offers to purchase the Leased Assets to the Lessor and the Lessor will have the right to review the same and the right to submit one or more of its own offers. All offers shall be on an all-cash basis unless the Lessor shall otherwise agree in its sole discretion. No purchaser shall be the Lessee or an Affiliate of the Lessee. Each offer must specify the Expiration Date as the closing date unless the Lessor shall otherwise agree in its sole discretion.
(g) In connection with any such sale of Lessor's interest in any Leased Assets, the Lessee will provide to the purchaser all customary "seller's" indemnities, representations and warranties regarding absence of Liens (other than except Lessor Liens) on and the condition of such Leased Assets, including, without limitation, an environmental indemnity for any Property that were contested Property, to the extent the same are required by the purchaser. The Lessee shall have been removed obtained, at its cost and the Agent Certificate Holder expense, all required governmental and regulatory consents and approvals and shall have received evidence satisfactory made all filings as required by all Requirements of Law in order to it that carry out and complete the transfer of the Leased Assets. As to the Lessor, any such sale of Lessor's interest in any Leased Assets shall be made on an "as is, with all Liens (faults" basis without representation or warranty by the Lessor other than the absence of Lessor Liens Liens. Any agreement as to such sale shall be made subject to the Lessor's rights hereunder.
(h) The Lessee shall pay directly, and uncontested Permitted Property Liens not from the sale proceeds, all prorations, credits, costs and expenses of the type described sale of Lessor's interest in clauses the Leased Assets, whether incurred by the Lessor or the Lessee, including the cost of all title insurance, surveys, environmental reports, appraisals, transfer taxes, the Lessor's reasonable attorneys' fees, the Lessee's attorneys' fees, commissions, escrow fees, recording fees, and all applicable documentary and other transfer taxes.
(i)) The Lessee shall pay to the Lessor on or prior to the Expiration Date (or to such other Person as the Lessor shall notify the Lessee in writing) an amount equal to the Guaranteed Residual Value for each Leased Asset, (vii), (ix) PLUS all Base Rent and (x) all other amounts hereunder which have accrued or will accrue with respect thereto prior to or as of the definition thereof) have Expiration Date PLUS the amount, if any, by which the Fair Market Sales Value of such Leased Asset has been removedreduced by excess wear and tear of any Leased Asset.
Appears in 1 contract
Sources: Master Lease and Security Agreement (Iron Mountain Inc/Pa)
Option to Remarket. Subject to the fulfillment of each of the conditions set forth in this Section 20.1 and Section 20.2 (collectively, the "Return Conditions")24.1, the Lessee shall have the option (the "Remarketing Option") to remarket market and complete the sale of all of the Properties Property for the Lessor TrustLessor. The Lessee's effective exercise and consummation of the Remarketing Option shall be subject to the due and timely fulfillment of each of the following provisions and the provisions of Section 20.2 as to each of the Properties Property as of the dates set forth below.
(a) Unless a longer period is called for pursuant to any Requirement of LawExcept as provided in Section 23.1, on the date not later than three one hundred sixty-five eighty (365180) days prior to the Expiration Date, the Lessee shall give to the Agent Certificate Holder and the Administrative Agent Lessor written notice of the Lessee's exercise of the Remarketing Option, which exercise shall be irrevocable. If Lessee does not deliver a notice of its intention to renew this Lease as provided in Section 23.1 and fails to timely provide the Remarketing Notice, then Lessee shall be deemed to have elected to exercise its Purchase Option under Section 22.1.
(b) Not later than one hundred and twenty (120) days prior to the Expiration Date, the Lessee shall deliver to the Agent Certificate Holder Lessor an Environmental Audit for each the Property. Such Environmental Audit shall be prepared by an environmental consultant selected by the Agent Certificate Holder Lessor in the Agent Certificate HolderLessor's reasonable discretion and shall contain conclusions reasonably satisfactory to the Agent Certificate Holder Lessor as to the environmental status of each the Property. If any such Environmental Audit indicates any exceptions calling for with respect to which a Phase Two environmental assessmentassessment is recommended, the Lessee shall have also delivered prior to the Expiration Date deliver (i) a Phase Two environmental assessment by such environmental consultant within thirty (30) days prior to the Expiration Date and (ii) a written statement by certificate of such environmental consultant indicating that prior to the Expiration Date showing the completion of all such exceptions have been remedied remedial action in compliance with Applicable Law.
(c) On the date of the Lessee's notice to the Agent Certificate Holder Lessor of the Lessee's exercise of the Remarketing Option, and on the Expiration Date, no Lease Event of Default or Lease Default shall exist, and, thereafter, no Lease Event of Default or Lease Default shall occur.
(d) The Completion Date shall have occurred with respect to each Property prior to the Lessee's delivery of notice of its intention to exercise the Remarketing Option, and each parcel of Land subject to any ground lease shall be a separate tax lot.
(e) The Lessee shall have substantially completed in all Material respects all Modifications, restoration and rebuilding of the relevant Properties Property pursuant to Sections 10.1 14.1 and 14.1 18.1 (as the case may be) and shall have fulfilled in all Material respects all of the conditions and requirements in connection therewith pursuant to such said Sections, in each case prior to by the date on which the Agent Certificate Holder Lessor receives the Lessee's notice of the Lessee's intention to exercise of the Remarketing Option (time being of the essence), regardless of whether the same shall be within the Lessee's control. The Lessee shall have also paid the cost of all Modifications commenced prior to the Expiration Date. The Lessee shall not have been excused pursuant to Section 12.1 16.1 from complying with any Applicable Law that involved the extension of the ultimate imposition of such Applicable Law beyond the Expiration Datelast day of the Term. Any Permitted Property Liens (other than Lessor Liens) on any the Property that were contested by the Lessee shall have been removed removed.
(e) During the Marketing Period, the Lessee shall, as nonexclusive agent for the Lessor, use best efforts to sell the Lessor's interest in the Property and will attempt to obtain the highest purchase price therefor and for not less than the Fair Market Sales Value of the Property. The Lessee will be responsible for hiring brokers and making the Property available for inspection by prospective purchasers. The Lessee shall promptly upon request permit inspection of the Property and any maintenance records relating to the Property by the Lessor and any potential purchasers, and shall otherwise do all things reasonably necessary to sell and deliver possession of the Property to any purchaser. All such marketing of the Property shall be at the Lessee's sole expense. The Lessee shall allow the Lessor and any potential qualified purchaser reasonable access to the Property for the purpose of inspecting the same.
(f) The Lessee shall submit all bids to the Lessor, and the Agent Certificate Holder Lessor will have the right to submit any one or more bids. The Lessee shall deliver to the Lessor, not less than thirty (30) days prior to the Expiration Date, binding written unconditional (except as set forth below), irrevocable offer or offers by such purchaser or purchasers offering the highest bid to purchase the Property. No such purchaser shall be the Lessee or an Affiliate of the Lessee. The written offer must specify the Expiration Date as the closing date unless the Lessor shall otherwise agree in its reasonable discretion. Any sale by the Lessee shall be for the highest cash bid submitted to the Lessor. The determination of the highest bid shall be made by the Lessor prior to the end of the Marketing Period, but in any event, the Lessor shall have received evidence satisfactory no obligation to it that approve any bid unless the aggregate amount of the highest bid for the Property equals or exceeds an amount equal to the Lease Balance minus the Contingent Rental Adjustment determined as of the Expiration Date. All bids shall be on an all-cash basis unless the Lessor shall otherwise agree in its sole discretion.
(g) In connection with any such sale of the Property, the Lessee will provide to each Purchaser all customary "seller's" indemnities, representations and warranties regarding absence of Liens (other than Lessor Liens) and the condition of the Property. The Lessee shall have obtained, at its cost and expense, all required governmental and regulatory consents and approvals and shall have made all filings as required by Applicable Law in order to carry out and complete the transfer of the Property. As to the Lessor, any such sale shall be made on an "as is, with all faults" basis without representation or warranty by the Lessor other than the absence of Lessor Liens. Any agreement as to such sale shall be made subject to the Lessor's rights hereunder.
(h) The Lessee shall pay directly, and not from the sale proceeds, all prorations, credits, costs and expenses of the sale of the Property, whether incurred by the Lessor or the Lessee, including without limitation, the cost of all title insurance, surveys, environmental reports, appraisals, transfer taxes, the Lessor's reasonable attorneys' fees, the Lessee's attorneys' fees, commissions, escrow fees, recording fees, and all applicable documentary and other transfer taxes.
(i) The Lessee shall pay to the Lessor on or prior to the Expiration Date (or to such other Person as the Lessor shall notify the Lessee in writing) an amount equal to the Contingent Rental Adjustment for the Property plus all Basic Rent and all other amounts hereunder which have accrued or will accrue prior to or as of the Expiration Date or such other closing date approved by the parties, in the type of funds specified in Section 7.4 hereof.
(j) The Lessee shall pay to the Lessor on or prior to the Expiration Date the amounts, if any, required to be paid pursuant to Section 26.2 hereof.
(k) If the Lessor approves any bid for the Property, the purchase of the Property shall be consummated on or before the Expiration Date and the gross proceeds (the "Gross Proceeds") of the sale of the Property, less the documented expenses incurred by the Lessee under clause (h) shall be paid directly to the Lessor; provided, however, that if the sum of (x) the remaining Gross Proceeds from such sale or sales plus (y) the Contingent Rental Adjustment received by the Lessor pursuant to clause (i) plus (z) amounts received by the Lessor pursuant to Section 26.2 hereof exceeds the Lease Balance as of such date, then the excess shall be paid to the Lessee on the Expiration Date or such other closing date approved by the parties.
(l) All reconstruction, refurbishment and repair to the Property resulting from a Casualty or Condemnation shall have been completed prior to the end of the Marketing Period. If one or more of the foregoing provisions shall not be fulfilled as of the date set forth above with respect to the Property, then the Lessor shall declare by written notice to the Lessee the Remarketing Option to be null and void (whether or not it has been theretofore exercised by the Lessee), in which event all of the Lessee's rights under this Section 24.1 shall immediately terminate and the Lessee shall be obligated to purchase the Property pursuant to Section 22.1 on the Expiration Date. If the Lessee effectively elects the Remarketing Option and no sale of the Property is consummated prior to the end of the Marketing Period, the Lessee shall, in addition to making the payment required pursuant to Section 24.1 above, return the Property to the Lessor (or to any other Person specified by the Lessor). In connection with any such return of the Property, the Lessee shall, at its own cost and expense, do each of the following:
(i) the Lessee shall, on or prior to the Expiration Date, execute and deliver to the Lessor (or to the Lessor's designee) (A) a deed with respect to the Property containing representations and warranties of grantor to the Lessor (or such other Person) regarding the absence of Liens and uncontested (other than Permitted Property Liens of the type described in clauses (i), (iii) (but only with respect to taxes not yet due and payable), (vii), (viii), (ix) and (x) of the definition thereof), (B) a bill of sale with respect to any Equipm▇▇▇ then located on the Property and (C) an assignment of the Lessee's entire interest in the Property (which shall include an assignment of all of the Lessee's right, title and interest in and to any Net Proceeds with respect to the Property not previously received by the Lessee and an assignment of leases of the Property), in each case in recordable form and otherwise in conformity with local custom and free and clear of any Liens attributable to the Lessee;
(ii) the Lessee shall execute and deliver to Lessor and the Lessor's title insurance company an affidavit as to the absence of any Liens (other than Permitted Liens of the type described in clauses (i), (iii) (but only with respect to taxes not yet due and payable), (vii), (viii), (ix) and (x) of the definition thereof) and shall execute and deliver to the Lessor a statement of termination of this Lease to the extent relating to the Property;
(iii) the Lessee shall, on the Expiration Date, transfer possession of the Property to the Lessor or any Person designated by the Lessor, by surrendering the same into the possession of the Lessor or such Person, as the case may be, in the condition required by this Section 24.1 and in compliance with Applicable Law;
(iv) the Lessee shall, for a period of up to one year after the Expiration Date, cooperate reasonably with the Lessor and/or any Person designated by the Lessor to receive the Property, which cooperation shall include reasonable efforts with respect to the following, all of which the Lessee shall do on or before the Expiration Date or as soon thereafter as is reasonably practicable: providing copies of all books and records regarding the maintenance and ownership of the Property and all know-how, data and technical information relating thereto, granting or assigning all licenses necessary for the operation and maintenance of the Property and cooperating reasonably in seeking and obtaining all necessary Governmental Action. The obligations of the Lessee under this paragraph shall survive the expiration or termination of this Lease; and
(v) no subleases with respect to the Property or any portion thereof shall be in effect on the Expiration Date. Except as expressly set forth herein, the Lessee shall have been removedno right, power or authority to bind the Lessor in connection with any proposed sale or sales of the Property.
Appears in 1 contract
Option to Remarket. Subject to the fulfillment of each of the conditions set forth in this Section 20.1 and Section 20.2 (collectively, the "Return Conditions")20.1, the Lessee shall have the option (the "“Remarketing Option"”) to remarket and complete market the sale of all Property on behalf of the Properties for the Lessor TrustLessor. The Lessee's ’s effective exercise and consummation of the Remarketing Option shall be subject to the due and timely fulfillment of each of the following provisions and the provisions of Section 20.2 as to each of the Properties affected Property as of the dates set forth below.:
(a) Unless a longer period is called for pursuant to any Requirement of Law, on the date No earlier than eighteen months and not later than three hundred sixty-five (365) days twelve months prior to the Expiration Scheduled Basic Lease Term Termination Date, the Lessee shall give to the Agent Certificate Holder and the Administrative Agent Lessor written notice of the Lessee's ’s exercise of the Remarketing OptionOption with respect to the Property. Failure by the Lessee to give timely notice with respect to the Property shall be deemed to be an election by the Lessee, without further act thereby, of its Purchase Option for the Property.
(b) Not later than one hundred and twenty ninety (12090) days prior to the Expiration Scheduled Basic Lease Term Termination Date, the Lessee shall deliver to the Agent Certificate Holder Lessor an Environmental Audit for each the Property. Such Environmental Audit shall be prepared by an environmental consultant selected by the Agent Certificate Holder Lessor in the Agent Certificate Holder's Lessor’s reasonable discretion and shall contain conclusions reasonably satisfactory to the Agent Certificate Holder Lessor as to the environmental status of each the Property. If any such Environmental Audit indicates any exceptions calling for a Phase Two environmental assessmentexceptions, the Lessee shall have also delivered prior to the Expiration Date Scheduled Basic Lease Term Termination Date, a Phase Two environmental assessment by such environmental consultant and a written statement by such environmental consultant indicating that all such exceptions have been remedied in compliance with Applicable Law.
(c) On the date . As of the Lessee's notice to the Agent Certificate Holder of the Lessee's exercise of the Remarketing OptionScheduled Basic Lease Term Termination Date, no Lease Event of Default or Lease Default shall exist, and, thereafter, no Lease Event of Default or Lease Default shall occur.
(d) The Completion Date shall have occurred with respect to each Property prior to the Lessee's delivery of notice of its intention to exercise the Remarketing Option, and each parcel of Land subject to any ground lease shall be a separate tax lot.
(e) The Lessee shall have substantially completed all Modifications, restoration and rebuilding of the relevant Properties pursuant to Sections 10.1 and 14.1 (as the case may be) and shall have fulfilled all of the conditions and requirements in connection therewith pursuant to such Sections, in each case prior to the date on which the Agent Certificate Holder receives the Lessee's notice of the Lessee's intention to exercise the Remarketing Option (time being of the essence), regardless of whether the same shall be within the Lessee's control. Lessee shall have also paid the cost of all Modifications commenced prior to the Expiration Date. Lessee shall not have been excused pursuant to Section 12.1 from complying with any Applicable Law that involved the extension of the ultimate imposition of such Applicable Law beyond the Expiration Date. Any Permitted Property Liens (other than Lessor Liens(x) on any Property that were contested by Lessee shall have been removed and the Agent Certificate Holder shall have received evidence satisfactory to it that all Liens (other than Lessor Liens and uncontested Permitted Property Liens of the type described in clauses clause (i), (vii), (ix) and (xiii) of the definition thereofof “Permitted Property Liens” to the extent, but only to the extent, the Lessor is in its opinion fully indemnified therefrom, and (y) Liens of the type described in clause (vii) of the definition of “Permitted Property Liens”) on the Property that were contested by the Lessee shall have been removed.
(c) No Event of Default shall have occurred and be continuing that shall not have been cured on or prior to the Expiration Date.
Appears in 1 contract
Option to Remarket. Subject to the fulfillment of each of the ------------------ conditions set forth in this Section 20.1 and Section 20.2 (collectively, the "Return Conditions")22.1, the Lessee shall have the option (the ------------ "Remarketing Option") to remarket market for the Lessor and complete the sale of all all, but ------------------ not less than all, of the Properties Lessor's interest in the Property on the Expiration Date for the Lessor TrustLessor. The Lessee's effective exercise and consummation of the Remarketing Option shall be subject to the due and timely fulfillment of each of the following provisions and the provisions of Section 20.2 as to each of the Properties as of the dates set forth below.
(a) Unless a longer period is called for pursuant to any Requirement of Law, on the date not Not later than three one hundred sixty-five eighty (365180) days prior to the Expiration Date, the Lessee shall give to the Agent Certificate Holder and the Administrative Agent Lessor written notice of the Lessee's exercise of the Remarketing Option, which exercise shall be irrevocable (except by delivery of a Purchase Notice and consummation of the exercise of the Purchase Option prior to the earlier of (i) the Expiration Date or (ii) the date on which the Lessor enters into a binding contract to sell the Property pursuant to the exercise of the Remarketing Option).
(b) Not later than one hundred and twenty (120) days prior to the Expiration Date, the The Lessee shall deliver to the Agent Certificate Holder Lessor an Environmental Audit for each Propertyof the Property together with its notice of exercise of the Remarketing Option. Such Environmental Audit shall be prepared by an environmental consultant selected by the Agent Certificate Holder Lessor following consultation with the Lessee, in the Agent Certificate HolderLessor's reasonable discretion and shall contain conclusions reasonably satisfactory to the Agent Certificate Holder Lessor as to the environmental status of each the Property. If any such Environmental Audit indicates any material exceptions calling for a Phase Two environmental assessmentreasonably requiring remedy or further investigation, the Lessee shall have also delivered prior to the Expiration Date a Phase Two environmental assessment by such environmental consultant and a written statement by prior to the Expiration Date showing the completion of the remediation of such environmental consultant indicating that all such exceptions have been remedied exceptions, if any, in compliance with Applicable LawEnvironmental Laws or such further investigation as required.
(c) On the date of the Lessee's notice to the Agent Certificate Holder Lessor of the Lessee's exercise of the Remarketing Option, no Lease Event of Default or Lease Default shall exist, and, and thereafter, no uncured Lease Event of Default or Lease Default shall occurexist.
(d) The Completion Date shall have occurred with respect to each Property prior to the Lessee's delivery of notice of its intention to exercise the Remarketing Option, and each parcel of Land subject to any ground lease shall be a separate tax lot.
(e) The Lessee shall have substantially completed in all Modifications, material respects all restoration and rebuilding of the relevant Properties Property pursuant to Sections 10.1 and 14.1 (as the case may beSection 15.1(e) and shall --------------- have fulfilled in all material respects all of the conditions and requirements in connection therewith pursuant to such said Sections, in each case prior to by the date on which the Agent Certificate Holder Lessor receives the Lessee's notice of the Lessee's intention to exercise of the Remarketing Option (time being of the essence), regardless of whether the same shall be within the Lessee's control. The Lessee shall have also paid the cost of all Modifications restoration and remodeling commenced prior to the Expiration Date. The Lessee shall not have been excused pursuant to Section 12.1 13.1 from complying with any ------------ Applicable Law that involved the extension of the ultimate imposition of such Applicable Law beyond the Expiration Datelast day of the Term. Any Permitted Property Liens (other than Lessor Liens) Exceptions on any the Property that were contested by the Lessee shall have been removed removed.
(e) During the Marketing Period, the Lessee shall, as nonexclusive agent for the Lessor, use commercially reasonable efforts to sell the Lessor's interest in the Property on or prior to the Expiration Date (without diminishing the Lessee's obligation to consummate the sale on the Expiration Date) and will attempt to obtain the highest purchase price therefor and for not less than the Fair Market Sales Value. The Lessee will be responsible for hiring and compensating brokers and making the Property available for inspection by prospective purchasers. The Lessee shall promptly upon request permit inspection of the Property and any maintenance records relating to the Property by the Lessor, any Participant and any potential purchasers, and shall otherwise do all things necessary to sell and deliver possession of the Property to any purchaser. All such marketing of the Property shall be at the Lessee's sole expense. The Lessee shall allow the Lessor and any potential qualified purchaser reasonable access to the Property for the purpose of inspecting the same.
(f) The Lessee shall submit all bids to the Lessor and the Agent, and the Lessor will have the right to review the same and the right to submit any one or more bids. All bids shall be on an all-cash basis unless the Lessor, the Agent and the Participants shall otherwise agree in their sole discretion. The Lessee shall procure bids from one or more bona fide prospective purchasers and shall deliver to the Lessor and the Agent Certificate Holder not less than ninety (90) days prior to the Expiration Date a binding written unconditional (except as set forth below), irrevocable offer by such purchaser or purchasers offering the highest bid to purchase the Property. No such purchaser shall be the Lessee, or any Subsidiary or Affiliate of the Lessee. The written offer must specify the Expiration Date as the closing date unless the Lessor, the Agent and the Participants shall otherwise agree in their sole discretion.
(g) In connection with any such sale of the Property, the Lessee will provide to the purchaser all customary "seller's" indemnities, representations and warranties regarding title, absence of Liens (except Lessor Liens) and the condition of the Property, as well as such other terms and conditions as may be negotiated between the Lessee and the purchaser. The Lessee shall have received evidence satisfactory obtained, at its cost and expense, and with the reasonable cooperation of Lessor, all required governmental and regulatory consents and approvals and shall have made all filings as required by Applicable Law in order to it that carry out and complete the transfer of the Property. As to the Lessor, any such sale shall be made on an "as is, with all Liens (faults" basis without representation or warranty by the Lessor other than the absence of Lessor Liens and uncontested Permitted Property Liens created by the Operative Documents. Any agreement as to such sale shall be made subject to the Lessor's rights hereunder.
(h) The Lessee shall pay directly, and not from the sale proceeds, all prorations, credits, costs and expenses of the type described in clauses sale of the Property, whether incurred by the Lessor, the Participants or the Lessee, including without limitation, the cost of all title insurance, surveys, environmental reports, appraisals, transfer taxes, the Lessor's, the Participants' and the Agent's reasonable attorneys' fees, the Lessee's attorneys' fees, commissions, escrow fees, recording fees, and all applicable documentary and other transfer taxes (except the foregoing shall not prevent the Lessee from negotiating for the Person buying the Property to bear some or all of such costs).
(i) The Lessee shall pay to the Agent on the Expiration Date (or to such other Person as the Lessor shall notify the Lessee in writing, or in the case of Supplemental Rent, to the Person entitled thereto) an amount equal to the Residual Value Guarantee Amount, plus (without duplication) all Rent and all ---- other amounts hereunder which have accrued or will accrue prior to or as of the Expiration Date, in the type of funds specified in Section 3.4 hereof. -----------
(j) If, within ninety (90) days prior to the Expiration Date, it is determined (based upon the highest bid by a purchaser to purchase the Property pursuant to paragraph (f) of this Section 22.1) that there would, after giving ------------- ------------ effect to the proposed sale of the Property, be a Shortfall Amount, the Lessee (i) shall cause to be delivered to the Lessor and the Agent the End of Term Report required by Section 13.2 of the Participation Agreement and (ii) shall on the Expiration Date pay to the Agent (or to such other person as the Lessor shall notify the Lessee in writing), the amounts (vii), not to exceed the Shortfall Amount) required to be paid pursuant to Section 13.2 of the Participation Agreement.
(ixk) The purchase of the Property shall be consummated on the Expiration Date following the payment by the Lessee pursuant to paragraphs (i) -------------- and (j) above and contemporaneously with the Lessee's surrender of the Property --- pursuant to Section 19.1(b) and the gross proceeds (xthe "Gross Proceeds") of the definition thereof--------------- -------------- sale of the Property (i.e., without deduction for any marketing, closing or other costs, prorations or commissions) have been removedshall be paid directly to the Agent.
(m) No subleases affecting the Property shall be in effect on the Expiration Date.
(n) If the payment made by the Lessee pursuant to this Section 22.1 is equal to the sum of the Termination Value plus all other amounts owing in respect of Rent (including Supplemental Rent) theretofore accruing, the Lessor shall transfer, free and clear of Lessor Liens and Liens under the Operative Documents to the Lessee's designee, all of the Lessor's right, title and interest in and to the Property in accordance with Section 19.1(a). ---------------
Appears in 1 contract
Sources: Master Lease (Bea Systems Inc)
Option to Remarket. Subject to the fulfillment of each of the conditions set forth in this Section 20.1 and Section 20.2 (collectively, the "Return Conditions"), the Lessee shall have the option (the "Remarketing Option") to remarket and complete the sale of all all, but not less than all, of the Properties for the Lessor TrustLessor. The Lessee's effective exercise and consummation of the Remarketing Option shall be subject to the due and timely fulfillment of each of the following provisions and the provisions of Section 20.2 as to each of the Properties as of the dates set forth below.:
(a) Unless a longer period is called for pursuant to any Requirement of Law, on On the date not later than three one hundred sixty-five eighty (365180) days prior to the Expiration Date, the Lessee shall give to the Agent Certificate Holder Lessor and the Administrative Agent written notice of the Lessee's exercise of the Remarketing Option.
(b) Not later than one hundred and twenty (120) days prior to the Expiration Date, the Lessee shall deliver to the Agent Certificate Holder Lessor an Environmental Audit for each Property. Such Each Environmental Audit shall be prepared by an environmental consultant selected by the Agent Certificate Holder Lessor in the Agent Certificate HolderLessor's discretion and shall contain conclusions satisfactory to the Agent Certificate Holder Lessor as to the environmental status of each such Property. If any such Environmental Audit indicates any exceptions calling for a Phase Two environmental assessment, the Lessee shall have also delivered prior to the Expiration Date a Phase Two environmental assessment by such environmental consultant and a written statement by such environmental consultant indicating that all such exceptions have been remedied in compliance with Applicable Law.
(c) On the date of the Lessee's notice to the Agent Certificate Holder Lessor of the Lessee's exercise of the Remarketing Option, no Lease Event of Default or Lease Default shall exist, and, thereafter, no Lease Event of Default or Lease Default shall occur.
(d) The Completion Date shall have occurred with respect to each Property prior to the Lessee's delivery of notice of its intention to exercise the Remarketing Option, and each parcel of Land subject to any ground lease shall be a separate tax lot.
(e) The Lessee shall have substantially completed all Modifications, restoration and rebuilding of the relevant Properties each Property pursuant to Sections 10.1 and 14.1 14.2 (as the case may be) and shall have fulfilled all of the conditions and requirements in connection therewith pursuant to such Sections, in each case prior to the date on which the Agent Certificate Holder Lessor receives the Lessee's notice of the Lessee's intention to exercise the Remarketing Option (time being of the essence), regardless of whether the same shall be within the Lessee's control. Lessee shall have also paid the cost of all Modifications commenced prior to the Expiration Date. Lessee shall not have been excused pursuant to Section 12.1 from complying with any Applicable Law that involved the extension of the ultimate imposition of such Applicable Law beyond the Expiration Date. Any Permitted Property Liens (other than Lessor Liens) on any each Property that were contested by Lessee shall have been removed and the Agent Certificate Holder Lessor shall have received evidence satisfactory to it that all Liens (other than Lessor Liens and uncontested Permitted Property Liens of the type described in clauses (i), (vii), (ix) and (x) of the definition thereof) have been removed.. ▇▇▇ Research Corporation Amended and Restated Master Lease
Appears in 1 contract
Option to Remarket. Subject to the fulfillment of each of the conditions set forth in this Section 20.1 and Section 20.2 (collectively14.6, the "Return Conditions"), the Lessee shall have the option to market all of, but not less than all of, the Leased Properties for Lessor (the "“Remarketing Option") to remarket and complete the sale of all of the Properties for the Lessor Trust”). The Lessee's ’s effective exercise and consummation of the Remarketing Option shall be subject to the due and timely fulfillment of each of the following provisions provisions, the failure of any of which, unless waived in writing by Lessor and the provisions of Lenders, shall render the Remarketing Option and Lessee’s exercise thereof null and void, in which event, Lessee shall be obligated to perform its obligations under Section 20.2 as to each of the Properties as of the dates set forth below14.2.
(a) Unless a longer period is called for pursuant to any Requirement of Law, on the date not Not later than three hundred sixty-five (365) days twelve, nor earlier than fifteen, months prior to the Expiration scheduled Lease Termination Date, the Lessee shall give to the Agent Certificate Holder Lessor and the Administrative Agent written notice of the Lessee's ’s exercise of the Remarketing Option.
(b) Not later than one hundred ten (10) Business Days prior to the Lease Termination Date, Lessee shall deliver to Lessor and twenty the Agent an environmental assessment of each Leased Property dated not earlier than forty-five (12045) days prior to the Expiration Lease Termination Date, the Lessee shall deliver to the Agent Certificate Holder an Environmental Audit for each Property. Such Environmental Audit environmental assessment shall be prepared by an environmental consultant selected by the Agent Certificate Holder in the Agent Certificate Holder's discretion Lessee and shall contain conclusions reasonably satisfactory to the Agent Certificate Holder as Required Funding Parties, shall be in form, detail and substance reasonably satisfactory to the Required Funding Parties, and shall otherwise indicate no degradation in environmental status of each Property. If any such conditions beyond those described in the related Environmental Audit indicates any exceptions calling and shall not include a recommendation for a Phase Two environmental assessment, the Lessee shall have also delivered prior further investigation to the Expiration Date a Phase Two environmental assessment by make such environmental consultant and a written statement by such environmental consultant indicating that all such exceptions have been remedied in compliance with Applicable Lawdetermination.
(c) On the date of the Lessee's ’s notice to Lessor and the Agent Certificate Holder of the Lessee's ’s exercise of the Remarketing Option, no Lease Event each of Default or Lease Default the Construction Conditions shall exist, and, thereafter, no Lease Event of Default or Lease Default shall occurhave been timely satisfied.
(d) The Completion Date shall have occurred with respect to each Property prior to the Lessee's delivery of notice of its intention to exercise the Remarketing Option, and each parcel of Land subject to any ground lease shall be a separate tax lot.
(e) The Lessee shall have substantially completed all ModificationsAlterations, restoration and rebuilding of the relevant Leased Properties pursuant to Sections 10.1 6.1, 6.2, 10.3 and 14.1 10.4 (as the case may be) and shall have fulfilled in all material respects all of the conditions and requirements in connection therewith pursuant to such said Sections, in each case prior to by the date on which Lessor and the Agent Certificate Holder receives the receive Lessee's ’s notice of the Lessee's intention to ’s exercise of the Remarketing Option (time being of the essence), regardless of whether the same shall be within Lessee’s control.
(e) Upon request by the Lessee's controlAgent, Lessee shall promptly provide any maintenance records relating to each Leased Property to Lessor, the Agent and any potential purchaser, and shall otherwise do all things necessary to deliver possession of such Leased Property to the potential purchaser at the appropriate closing date. Lessee shall allow Lessor, the Agent and any potential purchaser reasonable access during normal business hours to any Leased Property for the purpose of inspecting the same.
(f) On the Lease Termination Date, Lessee shall surrender the Leased Properties in accordance with Section 14.8 hereof.
(g) In connection with any such sale of the Leased Properties, Lessee will provide to the purchaser such customary “seller’s” indemnities as are commercially reasonable and are requested by the potential purchaser (taking into account the location and nature of the Leased Properties), representations and warranties regarding title, absence of Liens (except Lessor Liens) and the condition of the Leased Properties. Lessee shall fulfill all of the requirements set forth in clause (b) of Section 14.5, and such requirements are incorporated herein by reference, provided that all costs and expenses incurred in connection therewith shall be paid from the proceeds of the sale. As to Lessor, any such sale shall be made on an “as is, with all faults” basis without representation or warranty by Lessor, other than the absence of Lessor Liens.
(h) Lessee shall pay to the Agent on the Lease Termination Date (or to such other Person as Agent shall notify Lessee in writing, or in the case of Supplemental Rent, to the Person entitled thereto) an amount equal to the Recourse Deficiency Amount, plus all accrued and unpaid Basic Rent and Supplemental Rent, and all other amounts hereunder which have also paid accrued prior to or as of such date, in the cost type of all Modifications commenced funds specified in Section 3.3 hereof. If Lessee have exercised the Remarketing Option, the following additional provisions shall apply: During the period commencing on the date twelve months prior to the Expiration scheduled expiration of the Lease Term, Lessee shall, as nonexclusive agent for Lessor, use commercially reasonable efforts to sell Lessor’s interest in the Leased Properties and will attempt to obtain the highest purchase price therefor. Lessee shall not incur any remarketing costs that exceed, or are expected to exceed, $75,000 without the prior written consent of Lessor. Lessee promptly shall submit all bids to Lessor and the Agent and Lessor; the Agent will have the right to review the same; and the Agent and Lessor will have the right to submit any one or more bids. All bids shall be on an all-cash basis. In no event shall such bidder be Lessee or any Subsidiary or Affiliate of Lessee. The written offer must specify the Lease Termination Date as the closing date. If, and only if, with respect to any Leased Property, the Net Selling Price therefor is less than the difference between the related Leased Property Balance at such time minus the Recourse Deficiency Amount for such Leased Property, then Lessor or the Agent may, in its sole and absolute discretion, by notice to Lessee, given within 30 days of receipt of such offer, reject such offer to purchase, in which event the parties will proceed according to the provisions of Section 14.7 hereof. If neither Lessor nor the Agent rejects such purchase offer as provided above, the closing of such purchase of the related Leased Property by such purchaser shall occur on the Lease Termination Date, contemporaneously with Lessee’s surrender of such Leased Property in accordance with Section 14.8 hereof, and the Net Selling Price shall be paid directly to the Agent; provided, however, that if, with respect to any Leased Property, the sum of the Net Selling Price from the sale of such Leased Property plus the Recourse Deficiency Amount for such Leased Property paid by Lessee on the Lease Termination Date pursuant to Section 14.6(h), exceeds the related Leased Property Balance as of such date, then the excess shall be paid to Lessee on the Lease Termination Date. Lessee shall not have been excused pursuant the right, power or authority to Section 12.1 from complying bind Lessor in connection with any Applicable Law that involved the extension proposed sale of the ultimate imposition of such Applicable Law beyond the Expiration Date. Any Permitted Property Liens (other than Lessor Liens) on any Property that were contested by Lessee shall have been removed and the Agent Certificate Holder shall have received evidence satisfactory to it that all Liens (other than Lessor Liens and uncontested Permitted Property Liens of the type described in clauses (i), (vii), (ix) and (x) of the definition thereof) have been removedLeased Property.
Appears in 1 contract
Option to Remarket. Subject to the fulfillment of each of the conditions set forth in this Section 20.1 and Section 20.2 (collectively, the "Return Conditions")22.1, the Lessee shall have the option (the "Remarketing Option") to remarket market for the Lessor and complete the sale of all all, but not less than all, of the Properties Lessor's interest in the Property on the Expiration Date for the Lessor TrustLessor. The Lessee's effective exercise and consummation of the Remarketing Option shall be subject to the due and timely fulfillment of each of the following provisions and the provisions of Section 20.2 as to each of the Properties as of the dates set forth below.
(a) Unless a longer period is called for pursuant to any Requirement of Law, on the date not Not later than three one hundred sixty-five eighty (365180) days prior to the Expiration Date, the Lessee shall give to the Agent Certificate Holder and the Administrative Agent Lessor written notice of the Lessee's exercise of the Remarketing Option, which exercise shall be irrevocable (except by delivery of a Purchase Notice and consummation of the exercise of the Purchase Option prior to the earlier of (i) the Expiration Date or (ii) the date on which the Lessor enters into a binding contract to sell the Property pursuant to the exercise of the Remarketing Option).
(b) Not later than one hundred and twenty (120) days prior to the Expiration Date, the The Lessee shall deliver to the Agent Certificate Holder Lessor an Environmental Audit for each Propertyof the Property together with its notice of exercise of the Remarketing Option. Such Environmental Audit shall be prepared by an environmental consultant selected by the Agent Certificate Holder Lessor in the Agent Certificate HolderLessor's reasonable discretion and shall contain conclusions reasonably satisfactory to the Agent Certificate Holder Lessor as to the environmental status of each the Property. If any such Environmental Audit indicates any material exceptions calling for a Phase Two environmental assessmentreasonably requiring remedy or further investigation, the Lessee shall have also delivered prior to the Expiration Date a Phase Two environmental assessment by such environmental consultant and a written statement by such environmental consultant indicating that all prior to the Expiration Date showing the completion of the remedying of such exceptions have been remedied in compliance with Applicable Law.
(c) On the date of the Lessee's notice to the Agent Certificate Holder Lessor of the Lessee's exercise of the Remarketing Option, no Lease Event of Default or Lease Default shall exist, and, and thereafter, no uncured Lease Event of Default or Lease Default shall occurexist.
(d) The Completion Date shall have occurred with respect to each Property prior to the Lessee's delivery of notice of its intention to exercise the Remarketing Option, and each parcel of Land subject to any ground lease shall be a separate tax lot.
(e) The Lessee shall have substantially completed in all Material respects all Modifications, restoration and rebuilding of the relevant Properties Property pursuant to Sections 10.1 11.1 and 14.1 15.1 (as the case may be) and shall have fulfilled in all Material respects all of the conditions and requirements in connection therewith pursuant to such said Sections, in each case prior to by the date on which the Agent Certificate Holder Lessor receives the Lessee's notice of the Lessee's intention to exercise of the Remarketing Option (time being of the essence), regardless of whether the same shall be within the Lessee's control. The Lessee shall have also paid the cost of all Modifications commenced prior to the Expiration Date. The Lessee shall not have been excused pursuant to Section 12.1 13.1 from complying with any Applicable Law that involved the extension of the ultimate imposition of such Applicable Law beyond the Expiration Datelast day of the Term. Any Permitted Property Liens (other than Lessor Liens) Exceptions on any the Property that were contested by the Lessee shall have been removed removed.
(e) During the Marketing Period, the Lessee shall, as nonexclusive agent for the Lessor, use commercially reasonable efforts to sell the Lessor's interest in the Property on or prior to the Expiration Date (without diminishing the Lessee's obligation to consummate the sale on the Expiration Date) and will attempt to obtain the highest purchase price therefor and for not less than the Fair Market Sales Value. The Lessee will be responsible for hiring and compensating brokers and making the Property available for inspection by prospective purchasers. The Lessee shall promptly upon request permit inspection of the Property and any maintenance records relating to the Property by the Lessor, any Participant and any potential purchasers, and shall otherwise do all things necessary to sell and deliver possession of the Property to any purchaser. All such marketing of the Property shall be at the Lessee's sole expense. The Lessee shall allow the Lessor and any potential qualified purchaser reasonable access to the Property for the purpose of inspecting the same.
(f) The Lessee shall submit all bids to the Lessor, the Agent and the Participants, and the Lessor will have the right to review the same and the right to submit any one or more bids. All bids shall be on an all-cash basis unless the Lessor, the Agent Certificate Holder and the Participants shall otherwise agree in their sole discretion. The Lessee shall use its best efforts to procure bids from one or more bona fide prospective purchasers and shall deliver to the Lessor, the Agent and the Participants (i) any bids procured and (ii) not less than ninety (90) days prior to the Expiration Date a binding written unconditional (except as set forth below), irrevocable offer with respect to any bids received by such purchaser or purchasers offering the highest bid to purchase the Property. No such purchaser shall be the Lessee, or any Subsidiary or Affiliate of the Lessee. The written offer must specify the Expiration Date as the closing date unless the Lessor, the Agent and the Participants shall otherwise agree in their sole discretion.
(g) In connection with any such sale of the Property, the Lessor and the Lessee will negotiate in good faith with the purchaser appropriate "sellers" indemnities, representations and warranties regarding title, absence of Liens (except Lessor Liens) and the condition of the Property, as well as such other terms and conditions as are customary in transactions involving the sale of commercial properties similar to the Property. The Lessee shall have received evidence satisfactory obtained, at its cost and expense, all required governmental and regulatory consents and approvals and shall have made all filings as required by Applicable Law in order to it that carry out and complete the transfer of the Property. As to the Lessor, any such sale shall be made on an "as is, with all Liens (faults" basis without representation or warranty by the Lessor other than the absence of Lessor Liens Liens. Any agreement as to such sale shall be made subject to the Lessor's rights hereunder.
(h) The Lessee shall pay directly, and uncontested Permitted Property Liens not from the sale proceeds, all prorations, credits, costs and expenses of the type described in clauses sale of the Property, whether incurred by the Lessor, the Participants or the Lessee, including without limitation, the cost of all title insurance, surveys, environmental reports, appraisals, transfer taxes, the Lessor's, the Participants' and the Agent's reasonable attorneys' fees, the Lessee's attorneys' fees, commissions, escrow fees, recording fees, and all applicable documentary and other transfer taxes.
(i)) The Lessee shall pay to the Agent on or prior to the Expiration Date (or to such other Person as the Agent shall notify the Lessee in writing, or in the case of Supplemental Rent, to the Person entitled thereto) an amount equal to the Residual Value Guarantee Amount, plus all Rent and all other amounts hereunder which have accrued or will accrue prior to or as of the Expiration Date, in the type of funds specified in Section 3.4 hereof.
(vii)j) If the selling price of the Property is less than the difference between the Asset Termination Value minus the Residual Value Guarantee Amount, then the Lessee shall have caused to be delivered to the Lessor, the Agent and each Participant the appraisal required by Section 13.2 of the Participation Agreement thirty (ix30) Business Days prior to the Expiration Date and shall pay to the Agent on or prior to the Expiration Date (or to such other person as the Agent shall notify the Lessee in writing) the amounts required to be paid pursuant to Section 13.2 of the Participation Agreement.
(k) The purchase of the Property shall be consummated on the Expiration Date following the payment by the Lessee pursuant to paragraphs (i) and (xj) above and contemporaneously with the Lessee's surrender of the Property pursuant to Section 19.1(b) and the net proceeds (the "Proceeds") of the definition thereofsale of the Property shall be paid directly to the Agent.
(l) have been removedThe Lessee shall not be entitled to exercise or consummate the Remarketing Option if a circumstance that would permit the Lessor to require the Lessee to repurchase the Property under Section 16.3 exists and is continuing.
Appears in 1 contract
Sources: Master Lease (Transport Corporation of America Inc)
Option to Remarket. Subject to the fulfillment of each of the conditions set forth in this Section 20.1 and Section 20.2 (collectively14.6, the "Return Conditions"), the Lessee Lessees shall have the option to market any of the Leased Properties for Lessor (the "Remarketing Option") to remarket and complete the sale of all of the Properties for the Lessor Trust). The Lessee's Lessees' effective exercise and consummation of the Remarketing Option shall be subject to the due and timely fulfillment of each of the following provisions provisions, the failure of any of which, unless waived in writing by Lessor and the provisions of Lenders, shall render the Remarketing Option and the Lessees' exercise thereof null and void, in which event, each Lessee shall be obligated to perform its obligations under Section 20.2 as to each of the Properties as of the dates set forth below14.2.
(a) Unless a longer period is called for pursuant to any Requirement of Law, on the date not Not later than three hundred sixty-five (365) days twelve months prior to the Expiration Lease Termination Date, the Lessee Concord shall give to the Agent Certificate Holder Lessor and the Administrative Agent written notice of the Lessee's Lessees' exercise of the Remarketing Option, which notice shall specify the Leased Property or Leased Properties that will be remarketed.
(b) Not later than one hundred ten (10) Business Days prior to the Lease Termination Date, each Lessee shall deliver to Lessor and twenty the Agent an environmental assessment of each Leased Property leased by it and to be remarketed dated not earlier than forty-five (12045) days prior to the Expiration Lease Termination Date, the Lessee shall deliver to the Agent Certificate Holder an Environmental Audit for each Property. Such Environmental Audit environmental assessment shall be prepared by an environmental consultant selected by the Agent Certificate Holder in the Agent Certificate Holder's discretion related Lessee and shall contain conclusions reasonably satisfactory to the Agent Certificate Holder as Required Funding Parties, shall be in form, detail and substance reasonably satisfactory to the Required Funding Parties, and shall otherwise indicate no degradation in environmental status of each Property. If any such conditions beyond those described in the related Environmental Audit indicates any exceptions calling for which corrective action is required by Applicable Law and shall not include a Phase Two environmental assessment, the Lessee shall have also delivered prior recommendation for further investigation to the Expiration Date a Phase Two environmental assessment by make such environmental consultant and a written statement by such environmental consultant indicating that all such exceptions have been remedied in compliance with Applicable Lawdetermination.
(c) On the date of the LesseeConcord's notice to Lessor and the Agent Certificate Holder of the Lessee's Lessees' exercise of the Remarketing Option, each of the Construction Conditions shall have been timely satisfied with respect to the Leased Property or Leased Properties being remarketed and no Lease Event of Default or Lease Potential Event of Default shall exist, and, and thereafter, no Lease Event of Default or Lease Potential Event of Default shall occurexist under this Lease.
(d) The Completion Date shall have occurred with respect to each Property prior to the Lessee's delivery of notice of its intention to exercise the Remarketing Option, and each parcel of Land subject to any ground lease shall be a separate tax lot.
(e) The Each Lessee shall have substantially completed in all Modificationsmaterial respects all Alterations, restoration and rebuilding of the relevant Leased Property or Leased Properties leased by it and to be remarketed pursuant to Sections 10.1 6.1, 6.2, 10.3 and 14.1 10.4 (as the case may be) and shall have fulfilled in all material respects all of the conditions and requirements in connection therewith pursuant to such said Sections, in each case prior to by the date on which Lessor and the Agent Certificate Holder receives the Lesseereceive Concord's notice of the Lessee's intention to Lessees' exercise of the Remarketing Option (time being of the essence), regardless of whether the same shall be within the such Lessee's control.
(e) Upon request by the Agent, each Lessee shall promptly provide any maintenance records relating to each Leased Property leased by it and to be remarketed to Lessor, the Agent and any potential purchaser, and shall otherwise do all things necessary to deliver possession of such Leased Property to the potential purchaser at the appropriate closing date. Each Lessee shall allow Lessor, the Agent and any potential purchaser reasonable access during normal business hours to any Leased Property to be remarketed for the purpose of inspecting the same.
(f) On the Lease Termination Date, each Lessee shall surrender the related Leased Property or Leased Properties leased by it and being remarketed in accordance with Section 14.8 hereof.
(g) In connection with any such sale of the Leased Properties, each Lessee will provide to the purchaser all customary "seller's" indemnities requested by the potential purchaser (taking into account the location and nature of the related Leased Property or Leased Properties), representations and warranties regarding title, absence of Liens (except Lessor Liens) and the condition of the related Leased Property or Leased Properties. Each Lessee shall fulfill all of the requirements set forth in clause (b) of Section 14.5, and such requirements are incorporated herein by reference, provided that all costs incurred in connection therewith shall be paid from the proceeds of the sale of the Leased Property. As to Lessor, any such sale shall be made on an "as is, with all faults" basis without representation or warranty by Lessor, other than the absence of Lessor Liens.
(h) The Lessees, jointly and severally, shall pay to the Agent on the Lease Termination Date (or to such other Person as Agent shall notify Lessee in writing, or in the case of Supplemental Rent, to the Person entitled thereto) an amount equal to the Recourse Deficiency Amount for the Leased Property or Leased Properties that were the subject of the Remarketing Option, plus all accrued and unpaid Basic Rent and Supplemental Rent, and all other amounts hereunder with respect to such Leased Property or Leased Properties which have accrued prior to or as of such date that are then unpaid, in the type of funds specified in Section 3.3 hereof. If the Lessees have exercised the Remarketing Option, the following additional provisions shall apply: During the period commencing on the date twelve months prior to the scheduled expiration of the Lease Term, one or more of the Lessees shall, as nonexclusive agent for Lessor, use commercially reasonable efforts to sell Lessor's interest in the Leased Properties that will be remarketed and will attempt to obtain the highest purchase price therefor. Lessee promptly shall submit all bids to Lessor and the Agent and Lessor and the Agent will have the right to review the same and the right to submit any one or more bids. All bids shall be on an all-cash basis. In no event shall such bidder be a Lessee or any Subsidiary or Affiliate of a Lessee. The written offer must specify the Lease Termination Date as the closing date. If, and only if, the Net Selling Price, as reasonably estimated by the Agent is less than an amount equal to the difference between the aggregate Leased Property Balances for the Leased Properties that are the subject of the Remarketing Option at such time minus the Recourse Deficiency Amount for such remarketed Leased Properties, then Lessor or the Agent may, in its sole and absolute discretion, by notice to Concord, reject such offer to purchase, in which event the parties will proceed according to the provisions of Section 14.7 hereof. If neither Lessor nor the Agent rejects such purchase offer as provided above, the closing of such purchase of the related Leased Properties by such purchaser shall occur on the Lease Termination Date, contemporaneously with the Lessees' surrender of the related Leased Property or Leased Properties in accordance with Section 14.8 hereof. The Net Selling Price shall be paid directly to the Agent (or Lessor if the Funded Amounts have been fully paid) and shall be distributed pursuant to Section 6.6(a) of the Master Agreement. No Lessee shall have also paid the cost of all Modifications commenced prior right, power or authority to the Expiration Date. Lessee shall not have been excused pursuant to Section 12.1 from complying bind Lessor in connection with any Applicable Law that involved the extension proposed sale of the ultimate imposition of such Applicable Law beyond the Expiration Date. Any Permitted Property Liens (other than Lessor Liens) on any Property that were contested by Lessee shall have been removed and the Agent Certificate Holder shall have received evidence satisfactory to it that all Liens (other than Lessor Liens and uncontested Permitted Property Liens of the type described in clauses (i), (vii), (ix) and (x) of the definition thereof) have been removedLeased Properties.
Appears in 1 contract
Option to Remarket. Subject to the fulfillment of each of the ------------------ conditions set forth in this Section 20.1 and Section 20.2 (collectively, the "Return Conditions")22.1, the Lessee shall have the option (the ------------ "Remarketing Option") to remarket market for the Lessor and complete the sale of all all, but ------------------ not less than all, of the Properties Lessor's interest in the Property on the Expiration Date for the Lessor Trustor in the event the conditions specified in Section 17.2(h) --------------- have occurred. The Lessee's effective exercise and consummation of the Remarketing Option shall be subject to the due and timely fulfillment of each of the following provisions and the provisions of Section 20.2 as to each of the Properties as of the dates set forth below.
(a) Unless a longer period is called for pursuant to any Requirement of Law, on the date not Not later than three one hundred sixty-five eighty (365180) days prior to the Expiration Date, the Lessee shall give to the Agent Certificate Holder and the Administrative Agent Lessor written notice of the Lessee's exercise of the Remarketing Option, which exercise shall be irrevocable (except by delivery of a Purchase Notice and consummation of the exercise of the Purchase Option prior to the earlier of (i) the Expiration Date or (ii) the date on which the Lessor enters into a binding contract to sell the Property pursuant to the exercise of the Remarketing Option).
(b) Not later than one hundred and twenty (120) days prior to the Expiration Date, the The Lessee shall deliver to the Agent Certificate Holder Lessor an Environmental Audit for each Propertyof the Property together with its notice of exercise of the Remarketing Option. Such Environmental Audit shall be prepared by an environmental consultant selected by the Agent Certificate Holder Lessor in the Agent Certificate HolderLessor's reasonable discretion and shall contain conclusions reasonably satisfactory to the Agent Certificate Holder Lessor as to the environmental status of each the Property. If any such Environmental Audit indicates any material exceptions calling for a Phase Two environmental assessmentreasonably requiring remedy or further investigation, the Lessee shall have also delivered prior to the Expiration Date a Phase Two environmental assessment by such environmental consultant and a written statement by such environmental consultant indicating that all prior to the Expiration Date showing the completion of the remedying of such exceptions have been remedied in compliance with Applicable Law.
(c) On the date of the Lessee's notice to the Agent Certificate Holder Lessor of the Lessee's exercise of the Remarketing OptionOption (other than pursuant to Section 17.2(h)), no --------------- Lease Event of Default or Lease Default shall exist, and, and thereafter, no uncured Lease Event of Default or Lease Default shall occurexist.
(d) The Completion Date shall have occurred with respect to each Property prior to the Lessee's delivery of notice of its intention to exercise the Remarketing Option, and each parcel of Land subject to any ground lease shall be a separate tax lot.
(e) The Lessee shall have substantially completed in all Material respects all Modifications, restoration and rebuilding of the relevant Properties Property pursuant to Sections 10.1 -------- 11.1 and 14.1 15.1 (as the case may be) and shall have fulfilled in all Material ------------- respects all of the conditions and requirements in connection therewith pursuant to such said Sections, in each case prior to by the date on which the Agent Certificate Holder Lessor receives the Lessee's notice of the Lessee's intention to exercise of the Remarketing Option (time being of the essence), regardless of whether the same shall be within the Lessee's control. The Lessee shall have also paid the cost of all Modifications commenced prior to the Expiration Date. The Lessee shall not have been excused pursuant to Section 12.1 13.1 from complying with any Applicable Law that involved ------------ the extension of the ultimate imposition of such Applicable Law beyond the Expiration Datelast day of the Term. Any Permitted Property Liens (other than Lessor Liens) on any the Property that were contested by the Lessee shall have been removed before the Expiration Date.
(e) During the Marketing Period, the Lessee shall, as nonexclusive agent for the Lessor, use commercially reasonable efforts to sell the Lessor's interest in the Property on or prior to the Expiration Date (without diminishing the Lessee's obligation to consummate the sale on the Expiration Date) and will attempt to obtain the highest purchase price therefor and for not less than the Fair Market Sales Value. The Lessee will be responsible for hiring and compensating brokers and making the Property available for inspection by prospective purchasers. The Lessee shall promptly upon request permit inspection of the Property and any maintenance records relating to the Property by the Lessor, any Participant and any potential purchasers, and shall otherwise do all things necessary to sell and deliver possession of the Property to any purchaser. All such marketing of the Property shall be at the Lessee's sole expense. The Lessee shall allow the Lessor and any potential qualified purchaser reasonable access to the Property for the purpose of inspecting the same.
(f) The Lessee shall submit all bids to the Lessor, the Agent and the Participants, and the Lessor will have the right to review the same and the right to submit any one or more bids. All bids shall be on an all-cash basis unless the Lessor, the Agent Certificate Holder and the Participants shall otherwise agree in their sole discretion. The Lessee shall procure bids from one or more bona fide prospective purchasers and shall deliver to the Lessor, the Agent and the Participants not less than ninety (90) days prior to the Expiration Date a binding written unconditional (except as set forth below), irrevocable offer by such purchaser or purchasers offering the highest bid to purchase the Property. No such purchaser shall be the Lessee, or any Subsidiary or Affiliate of the Lessee. The written offer must specify the Expiration Date as the closing date unless the Lessor, the Agent and the Participants shall otherwise agree in their sole discretion.
(g) In connection with any such sale of the Property, the Lessee will provide to the purchaser all customary "seller's" indemnities, representations and warranties regarding title, absence of Liens (except Lessor Liens) and the condition of the Property, as well as such other terms and conditions as may be negotiated between the Lessee and the purchaser. The Lessee shall have received evidence satisfactory obtained, at its cost and expense, all required governmental and regulatory consents and approvals and shall have made all filings as required by Applicable Law in order to it that carry out and complete the transfer of the Property and the Lessor shall reasonably cooperate, at the Lessees's expense, with the Lessee to obtain said items. As to the Lessor, any such sale shall be made on an "as is, with all Liens (faults" basis without representation or warranty by the Lessor other than the absence of Lessor Liens Liens. Any agreement as to such sale shall be made subject to the Lessor's rights under this Section 22.1. ------------
(h) The Lessee shall pay directly, and uncontested Permitted Property Liens not from the sale proceeds, all prorations, credits, costs and expenses of the type described in clauses sale of the Property, whether incurred by the Lessor or the Lessee, including without limitation, the cost of all title insurance, surveys, environmental reports, appraisals, transfer taxes, the Lessor's and the Agent's reasonable attorneys' fees, the Lessee's attorneys' fees, commissions, escrow fees, recording fees, and all applicable documentary and other transfer taxes.
(i)) The Lessee shall pay to the Agent on or prior to the Expiration Date (or to such other Person as the Agent shall notify the Lessee in writing, or in the case of Supplemental Rent, to the Person entitled thereto) an amount equal to the Residual Value Guarantee Amount, plus all Rent and all other amounts under this Lease and the other Operative Documents which have accrued or will accrue prior to or as of the Expiration Date, in the type of funds specified in Section 3.4 hereof. -----------
(vii)j) If the selling price of the Property is less than the difference between (A) the Asset Termination Value minus (B) the Residual Value Guarantee Amount, then the Lessee shall have caused to be delivered to the Lessor, the Agent and each Participant the appraisal required by Section 13.2 of the ------------------- Participation Agreement thirty (ix30) Business Days prior to the Expiration Date ----------------------- and shall pay to the Agent on or prior to the Expiration Date (or to such other person as the Agent shall notify the Lessee in writing) the amounts required to be paid pursuant to Section 13.2 of the Participation Agreement. -------------------------------------------
(k) The purchase of the Property shall be consummated on the Expiration Date following the payment by the Lessee pursuant to paragraphs (i) -------------- and (j) above and contemporaneously with the Lessee's surrender of the Property ------- pursuant to Section 19.1(b) and --------------- and the gross proceeds (xthe "Gross Proceeds") of the definition thereofsale of the Property (i.e., -------------- without deduction for any marketing, closing or other costs, prorations or commissions) shall be paid directly to the Agent; provided, however, that if the -------- ------- sum of the Gross Proceeds from such sale plus the Residual Value Guarantee Amount paid by the Lessee pursuant to paragraph (i) above and the proceeds of ------------ the collateral applied thereto under Section 20.4 exceeds the Asset Termination ------------ Value, then the excess shall be paid to the Lessee on the Expiration Date.
(l) The Lessee shall not be entitled to exercise or consummate the Remarketing Option if a circumstance that would permit the Lessor to require the Lessee to repurchase the Property under Section 16.3 exists and is continuing. ------------ If one or more of the foregoing provisions shall not be fulfilled as of the date set forth above, or the Property is not purchased as aforesaid, then the Lessor shall declare by written notice to the Lessee the Remarketing Option to be null and void as to the Property, in which event all of the Lessee's rights under this Section 22.1 shall immediately terminate and the Lessee shall ------------ be obligated to purchase all of the Lessor's interest in the Property pursuant to Section 20.2 on the Expiration Date. Notwithstanding the foregoing, the ------------ Lessee may at any time during the Marketing Period exercise its Purchase Option in accordance with Section 20.2 hereof, provided, that the Lessee shall bear all ------------ -------- costs arising out of or attributable to the cessation of remarketing efforts, including any costs, expenses, damages or liability which may be alleged by any prospective purchaser of the Property. Except as expressly set forth herein, the Lessee shall have been removedno right, power or authority to bind the Lessor in connection with any proposed sale of the Property.
Appears in 1 contract
Sources: Master Lease (Quantum Corp /De/)
Option to Remarket. Subject to the fulfillment of each of the conditions set forth in this Section 20.1 and Section 20.2 (collectively, the "Return Conditions")20.1, the Lessee shall have the option (the "Remarketing Option") to remarket market and complete the sale of all of the Properties for the Lessor TrustLessor. The Lessee's effective exercise and consummation of the Remarketing Option shall be subject to the due and timely fulfillment of each of the following provisions and the provisions of Section 20.2 as to each of the Properties as of the dates set forth below.
(a) Unless a longer period is called for pursuant to any Requirement of Law, on the date not Not later than three one hundred sixty-five and eighty (365180) days prior to the Expiration Date, the Lessee shall give to the Agent Certificate Holder and the Administrative Agent Lessor written notice of the Lessee's exercise of the Remarketing Option., which exercise shall be irrevocable. Failure by the Lessee to give timely notice shall be deemed to be an election by the Lessee, without further act thereby, of its Purchase Option for all of the Properties. 35 Master Lease
(b) Not later than one hundred and twenty (120) days prior to the Expiration Date, the Lessee shall deliver to the Agent Certificate Holder Lessor an Environmental Audit for each Propertyof the Properties. Such Environmental Audit shall be prepared by an environmental consultant selected by the Agent Certificate Holder Lessor in the Agent Certificate HolderLessor's reasonable discretion and shall contain conclusions reasonably satisfactory to the Agent Certificate Holder Lessor as to the environmental status of each Propertythe Properties. If any such Environmental Audit indicates any exceptions calling for a Phase Two environmental assessmentexceptions, the Lessee shall have also delivered prior to the Expiration Date a Phase Two environmental assessment by such environmental consultant and a written statement by such environmental consultant indicating that all such exceptions have been remedied in compliance with Applicable Law.
(c) On the date of the Lessee's notice to the Agent Certificate Holder of the Lessee's exercise of the Remarketing Option, no Lease Event of Default or Lease Default shall exist, and, thereafter, no Lease Event of Default or Lease Default shall occur.
(d) The Completion Date shall have occurred with respect to each Property prior to the Lessee's delivery of notice of its intention to exercise the Remarketing Option, and each parcel of Land subject to any ground lease shall be a separate tax lot.
(e) The Lessee shall have substantially completed all Modifications, restoration and rebuilding of the relevant affected Properties pursuant to Sections 10.1 and 14.1 (as the case may be) and shall have fulfilled all of the conditions and requirements in connection therewith pursuant to such said Sections, in each case prior to the date on which the Agent Certificate Holder Lessor receives the Lessee's notice of the Lessee's intention to exercise the Remarketing Option (time being of the essence), regardless of whether the same shall be within the Lessee's control. The Lessee shall have also paid the cost of all Modifications commenced prior to the Expiration Date. The Lessee shall not have been excused pursuant to Section 12.1 from complying with any Applicable Law that involved the extension of the ultimate imposition of such Applicable Law beyond the Expiration Dateof the Term. Any Permitted Property Liens (other than Lessor Liens) on any Property that were contested by the Lessee shall have been removed removed.
(d) During the Marketing Period, the Lessee shall, as nonexclusive agent for the Lessor, use its best efforts to sell the Lessor's interest in the Properties and will attempt to obtain the highest purchase price therefor and for not less than the Fair Market Sales Value. The Lessee will be responsible for hiring brokers and making the Properties available for inspection by prospective purchasers. The Lessee shall promptly upon request permit inspection of any Property and any maintenance records relating to any Property by the Lessor, any Participant and any potential purchasers, and shall otherwise do all things necessary to sell and deliver possession of the Properties to any purchaser. All such marketing of the Properties shall be at the Lessee's sole expense. The Lessee shall allow the Lessor and any potential qualified purchaser reasonable access to the Properties for the purpose of inspecting the same.
(e) The Lessee shall procure bids from one or more bona fide prospective purchasers and shall deliver to the Lessor and the Agent Certificate Holder Participants not less than ninety (90) days prior to the Expiration Date a binding written unconditional (except as set forth below), irrevocable offer by such purchaser or purchasers offering the highest bid to purchase the Properties. No such purchaser shall be the Lessee or any Subsidiary or Affiliate of the Lessee. The written offer must specify the Expiration Date as the closing date unless the Lessor and the Participants shall otherwise agree in their sole discretion.
(f) The Lessee shall submit all bids to the Lessor and the Participants, and the Lessor will have the right to submit any one or more bids. Any sale by the Lessee shall be for the highest cash bid submitted to the Lessor. The determination of the highest bid shall be made by the Lessor prior to the end of the Marketing Period, but in any event, the Lessor shall have received evidence satisfactory no obligation to it approve any bid for any Property unless each highest bid plus an amount that may be paid by the Lessee in its sole and absolute discretion (in addition to its obligations under Section 20.1(i)), together with such bid, equals or exceeds the Property Balance. All bids shall be on an all-cash basis unless the Lessor and the Participants shall otherwise agree in their sole discretion.
(g) The Lessee shall have obtained, at its cost and expense, all Liens (required governmental and regulatory consents and approvals and shall have made all filings as required by Applicable Law in order to carry out and complete the transfer of each of the Properties. As to the Lessor, any such sale shall be made on an "as is, with all faults" basis without representation or warranty by the Lessor other than the absence of Lessor Liens Liens. Any agreement as to such sale shall be made subject to the Lessor's rights hereunder.
(h) As between the Lessor and uncontested Permitted Property Liens the Lessee the Lessee shall pay directly, and not from the sale proceeds, all prorations, credits, costs and expenses of the type described in clauses (i), (vii), (ix) and (x) sale of the definition thereof) have been removed.Properties, whether incurred by the Lessor or the Lessee, including without limitation, the cost of all title insurance, surveys, environmental reports, appraisals, transfer taxes, the Lessor's reasonable attorneys' fees,
Appears in 1 contract
Option to Remarket. Subject to the fulfillment of each of the conditions set forth in this Section 20.1 and Section 20.2 (collectively14.6, the "Return Conditions"), the Lessee Lessees shall have the option to market all of, but not less than all of, the Leased Properties for Lessor (the "Remarketing Option") to remarket and complete the sale of all of the Properties for the Lessor Trust). The Lessee's Lessees' effective exercise and consummation of the Remarketing Option shall be subject to the due and timely fulfillment of each of the following provisions provisions, the failure of any of which, unless waived in writing by Lessor and the provisions of Lender, shall render the Remarketing Option and the Lessees' exercise thereof null and void, in which event, each Lessee shall be obligated to perform its obligations under Section 20.2 as to each of the Properties as of the dates set forth below14.2.
(a) Unless a longer period is called for pursuant to any Requirement of Law, on the date not Not later than three hundred sixty-five (365) days twelve months prior to the Expiration Lease Termination Date, the Lessee Dollar shall give to the Agent Certificate Holder Lessor and the Administrative Agent written notice of the Lessee's Lessees' exercise of the Remarketing Option.
(b) Not later than one hundred ten (10) Business Days prior to the Lease Termination Date, each Lessee shall deliver to Lessor and twenty the Agent an environmental assessment of each Leased Property leased by it dated not later than forty-five (12045) days prior to the Expiration Lease Termination Date, the Lessee shall deliver to the Agent Certificate Holder an Environmental Audit for each Property. Such Environmental Audit environmental assessment shall be prepared by an environmental consultant selected by the Agent Certificate Holder in the Agent Certificate Holder's discretion related Lessee and shall contain conclusions reasonably satisfactory to the Agent Certificate Holder as Agent, shall be in form, detail and substance reasonably satisfactory to the Agent, and shall otherwise indicate the environmental status condition of each Property. If any such Leased Property to be the same as described in the related Environmental Audit indicates any exceptions calling for a Phase Two environmental assessment, the Lessee shall have also delivered prior to the Expiration Date a Phase Two environmental assessment by such environmental consultant and a written statement by such environmental consultant indicating that all such exceptions have been remedied in compliance with Applicable LawAudit.
(c) On the date of the LesseeDollar's notice to Lessor and the Agent Certificate Holder of the Lessee's Lessees' exercise of the Remarketing Option, each of the Construction Conditions shall have been timely satisfied and no Lease Event of Default or Lease Potential Event of Default shall exist, and, and thereafter, no Lease Event of Default or Lease Potential Event of Default shall occurexist under this Lease.
(d) The Completion Date shall have occurred with respect to each Property prior to the Lessee's delivery of notice of its intention to exercise the Remarketing Option, and each parcel of Land subject to any ground lease shall be a separate tax lot.
(e) The Each Lessee shall have substantially completed all ModificationsAlterations, restoration and rebuilding of the relevant Leased Properties leased by it pursuant to Sections 10.1 6.1, 6.2, 10.3 and 14.1 10.4 (as the case may be) and shall have fulfilled in all material respects all of the conditions and requirements in connection therewith pursuant to such said Sections, in each case prior to by the date on which Lessor and the Agent Certificate Holder receives the Lesseereceive Dollar's notice of the Lessee's intention to Lessees' exercise of the Remarketing Option (time being of the essence), regardless of whether the same shall be within the such Lessee's control. .
(e) Each Lessee shall have also promptly provide any maintenance records relating to each Leased Property leased by it to Lessor, the Agent and any potential purchaser, and shall otherwise do all things necessary to deliver possession of such Leased Property to the potential purchaser at the appropriate closing date. Each Lessee shall allow Lessor, the Agent and any potential purchaser reasonable access during normal business hours to any Leased Property for the purpose of inspecting the same.
(f) On the Lease Termination Date, each Lessee shall surrender the Leased Properties leased by it in accordance with Section 14.8 hereof.
(g) In connection with any such sale of the Leased Properties, each Lessee will provide to the purchaser all customary "seller's" indemnities requested by the potential purchaser (taking into account the location and nature of the Leased Properties), representations and warranties regarding title, absence of Liens (except Lessor Liens) and the condition of the Leased Properties, including, without limitation, an environmental indemnity. Each Lessee shall fulfill all of the requirements set forth in clause (b) of Section 14.5, and such requirements are incorporated herein by reference. As to Lessor, any such sale shall be made on an "as is, with all faults" basis without representation or warranty by Lessor, other than the absence of Lessor Liens.
(h) In connection with any such sale of Leased Properties, each Lessee shall pay directly, and not from the sale proceeds, all prorations, credits, costs and expenses of the sale of the Leased Properties leased by it, whether incurred by Lessor, any Lender, the Agent or such Lessee, including without limitation, to the extent not paid by the purchaser, the cost of all Modifications commenced title insurance, surveys, environmental reports, appraisals, transfer taxes, Lessor's and the Agent's attorneys' fees, such Lessee's attorneys' fees, commissions, escrow fees, recording fees, and all applicable documentary and other transfer taxes.
(i) The Lessees, jointly and severally, shall pay to the Agent on the Lease Termination Date (or to such other Person as Agent shall notify Lessee in writing, or in the case of Supplemental Rent, to the Person entitled thereto) an amount equal to the Recourse Deficiency Amount, plus all accrued and unpaid Basic Rent and Supplemental Rent, and all other amounts hereunder which have accrued prior to or as of such date, in the type of funds specified in Section 3.3 hereof. If the Lessees have exercised the Remarketing Option, the following additional provisions shall apply: During the period commencing on the date twelve months prior to the Expiration Datescheduled expiration of the Lease Term, one or more of the Lessees shall, as nonexclusive agent for Lessor, use commercially reasonable efforts to sell Lessor's interest in the Leased Properties and will attempt to obtain the highest purchase price therefor. All such marketing of the Leased Properties shall be at the Lessees' sole expense. Lessee promptly shall not submit all bids to Lessor and the Agent and Lessor and the Agent will have the right to review the same and the right to submit any one or more bids. All bids shall be on an all-cash basis. In no event shall such bidder be Lessee or any Subsidiary or Affiliate of Lessee. The written offer must specify the Lease Termination Date as the closing date. If, and only if, the aggregate selling price (net of closing costs and prorations, as reasonably estimated by the Agent) is less than the difference between the Lease Balance at such time minus the Recourse Deficiency Amount, then Lessor or the Agent may, in its sole and absolute discretion, by notice to Dollar, reject such offer to purchase, in which event the parties will proceed according to the provisions of Section 14.7 hereof. If neither Lessor nor the Agent rejects such purchase offer as provided above, the closing of such purchase of the Leased Properties by such purchaser shall occur on the Lease Termination Date, contemporaneously with the Lessees' surrender of the Leased Properties in accordance with Section 14.8 hereof, and the gross proceeds of the sale (i.e., without deduction for any marketing, closing or other costs, prorations or commissions) shall be paid directly to the Agent (or Lessor if the Funded Amounts have been excused fully paid); provided, however, that if the sum of the gross proceeds from such sale plus the Recourse Deficiency Amount paid by the Lessees on the Lease Termination Date pursuant to Section 12.1 from complying 14.6(i), minus any and all reasonable costs and expenses (including broker fees, appraisal costs, reasonable legal fees and transfer taxes) incurred by the Agent or Lessor in connection with any Applicable Law that involved the extension marketing of the ultimate imposition Leased Properties or the sale thereof exceeds the Lease Balance as of such Applicable Law beyond date, then the Expiration excess shall be paid to Dollar on the Lease Termination Date. Any Permitted Property Liens (other than Lessor Liens) on any Property that were contested by No Lessee shall have been removed and the Agent Certificate Holder shall have received evidence satisfactory right, power or authority to it that all Liens (other than bind Lessor Liens and uncontested Permitted Property Liens in connection with any proposed sale of the type described in clauses (i), (vii), (ix) and (x) of the definition thereof) have been removedLeased Properties.
Appears in 1 contract
Option to Remarket. Subject to the fulfillment of each of the conditions set forth in this Section 20.1 and Section 20.2 (collectively, the "Return Conditions")14.6, the Lessee shall have the option to market the Leased Property for Lessor (the "“Remarketing Option") to remarket and complete the sale of all of the Properties for the Lessor Trust”). The Lessee's ’s effective exercise and consummation of the Remarketing Option shall be subject to the due and timely fulfillment of each of the following provisions provisions, the failure of any of which, unless waived in writing by Lessor and the provisions of Lenders, shall render the Remarketing Option and the Lessee’s exercise thereof null and void, in which event, the Lessee shall be obligated to perform its obligations under Section 20.2 as to each of the Properties as of the dates set forth below14.2.
(a) Unless a longer period is called for pursuant to any Requirement of Law, on the date not Not later than three hundred sixty-five (365) days six months prior to the Expiration Datelast day of the Base Lease Term, the Lessee shall give to the Agent Certificate Holder Lessor and the Administrative Agent written notice of the Lessee's ’s exercise of the Remarketing Option.
(b) Not later than one hundred and twenty ten (12010) days Business Days prior to the Expiration Datelast day of the Base Lease Term, the Lessee shall deliver to Lessor and the Agent Certificate Holder an Environmental Audit for each Propertyenvironmental assessment of the Leased Property dated not earlier than forty-five (45) days prior to the last day of the Base Lease Term. Such Environmental Audit environmental assessment shall be prepared by an environmental consultant selected by the Agent Certificate Holder in the Agent Certificate Holder's discretion Lessee and shall contain conclusions reasonably satisfactory to the Agent Certificate Holder as Required Funding Parties, shall be in form, detail and substance reasonably satisfactory to the Required Funding Parties, and shall otherwise indicate no degradation in environmental status of each Property. If any such conditions beyond those described in the Environmental Audit indicates any exceptions calling for which corrective action is required by Applicable Law and shall not include a Phase Two environmental assessment, the Lessee shall have also delivered prior recommendation for further investigation to the Expiration Date a Phase Two environmental assessment by make such environmental consultant and a written statement by such environmental consultant indicating that all such exceptions have been remedied in compliance with Applicable Lawdetermination.
(c) On the date of the Lessee's ’s notice to Lessor and the Agent Certificate Holder of the Lessee's ’s exercise of the Remarketing Option, no Lease Event of Default or Lease Potential Event of Default shall exist, and, and thereafter, no Lease Event of Default or Lease Potential Event of Default shall occurexist under this Lease.
(d) The Completion Date shall have occurred with respect to each Property prior to the Lessee's delivery of notice of its intention to exercise the Remarketing Option, and each parcel of Land subject to any ground lease shall be a separate tax lot.
(e) The Lessee shall have substantially completed in all Modificationsmaterial respects all Alterations, restoration and rebuilding of the relevant Properties Leased Property pursuant to Sections 10.1 6.1, 6.2, 10.3 and 14.1 10.4 (as the case may be) and shall have fulfilled in all material respects all of the conditions and requirements in connection therewith pursuant to such said Sections, in each case prior to by the date on which Lessor and the Agent Certificate Holder receives receive the Lessee's ’s notice of the Lessee's intention to ’s exercise of the Remarketing Option (time being of the essence), regardless of whether the same shall be within the Lessee's ’s control. .
(e) Upon request by the Agent, the Lessee shall promptly provide any maintenance records relating to the Leased Property to Lessor, the Agent and any potential purchaser, and shall otherwise do all things necessary to deliver possession of the Leased Property to the potential purchaser at the appropriate closing date. The Lessee shall allow Lessor, the Agent and any potential purchaser reasonable access during normal business hours to the Leased Property for the purpose of inspecting the same.
(f) On the last day of the Base Lease Term, the Lessee shall surrender the Leased Property in accordance with Section 14.8 hereof.
(g) In connection with any such sale of the Leased Property, the Lessee will provide to the purchaser customary and reasonable “seller’s” indemnities requested by the potential purchaser (taking into account the location and nature of the Leased Property), representations and warranties regarding title, absence of Liens (except Lessor Liens) and other customary matters. The Lessee shall fulfill all of the requirements set forth in clause (b) of Section 14.5, and such requirements are incorporated herein by reference. As to Lessor, any such sale shall be made on an “as is, with all faults” basis without representation or warranty by Lessor, other than the absence of Lessor Liens.
(h) The Lessee shall pay to the Agent on the last day of the Base Lease Term (or to such other Person as Agent shall notify Lessee in writing, or in the case of Supplemental Rent, to the Person entitled thereto) an amount equal to the Recourse Deficiency Amount, plus all accrued and unpaid Basic Rent and Supplemental Rent, and all other amounts hereunder which have also paid the cost of all Modifications commenced accrued prior to or as of such date, in the Expiration Datetype of funds specified in Section 3.3 hereof. If the Lessee has exercised the Remarketing Option, the following additional provisions shall apply: During the period commencing on the date of notice of exercise of the Remarketing Option, the Lessee shall, as nonexclusive agent for Lessor, use commercially reasonable efforts to sell Lessor’s interest in the Leased Property and will attempt to obtain the highest purchase price therefor. Lessee shall not have been excused pursuant incur any marketing costs that exceed, or are expected to Section 12.1 from complying with any Applicable Law that involved exceed, $100,000 without the extension prior written consent of Lessor and the ultimate imposition of such Applicable Law beyond the Expiration DateAgent, which consent shall not be unreasonably withheld or delayed. Any Permitted Property Liens (other than Lessee promptly shall submit all bids to Lessor Liens) on any Property that were contested by Lessee shall have been removed and the Agent Certificate Holder and Lessor and the Agent will have the right to review the same and the right to submit any one or more bids. All bids shall have received evidence satisfactory to it that all Liens (other than Lessor Liens and uncontested Permitted Property Liens be on an all-cash basis. In no event shall such bidder be the Lessee or any Subsidiary or Affiliate of the type described Lessee. The written offer must specify the last day of the Base Lease Term as the closing date. If, and only if, the Net Selling Price is less than the difference between the Lease Balance at such time minus the Recourse Deficiency Amount, then Lessor or the Agent may, in clauses (i)its sole and absolute discretion, (vii)by notice to the Lessee, (ix) reject such offer to purchase, in which event the parties will proceed according to the provisions of Section 14.7 hereof. If neither Lessor nor the Agent rejects such purchase offer as provided above, the closing of such purchase of the Leased Property by such purchaser shall occur on the last day of the Base Lease Term, contemporaneously with the Lessee’s surrender of the Leased Property in accordance with Section 14.8 hereof, and (xthe Net Selling Price shall be distributed in accordance with Section 6.6(a) of the definition thereof) Master Agreement. The Lessee shall not have been removedthe right, power or authority to bind Lessor in connection with any proposed sale of the Leased Property.
Appears in 1 contract
Option to Remarket. Subject to the fulfillment of each of the conditions set forth in this Section 20.1 and Section 20.2 (collectively20.1, the "Return Conditions"), the each Lessee shall have the option (the "Remarketing Option") to remarket market and complete the sale of all of the Properties for the Lessor TrustLessor. The Lessee's effective exercise and consummation of the Remarketing Option shall be subject to the due and timely fulfillment of each of the following provisions and the provisions of Section 20.2 as to each of the Properties as of the dates set forth below.
(a) Unless a longer period is called for pursuant to any Requirement of Law, on the date not Not later than three hundred sixty-five (365) days one year prior to the Expiration Date, the Lessee Lessees shall give to the Agent Certificate Holder and the Administrative Agent Lessor written notice of the Lessee's exercise of the Remarketing Option, which exercise shall be irrevocable. Failure by a Lessee to give timely notice shall be deemed to be an election without further act thereby, of the Purchase Option.
(b) Not later than one hundred and twenty (120) days prior to the Expiration Date, the Lessee Lessees shall deliver to the Agent Certificate Holder Lessor an Environmental Audit for each Propertyof the Properties. Such Environmental Audit shall be prepared by an environmental consultant selected by the Agent Certificate Holder Lessor in the Agent Certificate HolderLessor's reasonable discretion and shall contain conclusions reasonably satisfactory to the Agent Certificate Holder Lessor as to the environmental status of each Propertythe Properties. If any such Environmental Audit indicates any exceptions calling for a Phase Two environmental assessmentexceptions, the applicable Lessee shall have also delivered prior to the Expiration Date a Phase Two environmental assessment by such environmental consultant and a written statement by such environmental consultant indicating that all such exceptions have been remedied in compliance with Applicable Law.
(c) On the date of the Lessee's notice to the Agent Certificate Holder Lessor of the Lessee's exercise of the Remarketing Option, no Lease Event of Default or Lease Default shall exist, and, thereafter, no Lease Event of Default or Lease Default shall occur.
(d) The Completion Date Lessees shall have occurred with respect to each Property completed in all material respects all Modification (other than Modifications first required by a Governmental Authority after the date that s one year prior to the Lessee's delivery of notice of its intention to exercise the Remarketing OptionExpiration Date, and each parcel of Land subject to any ground lease which Modifications shall be a separate tax lot.
(e) The Lessee shall have substantially completed all Modificationsnot later than 180 days after the Expiration Date), restoration and rebuilding of the relevant affected Properties pursuant to Sections 10.1 and 14.1 (as the case may be) and shall have fulfilled in all material respects all of the conditions and requirements in connection therewith pursuant to such said Sections, in each case prior to the date on which the Agent Certificate Holder Lessor receives the Lessee's notice of the Lessee's intention to exercise the Remarketing Option (time being of the essence), regardless of whether the same shall be within the Lessee's control. The Lessee shall have also paid the cost of or completed all Modifications commenced prior to the Expiration Date. The Lessee shall not have been excused pursuant to Section 12.1 from complying with any Applicable Law Law, discharge of Lien (other than Lessor Liens and Agent Liens) or payment of Property Tax that involved the extension of the ultimate imposition of such Applicable Law Law, discharge of Lien or payment of Property Tax beyond the Expiration Dateof the Term. Any Permitted Property Liens (other than Lessor LiensLiens and other Liens attributable to the other parties to the Operative Documents) on any Property that were contested by the Lessee shall have been removed prior to the Expiration Date.
(e) During the Marketing Period, the Lessees shall, as nonexclusive agents for the Lessor, use commercially reasonable best efforts to sell the Lessor's interest in the Properties and will attempt to obtain the highest purchase price therefor and for not less than the Fair Market Sales Value. The Lessees will be responsible for hiring brokers and making the Properties available for inspection by prospective purchasers. During the Marketing Period the Lessees shall promptly upon reasonable notice and during regular business hours permit inspection of any Property and any maintenance records relating to any Property by the Lessor to the extent such inspection does not cause material interruption of the Lessees' business activities, the Lenders and any potential purchasers, and shall otherwise do all things necessary to sell and deliver possession of the Properties to any purchaser. All such marketing of the Properties shall be at the Lessees' sole expense. During the Marketing Period the Lessees shall allow the Lessor and any potential qualified purchaser reasonable access to the Properties for the purpose of inspecting the same.
(f) No such purchaser shall be a Lessee or any Subsidiary or Affiliate of a Lessee.
(g) All bids shall be submitted to the Lessor and the Agent Certificate Holder Lenders, and the Lessor will have the right to submit any one or more bids. Any sale shall be for the highest cash bid submitted to the Lessor. The determination of the highest bid shall be made by the Lessor and the Tranche B Lenders prior to the end of the Marketing Period, but in any event, the Lessor shall have no obligation to approve any bid for any Property unless each highest bid for each of the respective Properties, in the aggregate, equal or exceed the Lease Balance. All bids shall be on an all-cash basis unless the Lessor and the Tranche B Lenders shall otherwise agree in their sole discretion.
(h) In connection with any such sale of any Property, the applicable Lessee will provide to the purchaser all customary "seller's" indemnities, representations and warranties regarding title, absence of Liens (except Lessor Liens and Agent Liens) and the condition of such Property, including an environmental indemnity, in each case to the extent the same are reasonably required by the purchaser. The applicable Lessee shall have obtained, at its cost and expense, all required governmental and regulatory consents and approvals and shall have made all filings as required by Applicable Law in order to carry out and complete the transfer of each of the Properties but shall grant or assign all assignable licenses necessary for the operation and maintenance of such Property and cooperate reasonably in seeking or obtaining all necessary Governmental Action to enable the purchaser to operate the Property to the extent any such cooperation is required to lawfully effect a transfer of operating rights. As to the Lessor, any such sale shall be made on an "as is, with all faults" basis without representation or warranty by the Lessor other than as to the absence of Lessor Liens. Any agreement as to such sale shall be made subject to the Lessor's rights hereunder.
(i) The Lessees shall pay directly, and not from the sale proceeds, all prorations, credits, costs and expenses of the sale of the Properties, whether incurred by the Lessor or the Lessees, including, without limitation, the cost of all title insurance, surveys, environmental reports, appraisals, transfer taxes, the Lessor's reasonable attorneys' fees, the Lessees' attorneys' fees, commissions, escrow fees, recording fees, and all applicable documentary and other transfer taxes.
(j) The Lessees shall pay to the Lessor on or prior to the Expiration Date (or in the case of Supplemental Rent, to the Person entitled thereto) an amount equal to the Lease Recourse Amount plus all accrued and unpaid Rent (including accrued and unpaid Supplemental Rent, if any) and all other amounts hereunder which have accrued or will accrue prior to or as of the Expiration Date, in the type of funds specified in Section 3.1(b) hereof.
(k) The Lessees shall pay to the Lessor on or prior to the Expiration Date the amounts, if any, required to be paid pursuant to Section 13.2 of the Participation Agreement.
(l) The gross proceeds of the sale of the Properties (less any marketing, closing or other costs, prorations or commissions incurred by the Collateral Agent, the Lease Agent or the Lessor in connection therewith) (the "Gross Remarketing Proceeds") shall be paid directly to the Lessor; provided, however, that if the sum of (x) the Gross Remarketing Proceeds from such sale plus (y) the Lease Recourse Amount and other amounts received evidence satisfactory by the Collateral Agent or the Lease Agent, as applicable, pursuant to this Section 20.1 exceeds the Lease Balance as of such date, then the excess shall be paid to the Company as agent for the Lessees on the Expiration Date. If one or more of the foregoing provisions shall not be fulfilled as of the applicable date set forth above with respect to any Property, then the Lessor shall declare by written notice to the Lessees the Remarketing Option to be null and void (whether or not it has been theretofore exercised by any Lessee) as to all of the Properties, in which event all of each Lessee's rights under this Section 20.1 shall immediately terminate and the Lessees shall be obligated to purchase all of the Properties pursuant to Section 18.2 on the Expiration Date. In the event that the sale of all of the Properties is not consummated on the Expiration Date, but such sale is consummated any time thereafter, the Lessor shall remit to the Company, as agent for the Lessees, promptly after the consummation of the sale of the last Property, any excess remaining after deducting the then outstanding Lease Balance plus the Imputed Equity Return thereon plus an amount equivalent to the Overdue Rate thereon accruing from and after the Expiration Date from the Gross Remarketing Proceeds. If the Lessee effectively elects the Remarketing Option and no sale of any Property is consummated prior to the end of the Marketing Period, each Lessee shall, in addition to making the payment required pursuant to Section 20.1(j) above, do each of the following:
(i) execute and deliver to Lessor and the Lessor's title insurance company at its own cost and expense an affidavit as to the absence of any Liens (other than Lessor Liens and uncontested Permitted Property Liens of the type described in clauses clause (i), (vii), (ixviii) and or (x) of the definition thereof), and shall execute and deliver to the Lessor a statement of termination of this Master Lease to the extent relating to such Property; and
(ii) for a period of up to one year after the Expiration Date (the "Extended Marketing Period"), cooperate reasonably with the Lessor and/or any Person designated by the Lessor to receive such Property, which cooperation shall include reasonable efforts with respect to the following, all of which the Lessees shall do at their own cost and expense on or before the Expiration Date for such Property or as soon thereafter as is reasonably practicable: providing copies of all books and records regarding the maintenance and ownership of such Property and all know-how, data and technical information relating thereto; granting or assigning all assignable licenses necessary for the operation and maintenance of such Property; and cooperating reasonably, at the Lessee's or a purchaser's expense, in the Lessor's or a purchaser's efforts to obtain the necessary Governmental Action to operate the Property. The obligations of the Lessees under this paragraph shall survive the expiration or termination of this Master Lease. Except as expressly set forth herein, the Lessees shall have been removedno right, power or authority to bind the Lessor in connection with any proposed sale of any Property.
Appears in 1 contract
Sources: Master Lease, Open End Mortgage and Purchase Option (Multicare Companies Inc)
Option to Remarket. Subject to the fulfillment of each of the conditions set forth in this Section 20.1 and Section 20.2 (collectively, the "Return Conditions"), the Lessee shall have the option (the "Remarketing Option") to remarket and complete the sale of all all, but not less than all, of the Properties for the Lessor TrustLessor. The Lessee's effective exercise and consummation of the Remarketing Option shall be subject to the due and timely fulfillment of each of the following provisions and the provisions of Section 20.2 as to each of the Properties as of the dates set forth below.:
(a) Unless a longer period is called for pursuant to any Requirement of Law, on On the date not later than three one hundred sixty-five eighty (365180) days prior to the Expiration Date, the Lessee shall give to the Agent Certificate Holder Lessor and the Administrative Agent written notice of the Lessee's exercise of the Remarketing Option.
(b) Not later than one hundred and twenty (120) days prior to the Expiration Date, the Lessee shall deliver to the Agent Certificate Holder Lessor an Environmental Audit for each Property. Such Each Environmental Audit shall be prepared by an environmental consultant selected by the Agent Certificate Holder Lessor in the Agent Certificate HolderLessor's discretion and shall contain conclusions satisfactory to the Agent Certificate Holder Lessor as to the environmental status of each such Property. If any such Environmental Audit indicates any exceptions calling for a Phase Two environmental assessment, the Lessee shall have also delivered prior to the Expiration Date a Phase Two environmental assessment by such environmental consultant and a written statement by such environmental consultant indicating that all such exceptions have been remedied in compliance with Applicable Law.
(c) On the date of the Lessee's notice to the Agent Certificate Holder Lessor of the Lessee's exercise of the Remarketing Option, no Lease Event of Default or Lease Default shall exist, and, thereafter, no Lease Event of Default or Lease Default shall occur.. ▇▇▇ Research Corporation Amended and Restated Master Lease
(d) The Completion Date shall have occurred with respect to each Property prior to the Lessee's delivery of notice of its intention to exercise the Remarketing Option, and each parcel of Land subject to any ground lease shall be a separate tax lot.
(e) The Lessee shall have substantially completed all Modifications, restoration and rebuilding of the relevant Properties each Property pursuant to Sections 10.1 and 14.1 14.2 (as the case may be) and shall have fulfilled all of the conditions and requirements in connection therewith pursuant to such Sections, in each case prior to the date on which the Agent Certificate Holder Lessor receives the Lessee's notice of the Lessee's intention to exercise the Remarketing Option (time being of the essence), regardless of whether the same shall be within the Lessee's control. The Lessee shall have also paid the cost of all Modifications commenced prior to the Expiration Date. The Lessee shall not have been excused pursuant to Section 12.1 from complying with any Applicable Law that involved the extension of the ultimate imposition of such Applicable Law beyond the Expiration Date. Any Permitted Property Liens (other than Lessor Liens) on any each Property that were contested by the Lessee shall have been removed and the Agent Certificate Holder Lessor shall have received evidence satisfactory to it that all Liens (other than Lessor Liens and uncontested Permitted Property Liens of the type described in clauses (i), (vii), (ix) and (x) of the definition thereof) have been removed.
Appears in 1 contract
Option to Remarket. Subject to the fulfillment of each of the conditions set forth in this Section 20.1 and Section 20.2 (collectivelySection, the "Return Conditions"), the Lessee shall have the option (the "Remarketing Option") to remarket and complete the sale of all market all, but not less than all, of the Properties for the Lessor TrustLeased Property and to procure a purchaser therefor. The Lessee's effective exercise and consummation of the Remarketing Option shall be subject to the due and timely fulfillment of each of the following provisions provisions, the failure of any of which shall render the Remarketing Option and the provisions Lessee's exercise thereof null and void, in which event, Lessee shall remain obligated to perform all of Section 20.2 as to each of the Properties as of the dates set forth below.its obligations under SECTION 15.2 ("Purchase Obligation"):
(ai) Unless a longer period is called for pursuant to any Requirement of Law, on Not earlier than six months before the date not later than three hundred sixty-five (365) days prior to the Expiration Scheduled Termination Date, the Lessee shall give to the Agent Certificate Holder and the Administrative Agent Lessor written notice of the Lessee's exercise of the Remarketing Option, which exercise shall be irrevocable unless otherwise agreed in writing by the Lender.
(bii) Not later than one hundred and twenty thirty (12030) Business Days prior to the Scheduled Termination Date, Lessee shall deliver to Lessor an environmental assessment of the Leased Property dated not later than forty-five (45) days prior to the Expiration Scheduled Termination Date, the Lessee shall deliver to the Agent Certificate Holder an Environmental Audit for each Property. Such Environmental Audit environmental assessment shall be prepared by an ATC Associates Inc, or other environmental consultant selected by Lessee and reasonably acceptable to Lessor and the Agent Certificate Holder Lender, shall be in form, detail and substance reasonably acceptable to Lessor and the Lender, and shall otherwise indicate the environmental condition of the Leased Property to be the same as described in the Agent Certificate Holder's discretion and shall contain conclusions satisfactory to the Agent Certificate Holder as to the environmental status of each Property. If any such Environmental Audit indicates any exceptions calling for a Phase Two environmental assessment, delivered pursuant to SECTION 3.2 of the Lessee shall have also delivered prior to the Expiration Date a Phase Two environmental assessment by such environmental consultant and a written statement by such environmental consultant indicating that all such exceptions have been remedied in compliance with Applicable LawParticipation Agreement.
(ciii) On the date of the Lessee's notice to the Agent Certificate Holder Lessor of the Lessee's exercise of the Remarketing Option, no Lease Event of Default or Lease Default shall exist, and, and thereafter, no Lease Event of Default or Lease Default shall occurexist under this Lease.
(div) The Completion Date shall have occurred with respect to each Property prior to the Lessee's delivery of notice of its intention to exercise the Remarketing Option, and each parcel of Land subject to any ground lease shall be a separate tax lot.
(e) The Lessee shall have substantially completed all ModificationsAlterations, restoration and rebuilding of the relevant Properties Leased Property pursuant to Sections 10.1 SECTIONS 7.2, 11.3 and 14.1 11.4 (as the case may be) and shall have fulfilled all of the conditions and requirements in connection therewith pursuant to such said Sections, in each case prior to by the date on which the Agent Certificate Holder Lessor receives the Lessee's notice of the Lessee's intention to exercise of the Remarketing Option (time being of the essence), regardless of whether the same shall be within the Lessee's control.
(v) Once Lessee has exercised the Remarketing Option as provided in CLAUSE (i) hereof, Lessee shall, as nonexclusive agent for Lessor, use commercially reasonable efforts to sell Lessor's interest in the Leased Property and will attempt to obtain the highest purchase price therefor. Lessee will be responsible for hiring brokers and making the Leased Property available for inspection by prospective purchasers. Lessee shall promptly provide any maintenance records relating to the Leased Property to Lessor and any potential purchaser thereof upon request, and shall otherwise do all things necessary to sell and deliver possession of the Leased Property to the purchaser thereof. All such marketing of the Leased Property shall be at Lessee's sole expense. Lessee shall allow Lessor, the Lender and any potential qualified purchaser access to the Leased Property for the purpose of inspecting the same.
(vi) Lessee shall submit all bids to Lessor and the Lender and Lessor and the Lender will have also paid the right to review the same and the right to submit any one or more bids. All bids shall be on an "all-cash" basis (at least up to the Lease Balance amount). Lessee shall procure bids from one or more bona fide prospective purchasers of the Leased Property and shall deliver to Lessor and the Lender not less than ninety (90) days prior to the Lease Termination Date a binding written irrevocable offer by such purchaser offering (subject to customary conditions which do not violate the provisions of CLAUSE viii, below) the highest "all-cash" bid to purchase the Leased Property. Such purchaser shall not be Lessee or any Subsidiary or Affiliate of Lessee. The written offer must specify the Lease Termination Date as the closing date.
(vii) On the Lease Termination Date, Lessee shall surrender the Leased Property in accordance with SECTION 15.8 hereof.
(viii) In connection with any such sale of the Leased Property, Lessee may provide to the purchaser any such customary "seller's" indemnities, representations and warranties regarding title, absence of Liens (except Lessor's Liens) and the condition of the Leased Property, including, without limitation, an environmental indemnity, as Lessee may determine to provide in the exercise of its business judgment and sole discretion, PROVIDED, HOWEVER, that no such indemnities, representations or warranties shall be binding on Lessor, nor shall they create liabilities, charges, offsets or Claims, contingent or otherwise, which could diminish, offset or impose a lien upon the amount of the cash proceeds payable to Lessor under such purchase offer, nor shall Lessor be under any obligation to join in or become obligated for the same, except that Lessor shall fulfill all of the requirements set forth in CLAUSE (b) of SECTION 15.5, and such requirements are incorporated herein by reference. As to Lessor, any such sale shall be made on an "as is, with all faults" basis without representation or warranty by Lessor other than the absence of Lessor's Liens.
(ix) Lessor shall pay from the sale proceeds, all prorations, credits, costs and expenses of the sale of the Leased Property, including without limitation the cost of all Modifications commenced prior title insurance, surveys, environmental reports, appraisals, transfer taxes, Lessor's reasonable attorneys' fees, commissions, escrow fees, recording fees, and all applicable documentary and other transfer taxes.
(x) Lessee shall pay to the Expiration Date. Lender on the Lease Termination Date (or to such other Person as Lessor shall notify Lessee shall not have been excused pursuant in writing or, in the case of Supplemental Rent, to Section 12.1 from complying with any Applicable Law that involved the extension of Person entitled thereto) an amount equal to the ultimate imposition of such Applicable Law beyond the Expiration Date. Any Permitted Property Liens (other than Lessor Liens) on any Property that were contested by Lessee shall have been removed and the Agent Certificate Holder shall have received evidence satisfactory to it that all Liens (other than Lessor Liens and uncontested Permitted Property Liens of Recourse Deficiency Amount in the type described of funds specified in clauses SECTION 4.3 hereof.
(i), xi) If the aggregate selling price (vii), net of closing costs and prorations and other amounts payable by Lessor under clause (ix) above, as reasonably estimated by Lessor) for the Leased Property plus the Recourse Deficiency Amount is less than the Lease Balance, then Lessor may, by notice to Lessee and in Lessor's sole and absolute discretion, reject such offer to purchase, in which event the parties will proceed according to the provisions of SECTION 15.7 "Rejection of Sale" hereof.
(xxii) If Lessor does not reject such purchase offer as provided above, the closing of such purchase of the definition thereofLeased Property by such purchaser must occur on the Lease Termination Date, contemporaneously with Lessee's surrender of the Leased Property in accordance with SECTION 15.8 hereof.
(xiii) have been removedIf Lessor does not reject the purchase offer as provided above, then the purchase shall be consummated on the Lease Termination Date and the gross proceeds of the sale (i.e., without deduction for any marketing, closing or other costs, prorations or commissions) shall be paid directly to Lessor; provided, however, that if the sum of the gross proceeds from such sale plus the Recourse Deficiency Amount exceeds the Lease Balance, as of such date, then the excess shall be paid to Lessee on the Lease Termination Date.
Appears in 1 contract
Sources: Lease Agreement (STB Systems Inc)
Option to Remarket. Subject to the fulfillment of each of the conditions set forth in this Section 20.1 and Section 20.2 (collectivelySection, the "Return Conditions"), the Lessee shall have the option (the "Remarketing Option") to remarket and complete the sale of all market all, but not less than all, of the Properties for the Lessor TrustLeased Property and to procure a purchaser therefor. The Lessee's effective exercise and consummation of the Remarketing Option shall be subject to the due and timely fulfillment of each of the following provisions and the provisions of Section 20.2 as to each of the Properties as of the dates set forth below.effective
(ai) Unless a longer period is called for pursuant to any Requirement of Law, on Not earlier than six months before the date not later than three hundred sixty-five (365) days prior to the Expiration Scheduled Termination Date, the Lessee shall give to the Agent Certificate Holder and the Administrative Agent Lessor written notice of the Lessee's exercise of the Remarketing Option, which exercise shall be irrevocable unless otherwise agreed in writing by the Lender.
(bii) Not later than one hundred and twenty thirty (12030) Business Days prior to the Scheduled Termination Date, Lessee shall deliver to Lessor an environmental assessment of each Parcel of the Leased Property dated not later than forty-five (45) days prior to the Expiration Scheduled Termination Date, the Lessee shall deliver to the Agent Certificate Holder an Environmental Audit for each Property. Such Environmental Audit Each such environmental assessment shall be prepared by an environmental consultant selected by Lessee and reasonably acceptable to Lessor and the Agent Certificate Holder Lender, shall be in form, detail and substance reasonably acceptable to Lessor and the Lender, and shall otherwise indicate the environmental condition of the Leased Property to be the same as described in the Agent Certificate Holder's discretion and shall contain conclusions satisfactory to the Agent Certificate Holder as to the environmental status of each Property. If any such Environmental Audit indicates any exceptions calling for a Phase Two environmental assessment, delivered pursuant to Section 3.2 of the Lessee shall have also delivered prior to the Expiration Date a Phase Two environmental assessment by such environmental consultant and a written statement by such environmental consultant indicating that all such exceptions have been remedied in compliance with Applicable LawParticipation Agreement.
(ciii) On the date of the Lessee's notice to the Agent Certificate Holder Lessor of the Lessee's exercise of the Remarketing Option, each of the Construction Conditions shall have been timely satisfied and no Lease Event of Default or Lease Default shall exist, and, and thereafter, no Lease Event of Default or Lease Default shall occurexist under this Lease.
(div) The Completion Date shall have occurred with respect to each Property prior to the Lessee's delivery of notice of its intention to exercise the Remarketing Option, and each parcel of Land subject to any ground lease shall be a separate tax lot.
(e) The Lessee shall have substantially completed all ModificationsAlterations, restoration and rebuilding of the relevant Properties Leased Property pursuant to Sections 10.1 7.2, 11.3 and 14.1 11.4 (as the case may be) and shall have fulfilled all of the conditions and requirements in connection therewith pursuant to such said Sections, in each case prior to by the date on which the Agent Certificate Holder Lessor receives the Lessee's notice of the Lessee's intention to exercise of the Remarketing Option (time being of the essence), regardless of whether the same shall be within the Lessee's control.
(v) Once Lessee has exercised the Remarketing Option as provided in clause (i) hereof, Lessee shall, as nonexclusive agent for Lessor, use commercially reasonable efforts to sell Lessor's interest in each Parcel of the Leased Property and will attempt to obtain the highest purchase price therefor. Lessee will be responsible for hiring brokers and making the Leased Property available for inspection by prospective purchasers. Lessee shall promptly provide any maintenance records relating to each Parcel of the Leased Property to Lessor and any potential purchaser thereof upon request, and shall otherwise do all things necessary to sell and deliver possession of each Parcel of the Leased Property to the purchaser thereof. All such marketing of the Leased Property shall be at Lessee's sole expense. Lessee shall allow Lessor, the Lender and any potential qualified purchaser access to each Parcel of the Leased Property for the purpose of inspecting the same.
(vi) Lessee shall submit all bids to Lessor and the Lender and Lessor and the Lender will have also paid the right to review the same and the right to submit any one or more bids. All bids shall be on an "all-cash" basis (at least up to the Total Lease Balance amount). Lessee shall procure bids from one or more bona fide prospective purchasers of any Parcel of the Leased Property and shall deliver to Lessor and the Lender not less than ninety (90) days prior to the Lease Termination Date a binding written irrevocable offer by such purchaser offering (subject to customary conditions which do not violate the provisions of clause viii, below) the highest "all-cash" bid to purchase the Leased Property. Such purchaser shall not be Lessee or any Subsidiary or Affiliate of Lessee. The written offer must specify the Lease Termination Date as the closing date.
(vii) On the Lease Termination Date, Lessee shall surrender the Leased Property in accordance with Section 15.8 hereof.
(viii) In connection with any such sale of the Leased Property, Lessee may provide to the purchaser any such customary "seller's" indemnities, representations and warranties regarding title, absence of Liens (except Lessor's Liens) and the condition of the Leased Property, including, without limitation, an environmental indemnity, as Lessee may determine to provide in the exercise of its business judgment and sole discretion, provided, however, that no such indemnities, representations or warranties shall be binding on Lessor, nor shall they create liabilities, charges, offsets or Claims, contingent or otherwise, which could diminish, offset or impose a lien upon the amount of the cash proceeds payable to Lessor under such purchase offer, nor shall Lessor be under any obligation to join in or become obligated for the same, except that Lessor shall fulfill all of the requirements set forth in clause (b) of Section 15.5, and such requirements are incorporated herein by reference. As to Lessor, any such sale shall be made on an "as is, with all faults" basis without representation or warranty by Lessor other than the absence of Lessor's Liens.
(ix) Lessor shall pay from the sale proceeds, all prorations, credits, costs and expenses of the sale of the Leased Property, including without limitation the cost of all Modifications commenced prior title insurance, surveys, environmental reports, appraisals, transfer taxes, Lessor's reasonable attorneys' fees, commissions, escrow fees, recording fees, and all applicable documentary and other transfer taxes.
(x) Lessee shall pay to the Expiration Date. Lender on the Lease Termination Date (or to such other Person as Lessor shall notify Lessee shall not have been excused pursuant in writing or, in the case of Supplemental Rent, to Section 12.1 from complying with any Applicable Law that involved the extension of Person entitled thereto) an amount equal to the ultimate imposition of such Applicable Law beyond the Expiration Date. Any Permitted Property Liens (other than Lessor Liens) on any Property that were contested by Lessee shall have been removed and the Agent Certificate Holder shall have received evidence satisfactory to it that all Liens (other than Lessor Liens and uncontested Permitted Property Liens of Recourse Deficiency Amount in the type described of funds specified in clauses Section 4.3 hereof.
(i), xi) If the aggregate selling price (vii), net of closing costs and prorations and other amounts payable by Lessor under clause (ix) above, as reasonably estimated by Lessor) for all Parcels plus the Recourse Deficiency Amount is less than the Total Lease Balance, then Lessor may, by notice to Lessee and in Lessor's sole and absolute discretion, reject such
(xxii) If Lessor does not reject such purchase offer as provided above, the closing of such purchase of the definition thereofLeased Property by such purchaser must occur on or immediately before the Lease Termination Date, contemporaneously with Lessee's surrender of the Leased Property in accordance with Section 15.8 hereof.
(xiii) have been removedIf Lessor does not reject the purchase offer as provided above, then the purchase shall be consummated on the Lease Termination Date and the gross proceeds of the sale (i.e., without deduction for any marketing, closing or other costs, prorations or commissions) shall be paid directly to Lessor; provided, however, that if the sum of the gross proceeds from such sale plus the Recourse Deficiency Amount exceeds the Total Lease Balance, as of such date, then the excess shall be paid to Lessee on the Lease Termination Date.
Appears in 1 contract
Sources: Master Lease and Development Agreement (Eagle Usa Airfreight Inc)
Option to Remarket. Subject to the fulfillment of each of the conditions set forth in this Section 20.1 and Section 20.2 (collectively, the "Return Conditions")20.1, the Lessee shall have the option (the "Remarketing Option") to remarket and complete market the sale of all Property on behalf of the Properties for the Lessor TrustLessor. The Lessee's effective exercise and consummation of the Remarketing Option shall be subject to the due and timely fulfillment of each of the following provisions and the provisions of Section 20.2 as to each of the Properties affected Property as of the dates set forth below.:
(a) Unless a longer period is called for pursuant to any Requirement of Law, on the date No earlier than eighteen months and not later than three hundred sixty-five (365) days twelve months prior to the Expiration Scheduled Basic Lease Term Termination Date, the Lessee shall give to the Agent Certificate Holder and the Administrative Agent Lessor written notice of the Lessee's exercise of the Remarketing OptionOption with respect to the Property. Failure by the Lessee to give timely notice with respect to the Property shall be deemed to be an election by the Lessee, without further act thereby, of its Purchase Option for the Property.
(b) Not later than one hundred and twenty ninety (12090) days prior to the Expiration Scheduled Basic Lease Term Termination Date, the Lessee shall deliver to the Agent Certificate Holder Lessor an Environmental Audit for each the Property. Such Environmental Audit shall be prepared by an environmental consultant selected by the Agent Certificate Holder Lessor in the Agent Certificate HolderLessor's reasonable discretion and shall contain conclusions reasonably satisfactory to the Agent Certificate Holder Lessor as to the environmental status of each the Property. If any such Environmental Audit indicates any exceptions calling for a Phase Two environmental assessmentexceptions, the Lessee shall have also delivered prior to the Expiration Date Scheduled Basic Lease Term Termination Date, a Phase Two environmental assessment by such environmental consultant and a written statement by such environmental consultant indicating that all such exceptions have been remedied in compliance with Applicable Law.
(c) On the date . As of the Lessee's notice to the Agent Certificate Holder of the Lessee's exercise of the Remarketing OptionScheduled Basic Lease Term Termination Date, no Lease Event of Default or Lease Default shall exist, and, thereafter, no Lease Event of Default or Lease Default shall occur.
(d) The Completion Date shall have occurred with respect to each Property prior to the Lessee's delivery of notice of its intention to exercise the Remarketing Option, and each parcel of Land subject to any ground lease shall be a separate tax lot.
(e) The Lessee shall have substantially completed all Modifications, restoration and rebuilding of the relevant Properties pursuant to Sections 10.1 and 14.1 (as the case may be) and shall have fulfilled all of the conditions and requirements in connection therewith pursuant to such Sections, in each case prior to the date on which the Agent Certificate Holder receives the Lessee's notice of the Lessee's intention to exercise the Remarketing Option (time being of the essence), regardless of whether the same shall be within the Lessee's control. Lessee shall have also paid the cost of all Modifications commenced prior to the Expiration Date. Lessee shall not have been excused pursuant to Section 12.1 from complying with any Applicable Law that involved the extension of the ultimate imposition of such Applicable Law beyond the Expiration Date. Any Permitted Property Liens (other than Lessor Liens(x) on any Property that were contested by Lessee shall have been removed and the Agent Certificate Holder shall have received evidence satisfactory to it that all Liens (other than Lessor Liens and uncontested Permitted Property Liens of the type described in clauses clause (i), (vii), (ix) and (xiii) of the definition thereofof "Permitted Property Liens" to the extent, but only to the extent, the Lessor is in its opinion fully indemnified therefrom, and (y) Liens of the type described in clause (vii) of the definition of "Permitted Property Liens") on the Property that were contested by the Lessee shall have been removed.
(c) No Event of Default shall have occurred and be continuing that shall not have been cured on or prior to the Expiration Date.
Appears in 1 contract
Option to Remarket. Subject to the fulfillment of each of the conditions set forth in this Section 20.1 and Section 20.2 (collectively14.6, the "Return Conditions"), the Lessee shall have the option to market all of, but not less than all of, the Leased Properties for Lessor (the "Remarketing Option") to remarket and complete the sale of all of the Properties for the Lessor Trust). The Lessee's effective exercise and consummation of the Remarketing Option shall be subject to the due and timely fulfillment of each of the following provisions provisions, the failure of any of which shall render the Remarketing Option and the provisions of Lessee's exercise thereof null and void, in which event, Lessee shall be obligated to perform its obligations under Section 20.2 as to each of the Properties as of the dates set forth below14.2.
(a) Unless a longer period is called for pursuant to any Requirement of Law, on the date not Not later than three hundred sixty-five (365) days twelve months prior to the Expiration Lease Termination Date, the Lessee shall give to the Agent Certificate Holder Lessor and the Administrative Agent written notice of the Lessee's exercise of the Remarketing Option, which exercise shall be irrevocable and shall state whether Lessee has exercised the Remarketing Option.
(b) Not later than one hundred ten (10) Business Days prior to the Lease Termination Date, Lessee shall deliver to Lessor and twenty the Agent an environmental assessment of each Leased Property dated not later than forty-five (12045) days prior to the Expiration Lease Termination Date, the Lessee shall deliver to the Agent Certificate Holder an Environmental Audit for each Property. Such Environmental Audit environmental assessment shall be prepared by an environmental consultant selected by the Agent Certificate Holder Required Funding Parties, shall be in the Agent Certificate Holder's discretion form, detail and shall contain conclusions substance reasonably satisfactory to the Agent Certificate Holder as to Required Funding Parties, and shall otherwise indicate no degradation in environmental conditions beyond those described in the environmental status of each Property. If any such related Environmental Audit indicates any exceptions calling and shall not include a recommendation for a Phase Two environmental assessment, the Lessee shall have also delivered prior further investigation to the Expiration Date a Phase Two environmental assessment by make such environmental consultant and a written statement by such environmental consultant indicating that all such exceptions have been remedied in compliance with Applicable Lawdetermination.
(c) On the date of the Lessee's notice to Lessor and the Agent Certificate Holder of the Lessee's exercise of the Remarketing Option, each of the Construction Conditions shall have been timely satisfied and no Lease Event of Default or Lease Potential Event of Default shall exist, and, and thereafter, no Lease Event of Default or Lease Potential Event of Default shall occurexist under this Lease.
(d) The Completion Date shall have occurred with respect to each Property prior to the Lessee's delivery of notice of its intention to exercise the Remarketing Option, and each parcel of Land subject to any ground lease shall be a separate tax lot.
(e) The Lessee shall have substantially completed all ModificationsAlterations, restoration and rebuilding of the relevant Leased Properties pursuant to Sections 10.1 6.1, 6.2, 10.3 and 14.1 10.4 (as the case may be) and shall have fulfilled all of the conditions and requirements in connection therewith pursuant to such said Sections, in each case prior to by the date on which Lessor and the Agent Certificate Holder receives the receive Lessee's notice of the Lessee's intention to exercise of the Remarketing Option (time being of the essence), regardless of whether the same shall be within the Lessee's control.
(e) Lessee shall promptly provide any maintenance records relating to each Leased Property to Lessor, the Agent and any potential purchaser upon request, and shall otherwise do all things necessary to deliver possession of such Leased Property to the potential purchaser. Lessee shall have also paid allow Lessor, the Agent and any potential purchaser access to any Leased Property for the purpose of inspecting the same.
(f) On the Lease Termination Date, Lessee shall surrender the Leased Properties in accordance with Section 14.8 hereof.
(g) In connection with any such sale of the Leased Properties, Lessee will provide to the purchaser all customary "seller's" indemnities, representations and warranties regarding title, absence of Liens (except Lessor Liens) and the condition of the Leased Properties, including, without limitation, an environmental indemnity. Lessee shall fulfill all of the requirements set forth in clause (b) of Section 14.5, and such requirements are incorporated herein by reference. As to Lessor, any such sale shall be made on an "as is, with all faults" basis without representation or warranty by Lessor, other than the absence of Lessor Liens.
(h) In connection with any such sale of Leased Properties, Lessee shall pay directly, and not from the sale proceeds, all prorations, credits, costs and expenses of the sale of the Leased Properties, whether incurred by Lessor, any Lease Participant, any Lender, the Agent or Lessee, including without limitation, the cost of all Modifications commenced title insurance, surveys, environmental reports, appraisals, transfer taxes, Lessor's and the Agent's attorneys' fees, Lessee's attorneys' fees, commissions, escrow fees, recording fees, and all applicable documentary and other transfer taxes.
(i) Lessee shall pay to the Agent on the Lease Termination Date (or to such other Person as Agent shall notify Lessee in writing, or in the case of Supplemental Rent, to the Person entitled thereto) an amount equal to the Recourse Deficiency Amount, plus all accrued and unpaid Basic Rent and Supplemental Rent, and all other amounts hereunder which have accrued prior to the Expiration Date. Lessee shall not have been excused pursuant to Section 12.1 from complying with any Applicable Law that involved the extension of the ultimate imposition or as of such Applicable Law beyond the Expiration Date. Any Permitted Property Liens (other than Lessor Liens) on any Property that were contested by Lessee shall have been removed and the Agent Certificate Holder shall have received evidence satisfactory to it that all Liens (other than Lessor Liens and uncontested Permitted Property Liens of date, in the type described of funds specified in clauses (i), (vii), (ix) and (x) of the definition thereof) have been removed.Section 3.3
Appears in 1 contract
Sources: Master Agreement (Aaron Rents Inc)
Option to Remarket. Subject to the fulfillment of each of the conditions set forth in this Section 20.1 and Section 20.2 subparagraph (collectively, the "Return Conditions"f), the Lessee shall have the option to market all (but not less than all) of the Property for the Lessor (the "Remarketing Option") to remarket and complete the sale of all of the Properties for the Lessor Trust). The Lessee's effective exercise and consummation of the Remarketing Option shall be subject to the due and timely fulfillment of each of the following provisions provisions, the failure of any of which, unless waived in writing by the Lessor and the provisions of Section 20.2 as Agent, shall render the Remarketing Option and the Lessee's exercise thereof null and void, in which event, the Lessee shall be obligated to each of the Properties as of the dates set forth below.perform its obligations under subparagraph (b) above:
(ai) Unless a longer period is called for pursuant to any Requirement of Law, on the date not Not later than three hundred sixty-five twelve (36512) days months prior to the Expiration Date, the Lessee shall give to the Agent Certificate Holder Lessor and the Administrative Agent written notice of the Lessee's exercise of the Remarketing Option.
(bii) Not later than one hundred and twenty ten (12010) days Business Days prior to the Expiration Date, the Lessee shall deliver to the Lessor and the Agent Certificate Holder an Environmental Audit for each Propertyenvironmental assessment of the Property dated not earlier than forty-five (45) days prior to the Expiration Date. Such Environmental Audit environmental assessment shall be prepared by an environmental consultant selected by the Agent Certificate Holder Agent, shall be in the Agent Certificate Holder's discretion form, detail and shall contain conclusions substance reasonably satisfactory to the Agent Certificate Holder as to and shall otherwise indicate the environmental status condition of each Property. If any such the Property to be the same as described in the Environmental Audit indicates any exceptions calling for a Phase Two environmental assessment, the Lessee shall have also delivered prior to the Expiration Date a Phase Two environmental assessment by such environmental consultant and a written statement by such environmental consultant indicating that all such exceptions have been remedied in compliance with Applicable LawAudit.
(ciii) On the date of the Lessee's notice to the Lessor and the Agent Certificate Holder of the Lessee's exercise of the Remarketing Option, no Lease Event of Default or Lease Default shall exist, and, and thereafter, no Lease Event of Default or Lease Default shall occurexist under this Lease.
(div) The Completion Date shall have occurred with respect to each Property prior to At the Lessee's delivery time of notice exercise and as of its intention to exercise the Remarketing Optiondate of closing, and each parcel of Land subject to any ground lease shall be a separate tax lot.
(e) The the Lessee shall have substantially completed all ModificationsAlterations, restoration and rebuilding of the relevant Properties Property leased by it pursuant to Sections 10.1 Paragraphs 12 and 14.1 13 (as the case may be) and shall have fulfilled all of the conditions and requirements in connection therewith pursuant to such SectionsParagraphs or otherwise as required hereunder or under the Deed of Trust or any of the other Operative Documents, in each case prior to case, by the date on which the Lessor and the Agent Certificate Holder receives receive the Lessee's notice of the Lessee's intention to exercise of the Remarketing Option (time being of the essence), regardless of whether the same shall be within the Lessee's control. If any use of the Property has substantially changed the character of the Property (without implying any consent to such use by the Lessor or the Agent), the Lessee shall, if requested by the Lessor or the Agent, restore the Property to its general character as of the Commencement Date, except for Alterations permitted hereunder and normal wear and tear.
(v) The Lessee shall have also paid promptly provide any maintenance records relating to the Property to the Lessor, the Agent and any potential purchaser upon request and shall otherwise do all things necessary to deliver possession of the Property to the potential purchaser. The Lessee shall allow the Lessor, the Agent and any potential purchaser access to the Property for the purpose of inspecting the same.
(vi) On the Expiration Date, the Lessee shall surrender the Property leased by it in accordance with subparagraph (h) below.
(vii) In connection with any such sale of the Property, the Lessee will provide to the purchaser all customary "seller's" indemnities requested by the potential purchaser, representations and warranties regarding title, absence of liens and the condition of the Property, including, without limitation, a customary environmental indemnity. The Lessee shall fulfill all of the requirements set forth in clause (ii) of subparagraph (e), and such requirements are incorporated herein by reference. As to the Lessor and Issuer, any such sale shall be made on an "as is, where is, with all faults" basis without representation or warranty by the Lessor or Issuer.
(viii) In connection with any such sale of the Property, the Lessee shall pay directly, and not from the sale proceeds, all prorations, credits, costs and expenses of the sale of the Property leased by it, whether incurred by the Lessor, Issuer, any Credit Facility Provider, the Agent or the Lessee, including without limitation, the cost of all Modifications commenced title insurance, surveys, environmental reports, appraisals, transfer taxes, the Lessor's, Issuer's, any Credit Facility Provider's and the Agent's attorneys' fees, the Lessee's attorneys' fees, commissions, escrow fees, recording fees and all applicable documentary and other transfer taxes.
(ix) The Lessee shall pay to the Agent on the Expiration Date (or to such other Person as the Agent shall notify the Lessee in writing, or in the case of Additional Rent, to the Person entitled thereto) an amount equal to the Residual Guaranty Amount, plus all accrued and unpaid Basic Rent and Additional Rent, and all other amounts hereunder which have accrued prior to or as of such date, by wire transfer of immediately available funds. If the Lessee has exercised the Remarketing Option, the following additional provisions shall apply: During the period commencing on the date twelve (12) months prior to the scheduled expiration of the Term, the Lessee shall, as nonexclusive agent for the Lessor, use commercially reasonable efforts to sell the Lessor's right, title and interest in the Property and will attempt to obtain the highest purchase price therefor. All such marketing of the Property shall be at the Lessee's sole expense. Lessee promptly shall submit all bids to the Lessor and the Agent, and the Lessor and the Agent will have the right to review the same and the right to submit any one or more bids. All bids shall be on an all-cash basis. In no event shall such bidder be the Lessee or any Subsidiary of the Lessee or any affiliate controlled by or under common control with the Lessee or any subsidiary of the Lessee. The written offer must specify the Expiration Date as the closing date. If, and only if, the aggregate selling price (net of closing costs and prorations, as reasonably estimated by the Agent) plus the Residual Guaranty Amount are less than the Lease Balance at such time, then the Lessor or the Agent may, in its sole and absolute discretion, by notice to the Lessee, reject such offer to purchase, in which event the parties will proceed according to the provisions of subparagraph (g) below. If neither the Lessor nor the Agent rejects such purchase offer as provided above, the closing of such purchase of the Property by such purchaser shall occur on the Expiration Date, contemporaneously with the Lessee's surrender of the Property in accordance with subparagraph (h) below, and the gross proceeds of the sale (i.e., without deduction for any marketing, closing or other costs, prorations or commissions) shall be paid directly to the Agent; provided, however, that if the sum of the gross proceeds from such sale plus the Residual Guaranty Amount paid by the Lessee on the Expiration Date pursuant to clause (ix) of subparagraph (f), minus any and all costs and expenses (including broker fees, appraisal costs, legal fees and transfer taxes) incurred by the Agent or the Lessor in connection with the marketing of the Property or the sale thereof exceeds the Lease Balance as of such date, then the excess shall be paid to the Lessee following the Expiration Date. The Lessee shall not have been excused pursuant the right, power or authority to Section 12.1 from complying bind the Lessor or the Agent in connection with any Applicable Law that involved the extension proposed sale of the ultimate imposition of such Applicable Law beyond the Expiration Date. Any Permitted Property Liens (other than Lessor Liens) on any Property that were contested by Lessee shall have been removed and the Agent Certificate Holder shall have received evidence satisfactory to it that all Liens (other than Lessor Liens and uncontested Permitted Property Liens of the type described in clauses (i), (vii), (ix) and (x) of the definition thereof) have been removedProperty.
Appears in 1 contract
Option to Remarket. Subject to the fulfillment of each of the ------------------ conditions set forth in this Section 20.1 and Section 20.2 (collectively, the "Return Conditions"), 24.1 the Lessee shall have the option ------------ beginning on the second anniversary of the Start-Up Date (the "Remarketing ----------- Option") to remarket market and complete the sale of all of the Properties Property for the Lessor TrustLessor. ------ The Lessee's effective exercise and consummation of the Remarketing Option shall be subject to the due and timely fulfillment of each of the following provisions and the provisions of Section 20.2 as to each of the Properties Property as of the dates set forth below.
(a) Unless a longer period is called for pursuant to any Requirement of Law, on the date not Not later than three one hundred sixty-five eighty (365180) days prior to the Expiration Date, the Lessee shall give to the Agent Certificate Holder and the Administrative Agent Lessor written notice of the Lessee's exercise of the Remarketing Option, which exercise shall be irrevocable. If Lessee does not deliver a notice of its intention not to renew this Lease as provided in Section 23.1 and fails to timely provide the Remarketing Notice, then this Lease shall be renewed for a Renewal Term as provided in Section 23.
1. If Lessee delivers the notice of its intention not to renew this Lease as provided in Section 23.1 and fails to timely provide the Remarketing Notice, then Lessee shall be deemed to have elected to exercise its Purchase Option under Section 22.1(i). ---------------
(b) Not later than one hundred and twenty (120) days prior to the Expiration Date, the Lessee shall deliver to the Agent Certificate Holder Lessor an Environmental Audit for each the Property. Such Environmental Audit shall be prepared by an environmental consultant selected by the Agent Certificate Holder Lessor in the Agent Certificate HolderLessor's reasonable discretion and shall contain conclusions reasonably satisfactory to the Agent Certificate Holder Lessor as to the environmental status of each the Property. If any such Environmental Audit indicates any exceptions calling for with respect to which a Phase Two environmental assessmentassessment is recommended, the Lessee shall have also delivered prior to the Expiration Date deliver (i) a Phase Two environmental assessment by such environmental consultant within thirty (30) days prior to the Expiration Date and (ii) a written statement by certificate of such environmental consultant indicating that prior to the Expiration Date showing the completion of all such exceptions have been remedied remedial action in compliance with Applicable Law.
(c) On the date of the Lessee's notice to the Agent Certificate Holder Lessor of the Lessee's exercise of the Remarketing Option, and on the Expiration Date, no Lease Event of Default or Lease Default shall exist, and, thereafter, no Lease Event of Default or Lease Default shall occur.
(d) The Completion Date shall have occurred with respect to each Property prior to the Lessee's delivery of notice of its intention to exercise the Remarketing Option, and each parcel of Land subject to any ground lease shall be a separate tax lot.
(e) The Lessee shall have substantially completed all Modifications, restoration and rebuilding of the relevant Properties pursuant to Sections 10.1 and 14.1 (as the case may be) and shall have fulfilled all of the conditions and requirements in connection therewith pursuant to such Sections, in each case prior to the date on which the Agent Certificate Holder receives the Lessee's notice of the Lessee's intention to exercise the Remarketing Option (time being of the essence), regardless of whether the same shall be within the Lessee's control. Lessee shall have also paid the cost of all Modifications commenced prior to the Expiration Date. Lessee shall not have been excused pursuant to Section 12.1 from complying with any Applicable Law that involved the extension of the ultimate imposition of such Applicable Law beyond the Expiration Date. Any Permitted Property Liens (other than Lessor Liens) on any Property that were contested by Lessee shall have been removed and the Agent Certificate Holder shall have received evidence satisfactory to it that all Liens (other than Lessor Liens and uncontested Permitted Property Liens of the type described in clauses (i), (vii), (ix) and (x) of the definition thereof) have been removed.
Appears in 1 contract
Option to Remarket. Subject to the fulfillment of each of the conditions set forth in this Section 20.1 and Section 20.2 (collectively, the "Return Conditions")24.1, the Lessee shall have the option (the "Remarketing Option") to remarket market and complete the sale of all of the Properties Property for the Lessor TrustLessor. The Lessee's effective exercise and consummation of the Remarketing Option shall be subject to the due and timely fulfillment of each of the following provisions and the provisions of Section 20.2 as to each of the Properties Property as of the dates set forth below.
(a) Unless a longer period is called for pursuant to any Requirement of Law, on the date not Not later than three hundred sixty-five (365) days six months prior to the Expiration Date, the Lessee shall give to the Agent Certificate Holder and the Administrative Agent Lessor written notice of the Lessee's exercise of the Remarketing Option, which exercise shall be irrevocable. Failure of the Lessee to timely provide such notice or the notice exercising the Renewal Option pursuant to Section 23.1 shall be deemed to be an election by the Lessee of its Purchase Option under Section 22.1.
(b) Not later than one hundred and twenty (120) days prior to the Expiration Date, the Lessee shall deliver to the Agent Certificate Holder Lessor an Environmental Audit for each the Property. Such Environmental Audit shall be prepared by an environmental consultant selected by the Agent Certificate Holder Lessor in the Agent Certificate HolderLessor's reasonable discretion and shall contain conclusions reasonably satisfactory to the Agent Certificate Holder Lessor as to the environmental status of each the Property. If any such Environmental Audit indicates any exceptions calling for a Phase Two environmental assessmentexceptions, the Lessee shall have also delivered prior to the Expiration Date a Phase Two environmental assessment by such environmental consultant and a written statement by such environmental consultant indicating that all prior to the Expiration Date showing the completion of the remedying of such exceptions have been remedied in compliance with Applicable Law.
(c) On the date of the Lessee's notice to the Agent Certificate Holder Lessor of the Lessee's exercise of the Remarketing Option, no Lease Event of Default or Lease Default shall exist, and, and thereafter, no Lease Event of Default or Lease Default shall occurexist.
(d) The Completion Date All of the Improvements shall have occurred been constructed in accordance with respect to each Property prior to the Lessee's delivery of notice of its intention to exercise the Remarketing Option, Plans and each parcel of Land subject to any ground lease shall be a separate tax lot.
(e) Specifications. The Lessee shall have substantially completed in all respects all Modifications, restoration and rebuilding of the relevant Properties Property pursuant to Sections 10.1 14.1 and 14.1 18.1 (as the case may be) ), and shall have fulfilled in all respects all of the conditions and requirements in connection therewith pursuant to such said Sections, in each case prior to by the date on which the Agent Certificate Holder Lessor receives the Lessee's notice of the Lessee's intention to exercise of the Remarketing Option (time being of the essence), regardless of whether the same shall be within the Lessee's control. The Lessee shall have also paid the cost of all Modifications commenced prior to the Expiration Date. The Lessee shall not have been excused pursuant to Section 12.1 16.1 from complying with any Applicable Law that involved the extension of the ultimate imposition of such Applicable Law beyond the Expiration Datelast day of the Term. Any Permitted Property Liens (other than Lessor Liens) on any the Property that were contested by the Lessee shall have been removed removed.
(e) During the Marketing Period, the Lessee shall, as nonexclusive agent for the Lessor, use best efforts to sell the Lessor's interest in the Property and will attempt to obtain the highest purchase price therefor and for not less than the Fair Market Sales Value of all of the Property. The Lessee will be responsible for hiring brokers and making the Property available for inspection by prospective purchasers. The Lessee shall promptly upon request permit inspection of the Property and any maintenance records relating to the Property by the Lessor and any potential purchasers, and shall otherwise do all things necessary to sell and deliver possession of the Property to any purchaser. All such marketing of the Property shall be at the Lessee's sole expense. The Lessee shall allow the Lessor and any potential qualified purchaser reasonable access to the Property for the purpose of inspecting the same.
(f) The Lessee shall submit all bids to the Lessor, and the Agent Certificate Holder Lessor will have the right to submit any one or more bids. The Lessee shall deliver to the Lessor, not less than ninety (90) days prior to the Expiration Date, binding written unconditional (except as set forth below), irrevocable offer or offers by such purchaser or purchasers offering the highest bid to purchase the Property. No such purchaser shall be the Lessee or an Affiliate of the Lessee. The written offer must specify the Expiration Date as the closing date unless the Lessor shall otherwise agree in its sole discretion. Any sale by the Lessee shall be for the highest cash bid submitted to the Lessor. The determination of the highest bid shall be made by the Lessor prior to the end of the Marketing Period, but in any event, the Lessor shall have received evidence satisfactory no obligation to it that approve any bid unless such bid for the Property equals or exceeds the Lease Balance determined as of the Expiration Date less the Contingent Rental Adjustment payment made by the -42- 44 Lessee to the Lessor pursuant to Section 24.1(i). All bids shall be on an all-cash basis unless the Lessor shall otherwise agree in its sole discretion.
(g) In connection with any such sale of the Property, the Lessee will provide to the purchaser all customary "seller's" indemnities, representations and warranties regarding absence of Liens (except Lessor Liens) and the condition of such Property, including, without limitation, an environmental indemnity to the extent the same are required by the Purchaser. The Lessee shall have obtained, at its cost and expense, all required governmental and regulatory consents and approvals and shall have made all filings as required by Applicable Law in order to carry out and complete the transfer of the Property. As to the Lessor, any such sale shall be made on an "as is, with all faults" basis without representation or warranty by the Lessor other than the absence of Lessor Liens Liens. Any agreement as to such sale shall be made subject to the Lessor's rights hereunder.
(h) The Lessee shall pay directly, and uncontested Permitted Property Liens not from the sale proceeds, all prorations, credits, costs and expenses of the type described in clauses sale of the Property, whether incurred by the Lessor or the Lessee, including without limitation, the cost of all title insurance, surveys, environmental reports, appraisals, transfer taxes, the Lessor's reasonable attorneys' fees, the Lessee's attorneys' fees, commissions, escrow fees, recording fees, and all applicable documentary and other transfer taxes.
(i)) The Lessee shall pay to the Lessor on or prior to the Expiration Date (or to such other Person as the Lessor shall notify the Lessee in writing) an amount equal to the Contingent Rental Adjustment, plus all Basic Rent and all other amounts hereunder which have accrued or will accrue prior to or as of the Expiration Date, in the type of funds specified in Section 7.5 hereof.
(vii)j) The Lessee shall pay to the Lessor on or prior to the Expiration Date the amounts, if any, required to be paid pursuant to Section 26.2 hereof.
(ixk) If the Lessor approves any bid for the Property, the purchase of the Property shall be consummated on or before the Expiration Date and the gross proceeds (the "Gross Proceeds") of the sale of the Property, less the documented expenses incurred by the Lessee under clause (h) shall be paid directly to the Lessor; provided, however, that if the sum of (x) the remaining Gross Proceeds from such sale plus (y) the Contingent Rental Adjustment received by the Lessor pursuant to clause (i) plus (z) amounts received by the Lessor pursuant to Section 26.2 hereof exceeds the Lease Balance for such Property as of such date, then the definition thereof) have been removedexcess shall be paid to the Lessee on such Expiration Date.
Appears in 1 contract
Sources: Lease and Security Agreement (Alternative Living Services Inc)
Option to Remarket. Subject to the fulfillment of each of the conditions set forth in this Section 20.1 and Section 20.2 (collectivelySECTION 14.6, the "Return Conditions"), the Lessee Lessees shall have the option to market all of, but not less than all of, the Leased Properties for Lessor (the "Remarketing OptionREMARKETING OPTION") to remarket and complete the sale of all of the Properties for the Lessor Trust). The Lessee's Lessees' effective exercise and consummation of the Remarketing Option shall be subject to the due and timely fulfillment of each of the following provisions provisions, the failure of any of which, unless waived in writing by Lessor and the provisions of Section 20.2 as Lenders, shall render the Remarketing Option and the Lessees' exercise thereof null and void, in which event, each Lessee shall be obligated to each of the Properties as of the dates set forth belowperform its obligations under SECTION 14.2.
(a) Unless a longer period is called for pursuant to any Requirement of Law, on the date not Not later than three hundred sixty-five (365) days twelve months prior to the Expiration Lease Termination Date, the Lessee ADESA shall give to the Agent Certificate Holder Lessor and the Administrative Agent written notice of the Lessee's Lessees' exercise of the Remarketing Option.
(b) Not later than one hundred ten (10) Business Days prior to the Lease Termination Date, each Lessee shall deliver to Lessor and twenty the Agent an environmental assessment of each Leased Property leased by it dated not earlier than forty-five (12045) days prior to the Expiration Lease Termination Date, the Lessee shall deliver to the Agent Certificate Holder an Environmental Audit for each Property. Such Environmental Audit environmental assessment shall be prepared by an environmental consultant selected by the Agent Certificate Holder in the Agent Certificate Holder's discretion related Lessee and shall contain conclusions reasonably satisfactory to the Agent Certificate Holder as Required Funding Parties, shall be in form, detail and substance reasonably satisfactory to the Required Funding Parties, and shall otherwise indicate no degradation in environmental status of each Property. If any such conditions beyond those described in the related Environmental Audit indicates any exceptions calling and shall not include a recommendation for a Phase Two environmental assessment, the Lessee shall have also delivered prior further investigation to the Expiration Date a Phase Two environmental assessment by make such environmental consultant and a written statement by such environmental consultant indicating that all such exceptions have been remedied in compliance with Applicable Lawdetermination.
(c) On the date of the LesseeADESA's notice to Lessor and the Agent Certificate Holder of the Lessee's Lessees' exercise of the Remarketing Option, each of the Construction Conditions shall have been timely satisfied and no Lease Event of Default or Lease Potential Event of Default shall exist, and, and thereafter, no Lease Event of Default or Lease Potential Event of Default shall occurexist under this Lease.
(d) The Completion Date shall have occurred with respect to each Property prior to the Lessee's delivery of notice of its intention to exercise the Remarketing Option, and each parcel of Land subject to any ground lease shall be a separate tax lot.
(e) The Each Lessee shall have substantially completed all ModificationsAlterations, restoration and rebuilding of the relevant Leased Properties leased by it pursuant to Sections 10.1 SECTIONS 6.1, 6.2, 10.3 and 14.1 10.4 (as the case may be) and shall have fulfilled in all material respects all of the conditions and requirements in connection therewith pursuant to such Sectionssaid SECTIONS, in each case prior to by the date on which Lessor and the Agent Certificate Holder receives the Lesseereceive ADESA's notice of the Lessee's intention to Lessees' exercise of the Remarketing Option (time being of the essence), regardless of whether the same shall be within the such Lessee's control. .
(e) Upon request by the Agent, each Lessee shall have also promptly provide any maintenance records relating to each Leased Property leased by it to Lessor, the Agent and any potential purchaser, and shall otherwise do all things necessary to deliver possession of such Leased Property to the potential purchaser at the appropriate closing date. Each Lessee shall allow Lessor, the Agent and any potential purchaser reasonable access during normal business hours to any Leased Property for the purpose of inspecting the same.
(f) On the Lease Termination Date, each Lessee shall surrender the Leased Properties leased by it in accordance with SECTION 14.8 hereof.
(g) In connection with any such sale of the Leased Properties, each Lessee will provide to the purchaser all customary "seller's" indemnities requested by the potential purchaser (taking into account the location and nature of the Leased Properties), representations and warranties regarding title, absence of Liens (except Lessor Liens and the Liens of the Operative Documents) and the condition of the Leased Properties. Each Lessee shall fulfill all of the requirements set forth in CLAUSE (b) of SECTION 14.5, and such requirements are incorporated herein by reference. As to Lessor, any such sale shall be made on an "as is, with all faults" basis without representation or warranty by Lessor, other than the absence of Lessor Liens and the Liens of the Operative Documents.
(h) In connection with any such sale of Leased Properties, each Lessee shall pay directly, and not from the sale proceeds, all prorations, credits, costs and expenses of the sale of the Leased Properties leased by it, whether incurred by Lessor, any Lender, the Agent or such Lessee, including without limitation, to the extent not paid by the purchaser, the cost of all Modifications commenced title insurance, surveys, environmental reports, appraisals, transfer taxes, Lessor's and the Agent's attorneys' fees, such Lessee's attorneys' fees, commissions, escrow fees, recording fees, and all applicable documentary and other transfer taxes.
(i) The Lessees, jointly and severally, shall pay to the Agent on the Lease Termination Date (or to such other Person as Agent shall notify Lessee in writing, or in the case of Supplemental Rent, to the Person entitled thereto) an amount equal to the Recourse Deficiency Amount, PLUS all accrued and unpaid Basic Rent and Supplemental Rent, and all other amounts hereunder which have accrued prior to or as of such date, in the type of funds specified in SECTION 3.3 hereof. If the Lessees have exercised the Remarketing Option, the following additional provisions shall apply: During the period commencing on the date twelve months prior to the Expiration scheduled expiration of the Lease Term, one or more of the Lessees shall, as nonexclusive agent for Lessor, use commercially reasonable efforts to sell Lessor's interest in the Leased Properties and will attempt to obtain the highest purchase price therefor. All such marketing of the Leased Properties shall be at the Lessees' sole expense. Lessee promptly shall submit all bids to Lessor and the Agent; the Agent will have the right to review the same; and the Agent and Lessor will have the right to submit any one or more bids. All bids shall be on an all-cash basis. In no event shall such bidder be a Lessee or any Subsidiary or Affiliate of a Lessee. The written offer must specify the Lease Termination Date as the closing date. If, and only if, the aggregate selling price (net of closing costs and prorations, as reasonably estimated by the Agent) is less than the difference between the Lease Balance at such time minus the Recourse Deficiency Amount, then Lessor or the Agent may, in its sole and absolute discretion, by notice to ADESA, given within 30 days of receipt of such offer, reject such offer to purchase, in which event the parties will proceed according to the provisions of SECTION 14.7 hereof. If neither Lessor nor the Agent rejects such purchase offer as provided above, the closing of such purchase of the Leased Properties by such purchaser shall occur on the Lease Termination Date, contemporaneously with the Lessees' surrender of the Leased Properties in accordance with SECTION 14.8 hereof, and the gross proceeds of the sale (i.e., without deduction for any marketing, closing or other costs, prorations or commissions) shall be paid directly to the Agent (or Lessor if the Funded Amounts have been fully paid); PROVIDED, HOWEVER, that if the sum of the gross proceeds from such sale plus the Recourse Deficiency Amount paid by the Lessees on the Lease Termination Date pursuant to SECTION 14.6(i), minus any and all reasonable costs and expenses (including broker fees, appraisal costs, reasonable legal fees and transfer taxes) incurred by the Agent or Lessor in connection with the marketing of the Leased Properties or the sale thereof exceeds the Lease Balance as of such date, then the excess shall be paid to ADESA on the Lease Termination Date. Lessee shall not have been excused pursuant to Section 12.1 from complying with any Applicable Law that involved the extension of the ultimate imposition of such Applicable Law beyond the Expiration Date. Any Permitted Property Liens (other than Lessor Liens) on any Property that were contested by No Lessee shall have been removed and the Agent Certificate Holder shall have received evidence satisfactory right, power or authority to it that all Liens (other than bind Lessor Liens and uncontested Permitted Property Liens in connection with any proposed sale of the type described in clauses (i), (vii), (ix) and (x) of the definition thereof) have been removedLeased Properties.
Appears in 1 contract
Sources: Master Lease Agreement (Allete Inc)
Option to Remarket. Subject to the fulfillment of each of the ------------------ conditions set forth in this Section 20.1 and Section 20.2 (collectively, the "Return Conditions")22.1, the Lessee shall have the option (the ------------ "Remarketing Option") to remarket market for the Lessor and complete the sale of all all, but ------------------ not less than all, of the Properties Lessor's interest in the Property on the Expiration Date for the Lessor TrustLessor. The Lessee's effective exercise and consummation of the Remarketing Option shall be subject to the due and timely fulfillment of each of the following provisions and the provisions of Section 20.2 as to each of the Properties as of the dates set forth below.
(a) Unless a longer period is called for pursuant to any Requirement of Law, on the date not Not later than three one hundred sixty-five eighty (365180) days prior to the Expiration Date, the Lessee shall give to the Agent Certificate Holder and the Administrative Agent Lessor written notice of the Lessee's exercise of the Remarketing Option, which exercise shall be irrevocable (except by delivery of a Purchase Notice and consummation of the exercise of the Purchase Option prior to the earlier of (i) the Expiration Date or (ii) the date on which the Lessor enters into a binding contract to sell the Property pursuant to the exercise of the Remarketing Option).
(b) Not later than one hundred and twenty (120) days prior to the Expiration Date, the The Lessee shall deliver to the Agent Certificate Holder Lessor an Environmental Audit for each Propertyof the Property together with its notice of exercise of the Remarketing Option. Such Environmental Audit shall be prepared by an environmental consultant selected by the Agent Certificate Holder Lessor in the Agent Certificate HolderLessor's reasonable discretion and shall contain conclusions reasonably satisfactory to the Agent Certificate Holder Lessor as to the environmental status of each the Property. If any such Environmental Audit indicates any material exceptions calling for a Phase Two environmental assessmentreasonably requiring remedy or further investigation, the Lessee shall have also delivered prior to the Expiration Date a Phase Two environmental assessment by such environmental consultant and a written statement by such environmental consultant indicating that all prior to the Expiration Date showing the completion of the remedying of such exceptions have been remedied in compliance with Applicable Law.
(c) On the date of the Lessee's notice to the Agent Certificate Holder Lessor of the Lessee's exercise of the Remarketing Option, no Lease Event of Default or Lease Default shall exist, and, and thereafter, no uncured Lease Event of Default or Lease Default shall occurexist.
(d) The Completion Date shall have occurred with respect to each Property prior to the Lessee's delivery of notice of its intention to exercise the Remarketing Option, and each parcel of Land subject to any ground lease shall be a separate tax lot.
(e) The Lessee shall have substantially completed in all Material respects all Modifications, restoration and rebuilding of the relevant Properties Property pursuant to Sections 10.1 -------- 11.1 and 14.1 15.1 (as the case may be) and shall have fulfilled in all Material ---- ---- respects all of the conditions and requirements in connection therewith pursuant to such said Sections, in each case prior to by the date on which the Agent Certificate Holder Lessor receives the Lessee's notice of the Lessee's intention to exercise of the Remarketing Option (time being of the essence), regardless of whether the same shall be within the Lessee's control. The Lessee shall have also paid the cost of all Modifications commenced prior to the Expiration Date. The Lessee shall not have been excused pursuant to Section 12.1 13.1 from complying with any Applicable Law that involved ------------ the extension of the ultimate imposition of such Applicable Law beyond the Expiration Datelast day of the Term. Any Permitted Property Liens (other than Lessor Liens) on any the Property that were contested by the Lessee shall have been removed before the Expiration Date.
(e) During the Marketing Period, the Lessee shall, as nonexclusive agent for the Lessor, use commercially reasonable efforts to sell the Lessor's interest in the Property on or prior to the Expiration Date (without diminishing the Lessee's obligation to consummate the sale on the Expiration Date) and will attempt to obtain the highest purchase price therefor and for not less than the Fair Market Sales Value. The Lessee will be responsible for hiring and compensating brokers and making the Property available for inspection by prospective purchasers. The Lessee shall promptly upon request permit inspection of the Property and any maintenance records relating to the Property by the Lessor, any Participant and any potential purchasers, and shall otherwise do all things necessary to sell and deliver possession of the Property to any purchaser. All such marketing of the Property shall be at the Lessee's sole expense. The Lessee shall allow the Lessor and any potential qualified purchaser reasonable access to the Property for the purpose of inspecting the same.
(f) The Lessee shall submit all bids to the Lessor, the Agent and the Participants, and the Lessor will have the right to review the same and the right to submit any one or more bids. All bids shall be on an all-cash basis unless the Lessor, the Agent Certificate Holder and the Participants shall otherwise agree in their sole discretion. The Lessee shall procure bids from one or more bona fide prospective purchasers and shall deliver to the Lessor, the Agent and the Participants not less than ninety (90) days prior to the Expiration Date a binding written unconditional (except as set forth below), irrevocable offer by such purchaser or purchasers offering the highest bid to purchase the Property. No such purchaser shall be the Lessee, or any Subsidiary or Affiliate of the Lessee. The written offer must specify the Expiration Date as the closing date unless the Lessor, the Agent and the Participants shall otherwise agree in their sole discretion.
(g) In connection with any such sale of the Property, the Lessee will provide to the purchaser all customary "seller's" indemnities, representations and warranties regarding title, absence of Liens (except Lessor Liens) and the condition of the Property, as well as such other terms and conditions as may be negotiated between the Lessee and the purchaser. The Lessee shall have received evidence satisfactory obtained, at its cost and expense, all required governmental and regulatory consents and approvals and shall have made all filings as required by Applicable Law in order to it that carry out and complete the transfer of the Property. As to the Lessor, any such sale shall be made on an "as is, with all Liens (faults" basis without representation or warranty by the Lessor other than the absence of Lessor Liens Liens. Any agreement as to such sale shall be made subject to the Lessor's rights hereunder.
(h) The Lessee shall pay directly, and uncontested Permitted Property Liens not from the sale proceeds, all prorations, credits, costs and expenses of the type described in clauses sale of the Property, whether incurred by the Lessor or the Lessee, including without limitation, the cost of all title insurance, surveys, environmental reports, appraisals, transfer taxes, the Lessor's and the Agent's reasonable attorneys' fees, the Lessee's attorneys' fees, commissions, escrow fees, recording fees, and all applicable documentary and other transfer taxes.
(i)) The Lessee shall pay to the Agent on or prior to the Expiration Date (or to such other Person as the Agent shall notify the Lessee in writing, or in the case of Supplemental Rent, to the Person entitled thereto) an amount equal to the Residual Value Guarantee Amount less the amount of the Defeasance Deposit, plus all Rent and all other amounts under this Lease and the other ---- Operative Documents which have accrued or will accrue prior to or as of the Expiration Date, in the type of funds specified in Section 3.4 hereof. -----------
(vii)j) If the selling price of the Property is less than the difference between (A) the Asset Termination Value minus (B) the Residual Value Guarantee Amount, then the Lessee shall have caused to be delivered to the Lessor, the Agent and each Participant the appraisal required by Section 13.2 of the ------------ Participation Agreement thirty (ix30) Business Days prior to the Expiration Date and shall pay to the Agent on or prior to the Expiration Date (or to such other person as the Agent shall notify the Lessee in writing) the amounts required to be paid pursuant to Section 13.2 of the Participation Agreement. ------------
(k) The purchase of the Property shall be consummated on the Expiration Date following the payment by the Lessee pursuant to paragraphs (i) and (xj) -------------- --- above and contemporaneously with the Lessee's surrender of the Property pursuant to Section 19.1(b) and the gross proceeds (the "Gross Proceeds") of the definition thereofsale of --------------- -------------- the Property (i.e., without deduction for any marketing, closing or other costs, prorations or commissions) shall be paid directly to the Agent; provided, -------- however, that if the sum of the Gross Proceeds from such sale plus the Residual ------- Value Guarantee Amount paid by the Lessee pursuant to paragraph (i) above ------------- exceeds the Asset Termination Value, then the excess shall be paid to the Lessee on the Expiration Date.
(l) The Lessee shall not be entitled to exercise or consummate the Remarketing Option if a circumstance that would permit the Lessor to require the Lessee to repurchase the Property under Section 16.3 exists and is continuing. ------- ---- If one or more of the foregoing provisions shall not be fulfilled as of the date set forth above, or the Property is not purchased as aforesaid, then the Lessor shall declare by written notice to the Lessee the Remarketing Option to be null and void (whether or not it has been theretofore exercised by the Lessee) as to the Property, in which event all of the Lessee's rights under this Section 22.1 shall immediately terminate and the Lessee shall be obligated to ------------ purchase all of the Lessor's interest in the Property pursuant to Section 20.2 ------------ on the Expiration Date. Notwithstanding the foregoing, the Lessee may at any time during the Marketing Period exercise its Purchase Option in accordance with Section 20.2 hereof, provided, that the Lessee shall bear all costs arising out ------------ of or attributable to the cessation of remarketing efforts, including any costs, expenses, damages or liability which may be alleged by any prospective purchaser of the Property. Except as expressly set forth herein, the Lessee shall have been removedno right, power or authority to bind the Lessor in connection with any proposed sale of the Property.
Appears in 1 contract
Sources: Participation Agreement (Vitesse Semiconductor Corp)
Option to Remarket. Subject to the fulfillment of each of the conditions set forth in this Section 20.1 and Section 20.2 (collectively14.6, the "Return Conditions"), the Lessee shall have the option to market all of, but not less than all of, the Leased Properties for Lessor (the "Remarketing Option") to remarket and complete the sale of all of the Properties for the Lessor Trust). The Lessee's effective exercise and consummation of the Remarketing Option shall be subject to the due and timely fulfillment of each of the following provisions provisions, the failure of any of which, unless waived in writing by Lessor and the provisions of Lenders, shall render the Remarketing Option and Lessee's exercise thereof null and void, in which event, Lessee shall be obligated to perform its obligations under Section 20.2 as to each of the Properties as of the dates set forth below14.2.
(a) Unless a longer period is called for pursuant to any Requirement of Law, on the date not Not later than three hundred sixty-five (365) days twelve months prior to the Expiration Lease Termination Date, the Lessee shall give to the Agent Certificate Holder Lessor and the Administrative Agent written notice of the Lessee's exercise of the Remarketing Option, which exercise shall be irrevocable.
(b) Not later than one hundred ten (10) Business Days prior to the Lease Termination Date, Lessee shall deliver to Lessor and twenty the Agent an environmental assessment of each Leased Property dated not later than forty-five (12045) days prior to the Expiration Lease Termination Date, the Lessee shall deliver to the Agent Certificate Holder an Environmental Audit for each Property. Such Environmental Audit environmental assessment shall be prepared by an environmental consultant selected by the Agent Certificate Holder Required Funding Parties, shall be in the Agent Certificate Holder's discretion form, detail and shall contain conclusions substance reasonably satisfactory to the Agent Certificate Holder as to Required Funding Parties, and shall otherwise indicate the environmental status condition of each Property. If any such Leased Property to be the same as described in the related Environmental Audit indicates any exceptions calling for a Phase Two environmental assessment, the Lessee shall have also delivered prior to the Expiration Date a Phase Two environmental assessment by such environmental consultant and a written statement by such environmental consultant indicating that all such exceptions have been remedied in compliance with Applicable LawAudit.
(c) On the date of the Lessee's notice to Lessor and the Agent Certificate Holder of the Lessee's exercise of the Remarketing Option, Option each of the Construction Conditions shall have been timely satisfied and no Lease Event of Default or Lease Potential Event of Default shall exist, and, and thereafter, no Lease Event of Default or Lease Potential Event of Default shall occurexist under this Lease.
(d) The Completion Date shall have occurred with respect to each Property prior to the Lessee's delivery of notice of its intention to exercise the Remarketing Option, and each parcel of Land subject to any ground lease shall be a separate tax lot.
(e) The Lessee shall have substantially completed all ModificationsAlterations, restoration and rebuilding of the relevant Leased Properties pursuant to Sections 10.1 6.1, 6.2, 10.3 and 14.1 10.4 (as the case may be) and shall have fulfilled all of the conditions and requirements in connection therewith pursuant to such said Sections, in each case prior to by the date on which Lessor and the Agent Certificate Holder receives the receive Lessee's notice of the Lessee's intention to exercise of the Remarketing Option (time being of the essence), regardless of whether the same shall be within the Lessee's control.
(e) Lessee shall promptly provide any maintenance records relating to each Leased Property to Lessor, the Agent and any potential purchaser upon request, and shall otherwise do all things necessary to deliver possession of such Leased Property to the potential purchaser. Lessee shall have also paid allow Lessor, the cost Agent and any potential purchaser access to any Leased Property for the purpose of all Modifications commenced prior inspecting the same.
(f) On the Lease Termination Date, Lessee shall surrender the Leased Properties in accordance with Section 14.8 hereof.
(g) In connection with any such sale of the Leased Properties, Lessee will provide to the Expiration Datepurchaser all customary "seller's" indemnities, representations and warranties regarding title, absence of Liens (except Lessor Liens) and the condition of the Leased Properties, including, without limitation, an environmental indemnity. Lessee shall not have been excused pursuant to Section 12.1 from complying with any Applicable Law that involved the extension fulfill all of the ultimate imposition requirements set forth in clause (b) of Section 14.5, and such requirements are incorporated herein by reference. As to Lessor, any such sale shall be made on an "as is, with all faults" basis without representation or warranty by Lessor, other than the absence of Lessor Liens.
(h) Lessee shall pay to the Agent on the Lease Termination Date (or to such other Person as Agent shall notify Lessee in writing, or in the case of Supplemental Rent, to the Person entitled thereto) an amount equal to the Recourse Deficiency Amount, plus all accrued and unpaid Basic Rent and Supplemental Rent, and all other amounts hereunder which have accrued prior to or as of such Applicable Law beyond the Expiration Date. Any Permitted Property Liens (other than Lessor Liens) on any Property that were contested by Lessee shall have been removed and the Agent Certificate Holder shall have received evidence satisfactory to it that all Liens (other than Lessor Liens and uncontested Permitted Property Liens of date, in the type described of funds specified in clauses (i), (vii), (ix) and (x) of the definition thereof) have been removed.Section 3.3
Appears in 1 contract
Sources: Master Agreement (Ruby Tuesday Inc)
Option to Remarket. Subject to the fulfillment of each of the conditions set forth in this Section 20.1 and Section 20.2 (collectively, the "Return Conditions")24.1, the Lessee shall have the option (the "Remarketing Option") from and after June 19, 1998, to remarket market and complete the sale of all of the Properties Lessor's interest in one or more Leased Assets for the Lessor TrustLessor. The Lessee's effective exercise and consummation of the Remarketing Option as to one or more Leased Assets shall be subject to the due and timely fulfillment of each of the following provisions and the provisions of Section 20.2 as to each of the Properties such Leased Assets as of the dates set forth below.
(a) Unless a longer period is called for pursuant to any Requirement of Law, on the date not Not later than three hundred sixty-five six (3656) days months prior to the Expiration Date, the Lessee shall give to the Agent Certificate Holder and the Administrative Agent Lessor written notice of the Lessee's exercise of the Remarketing OptionOption under this Lease, which exercise shall be irrevocable.
(b) Not later than one hundred and twenty (120) days prior to the Expiration Date, the Lessee shall deliver to the Agent Certificate Holder Lessor an Environmental Audit for each PropertyProperty included in such Leased Assets. Such Environmental Audit shall be prepared by an environmental consultant selected by the Agent Certificate Holder Lessee and approved in advance by the Agent Certificate Holder's discretion Lessor and shall contain conclusions reasonably satisfactory to the Agent Certificate Holder Lessor as to the environmental status of each such Property. If any such Environmental Audit indicates any exceptions calling for a Phase Two environmental assessmentexceptions, the Lessee shall have also delivered prior to the Expiration Date a Phase Two environmental assessment by such environmental consultant and a written statement by such environmental consultant indicating that all prior to the Expiration Date showing the completion of the remedying of such exceptions have been remedied in compliance with Applicable Law.
(c) On the date of the Lessee's notice to the Agent Certificate Holder Lessor of the Lessee's exercise of the Remarketing Option, no Lease Event of Default shall exist, and on the Expiration Date, no Event of Default or Lease Default shall exist, and, thereafter, no Lease Event of Default . Any Permitted Liens (other than Lessor Liens) on each Leased Asset that were contested by the Lessee shall have been removed on or Lease Default shall occurbefore the Expiration Date.
(d) The Completion Date Improvements on each Property included in such Leased Assets shall have occurred been constructed in accordance with respect to each Property prior to the Plans and Specifications and shall have achieved Substantial Completion on or before the date of the Lessee's delivery notice to the Lessor of notice the Lessee's exercise of its intention to exercise the Remarketing Option, and each parcel of Land subject to any ground lease shall be a separate tax lot.
(e) . The Lessee shall have substantially completed in all material respects all Modifications, restoration and rebuilding of the relevant Properties such Leased Assets pursuant to Sections 10.1 Section 14.1 and 14.1 18.1 (as the case may be) and shall have fulfilled in all material respects all of the conditions and requirements in connection therewith pursuant to such said Sections, in each case prior to by the date on which the Agent Certificate Holder receives of the Lessee's notice to the Lessor of the Lessee's intention to exercise of the Remarketing Option (time being of the essence), regardless of whether the same shall be within the Lessee's control. The Lessee shall have also paid the cost of all Modifications commenced prior to the Expiration Date. The Lessee shall not have been excused pursuant to Section 12.1 16.1 from complying with any Applicable Law that involved the extension of the ultimate imposition of such Applicable Law beyond the last day of the Base Term.
(e) During the Marketing Period, the Lessee shall use best efforts, in such manner as the Lessee shall reasonably determine, to sell the Lessor's interest in the Leased Assets and will attempt to obtain the highest purchase price therefor and for not less than the Fair Market Sales Value of all of the Leased Assets. The Lessee will be responsible for hiring brokers and making the Leased Assets available for inspection by prospective purchasers. The Lessee shall promptly upon request permit inspection of the Leased Assets and any maintenance records relating to the Leased Assets by the Lessor and any potential purchasers, and shall otherwise do all things necessary to sell and deliver possession of the Leased Assets to any purchaser. All such marketing of the Leased Assets shall be at the Lessee's sole expense. The Lessee's agency under this clause shall, for the first three (3) months of the Marketing Period, be on an exclusive basis. In the event the Lessee is unable to procure during such period a bona fide bid from a non-Affiliated Person with demonstrable financial capacity to consummate such bid for any Leased Asset, from and after such third month, the agency hereunder shall be on a non-exclusive basis.
(f) The Lessee shall submit all bids to the Lessor and the Lessor will have the right to review the same and the right to submit any one or more bids. All bids shall be on an all-cash basis unless the Lessor shall otherwise agree in its sole discretion. No such purchaser shall be the Lessee or an Affiliate of the Lessee. The written offer must specify the Expiration Date as the closing date unless the Lessor shall otherwise agree in its sole discretion.
(g) In connection with any such sale of Lessor's interest in the Leased Assets, the Lessee will provide to the purchaser all customary "seller's" indemnities, representations and warranties regarding absence of Liens (except Lessor Liens) and the condition of such Leased Assets, including, without limitation, an environmental indemnity for any Property to the extent the same are required by the purchaser. The Lessee shall have obtained, at its cost and expense, all required governmental and regulatory consents and approvals and shall have made all filings as required by Applicable Law in order to carry out and complete the transfer of the Leased Assets. As to the Lessor, any such sale of Lessor's interest in the Leased Assets shall be made on an "as is, with all faults" basis without representation or warranty by the Lessor other than the absence of Lessor Liens. Any agreement as to such sale shall be made subject to the Lessor's rights hereunder.
(h) The Lessee shall pay directly, and not from the sale proceeds, all prorations, credits, costs and expenses of the sale of Lessor's interest in the Leased Assets, whether incurred by the Lessor or the Lessee, including without limitation, the cost of all title insurance, surveys, environmental reports, appraisals, transfer taxes, the Lessor's reasonable attorneys' fees, the Lessee's attorneys' fees, commissions, escrow fees, recording fees, and all applicable documentary and other transfer taxes.
(i) The Lessee shall pay to the Lessor on or prior to the Expiration Date (or to such other Person as the Lessor shall notify the Lessee in writing) an amount equal to the Contingent Rental Adjustment for such Leased Assets, plus all Base Rent and all other amounts hereunder which have accrued or will accrue with respect thereto prior to or as of the Expiration Date, in the type of funds specified in Section 7.5 hereof.
(j) The purchase of Lessor's interest in such Leased Assets shall be consummated on the Expiration Date and the Gross Proceeds of the sale of the Leased Assets shall be paid directly to the Lessor. The Lessor shall remit to the Lessee from Gross Proceeds the documented expenses incurred by the Lessee under clause (h) hereof in connection with such sale. If the remaining Gross Proceeds plus the aggregate Contingent Rental Adjustment received by Lessor, exceeds the Lease Balance for such Leased Assets as of such date, then the excess shall be paid to the Lessee on the Expiration Date. Any Permitted Property Liens Except as provided in the next sentence hereof or as may be otherwise provided in a Lease Supplement, if one or more of the foregoing provisions shall not be fulfilled as of the date set forth above with respect to the Leased Assets under any Lease Supplement, then the Lessor shall declare by written notice to the Lessee the Remarketing Option to be null and void (other than Lessor Lienswhether or not it has been theretofore exercised by the Lessee), in which event all of the Lessee's rights under this Section 24.1 shall immediately terminate and the Lessee shall be obligated to purchase Lessor's interest in such Leased Assets as if it had exercised its option under Section 22.1 on the Expiration Date. Notwithstanding the foregoing, the Lessee shall not be required to purchase Lessor's interest in such Leased Assets pursuant to the preceding sentence if Lessor's interest in such Leased Assets is not sold on or prior to the Expiration Date and the Lessee has otherwise fulfilled all of its obligations under clauses (a) on any Property that were contested by through (i) hereof (including the payment of all amounts referred to therein). Except as expressly set forth herein, the Lessee shall have been removed and no right, power or authority to bind the Agent Certificate Holder Lessor in connection with any proposed sale of Lessor's interest in the any Leased Asset. In the event that the sale of any Leased Asset is not consummated on the Expiration Date, but such sale is consummated any time thereafter, the Lessor shall have received evidence satisfactory remit to it that all Liens (other than Lessor Liens and uncontested Permitted Property Liens the Lessee, promptly after the consummation of the type described in clauses (i), (vii), (ix) and (x) sale of the definition thereof) have been removedsuch Leased Asset, any excess remaining after deducting the then outstanding Lease Balance plus the Imputed Equity Return thereon accruing from and after the Expiration Date from the Gross Proceeds.
Appears in 1 contract
Sources: Master Lease and Security Agreement (Rite Aid Corp)
Option to Remarket. Subject Notwithstanding any provisions of this Agreement and the Operative Documents to the contrary and subject to the fulfillment of each of the conditions set forth in this Section 20.1 and Section 20.2 (collectively5.7, the "Return Conditions"), the Lessee Construction Agent shall have the option to remarket the Leased Property with respect to which the Lessor has declared that a Construction Agency Event of Default has occurred or with respect to which the Construction Agent shall be required to pay the Construction Failure Payment pursuant to Section 3.4 (the "“Construction Default Remarketing Option") to remarket and complete the sale of all of the Properties for the Lessor Trust”). The Lessee's Construction Agent’s effective exercise and consummation of the Construction Default Remarketing Option shall be subject to the due and timely fulfillment of each of the following provisions provisions, the failure of any of which, unless waived in writing by the Lessor and the provisions of Lenders, shall render the Construction Default Remarketing Option and the Construction Agent’s exercise thereof null and void, in which event, the Construction Agent shall not have any rights under this Section 20.2 as to each of the Properties as of the dates set forth below5.7.
(a) Unless a longer period is called for pursuant to any Requirement of Law, on the date not Not later than three hundred sixty-five Business Days after Lessor’s service of the notice of termination referred to in Section 5.3(a) or (365b) days prior or the Lessor’s denial of authorization to the Expiration Dateremediate any Construction Force Majeure Event under Section 3.4, the Lessee Construction Agent shall give to the Agent Certificate Holder Lessor and the Administrative Agent written notice of the Lessee's Construction Agent’s exercise of the Construction Default Remarketing Option.. The date of such notice shall be the “CDRO Notice Date”;
(b) Not later than one hundred thirty (30) days after Lessor’s service of the notice of termination referred to in Section 5.3(a) or (b) or the Lessor’s denial of authorization to remediate any Construction Force Majeure Event under Section 3.4, the Construction Agent shall deliver to the Lessor and twenty the Agent an environmental assessment of such Leased Property dated not earlier than forty-five (12045) days prior to the Expiration Date, the Lessee shall deliver to the Agent Certificate Holder an Environmental Audit for each Propertydate of delivery thereof. Such Environmental Audit environmental assessment shall be prepared by an environmental consultant selected by the Agent Certificate Holder Required Funding Parties, shall be in the Agent Certificate Holder's discretion form, detail and shall contain conclusions substance reasonably satisfactory to the Agent Certificate Holder as to Required Funding Parties, and shall otherwise indicate the environmental status condition of each Property. If any such Leased Property to be the same as described in the related Environmental Audit indicates any exceptions calling for a Phase Two environmental assessment, the Lessee shall have also delivered prior to the Expiration Date a Phase Two environmental assessment by such environmental consultant and a written statement by such environmental consultant indicating that all such exceptions have been remedied in compliance with Applicable LawAudit.
(c) On the date of the Lessee's notice The Construction Agent shall promptly provide any maintenance records relating to such Leased Property to the Lessor, the Agent Certificate Holder and any potential purchaser upon request, and shall otherwise do all things necessary to deliver possession of such Leased Property to the Lessee's exercise potential purchaser. The Construction Agent shall allow the Lessor, the Agent and any potential purchaser access to any Leased Property for the purpose of inspecting the Remarketing Option, no Lease Event of Default or Lease Default shall exist, and, thereafter, no Lease Event of Default or Lease Default shall occursame.
(d) The Completion Date shall have occurred with respect to each Property prior to On the Lessee's delivery ninetieth (90th) day (such date, or such later date as the Lessor may specify in writing, being the “CDRO Closing Date”) after Lessor’s service of the notice of its intention termination referred to exercise in Section 5.3(a) or (b) or the Remarketing OptionLessor’s denial of authorization to remediate any Construction Force Majeure Event under Section 3.4, and each parcel of Land subject to any ground lease the Construction Agent shall be a separate tax lotsurrender such Leased Property in accordance with Section 5.9 hereof.
(e) The Lessee shall have substantially completed all Modifications, restoration and rebuilding In connection with any such sale of the relevant Properties pursuant Leased Property, the Construction Agent shall provide to Sections 10.1 the purchaser all customary “seller’s” indemnities (taking into account the location and 14.1 (as the case may be) and shall have fulfilled all nature of the conditions and requirements in connection therewith pursuant to such Sections, in each case prior to the date on which the Agent Certificate Holder receives the Lessee's notice of the Lessee's intention to exercise the Remarketing Option (time being of the essenceLeased Property), regardless representations and warranties regarding title, absence of whether the same shall be within the Lessee's control. Lessee shall have also paid the cost of all Modifications commenced prior to the Expiration Date. Lessee shall not have been excused pursuant to Section 12.1 from complying with any Applicable Law that involved the extension of the ultimate imposition of such Applicable Law beyond the Expiration Date. Any Permitted Property Liens (other than Lessor Liens) on any Property that were contested by Lessee shall have been removed and the Agent Certificate Holder shall have received evidence satisfactory to it that all Liens (other than except Lessor Liens and uncontested Permitted Property Liens of the type described in clauses clause (i), f) or (vii), (ix) and (xg) of the definition thereof) and the condition of the Leased Property, including, without limitation, an environmental indemnity. The Construction Agent shall fulfill all of the requirements set forth in clause (b) of Section 14.5 of the Lease (mutatis mutandis, as if Construction Agent were the Lessee, purchasing the Leased Property in accordance with the provisions of Section 14.1 of the Lease), and such requirements are incorporated herein by reference. As to the Lessor, any such sale shall be made on an “as is, with all faults” basis without representation or warranty by the Lessor, other than the absence of Lessor Liens.
(f) In connection with any such sale of such Leased Property, the Construction Agent shall pay from the proceeds of remarketing, all prorations, credits, costs and expenses of the sale of the Leased Property, whether incurred by the Lessor, any Lender, the Agent or the Construction Agent, including without limitation, the cost of all title insurance, survey, environmental report, appraisal, transfer taxes, the Lessor’s and the Agent’s attorneys’ fees, the Construction Agent’s attorneys’ fees, commissions, escrow fees, recording fees, and all applicable documentary and other transfer taxes, provided that the Construction Agent shall not incur any such expenses in excess of $75,000 without the Lessor’s prior written consent, which consent shall not be unreasonably withheld.
(g) Subject to the last sentence of Section 3.2, the Construction Agent shall pay to the Agent immediately following the delivery of the termination notice pursuant to Section 5.3(a) or (b) or the Lessor’s denial of authorization to remediate any Construction Force Majeure Event under Section 3.4, (or to such other Person as Agent shall notify Construction Agent in writing, or in the case of Supplemental Rent, to the Person entitled thereto) an amount equal to (i) in the case of the exercise of remedies under Section 5.3(a) or a payment due under Section 3.4, the Construction Failure Payment, or (ii) in the case of the exercise of remedies under Section 5.3(b), the Permitted Lease Balance, in the type of funds specified in Section 3.3 of the Lease. If the Construction Agent has exercised the Construction Default Remarketing Option, the following additional provisions shall apply: During the period commencing on the CDRO Notice Date, the Construction Agent shall, as nonexclusive agent for the Lessor, use commercially reasonable efforts to sell the Lessor’s interest in the Leased Property and will attempt to obtain the highest purchase price therefor. All such costs of such marketing of the Leased Property shall be paid from the proceeds of remarketing, provided that the Construction Agent shall not incur any such expenses in excess of $75,000 without the Lessor’s prior written consent, which consent shall not be unreasonably withheld. The Construction Agent promptly shall submit all bids to the Lessor and the Agent and the Lessor and the Agent will have the right to review the same and the right to submit any one or more bids. All bids shall be on an all-cash basis. In no event shall such bidder be the Construction Agent or any Subsidiary or Affiliate of the Construction Agent. The written offer must specify the CDRO Closing Date as the closing date. If, and only if, the selling price (net of closing costs and prorations, as reasonably estimated by the Agent)(the “Construction Offer Price”) is less than the Lease Balance at such time, then the Lessor or the Agent may, in its sole and absolute discretion, by notice to the Construction Agent, reject such offer to purchase, in which event the parties will proceed according to the provisions of Section 5.8 hereof. If neither the Lessor nor the Agent rejects such purchase offer as provided above, the closing of such purchase of the Leased Property by such purchaser shall occur on the CDRO Closing Date, contemporaneously with the Construction Agent’s surrender of the Leased Property in accordance with Section 5.9 hereof, and the gross proceeds of the sale (after deduction, however, for any marketing, closing or other costs, prorations or commissions) shall be paid directly to the Agent (or the Lessor if the Funded Amounts have been removedfully paid). The Agent shall distribute the proceeds derived from any such sale pursuant to Section 6.6 of the Master Agreement. The Construction Agent shall not have the right, power or authority to bind the Lessor in connection with any proposed sale of the Leased Property.
Appears in 1 contract
Sources: Construction Agency Agreement (Checkfree Corp \Ga\)
Option to Remarket. Subject to the fulfillment of each of the conditions set forth in this Section 20.1 and Section 20.2 (collectively, the "“Return Conditions"”), the Lessee shall have the option (the "“Remarketing Option"”) to remarket and complete the sale of all (but not less than all) of the Properties then subject to this Master Lease on the Expiration Date for the Lessor TrustLessor. The Lessee's ’s effective exercise and consummation of the Remarketing Option shall be Tandem Health Care of Ohio, Inc. Master Lease subject to the due and timely fulfillment of each of the following provisions and the provisions of Section 20.2 as to each of the Properties as of the dates set forth below.
(a) Unless a longer period is called for pursuant to any Requirement of Law, on the date not later than three hundred sixty-five sixty (365360) days prior to the Expiration Date, the Lessee shall give to the Agent Certificate Holder Lessor and the Administrative Agent written notice of the Lessee's ’s exercise of the Remarketing Option.
(b) Not later than one hundred and twenty (120) days prior to the Expiration Date, the Lessee shall deliver to the Agent Certificate Holder Lessor an Environmental Audit for each Property. Such Environmental Audit shall be prepared by an environmental consultant selected by the Agent Certificate Holder Lessor in the Agent Certificate Holder's Lessor’s discretion and shall contain conclusions satisfactory to the Agent Certificate Holder Lessor as to the environmental status of each Property. If any such Environmental Audit indicates any exceptions calling for a Phase Two environmental assessment, the Lessee shall have also delivered prior to the Expiration Date a Phase Two environmental assessment by such environmental consultant and a written statement by such environmental consultant indicating that all such exceptions have been remedied in compliance with Applicable Law.
(c) On the date of the Lessee's ’s notice to the Agent Certificate Holder Lessor of the Lessee's ’s exercise of the Remarketing Option, no Lease Event of Default or Lease Default shall exist, and, thereafter, no Lease Event of Default or Lease Default shall occur.
(d) The Completion Date shall have occurred with respect to each Property prior to the Lessee's delivery of notice of its intention to exercise the Remarketing Option, and each parcel of Land subject to any ground lease shall be a separate tax lot[Intentionally Omitted].
(e) The Lessee shall have substantially completed all Modifications, restoration and rebuilding of the relevant Properties pursuant to Sections 10.1 and 14.1 hereof (as the case may be) and shall have fulfilled all of the conditions and requirements in connection therewith pursuant to such Sections, in each case prior to the date on which the Agent Certificate Holder Lessor receives the Lessee's ’s notice of the Lessee's ’s intention to exercise the Remarketing Option (time being of the essence), regardless of whether the same shall be within the Lessee's ’s control. Lessee shall have also paid the cost of all Modifications commenced prior to the Expiration Date. Lessee shall not have been excused pursuant to Section 12.1 from complying with any Applicable Law that involved the extension of the ultimate imposition of such Applicable Law beyond the Expiration Date. Any Permitted All Liens on any Property Liens then subject to the Lease (other than Lessor Liens) on any Property that were contested by Lessee shall have been removed and the Agent Certificate Holder shall have received evidence satisfactory to it that all Liens (other than Lessor Liens and uncontested Permitted Property Liens of the type described in clauses (i), (vii), (viii), (ix) and (x) of the definition thereof) shall have been removed and the Lessor shall have received evidence satisfactory to it that all such Liens have been removed.
Appears in 1 contract
Option to Remarket. Subject to the fulfillment of each of the conditions set forth in this Section 20.1 and in Section 20.2 (such conditions, collectively, the "“Return Conditions"”), the Lessee shall have the option (the "“Remarketing Option"”) to remarket and complete the sale of market all (but not less than all) of the Properties for Property subject to this Lease on behalf of the Lessor TrustLessor. The Lessee's ’s effective exercise and consummation of the Remarketing Option shall be subject to the due and timely fulfillment of each of the following provisions and the provisions of Section 20.2 as to each of the Properties Property as of the dates set forth below.:
(a) Unless a longer period is called for pursuant to any Requirement of Law, on the date not Not later than three one hundred sixty-five eighty (365180) days prior to the scheduled Basic Term Expiration Date, the Lessee shall give to the Agent Certificate Holder and the Administrative Agent Lessor written notice of the Lessee's ’s exercise of the Remarketing Option. Failure by the Lessee to give timely notice shall be deemed to be an election by the Lessee, without further act thereby, of its Purchase Option for each Property.
(b) Not later than one hundred and twenty ninety (12090) days prior to the scheduled Basic Term Expiration Date, the Lessee shall deliver to the Agent Certificate Holder Lessor an Environmental Audit for each Property. Such Environmental Audit shall be prepared by an environmental consultant selected by the Agent Certificate Holder in Lessee, with the Agent Certificate Holder's discretion approval of the Lessor not to be unreasonably withheld and shall contain conclusions satisfactory to the Agent Certificate Holder as to conclude that the environmental status of each Propertythe Property complies with Applicable Law. If any such Environmental Audit indicates any exceptions calling for a Phase Two environmental assessmentthat are required to be remediated under any Applicable Law, the Lessee shall have also delivered prior to the scheduled Basic Term Expiration Date a Phase Two environmental assessment by such an environmental consultant selected by the Lessee and approved by the Lessor and a written statement by such environmental consultant indicating that all such exceptions have been remedied in compliance with Applicable Law.
(c) On the date of the Lessee's notice to the Agent Certificate Holder of the Lessee's exercise of the Remarketing Option, no No Lease Event of Default shall have occurred and be continuing that shall not have been cured on or Lease Default shall exist, and, thereafter, no Lease Event of Default or Lease Default shall occurprior to the Expiration Date.
(d) The Completion Date All Modifications, restoration, rebuilding and remediation of each Property required under this Lease shall have occurred with respect to each Property been completed prior to the Lessee's delivery of date on which the Lessor receives notice of its the Lessee’s intention to exercise the Remarketing Option, and and, on or prior to the Expiration Date, each parcel of Land subject to any ground lease Property shall be a separate tax lotin good repair (ordinary wear and tear excepted).
(e) The Lessee Each Property shall have substantially completed be free and clear of all Modifications, restoration Liens (including Permitted Liens) other than Lessor Liens and rebuilding the Liens of the relevant Properties pursuant to Sections 10.1 Security Documents (which shall be removed upon closing and 14.1 (as the case may be) and shall have fulfilled all receipt by the Lessor of the conditions and requirements in connection therewith pursuant to such Sections, in each case prior to the date on which the Agent Certificate Holder receives the Lessee's notice of the Lessee's intention to exercise the Remarketing Option (time being of the essenceLease Balance), regardless of whether the same shall be within the Lessee's control. Lessee shall have also paid the cost of all Modifications commenced prior to the Expiration Date. The Lessee shall not have been excused pursuant to Section 12.1 from complying with any Applicable Law that involved the extension of the ultimate imposition of such Applicable Law beyond the scheduled Basic Term Expiration Date.
(f) The Lessee shall permit inspection of each Property and any maintenance records relating to the Property by the Participants, the Administrative Agent and any prospective purchasers, and shall allow the Participants, the Administrative Agent and any prospective purchaser reasonable access to such Property for the purpose of inspecting the same.
(g) During the Marketing Period, the Lessee shall, as nonexclusive agent for the Lessor, use reasonable commercial efforts to sell the Lessor’s interest in each Property for not less than the Fair Market Sales Value, and shall use reasonable commercial efforts to procure bids from one or more bona fide prospective purchasers. Any Permitted No such purchaser shall be an Obligor or an Affiliate of any Obligor, but the Lessor and the other Participants may submit one or more bids for Property. The Lessee shall deliver to the Lessor and the other Participants all bids for Property Liens received from prospective purchasers within five (5) days of the Lessee’s receipt of each such bid.
(h) The Lessee shall use reasonable efforts to obtain at its cost and expense, all required governmental and regulatory consents and approvals and shall have made all filings as required by Applicable Law in order to carry out and complete the transfer of each Property. As to the Lessor, any such sale shall be made on an “as is, with all faults” basis without representation or warranty by the Lessor other than Lessor Liens) on any Property that were contested by Lessee shall have been removed and the Agent Certificate Holder shall have received evidence satisfactory to it that all Liens (other than absence of Lessor Liens and uncontested Permitted Property Liens arising under the Security Documents.
(i) The Lessee shall pay directly, and not from the sale proceeds, all prorations and credits, whether incurred by the Lessor or the Lessee, including without limitation, the cost of all environmental reports, appraisals required under Section 13.2 of the Participation Agreement and the Lessee’s attorneys’ fees, provided, however, upon the sale of Property the Lessee shall be reimbursed for such expenses by the Lessor.
(j) The Lessee shall pay to the Lessor on or prior to the scheduled Basic Term Expiration Date (or in the case of Supplemental Rent, to the Person entitled thereto) an amount equal to the Maximum Recourse Amount plus all accrued and unpaid Rent and all other amounts hereunder which have accrued or will accrue prior to or as of the scheduled Basic Term Expiration Date, in the type described of funds specified in clauses Section 3.4 hereof.
(i)k) The Lessee shall pay to the Lessor on or prior to the scheduled Basic Term Expiration Date the amounts, if any, required to be paid pursuant to Section 13.2 of the Participation Agreement.
(vii), l) The gross proceeds (ix) and (xthe “Gross Remarketing Proceeds”) of the definition thereofsale of the Property (less any closing costs or commissions related to the sale of the Property) have been removedshall be paid directly to the Lessor and shall be distributed by the Lessor to the Administrative Agent for distribution in accordance with Section 7.4 of the Participation Agreement.
(m) All Necessary Permits shall be in effect and shall on the scheduled Basic Term Expiration Date be assigned or transferred to the Lessor to the extent assignable or transferable.
Appears in 1 contract
Sources: Master Lease (Citrix Systems Inc)
Option to Remarket. Subject to the fulfillment of each of the conditions set forth in this Section 20.1 and Section 20.2 (collectively14.6, the "Return Conditions"), the Lessee Lessees shall have the option to market all of, but not less than all of, the Leased Properties for Lessor (the "Remarketing Option") to remarket and complete the sale of all of the Properties for the Lessor Trust). The Lessee's Lessees' effective exercise and consummation of the Remarketing Option shall be subject to the due and timely fulfillment of each of the following provisions provisions, the failure of any of which, unless waived in writing by Lessor and the provisions of Lenders, shall render the Remarketing Option and the Lessees' exercise thereof null and void, in which event, each Lessee shall be obligated to perform its obligations under Section 20.2 as to each of the Properties as of the dates set forth below14.2.
(a) Unless a longer period is called for pursuant to any Requirement of Law, on the date not Not later than three hundred sixty-five (365) days six months prior to the Expiration Lease Termination Date, the Lessee DAP SUB shall give to the Agent Certificate Holder Lessor and the Administrative Agent written notice of the Lessee's Lessees' exercise of the Remarketing Option.
(b) Not later than one hundred ten (10) Business Days prior to the Lease Termination Date, each Lessee shall deliver to Lessor and twenty the Agent an environmental assessment of each Leased Property leased by it dated not later than forty-five (12045) days prior to the Expiration Lease Termination Date, the Lessee shall deliver to the Agent Certificate Holder an Environmental Audit for each Property. Such Environmental Audit environmental assessment shall be prepared by an environmental consultant selected by the Agent Certificate Holder in the Agent Certificate Holder's discretion related Lessee and shall contain conclusions reasonably satisfactory to the Agent Certificate Holder as Required Funding Parties, shall be in form, detail and substance reasonably satisfactory to the Required Funding Parties, and shall otherwise indicate no degradation in environmental status of each Property. If any such conditions beyond those described in the related Environmental Audit indicates any exceptions calling for which corrective action is required by Applicable Law and shall not include a Phase Two environmental assessment, the Lessee shall have also delivered prior recommendation for further investigation to the Expiration Date a Phase Two environmental assessment by make such environmental consultant and a written statement by such environmental consultant indicating that all such exceptions have been remedied in compliance with Applicable Lawdetermination.
(c) On the date of the LesseeDAP SUB's notice to Lessor and the Agent Certificate Holder of the Lessee's Lessees' exercise of the Remarketing Option, each of the Construction Conditions shall have been timely satisfied and no Lease Event of Default or Lease Potential Event of Default shall exist, and, and thereafter, no Lease Event of Default or Lease Potential Event of Default shall occurexist under this Lease.
(d) The Completion Date shall have occurred with respect to each Property prior to the Lessee's delivery of notice of its intention to exercise the Remarketing Option, and each parcel of Land subject to any ground lease shall be a separate tax lot.
(e) The Each Lessee shall have substantially completed in all Modificationsmaterial respects all Alterations, restoration and rebuilding of the relevant Leased Properties leased by it pursuant to Sections 10.1 6.1, 6.2, 10.3 and 14.1 10.4 (as the case may be) and shall have fulfilled in all material respects all of the conditions and requirements in connection therewith pursuant to such said Sections, in each case prior to by the date on which Lessor and the Agent Certificate Holder receives the Lesseereceive DAP SUB's notice of the Lessee's intention to Lessees' exercise of the Remarketing Option (time being of the essence), regardless of whether the same shall be within the such Lessee's control. .
(e) Upon request by the Agent, each Lessee shall have also promptly provide any maintenance records relating to each Leased Property leased by it to Lessor, the Agent and any potential purchaser, and shall otherwise do all things necessary to deliver possession of such Leased Property to the potential purchaser at the appropriate closing date. Each Lessee shall allow Lessor, the Agent and any potential purchaser reasonable access during normal business hours to any Leased Property for the purpose of inspecting the same.
(f) On the Lease Termination Date, each Lessee shall surrender the Leased Properties leased by it in accordance with Section 14.8 hereof.
(g) In connection with any such sale of the Leased Properties, each Lessee will provide to the purchaser all customary "seller's" indemnities requested by the potential purchaser (taking into account the location and nature of the Leased Properties), representations and warranties regarding title, absence of Liens (except Lessor Liens) and the condition of the Leased Properties. Each Lessee shall fulfill all of the requirements set forth in clause (b) of Section 14.5, and such requirements are incorporated herein by reference. As to Lessor, any such sale shall be made on an "as is, with all faults" basis without representation or warranty by Lessor, other than the absence of Lessor Liens.
(h) In connection with any such sale of Leased Properties, each Lessee shall pay directly, and not from the sale proceeds, all prorations, credits, costs and expenses of the sale of the Leased Properties leased by it, whether incurred by Lessor, any Lender, the Agent or such Lessee, including without limitation, to the extent not paid by the purchaser, the cost of all Modifications commenced title insurance, surveys, environmental reports, appraisals, transfer taxes, Lessor's and the Agent's attorneys' fees, such Lessee's attorneys' fees, commissions, escrow fees, recording fees, and all applicable documentary and other transfer taxes.
(i) The Lessees, jointly and severally, shall pay to the Agent on the Lease Termination Date (or to such other Person as Agent shall notify Lessee in writing, or in the case of Supplemental Rent, to the Person entitled thereto) an amount equal to the Recourse Deficiency Amount, plus all accrued and unpaid Basic Rent and Supplemental Rent, and all other amounts hereunder which have accrued prior to or as of such date, in the type of funds specified in Section 3.3 hereof. If the Lessees have exercised the Remarketing Option, the following additional provisions shall apply: During the period commencing on the date six months prior to the Expiration Datescheduled expiration of the Lease Term (or on such earlier date as is designated by DAP SUB, which earlier date may be no earlier than the date which is twelve months prior to the scheduled expiration of the Lease Term), one or more of the Lessees shall, as nonexclusive agent for Lessor, use commercially reasonable efforts to sell Lessor's interest in the Leased Properties and will attempt to obtain the highest purchase price therefor. All such marketing of the Leased Properties shall be at the Lessees' sole expense. Lessee promptly shall not submit all bids to Lessor and the Agent and Lessor; the Agent will have the right to review the same; and the Agent and Lessor will have the right to submit any one or more bids. All bids shall be on an all-cash basis. In no event shall such bidder be a Lessee or any Subsidiary or Affiliate of a Lessee. The written offer must specify the Lease Termination Date as the closing date. If, and only if, the aggregate selling price (net of closing costs and prorations, as reasonably estimated by the Agent) is less than the difference between the Lease Balance at such time minus the Recourse Deficiency Amount, then Lessor or the Agent may, in its sole and absolute discretion, by notice to DAP SUB, given within 30 days of receipt of such offer, reject such offer to purchase, in which event the parties will proceed according to the provisions of Section 14.7 hereof. If neither Lessor nor the Agent rejects such purchase offer as provided above, the closing of such purchase of the Leased Properties by such purchaser shall occur on the Lease Termination Date, contemporaneously with the Lessees' surrender of the Leased Properties in accordance with Section 14.8 hereof, and the gross proceeds of the sale (i.e., without deduction for any marketing, closing or other costs, prorations or commissions) shall be paid directly to the Agent (or Lessor if the Funded Amounts have been excused fully paid); provided, however, that if the sum of the gross proceeds from such sale plus the Recourse Deficiency Amount paid by the Lessees on the Lease Termination Date pursuant to Section 12.1 from complying 14.6(i), minus any and all reasonable costs and expenses (including broker fees, appraisal costs, reasonable legal fees and transfer taxes) incurred by the Agent or Lessor in connection with any Applicable Law that involved the extension marketing of the ultimate imposition Leased Properties or the sale thereof exceeds the Lease Balance as of such Applicable Law beyond date, then the Expiration excess shall be paid to DAP SUB on the Lease Termination Date. Any Permitted Property Liens (other than Lessor Liens) on any Property that were contested by No Lessee shall have been removed and the Agent Certificate Holder shall have received evidence satisfactory right, power or authority to it that all Liens (other than bind Lessor Liens and uncontested Permitted Property Liens in connection with any proposed sale of the type described in clauses (i), (vii), (ix) and (x) of the definition thereof) have been removedLeased Properties.
Appears in 1 contract
Option to Remarket. Subject to the fulfillment of each of the conditions set forth in this Section 20.1 and Section 20.2 (collectivelySection, the "Return Conditions"), the Lessee shall have the option (the "Remarketing Option") to remarket and complete the sale of all market all, but not less than all, of the Properties for the Lessor TrustLeased Property and to procure a purchaser therefor. The Lessee's effective exercise and consummation of the Remarketing Option shall be subject to the due and timely fulfillment of each of the following provisions provisions, the failure of any of which shall render the Remarketing Option and Lessee's exercise thereof null and void, in which event, Lessee shall remain obligated to perform all of its obligations under Section 15.2 (the provisions of Section 20.2 as to each of the Properties as of the dates set forth below."Purchase Obligation"):
(ai) Unless a longer period is called for pursuant to any Requirement of Law, on the date not Not later than three hundred sixty-five (3653) days prior to months before the Expiration Scheduled Termination Date, the Lessee shall give to the Agent Certificate Holder and the Administrative Agent Lessor written notice of the Lessee's exercise of the Remarketing Option, which exercise shall be irrevocable unless otherwise agreed in writing by the Lender.
(bii) Not later than one hundred and twenty thirty (12030) Business Days prior to the Scheduled Termination Date, Lessee shall deliver to Lessor an environmental assessment of each Parcel of the Leased Property dated not later than forty-five (45) days prior to the Expiration Scheduled Termination Date, the Lessee shall deliver to the Agent Certificate Holder an Environmental Audit for each Property. Such Environmental Audit Each such environmental assessment shall be prepared by an environmental consultant selected by Lessee and reasonably acceptable to Lessor and the Agent Certificate Holder Lender, shall be in form, detail and substance reasonably acceptable to Lessor and the Lender, and shall otherwise indicate the environmental condition of the Leased Property to be the same as described in the Agent Certificate Holder's discretion and shall contain conclusions satisfactory to the Agent Certificate Holder as to the environmental status of each Property. If any such Environmental Audit indicates any exceptions calling for a Phase Two environmental assessment, delivered pursuant to Section 3.2 of the Lessee shall have also delivered prior to the Expiration Date a Phase Two environmental assessment by such environmental consultant and a written statement by such environmental consultant indicating that all such exceptions have been remedied in compliance with Applicable LawParticipation Agreement.
(ciii) On the date of the Lessee's notice to the Agent Certificate Holder Lessor of the Lessee's exercise of the Remarketing Option, each of the Construction Conditions shall have been timely satisfied and no Lease Event of Default or Lease Default shall exist, and, and thereafter, no Lease Event of Default or Lease Default shall occurexist under this Lease.
(div) The Completion Date shall have occurred with respect to each Property prior to the Lessee's delivery of notice of its intention to exercise the Remarketing Option, and each parcel of Land subject to any ground lease shall be a separate tax lot.
(e) The Lessee shall have substantially completed all ModificationsAlterations, restoration and rebuilding of the relevant Properties Leased Property pursuant to Sections 10.1 7.2, 11.3 and 14.1 11.4 (as the case may be) and shall have fulfilled all of the conditions and requirements in connection therewith pursuant to such said Sections, in each case prior to by the date on which the Agent Certificate Holder Lessor receives the Lessee's notice of the Lessee's intention to exercise of the Remarketing Option (time being of the essence), regardless of whether the same shall be within the Lessee's control.
(v) Once Lessee has exercised the Remarketing Option as provided in clause (i) hereof, Lessee shall, as nonexclusive agent for Lessor, use commercially reasonable efforts to sell Lessor's interest in each Parcel of the Leased Property and will attempt to obtain the highest purchase price therefor. Lessee will be responsible for hiring brokers and making the Leased Property available for inspection by prospective purchasers. Lessee shall promptly provide any maintenance records relating to each Parcel of the Leased Property to Lessor and any potential purchaser thereof upon request, and shall otherwise do all things necessary to sell and deliver possession of each Parcel of the Leased Property to the purchaser thereof. All such marketing of the Leased Property shall be at Lessee's sole expense. Lessee shall allow Lessor, the Lender and any potential qualified purchaser access to each Parcel of the Leased Property for the purpose of inspecting the same.
(vi) Lessee shall submit all bids to Lessor and the Lender and Lessor and the Lender will have also paid the right to review the same and the right to submit any one or more bids. All bids shall be on an "all-cash" basis (at least up to the Lease Balance amount). Lessee shall procure bids from one or more bona fide prospective purchasers of any Parcel of the Leased Property and shall deliver to Lessor and the Lender not less than ninety (90) days prior to the Lease Termination Date a binding written irrevocable offer by such purchaser offering (subject to customary conditions which do not violate the provisions of clause viii, below) the highest "all-cash" bid to purchase the Leased Property. Such purchaser shall not be Lessee or any Subsidiary or Affiliate of Lessee. The written offer must specify the Lease Termination Date as the closing date.
(vii) On the Lease Termination Date, Lessee shall surrender the Leased Property in accordance with Section 15.8 hereof.
(viii) In connection with any such sale of the Leased Property, Lessee may provide to the purchaser any such customary "seller's" indemnities, representations and warranties regarding title, absence of Liens (except Lessor's Liens) and the condition of the Leased Property, including, without limitation, an environmental indemnity, as Lessee may determine to provide in the exercise of its business judgment and sole discretion, provided, however, that no such indemnities, representations or warranties shall be binding on Lessor, nor shall they create liabilities, charges, offsets or Claims, contingent or otherwise, which could diminish, offset or impose a lien upon the amount of the cash proceeds payable to Lessor under such purchase offer, nor shall Lessor be under any obligation to join in or become obligated for the same, except that Lessor shall fulfill all of the requirements set forth in clause (b) of Section 15.5, and such requirements are incorporated herein by reference. As to Lessor, any such sale shall be made on an "as is, with all faults" basis without representation or warranty by Lessor other than the absence of Lessor's Liens.
(ix) Lessor shall pay from the sale proceeds, all prorations, credits, costs and expenses of the sale of the Leased Property, including without limitation the cost of all Modifications commenced prior title insurance, surveys, environmental reports, appraisals, transfer taxes, Lessor's reasonable attorneys' fees, commissions, escrow fees, recording fees, and all applicable documentary and other transfer taxes.
(x) Lessee shall pay to the Expiration Date. Lender on the Lease Termination Date (or to such other Person as Lessor shall notify Lessee shall not have been excused pursuant in writing or, in the case of Supplemental Rent, to Section 12.1 from complying with any Applicable Law that involved the extension of Person entitled thereto) an amount equal to the ultimate imposition of such Applicable Law beyond the Expiration Date. Any Permitted Property Liens (other than Lessor Liens) on any Property that were contested by Lessee shall have been removed and the Agent Certificate Holder shall have received evidence satisfactory to it that all Liens (other than Lessor Liens and uncontested Permitted Property Liens of Recourse Deficiency Amount in the type described of funds specified in clauses Section 4.3 hereof.
(i), xi) If the aggregate selling price (vii), net of closing costs and prorations and other amounts payable by Lessor under clause (ix) above, as reasonably estimated by Lessor) for all Parcels plus the Recourse Deficiency Amount is less than the Lease Balance, then Lessor may, by notice to Lessee and in Lessor's sole and absolute discretion, reject such offer to purchase, in which event the parties will proceed according to the provisions of Section 15.7 "Rejection of Sale" hereof.
(xxii) If Lessor does not reject such purchase offer as provided above, the closing of such purchase of the definition thereofLeased Property by such purchaser must occur on the Lease Termination Date, contemporaneously with Lessee's surrender of the Leased Property in accordance with Section 15.8 hereof.
(xiii) have If Lessor does not reject the purchase offer as provided above, then the purchase shall be consummated on the Lease Termination Date and the gross proceeds of the sale (i.e., without deduction for any marketing, closing or other costs, prorations or commissions) shall be paid directly to Lessor; provided, however, that if the sum of the gross proceeds from such sale plus the Recourse Deficiency Amount exceeds the Lease Balance, as of such date, then the excess shall be paid to Lessee on the Lease Termination Date. If one or more of the foregoing provisions shall not be fulfilled as of the Lease Termination Date or if the Leased Property is not purchased as aforesaid for any other reason whatsoever other than solely due to rejection by Lessor of such sale pursuant to subsection (xi) above, then Lessor may, at Lessor's option and in Lessor's sole discretion, (i) declare by written notice to Lessee the Remarketing Option to be null and void (whether or not it has been removed.theretofore exercised by Lessee), in which event all of Lessee's rights under this Section shall immediately terminate and
Appears in 1 contract
Sources: Master Lease and Development Agreement (Atria Communities Inc)
Option to Remarket. Subject Notwithstanding any provisions of this Agreement and the Operative Documents to the contrary and subject to the fulfillment of each of the conditions set forth in this Section 20.1 and Section 20.2 (collectively5.7, the "Return Conditions"), the Lessee Construction Agent shall have the option to remarket the Leased Property with respect to which a Construction Agency Event of Default has occurred for the Lessor or with respect to which the Lessee shall be required to pay the Construction Failure Payment pursuant to Section 3.4 (the "Construction Default Remarketing Option") to remarket and complete the sale of all of the Properties for the Lessor Trust). The LesseeConstruction Agent's effective exercise and consummation of the Construction Default Remarketing Option shall be subject to the due and timely fulfillment of each of the following provisions provisions, the failure of any of which, unless waived in writing by the Lessor and the provisions of Lenders, shall render the Construction Default Remarketing Option and the Construction Agent's exercise thereof null and void, in which event, the Construction Agent shall not have any rights under this Section 20.2 as to each of the Properties as of the dates set forth below5.7.
(a) Unless a longer period is called for pursuant to any Requirement of Law, on the date not Not later than three hundred sixty-five Business Days after Lessor's service of the notice of termination referred to in Section 5.3(a) or (365b) days prior or the Lessor's denial of authorization to the Expiration Dateremediate any Construction Force Majeure Event under Section 3.4, the Lessee Construction Agent shall give to the Agent Certificate Holder Lessor and the Administrative Agent written notice of the LesseeConstruction Agent's exercise of the Construction Default Remarketing Option.. The date of such notice shall be the "CDRO Notice Date";
(b) Not later than one hundred thirty (30) days after Lessor's service of the notice of termination referred to in Section 5.3(a) or (b) or the Lessor's denial of authorization to remediate any Construction Force Majeure Event under Section 3.4, the Construction Agent shall deliver to the Lessor and twenty the Agent an environmental assessment of such Leased Property dated not earlier than forty-five (12045) days prior to the Expiration Date, the Lessee shall deliver to the Agent Certificate Holder an Environmental Audit for each Propertydate of delivery thereof. Such Environmental Audit environmental assessment shall be prepared by an environmental consultant selected by the Agent Certificate Holder Required Funding Parties, shall be in the Agent Certificate Holder's discretion form, detail and shall contain conclusions substance reasonably satisfactory to the Agent Certificate Holder as to Required Funding Parties, and shall otherwise indicate the environmental status condition of each Property. If any such Leased Property to be the same as described in the related Environmental Audit indicates any exceptions calling for a Phase Two environmental assessment, the Lessee shall have also delivered prior to the Expiration Date a Phase Two environmental assessment by such environmental consultant and a written statement by such environmental consultant indicating that all such exceptions have been remedied in compliance with Applicable LawAudit.
(c) On the date of the Lessee's notice The Construction Agent shall promptly provide any maintenance records relating to such Leased Property to the Lessor, the Agent Certificate Holder and any potential purchaser upon request, and shall otherwise do all things necessary to deliver possession of such Leased Property to the Lessee's exercise potential purchaser. The Construction Agent shall allow the Lessor, the Agent and any potential purchaser access to any Leased Property for the purpose of inspecting the Remarketing Option, no Lease Event of Default or Lease Default shall exist, and, thereafter, no Lease Event of Default or Lease Default shall occursame.
(d) The Completion Date shall have occurred with respect to each Property prior to On the Lesseeninetieth (90th) day (such date, or such later date as the Lessor may specify in writing, being the "CDRO Closing Date") after Lessor's delivery service of the notice of its intention termination referred to exercise in Section 5.3(a) or (b) or the Remarketing OptionLessor's denial of authorization to remediate any Construction Force Majeure Event under Section 3.4, and each parcel of Land subject to any ground lease the Construction Agent shall be a separate tax lotsurrender such Leased Property in accordance with Section 5.9 hereof.
(e) The Lessee shall have substantially completed all Modifications, restoration and rebuilding In connection with any such sale of the relevant Properties pursuant Leased Property, the Construction Agent shall provide to Sections 10.1 the purchaser all customary "seller's" indemnities (taking into account the location and 14.1 nature of the Leased Property), representations and warranties regarding title, absence of Liens (as the case may beexcept Lessor Liens) and the condition of the Leased Property, including, without limitation, an environmental indemnity. The Construction Agent shall have fulfilled fulfill all of the conditions and requirements set forth in connection therewith pursuant to such Sections, in each case prior to the date on which the Agent Certificate Holder receives the Lessee's notice clause (b) of Section 14.5 of the Lease (mutatis mutandis, as if Construction Agent were a Lessee's intention to exercise , purchasing the Remarketing Option (time being Leased Property in accordance with the provisions of Section 14.1 of the essenceLease), regardless of whether the same shall be within the Lessee's control. Lessee shall have also paid the cost of all Modifications commenced prior to the Expiration Date. Lessee shall not have been excused pursuant to Section 12.1 from complying with any Applicable Law that involved the extension of the ultimate imposition of and such Applicable Law beyond the Expiration Date. Any Permitted Property Liens (other than Lessor Liens) on any Property that were contested by Lessee shall have been removed and the Agent Certificate Holder shall have received evidence satisfactory to it that all Liens (other than Lessor Liens and uncontested Permitted Property Liens of the type described in clauses (i), (vii), (ix) and (x) of the definition thereof) have been removed.requirements are incorporated herein by
Appears in 1 contract
Option to Remarket. Subject to the fulfillment of each of the conditions set forth in this Section 20.1 and Section 20.2 (collectively, the "Return Conditions")24.1, the Lessee shall have the option (the "Remarketing Option") to remarket market and complete the sale of all of the Properties Property for the Lessor TrustLessor. The Lessee's effective exercise and consummation of the Remarketing Option shall be subject to the due and timely fulfillment of each of the following provisions and the provisions of Section 20.2 as to each of the Properties Property as of the dates set forth below.
(a) Unless a longer period is called for pursuant to any Requirement of LawExcept as provided in Section 23.1, on the date not later than three one hundred sixty-five eighty (365180) days prior to the Expiration Date, the Lessee shall give to the Agent Certificate Holder and the Administrative Agent Lessor written notice of the Lessee's exercise of the Remarketing Option, which exercise shall be irrevocable. If Lessee does not deliver a notice of its intention to renew this Lease as provided in Section 23.1 and fails to timely provide the Remarketing Notice, then Lessee shall be deemed to have elected to exercise its Purchase Option under Section 22.1.
(b) Not later than one hundred and twenty (120) days prior to the Expiration Date, the Lessee shall deliver to the Agent Certificate Holder Lessor an Environmental Audit for each the Property. Such Environmental Audit shall be prepared by an environmental consultant selected by the Agent Certificate Holder Lessor in the Agent Certificate HolderLessor's reasonable discretion and shall contain conclusions reasonably satisfactory to the Agent Certificate Holder Lessor as to the environmental status of each the Property. If any such Environmental Audit indicates any exceptions calling for with respect to which a Phase Two environmental assessmentassessment is recommended, the Lessee shall have also delivered prior to the Expiration Date deliver (i) a Phase Two environmental assessment by such environmental consultant within thirty (30) days prior to the Expiration Date and (ii) a written statement by certificate of such environmental consultant indicating that prior to the Expiration Date showing the completion of all such exceptions have been remedied remedial action in compliance with Applicable Law.
(c) On the date of the Lessee's notice to the Agent Certificate Holder Lessor of the Lessee's exercise of the Remarketing Option, and on the Expiration Date, no Lease Event of Default or Lease Default shall exist, and, thereafter, no Lease Event of Default or Lease Default shall occur.
(d) The Completion Date shall have occurred with respect to each Property prior to the Lessee's delivery of notice of its intention to exercise the Remarketing Option, and each parcel of Land subject to any ground lease shall be a separate tax lot.
(e) The Lessee shall have substantially completed in all Material respects all Modifications, restoration and rebuilding of the relevant Properties Property pursuant to Sections 10.1 14.1 and 14.1 18.1 (as the case may be) and shall have fulfilled in all Material respects all of the conditions and requirements in connection therewith pursuant to such said Sections, in each case prior to by the date on which the Agent Certificate Holder Lessor receives the Lessee's notice of the Lessee's intention to exercise of the Remarketing Option (time being of the essence), regardless of whether the same shall be within the Lessee's control. The Lessee shall have also paid the cost of all Modifications commenced prior to the Expiration Date. The Lessee shall not have been excused pursuant to Section 12.1 16.1 from complying with any Applicable Law that involved the extension of the ultimate imposition of such Applicable Law beyond the Expiration Datelast day of the Term. Any Permitted Property Liens (other than Lessor Liens) on any the Property that were contested by the Lessee shall have been removed removed.
(e) During the Marketing Period, the Lessee shall, as nonexclusive agent for the Lessor, use best efforts to sell the Lessor's interest in the Property and will attempt to obtain the highest purchase price therefor and for not less than the Fair Market Sales Value of the Property. The Lessee will be responsible for hiring brokers and making the Property available for inspection by prospective purchasers. The Lessee shall promptly upon request permit inspection of the Property and any maintenance records relating to the Property by the Lessor and any potential purchasers, and shall otherwise do all things reasonably necessary to sell and deliver possession of the Property to any purchaser. All such marketing of the Property shall be at the Lessee's sole expense. The Lessee shall allow the Lessor and any potential qualified purchaser reasonable access to the Property for the purpose of inspecting the same.
(f) The Lessee shall submit all bids to the Lessor, and the Agent Certificate Holder Lessor will have the right to submit any one or more bids. The Lessee shall deliver to the Lessor, not less than thirty (30) days prior to the Expiration Date, binding written unconditional (except as set forth below), irrevocable offer or offers by such purchaser or purchasers offering the highest bid to purchase the Property. No such purchaser shall be the Lessee or an Affiliate of the Lessee. The written offer must specify the Expiration Date as the closing date unless the Lessor shall otherwise agree in its reasonable discretion. Any sale by the Lessee shall be for the highest cash bid submitted to the Lessor. The determination of the highest bid shall be made by the Lessor prior to the end of the Marketing Period, but in any event, the Lessor shall have received evidence satisfactory no obligation to it that approve any bid unless the aggregate amount of the highest bid for the Property equals or exceeds an amount equal to the Lease Balance minus the Contingent Rental Adjustment determined as of the Expiration Date. All bids shall be on an all-cash basis unless the Lessor shall otherwise agree in its sole discretion.
(g) In connection with any such sale of the Property, the Lessee will provide to each Purchaser all customary "seller's" indemnities, representations and warranties regarding absence of Liens (other than Lessor Liens) and the condition of the Property. The Lessee shall have obtained, at its cost and expense, all required governmental and regulatory consents and approvals and shall have made all filings as required by Applicable Law in order to carry out and complete the transfer of the Property. As to the Lessor, any such sale shall be made on an "as is, with all faults" basis without representation or warranty by the Lessor other than the absence of Lessor Liens. Any agreement as to such sale shall be made subject to the Lessor's rights hereunder.
(h) The Lessee shall pay directly, and not from the sale proceeds, all prorations, credits, costs and expenses of the sale of the Property, whether incurred by the Lessor or the Lessee, including without limitation, the cost of all title insurance, surveys, environmental reports, appraisals, transfer taxes, the Lessor's reasonable attorneys' fees, the Lessee's attorneys' fees, commissions, escrow fees, recording fees, and all applicable documentary and other transfer taxes.
(i) The Lessee shall pay to the Lessor on or prior to the Expiration Date (or to such other Person as the Lessor shall notify the Lessee in writing) an amount equal to the Contingent Rental Adjustment for the Property plus all Basic Rent and all other amounts hereunder which have accrued or will accrue prior to or as of the Expiration Date or such other closing date approved by the parties, in the type of funds specified in Section 7.4 hereof.
(j) The Lessee shall pay to the Lessor on or prior to the Expiration Date the amounts, if any, required to be paid pursuant to Section 26.2 hereof.
(k) If the Lessor approves any bid for the Property, the purchase of the Property shall be consummated on or before the Expiration Date and the gross proceeds (the "Gross Proceeds") of the sale of the Property, less the documented expenses incurred by the Lessee under clause (h) shall be paid directly to the Lessor; provided, however, that if the sum of (x) the remaining Gross Proceeds from such sale or sales plus (y) the Contingent Rental Adjustment received by the Lessor pursuant to clause (i) plus (z) amounts received by the Lessor pursuant to Section 26.2 hereof exceeds the Lease Balance as of such date, then the excess shall be paid to the Lessee on the Expiration Date or such other closing date approved by the parties.
(l) All reconstruction, refurbishment and repair to the Property resulting from a Casualty or Condemnation shall have been completed prior to the end of the Marketing Period. If one or more of the foregoing provisions shall not be fulfilled as of the date set forth above with respect to the Property, then the Lessor shall declare by written notice to the Lessee the Remarketing Option to be null and void (whether or not it has been theretofore exercised by the Lessee), in which event all of the Lessee's rights under this Section 24.1 shall immediately terminate and the Lessee shall be obligated to purchase the Property pursuant to Section 22.1 on the Expiration Date. If the Lessee effectively elects the Remarketing Option and no sale of the Property is consummated prior to the end of the Marketing Period, the Lessee shall, in addition to making the payment required pursuant to Section 24.1 above, return the Property to the Lessor (or to any other Person specified by the Lessor). In connection with any such return of the Property, the Lessee shall, at its own cost and expense, do each of the following:
(i) the Lessee shall, on or prior to the Expiration Date, execute and deliver to the Lessor (or to the Lessor's designee) (A) a deed with respect to the Property containing representations and warranties of grantor to the Lessor (or such other Person) regarding the absence of Liens and uncontested (other than Permitted Property Liens of the type described in clauses (i), (ii), (iii) (but only with respect to taxes not yet due and payable), (vii), (viii), (ix) and (x) of the definition thereof), (B) a ▇▇▇▇ of sale with respect to any Equipment then located on the Property and (C) an assignment of the Lessee's entire interest in the Property (which shall include an assignment of all of the Lessee's right, title and interest in and to any Net Proceeds with respect to the Property not previously received by the Lessee and an assignment of leases of the Property), in each case in recordable form and otherwise in conformity with local custom and free and clear of any Liens attributable to the Lessee;
(ii) the Lessee shall execute and deliver to Lessor and the Lessor's title insurance company an affidavit as to the absence of any Liens (other than Permitted Liens of the type described in clauses (i), (ii), (iii) (but only with respect to taxes not yet due and payable), (vii), (viii), (ix) and (x) of the definition thereof) and shall execute and deliver to the Lessor a statement of termination of this Lease to the extent relating to the Property;
(iii) the Lessee shall, on the Expiration Date, transfer possession of the Property to the Lessor or any Person designated by the Lessor, by surrendering the same into the possession of the Lessor or such Person, as the case may be, in the condition required by this Section 24.1 and in compliance with Applicable Law;
(iv) the Lessee shall, for a period of up to one year after the Expiration Date, cooperate reasonably with the Lessor and/or any Person designated by the Lessor to receive the Property, which cooperation shall include reasonable efforts with respect to the following, all of which the Lessee shall do on or before the Expiration Date or as soon thereafter as is reasonably practicable: providing copies of all books and records regarding the maintenance and ownership of the Property and all know-how, data and technical information relating thereto, granting or assigning all licenses necessary for the operation and maintenance of the Property and cooperating reasonably in seeking and obtaining all necessary Governmental Action. The obligations of the Lessee under this paragraph shall survive the expiration or termination of this Lease; and
(v) no subleases with respect to the Property or any portion thereof shall be in effect on the Expiration Date. Except as expressly set forth herein, the Lessee shall have been removedno right, power or authority to bind the Lessor in connection with any proposed sale or sales of the Property.
Appears in 1 contract
Option to Remarket. Subject to the fulfillment of each of the conditions set forth in this Section 20.1 and Section 20.2 (collectively, the "Return Conditions")24.1, the Lessee shall have the option (the "Remarketing Option") to remarket market and complete the sale of all of the Properties Property for the Lessor TrustLessor. The Lessee's effective exercise and consummation of the Remarketing Option shall be subject to the due and timely fulfillment of each of the following provisions and the provisions of Section 20.2 as to each of the Properties Property as of the dates set forth belowbelow and the satisfaction of the transfer provisions applicable thereto set forth in the ▇▇▇▇▇▇ Loan Documents.
(a) Unless a longer period is called for pursuant to any Requirement of LawExcept as provided in Section 23.1, on the date not later than three one hundred sixty-five eighty (365180) days prior to the Expiration Date, the Lessee shall give to the Agent Certificate Holder and the Administrative Agent Lessor written notice of the Lessee's exercise of the Remarketing Option, which exercise shall be irrevocable. If Lessee does not deliver a notice of its intention to renew this Lease as provided in Section 23.1 and fails to timely provide the Remarketing Notice, then Lessee shall be deemed to have elected to exercise its Purchase Option under Section 22.1.
(b) Not later than one hundred and twenty (120) days prior to the Expiration Date, the Lessee shall deliver to the Agent Certificate Holder Lessor an Environmental Audit for each the Property. Such Environmental Audit shall be prepared by an environmental consultant selected by the Agent Certificate Holder Lessor in the Agent Certificate HolderLessor's reasonable discretion and shall contain conclusions reasonably satisfactory to the Agent Certificate Holder Lessor as to the environmental status of each the Property. If any such Environmental Audit indicates any exceptions calling for with respect to which a Phase Two environmental assessmentassessment is recommended, the Lessee shall have also delivered prior to the Expiration Date deliver (i) a Phase Two environmental assessment by such environmental consultant within thirty (30) days prior to the Expiration Date and (ii) a written statement by certificate of such environmental consultant indicating that prior to the Expiration Date showing the completion of all such exceptions have been remedied remedial action in compliance with Applicable Law.
(c) On the date of the Lessee's notice to the Agent Certificate Holder Lessor of the Lessee's exercise of the Remarketing Option, and on the Expiration Date, no Lease Event of Default or Lease Default shall exist, and, thereafter, no Lease Event of Default or Lease Default shall occur.
(d) The Completion Date shall have occurred with respect to each Property prior to the Lessee's delivery of notice of its intention to exercise the Remarketing Option, and each parcel of Land subject to any ground lease shall be a separate tax lot.
(e) The Lessee shall have substantially completed all Modifications, restoration and rebuilding of the relevant Properties pursuant to Sections 10.1 and 14.1 (as the case may be) and shall have fulfilled all of the conditions and requirements in connection therewith pursuant to such Sections, in each case prior to the date on which the Agent Certificate Holder receives the Lessee's notice of the Lessee's intention to exercise the Remarketing Option (time being of the essence), regardless of whether the same shall be within the Lessee's control. Lessee shall have also paid the cost of all Modifications commenced prior to the Expiration Date. Lessee shall not have been excused pursuant to Section 12.1 from complying with any Applicable Law that involved the extension of the ultimate imposition of such Applicable Law beyond the Expiration Date. Any Permitted Property Liens (other than Lessor Liens) on any Property that were contested by Lessee shall have been removed and the Agent Certificate Holder shall have received evidence satisfactory to it that all Liens (other than Lessor Liens and uncontested Permitted Property Liens of the type described in clauses (i), (vii), (ix) and (x) of the definition thereof) have been removed.
Appears in 1 contract
Option to Remarket. Subject to the fulfillment of each of the conditions set forth in this Section 20.1 and in Section 20.2 (such conditions, collectively, the "Return Conditions"“RETURN CONDITIONS”), the Lessee shall have the option (the "Remarketing Option"“REMARKETING OPTION”) to remarket and complete the sale of market all (but not less than all) of the Properties for Property on behalf of the Lessor TrustLessor. The Lessee's ’s effective exercise and consummation of the Remarketing Option shall be subject to the due and timely fulfillment of each of the following provisions and the provisions of Section 20.2 as to each of the Properties Property as of the dates set forth below.:
(a) Unless a longer period is called for pursuant to any Requirement of Law, on the date not Not later than three one hundred sixty-five eighty (365180) days prior to the Expiration Scheduled Lease Term Termination Date, the Lessee shall give to the Agent Certificate Holder and the Administrative Agent Lessor written notice of the Lessee's ’s exercise of the Remarketing Option, which exercise shall be irrevocable. Failure by the Lessee to give timely notice shall be deemed to be an election by the Lessee, without further act thereby, of its Purchase Option for all of the Property.
(b) Not later than one hundred and twenty ninety (12090) days prior to the Expiration Scheduled Lease Term Termination Date, the Lessee shall deliver to the Agent Certificate Holder Lessor an Environmental Audit for each the Property. Such Environmental Audit shall be prepared by an environmental consultant selected by the Agent Certificate Holder Lessor in the Agent Certificate Holder's Lessor’s reasonable discretion and shall contain conclusions reasonably satisfactory to the Agent Certificate Holder Lessor as to the environmental status of each the Property. If any such Environmental Audit indicates any exceptions calling for a Phase Two environmental assessmentthat are required to be remediated under any Applicable Law, the Lessee shall have also delivered prior to the Expiration Date Scheduled Lease Term Termination Date, a Phase Two environmental assessment by such environmental consultant and a written statement by such environmental consultant indicating that all such exceptions have been remedied in compliance with Applicable Law.
(c) On the date of the Lessee's ’s notice to the Agent Certificate Holder Lessor of the Lessee's ’s exercise of the Remarketing Option, no Lease Event of Default or Lease Default shall exist, and, and thereafter, no Lease Event of Default or Lease Default shall occurexist.
(d) The Completion Date All Modifications, restoration, rebuilding and remediation of the Property required under this Lease shall have occurred with respect to each Property been completed prior to the Lessee's delivery of date on which the Lessor receives notice of its the Lessee’s intention to exercise the Remarketing Option, and each parcel of Land subject and, on or prior to any ground lease the Expiration Date, the Property shall be a separate tax lotin good and full operating condition (ordinary wear and tear excepted).
(e) The Property shall be free and clear of all Liens (other than Permitted Property Liens of the type described in clauses (a), (c), (g) and (h) of the definition thereof), and any Permitted Property Lien that was contested by the Lessee shall have substantially completed been removed. If requested by the Lessor, all Modifications, restoration and rebuilding subleases of the relevant Properties pursuant to Sections 10.1 and 14.1 (as the case may be) and Property shall have fulfilled all of the conditions and requirements in connection therewith pursuant to such Sections, in each case prior to the date on which the Agent Certificate Holder receives the Lessee's notice of the Lessee's intention to exercise the Remarketing Option (time being of the essence), regardless of whether the same shall be within the Lessee's control. Lessee shall have also paid the cost of all Modifications commenced been terminated prior to the Expiration Date. The Lessee shall not have been excused pursuant to Section 12.1 from complying with any Applicable Law that involved the extension of the ultimate imposition of such Applicable Law beyond the Scheduled Lease Term Termination Date.
(f) All Necessary Permits and other agreements necessary for the use and operation of the Property shall be in effect and shall on the Expiration DateDate be assigned or transferred to the Lessor to the extent assignable or transferable.
(g) The Lessee shall permit inspection of the Property and any maintenance records relating to the Property by the Participants, the Administrative Agent and any prospective purchasers, and shall allow the Participants, the Administrative Agent and any prospective purchaser reasonable access to the Property for the purpose of inspecting the same.
(h) During the Marketing Period, the Lessee shall, as nonexclusive agent for the Lessor, use reasonable commercial efforts to sell the Lessor’s interest in the Property for not less than the Fair Market Sales Value, and shall use reasonable commercial efforts to procure bids from one or more bona fide prospective purchasers. Any Permitted No such purchaser shall be the Lessee or an Affiliate of the Lessee, but the Lessor and the other Participants may submit one or more bids for the Property. The Lessee shall deliver to the Lessor and the other Participants all bids for the Property Liens received from prospective purchasers within five (other than Lessor Liens5) on any Property that were contested by days of the Lessee’s receipt of each such bid.
(i) The Lessee shall have been removed obtained, at its cost and expense, all required governmental and regulatory consents and approvals and shall have made all filings as required by Applicable Law in order to carry out and complete the transfer of the Property and permit the operation of the Property by the Lessor (or any designee of the Lessor) or a third-party purchaser. As to the Lessor, any such sale shall be made on an “as is, with all faults” basis without representation or warranty by the Lessor other than the absence of Lessor Liens.
(j) The Lessee shall pay directly, and not from the sale proceeds, all prorations and credits, whether incurred by the Lessor or the Lessee, including without limitation, the cost of all environmental reports, appraisals required under Section 13.2 of the Participation Agreement and the Agent Certificate Holder Lessee’s attorneys’ fees, and the Lessee shall have received evidence satisfactory to it that all Liens (other than Lessor Liens and uncontested Permitted Property Liens not incur Sales Costs in connection with the sale of the type described Property in clauses an aggregate amount in excess of 5% of the Property Cost without the prior written consent of the Lessor.
(k) The Lessee shall pay to the Lessor on or prior to the Expiration Date the amounts, if any, required to be paid pursuant to Section 13.2 of the Participation Agreement.
(l) The Net Remarketing Proceeds shall be paid directly to the Lessor and shall be distributed by the Lessor to the Administrative Agent for distribution in accordance with Section 7.4 of the Participation Agreement.
(m) The Lessee shall pay to the Lessor (or in the case of Supplemental Rent, to the Person entitled thereto), no later than one (1) Business Day prior to the Scheduled Lease Term Termination Date, an amount equal to the sum of (i)) the aggregate outstanding Property Cost (after giving effect to the distribution of the Net Remarketing Proceeds pursuant to Section 7.4 of the Participation Agreement) plus (ii) all accrued and unpaid Basic Rent and all other amounts under the Operative Documents which have accrued or will accrue prior to or as of the Scheduled Lease Term Termination Date, in the type of funds specified in Section 3.4 hereof; provided, however, that in no event shall the amounts paid by the Lessee pursuant to clause (vii), (ix) and (xi) of this Section 20.1(m) exceed the definition thereof) have been removedMaximum Recourse Amount.
Appears in 1 contract
Sources: Lease (Adobe Systems Inc)
Option to Remarket. Subject to the fulfillment of each of the conditions set forth in this Section 20.1 and Section 20.2 (collectively, the "Return Conditions")24.1, the Lessee shall have the option (the "Remarketing Option") to remarket market and complete the sale of all of the Properties Lessor's interest in one or more Leased Assets for the Lessor TrustLessor. The Lessee's effective exercise and consummation of the Remarketing Option as to one or more Leased Assets shall be subject to the due and timely fulfillment of each of the following provisions and the provisions of Section 20.2 as to each of the Properties such Leased Assets as of the dates set forth below.
(a) Unless a longer period is called for pursuant to any Requirement of Law, on the date not Not later than three hundred sixty-five six (3656) days months prior to the Expiration Date, the Lessee shall give to the Agent Certificate Holder and the Administrative Agent Lessor written notice of the Lessee's exercise of the Remarketing OptionOption under this Lease, which exercise shall be irrevocable.
(b) Not later than one hundred and twenty (120) days prior to the Expiration Date, the Lessee shall deliver to the Agent Certificate Holder Lessor an Environmental Audit for each PropertyProperty included in such Leased Assets. Such Environmental Audit shall be prepared by an environmental consultant selected by the Agent Certificate Holder Lessee and approved in advance by the Agent Certificate Holder's discretion Lessor and shall contain conclusions reasonably satisfactory to the Agent Certificate Holder Lessor as to the environmental status of each such Property. If any such Environmental Audit indicates any exceptions calling for a Phase Two environmental assessmentexceptions, the Lessee shall have also delivered prior to the Expiration Date a Phase Two environmental assessment by such environmental consultant and a written statement by such environmental consultant indicating that all prior to the Expiration Date showing the completion of the remedying of such exceptions have been remedied in compliance with Applicable Law.
(c) On the date of the Lessee's notice to the Agent Certificate Holder Lessor of the Lessee's exercise of the Remarketing Option, no Lease Event of Default shall exist, and on the Expiration Date, no Event of Default or Lease Default shall exist, and, thereafter, no Lease Event of Default . Any Permitted Liens (other than Lessor Liens) on each Leased Asset that were contested by the Lessee shall have been removed on or Lease Default shall occurbefore the Expiration Date.
(d) The Completion Date Improvements on each Property included in such Leased Assets shall have occurred been constructed in accordance with respect to each Property prior to the Plans and Specifications and shall have achieved Substantial Completion on or before the date of the Lessee's delivery notice to the Lessor of notice the Lessee's exercise of its intention to exercise the Remarketing Option, and each parcel of Land subject to any ground lease shall be a separate tax lot.
(e) . The Lessee shall have substantially completed in all material respects all Modifications, restoration and rebuilding of the relevant Properties such Leased Assets pursuant to Sections 10.1 Section 14.1 and 14.1 18.1 (as the case may be) and shall have fulfilled in all material respects all of the conditions and requirements in connection therewith pursuant to such said Sections, in each case prior to by the date on which the Agent Certificate Holder receives of the Lessee's notice to the Lessor of the Lessee's intention to exercise of the Remarketing Option (time being of the essence), regardless of whether the same shall be within the Lessee's control. The Lessee shall have also paid the cost of all Modifications commenced prior to the Expiration Date. The Lessee shall not have been excused pursuant to Section 12.1 16.1 from complying with any Applicable Law that involved the extension of the ultimate imposition of such Applicable Law beyond the last day of the Base Term.
(e) During the Marketing Period, the Lessee shall use best efforts, in such manner as the Lessee shall reasonably determine, to sell the Lessor's interest in the Leased Assets and will attempt to obtain the highest purchase price therefor and for not less than the Fair Market Sales Value of all of the Leased Assets. The Lessee will be responsible for hiring brokers and making the Leased Assets available for inspection by prospective purchasers. The Lessee shall promptly upon request permit inspection of the Leased Assets and any maintenance records relating to the Leased Assets by the Lessor and any potential purchasers, and shall otherwise do all things necessary to sell and deliver possession of the Leased Assets to any purchaser. All such marketing of the Leased Assets shall be at the Lessee's sole expense. The Lessee's agency under this clause shall, for the first three months of the Marketing Period, be on an exclusive basis. In the event the Lessee is unable to procure during such period a bona fide bid from a non-Affiliated Person with demonstrable financial capacity to consummate such bid for any Leased Asset, from and after such third month, the agency hereunder shall be on a non-exclusive basis.
(f) The Lessee shall submit all bids to the Lessor and the Lessor will have the right to review the same and the right to submit any one or more bids. All bids shall be on an all-cash basis unless the Lessor shall otherwise agree in its sole discretion. No such purchaser shall be the Lessee or an Affiliate of the Lessee. The written offer must specify the Expiration Date as the closing date unless the Lessor shall otherwise agree in its sole discretion.
(g) In connection with any such sale of Lessor's interest in the Leased Assets, the Lessee will provide to the purchaser all customary "seller's" indemnities, representations and warranties regarding absence of Liens (except Lessor Liens) and the condition of such Leased Assets, including, without limitation, an environmental indemnity for any Property to the extent the same are required by the purchaser. The Lessee shall have obtained, at its cost and expense, all required governmental and regulatory consents and approvals and shall have made all filings as required by Applicable Law in order to carry out and complete the transfer of the Leased Assets. As to the Lessor, any such sale of Lessor's interest in the Leased Assets shall be made on an "as is, with all faults" basis without representation or warranty by the Lessor other than the absence of Lessor Liens. Any agreement as to such sale shall be made subject to the Lessor's rights hereunder.
(h) The Lessee shall pay directly, and not from the sale proceeds, all prorations, credits, costs and expenses of the sale of Lessor's interest in the Leased Assets, whether incurred by the Lessor or the Lessee, including without limitation, the cost of all title insurance, surveys, environmental reports, appraisals, transfer taxes, the Lessor's reasonable attorneys' fees, the Lessee's attorneys' fees, commissions, escrow fees, recording fees, and all applicable documentary and other transfer taxes.
(i) The Lessee shall pay to the Lessor on or prior to the Expiration Date (or to such other Person as the Lessor shall notify the Lessee in writing) an amount equal to the Contingent Rental Adjustment for such Leased Assets, plus all Base Rent and all other amounts hereunder which have accrued or will accrue with respect thereto prior to or as of the Expiration Date, in the type of funds specified in Section 7.5 hereof.
(j) The purchase of Lessor's interest in such Leased Assets shall be consummated on the Expiration Date and the Gross Proceeds of the sale of the Leased Assets shall be paid directly to the Lessor. The Lessor shall remit to the Lessee from Gross Proceeds the documented expenses incurred by the Lessee under clause (h) hereof in connection with such sale. If the remaining Gross Proceeds plus the aggregate Contingent Rental Adjustment received by Lessor, exceeds the Lease Balance for such Leased Assets as of such date, then the excess shall be paid to the Lessee on the Expiration Date. Any Permitted Property Liens Except as provided in the next sentence hereof or as may be otherwise provided in a Lease Supplement, if one or more of the foregoing provisions shall not be fulfilled as of the date set forth above with respect to the Leased Assets under any Lease Supplement, then the Lessor shall declare by written notice to the Lessee the Remarketing Option to be null and void (other than Lessor Lienswhether or not it has been theretofore exercised by the Lessee), in which event all of the Lessee's rights under this Section 24.1 shall immediately terminate and the Lessee shall be obligated to purchase Lessor's interest in such Leased Assets as if it had exercised its option under Section 22.1 on the Expiration Date. Notwithstanding the foregoing, the Lessee shall not be required to purchase Lessor's interest in such Leased Assets pursuant to the preceding sentence if Lessor's interest in such Leased Assets is not sold on or prior to the Expiration Date and the Lessee has otherwise fulfilled all of its obligations under clauses (a) on any Property that were contested by through (i) hereof. Except as expressly set forth herein, the Lessee shall have been removed and no right, power or authority to bind the Agent Certificate Holder Lessor in connection with any proposed sale of Lessor's interest in the any Leased Asset. In the event that the sale of any Leased Asset is not consummated on the Expiration Date, but such sale is consummated any time thereafter, the Lessor shall have received evidence satisfactory remit to it that all Liens (other than Lessor Liens and uncontested Permitted Property Liens the Lessee, promptly after the consummation of the type described in clauses (i), (vii), (ix) and (x) sale of the definition thereof) have been removedsuch Leased Asset, any excess remaining after deducting the then outstanding Lease Balance plus the Imputed Equity Return thereon accruing from and after the Expiration Date from the Gross Proceeds.
Appears in 1 contract
Sources: Master Lease and Security Agreement (Rite Aid Corp)
Option to Remarket. Subject to the fulfillment of each of the ------------------ conditions set forth in this Section 20.1 and Section 20.2 (collectively, the "Return Conditions")20.1, the Lessee shall have the option (the ------------ "Remarketing Option") to remarket and complete market the sale of all Property on behalf of the Properties for the Lessor TrustLessor. ------------------ The Lessee's effective exercise and consummation of the Remarketing Option shall be subject to the due and timely fulfillment of each of the following provisions and the provisions of Section 20.2 as to each of the Properties Property as of the dates set forth below.:
(a) Unless a longer period is called for pursuant to any Requirement of Law, on the date No earlier than twelve months and not later than three hundred sixty-five (365) days six months prior to the Expiration Date, the Lessee shall give to the Agent Certificate Holder and the Administrative Agent Lessor written notice of the Lessee's exercise of the Remarketing Option, which exercise shall be irrevocable. Failure by the Lessee to give timely notice shall be deemed to be an election by the Lessee, without further act thereby, of its Purchase Option for the Property.
(b) Not later more than one hundred six (6) months and twenty not less than ninety (12090) days prior to the Expiration Date, the Lessee shall deliver to the Agent Certificate Holder Lessor an Environmental Audit for each the Property. Such Environmental Audit shall be prepared by an a nationally recognized environmental consultant selected by the Agent Certificate Holder in the Agent Certificate Holder's discretion Lessor and shall contain conclusions reasonably satisfactory to the Agent Certificate Holder Lessor as to the environmental status of each the Property. If any such Environmental Audit indicates any exceptions calling for a Phase Two environmental assessmentexceptions, the Lessee shall have also delivered prior to the Expiration Date Date, a Phase Two environmental assessment by such environmental consultant and a written statement by such environmental consultant indicating that all such exceptions have been remedied in compliance with Applicable Law. As of the Expiration Date, any Permitted Property Liens that were contested by the Lessee shall have been removed.
(c) On the date of the Lessee's notice to the Agent Certificate Holder of the Lessee's exercise of the Remarketing Option, no Lease No Default or Event of Default or Lease Default shall exist, and, thereafter, no Lease Event of Default or Lease Default shall occurhave occurred and be continuing.
(d) The Completion During the Marketing Period, the Lessee shall, as agent for the Lessor, use reasonable commercial efforts to sell the Lessor's interest in the Property on or before the Expiration Date shall have occurred with respect and will attempt to each Property prior to obtain the Lessee's delivery lesser of notice of its intention to exercise the Remarketing Option, and each parcel of Land subject to any ground lease shall be a separate tax lotLease Balance or the highest purchase price therefor.
(e) The Lessee shall have substantially completed obtained, at its cost and expense, all Modifications, restoration required governmental and rebuilding of the relevant Properties pursuant to Sections 10.1 regulatory consents and 14.1 (as the case may be) approvals and shall have fulfilled made all filings as required by Applicable Law in order to carry out and complete the transfer of the conditions and requirements in connection therewith pursuant to such Sections, in each case prior Property. As to the date on which the Agent Certificate Holder receives the Lessee's notice of the Lessee's intention to exercise the Remarketing Option (time being of the essence)Lessor, regardless of whether the same any such sale shall be within made on an "as is, with all faults" basis without representation or warranty by the Lessee's control. Lessor other than the absence of Lessor Liens.
(f) The Lessee shall have also paid pay directly, and not from the sale proceeds, the cost of all Modifications commenced appraisals required under Section 13.2 of the Participation ------------ Agreement and under Section 20.1 of the Master Lease, the Lessee's attorneys' ------------ fees, all audit fees and other out-of-pocket expenses relating to such sale.
(g) The Lessee shall pay to the Lessor concurrently with any sale on or prior to the Expiration Date (or in the case of Supplemental Rent, to the Person entitled thereto) an amount equal to the Maximum Recourse Amount plus all accrued and unpaid Rent and all other amounts hereunder which have accrued or will accrue prior to or as of the Expiration Date. Lessee shall not have been excused , in the type of funds specified in Section 3.4 hereof, provided, however, with respect to any Land for ----------- -------- ------- which the Basic Lease Term has expired pursuant to Section 12.1 from complying with any Applicable Law that involved 2.3 hereof the extension Lessee ----------- shall pay to the Lessor on or prior to the end of the ultimate imposition Basic Lease Term with respect to the Land, an amount equal to the Land Lease Balance offset by any Deposit Taker Losses.
(h) The gross proceeds (the "Gross Remarketing Proceeds") of such Applicable Law beyond the sale -------------------------- of the Property (less any marketing, closing or other costs, prorations or commissions related to the marketing of the Property), shall be paid directly to the Lessor. The Gross Remarketing Proceeds shall be distributed as set forth in Section 7.4 of the Participation Agreement; provided, however, that any sums due ----------- -------- ------- and payable to the Lessee shall only be paid if all Supplemental Rent has been paid. The obligations of the Lessor under this paragraph shall survive the expiration or termination of this Master Lease.
(i) No subleases affecting the Property shall be in effect on the Expiration Date.
(j) The Lessee shall cause to be delivered to the Lessor on the earlier of (i) thirty (30) days prior to the sale of the Property pursuant to this Article XX and (ii) the Expiration Date, at the Lessee's sole cost and ---------- expense, a report from an Appraiser in form and substance satisfactory to the Lessor and the Administrative Agent which shall separately state the Fair Market Sales Value (Land) and Fair Market Sales Value (Improvements). Any Permitted Upon the sale or return of the Property in accordance with the terms hereof pursuant to the Remarketing Option, the Lessor will instruct the Collateral Agent to return any outstanding Collateral to the Lessee. If the Lessee elects the Remarketing Option in accordance with Section ------- 20.1 and the sale of the Property is not consummated prior to the end of the ---- Marketing Period, the Lessee shall, in addition to making the payment required pursuant to Section 20.1(g) above, at its own cost and expense, do each of the --------------- following:
(i) execute and deliver to the Lessor and the Lessor's title insurance company an affidavit as to the absence of any Liens (other than Lessor Liens) on any Property that were contested by Lessee shall have been removed and the Agent Certificate Holder shall have received evidence satisfactory to it that all Liens (other than Lessor Liens and uncontested Permitted Property Liens of the type described in clauses clause (i), (v), (vii), (viii), (ix) and or (x) Liens for taxes not yet due and Lessor Liens), and shall execute and deliver to the Lessor a statement of termination of this Master Lease to the extent relating to the Property;
(ii) on the Expiration Date, transfer possession of the definition thereofProperty to the Lessor or any Person designated by the Lessor, by surrendering the same into the possession of the Lessor or such Person, as the case may be, in the condition required by this Section ------- 20.1 and in compliance with Applicable Law; and ----
(iii) after the Expiration Date, cooperate reasonably with the Lessor and/or any Person designated by the Lessor to receive the Property, which cooperation shall include reasonable efforts with respect to the following, all of which the Lessee shall do on or before the Expiration Date for the Property or as soon thereafter as is reasonably practicable: providing copies of all books and records regarding the maintenance and ownership of the Property and all know- how, data and technical information relating thereto, providing a current copy of the applicable Plans and Specifications, granting or assigning all assignable licenses necessary for the operation and maintenance of the Property and cooperating reasonably in seeking and obtaining all necessary Governmental Action. The obligations of the Lessee under this paragraph shall survive the expiration or termination of this Master Lease. Lessor shall have no obligation to approve any bid for the Property except for bona fide all-cash bids which, together with amounts payable by the Lessee under clause (g) hereof, in the aggregate is at least equal to the Lease Balance and the acceptance of which will not subject the Lessor to any additional liability. Except as expressly set forth herein, the Lessee shall have no right, power or authority to bind the Lessor or any Participant in connection with any proposed sale of the Property. If one or more of the foregoing provisions (a) through (i) shall not be fulfilled as of the Expiration Date with respect to the Property, then the Remarketing Option shall be null and void (whether or not it has been removedtheretofore exercised by the Lessee), in which event all of the Lessee's rights under this Section 20.1 shall immediately terminate and the Lessee shall ------------ purchase from the Lessor, and the Lessor shall convey to the respective Lessee, on the Expiration Date all of the Lessor's interest in the Property for an amount equal to the Lease Balance. If an Event of Default occurs after the Lessee elects the Remarketing Option, such election shall be automatically revoked and the Lessee shall be deemed to have elected the Purchase Option.
Appears in 1 contract
Sources: Master Lease (Palm Inc)
Option to Remarket. Subject to the fulfillment of each of the conditions set forth in this Section 20.1 and Section 20.2 (collectively, the "Return Conditions")24.1, the Lessee shall have the option beginning on the second anniversary of the Start-Up Day (the "Remarketing Option") to remarket market and complete the sale of all of the Properties Property for the Lessor TrustLessor. The Lessee's effective exercise and consummation of the Remarketing Option shall be subject to the due and timely fulfillment of each of the following provisions and the provisions of Section 20.2 as to each of the Properties Property as of the dates set forth below.
(a) Unless a longer period is called for pursuant to any Requirement of Law, on the date not Not later than three one hundred sixty-five eighty (365180) days prior to the Expiration Date, the Lessee shall give to the Agent Certificate Holder and the Administrative Agent Lessor written notice of the Lessee's exercise of the Remarketing Option, which exercise shall be irrevocable. If Lessee does not deliver a notice of its intention not to renew this Lease as provided in Section 23.1 and fails to timely provide the Remarketing Notice, then this Lease shall be renewed for a Renewal Term as provided in Section 23.
1. If Lessee delivers the notice of its intention not to renew this Lease as provided in Section 23.1 and fails to timely provide the Remarketing Notice, then Lessee shall be deemed to have elected to exercise its Purchase Option under Section 22.1(i).
(b) Not later than one hundred and twenty (120) days prior to the Expiration Date, the Lessee shall deliver to the Agent Certificate Holder Lessor an Environmental Audit for each the Property. Such Environmental Audit shall be prepared by an environmental consultant selected by the Agent Certificate Holder Lessor in the Agent Certificate HolderLessor's reasonable discretion and shall contain conclusions reasonably satisfactory to the Agent Certificate Holder Lessor as to the environmental status of each the Property. If any such Environmental Audit indicates any exceptions calling for with respect to which a Phase Two environmental assessmentenvironment assessment is recommended, the Lessee shall have also delivered prior to the Expiration Date deliver (i) a Phase Two environmental assessment by such environmental consultant within thirty (30) days prior to the Expiration Date and (ii) a written statement by certificate of such environmental consultant indicating that prior to the Expiration Date showing the completion of all such exceptions have been remedied remedial action in compliance with Applicable Law.
(c) On the date of the Lessee's notice to the Agent Certificate Holder Lessor of the Lessee's exercise of the Remarketing Option, and on the Expiration Date, no Lease Event of Default or Lease Default shall exist, and, thereafter, no Lease Event of Default or Lease Default shall occur.
(d) The Completion Date shall have occurred with respect to each Property prior to the Lessee's delivery of notice of its intention to exercise the Remarketing Option, and each parcel of Land subject to any ground lease shall be a separate tax lot.
(e) The Lessee shall have substantially completed all Modifications, restoration and rebuilding of the relevant Properties pursuant to Sections 10.1 and 14.1 (as the case may be) and shall have fulfilled all of the conditions and requirements in connection therewith pursuant to such Sections, in each case prior to the date on which the Agent Certificate Holder receives the Lessee's notice of the Lessee's intention to exercise the Remarketing Option (time being of the essence), regardless of whether the same shall be within the Lessee's control. Lessee shall have also paid the cost of all Modifications commenced prior to the Expiration Date. Lessee shall not have been excused pursuant to Section 12.1 from complying with any Applicable Law that involved the extension of the ultimate imposition of such Applicable Law beyond the Expiration Date. Any Permitted Property Liens (other than Lessor Liens) on any Property that were contested by Lessee shall have been removed and the Agent Certificate Holder shall have received evidence satisfactory to it that all Liens (other than Lessor Liens and uncontested Permitted Property Liens of the type described in clauses (i), (vii), (ix) and (x) of the definition thereof) have been removed.
Appears in 1 contract
Option to Remarket. Subject to the fulfillment of each of the conditions set forth in this Section 20.1 and Section 20.2 (collectively14.6, the "Return Conditions"), the Lessee Lessees shall have the option to market all of, but not less than all of, the Leased Properties for Lessor (the "Remarketing Option") to remarket and complete the sale of all of the Properties for the Lessor Trust). The Lessee's Lessees' effective exercise and consummation of the Remarketing Option shall be subject to the due and timely fulfillment of each of the following provisions provisions, the failure of any of which, unless waived in writing by Lessor and the provisions of Lenders, shall render the Remarketing Option and the Lessees' exercise thereof null and void, in which event, each Lessee shall be obligated to perform its obligations under Section 20.2 as to each of the Properties as of the dates set forth below14.2.
(a) Unless a longer period is called for pursuant to any Requirement of Law, on the date not Not later than three hundred sixty-five (365) days twelve months prior to the Expiration scheduled Lease Termination Date, the Lessee ChoicePoint shall give to the Agent Certificate Holder Lessor and the Administrative Agent written notice of the Lessee's Lessees' exercise of the Remarketing Option.
(b) Not later than one hundred ten (10) Business Days prior to the Lease Termination Date, each Lessee shall deliver to Lessor and twenty the Agent an environmental assessment of each Leased Property leased by it dated not earlier than forty-five (12045) days prior to the Expiration Lease Termination Date, the Lessee shall deliver to the Agent Certificate Holder an Environmental Audit for each Property. Such Environmental Audit environmental assessment shall be prepared by an environmental consultant selected by the Agent Certificate Holder in the Agent Certificate Holder's discretion related Lessee and shall contain conclusions reasonably satisfactory to the Agent Certificate Holder as Required Funding Parties, shall be in form, detail and substance reasonably satisfactory to the Required Funding Parties, and shall otherwise indicate no degradation in environmental status of each Property. If any such conditions beyond those described in the related Environmental Audit indicates any exceptions calling and shall not include a recommendation for a Phase Two environmental assessment, the Lessee shall have also delivered prior further investigation to the Expiration Date a Phase Two environmental assessment by make such environmental consultant and a written statement by such environmental consultant indicating that all such exceptions have been remedied in compliance with Applicable Lawdetermination.
(c) On the date of the LesseeChoicePoint's notice to Lessor and the Agent Certificate Holder of the Lessee's Lessees' exercise of the Remarketing Option, no Lease Event each of Default or Lease Default the Construction Conditions shall exist, and, thereafter, no Lease Event of Default or Lease Default shall occurhave been timely satisfied.
(d) The Completion Date shall have occurred with respect to Except during the Construction Term for the related Leased Property, each Property prior to the Lessee's delivery of notice of its intention to exercise the Remarketing Option, and each parcel of Land subject to any ground lease shall be a separate tax lot.
(e) The Lessee shall have substantially completed all ModificationsAlterations, restoration and rebuilding of the relevant Leased Properties leased by it pursuant to Sections 10.1 6.1, 6.2, 10.3 and 14.1 10.4 (as the case may be) and shall have fulfilled in all material respects all of the conditions and requirements in connection therewith pursuant to such said Sections, in each case prior to by the date on which Lessor and the Agent Certificate Holder receives the Lesseereceive ChoicePoint's notice of the Lessee's intention to Lessees' exercise of the Remarketing Option (time being of the essence), regardless of whether the same shall be within the such Lessee's control.
(e) Upon request by the Agent, each Lessee shall promptly provide any maintenance records relating to each Leased Property leased by it to Lessor, the Agent and any potential purchaser, and shall otherwise do all things necessary to deliver possession of such Leased Property to the potential purchaser at the appropriate closing date. Each Lessee shall allow Lessor, the Agent and any potential purchaser reasonable access during normal business hours to any Leased Property for the purpose of inspecting the same.
(f) On the Lease Termination Date, each Lessee shall surrender the Leased Properties leased by it in accordance with Section 14.8 hereof.
(g) In connection with any such sale of the Leased Properties, each Lessee will provide to the purchaser all customary "seller's" indemnities requested by the potential purchaser (taking into account the location and nature of the Leased Properties), representations and warranties regarding title, absence of Liens (except Lessor Liens) and the condition of the Leased Properties. Each Lessee shall fulfill all of the requirements set forth in clause (b) of Section 14.5, and such requirements are incorporated herein by reference, provided that all costs and expenses incurred in connection therewith shall be paid from the proceeds of the sale. As to Lessor, any such sale shall be made on an "as is, with all faults" basis without representation or warranty by Lessor, other than the absence of Lessor Liens.
(h) The Lessees, jointly and severally, shall pay to the Agent on the Lease Termination Date (or to such other Person as Agent shall notify Lessee in writing, or in the case of Supplemental Rent, to the Person entitled thereto) an amount equal to the Recourse Deficiency Amount, plus all accrued and unpaid Basic Rent and Supplemental Rent, and all other amounts hereunder which have accrued prior to or as of such date, in the type of funds specified in Section 3.3 hereof. If the Lessees have exercised the Remarketing Option, the following additional provisions shall apply: During the period commencing on the date twelve months prior to the scheduled expiration of the Lease Term, one or more of the Lessees shall, as nonexclusive agent for Lessor, use commercially reasonable efforts to sell Lessor's interest in the Leased Properties and will attempt to obtain the highest purchase price therefor. No Lessee shall incur any remarketing costs that exceed, or are expected to exceed, $50,000 without the prior written consent of Lessor. Lessee promptly shall submit all bids to Lessor and the Agent and Lessor; the Agent will have the right to review the same; and the Agent and Lessor will have the right to submit any one or more bids. All bids shall be on an all-cash basis. In no event shall such bidder be a Lessee or any Subsidiary or Affiliate of a Lessee. The written offer must specify the Lease Termination Date as the closing date. If, and only if, the aggregate Net Selling Price is less than the difference between the Lease Balance at such time minus the Recourse Deficiency Amount, then Lessor or the Agent may, in its sole and absolute discretion, by notice to ChoicePoint, given within 30 days of receipt of such offer, reject such offer to purchase, in which event the parties will proceed according to the provisions of Section 14.7 hereof. If neither Lessor nor the Agent rejects such purchase offer as provided above, the closing of such purchase of the Leased Properties by such purchaser shall occur on the Lease Termination Date, contemporaneously with the Lessees' surrender of the Leased Properties in accordance with Section 14.8 hereof, and the Net Selling Price shall be paid directly to the Agent (or Lessor if the Funded Amounts have been fully paid); provided, however, that if the sum of the Net Selling Price from such sale plus the Recourse Deficiency Amount paid by the Lessees on the Lease Termination Date pursuant to Section 14.6(h), exceeds the Lease Balance as of such date, then the excess shall be paid to ChoicePoint on the Lease Termination Date. No Lessee shall have also paid the cost of all Modifications commenced prior right, power or authority to the Expiration Date. Lessee shall not have been excused pursuant to Section 12.1 from complying bind Lessor in connection with any Applicable Law that involved the extension proposed sale of the ultimate imposition of such Applicable Law beyond the Expiration Date. Any Permitted Property Liens (other than Lessor Liens) on any Property that were contested by Lessee shall have been removed and the Agent Certificate Holder shall have received evidence satisfactory to it that all Liens (other than Lessor Liens and uncontested Permitted Property Liens of the type described in clauses (i), (vii), (ix) and (x) of the definition thereof) have been removedLeased Properties.
Appears in 1 contract
Option to Remarket. Subject to the fulfillment of each of the conditions set forth in this Section 20.1 and Section 20.2 (collectively, the "Return Conditions")20.1, the Lessee shall have the option (the "Remarketing Option") to remarket market and complete the sale of all of the Properties for the Lessor TrustLessor. The Lessee's effective exercise and consummation of the Remarketing Option shall be subject to the due and timely fulfillment of each of the following provisions and the provisions of Section 20.2 as to each of the Properties as of the dates set forth below.
(a) Unless a longer period is called for pursuant to any Requirement of Law, on the date not Not later than three one hundred sixty-five and eighty (365180) days prior to the Expiration Date, the Lessee shall give to the Agent Certificate Holder and the Administrative Agent Lessor written notice of the Lessee's exercise of the Remarketing Option, which exercise shall be irrevocable. Failure by the Lessee to give timely notice shall be deemed to be an election by the Lessee, without further act thereby, of its Purchase Option for all of the Properties.
(b) Not later than one hundred and twenty (120) days prior to the Expiration Date, the Lessee shall deliver to the Agent Certificate Holder Lessor an Environmental Audit for each Propertyof the Properties. Such Environmental Audit shall be prepared by an environmental consultant selected by the Agent Certificate Holder Lessor in the Agent Certificate HolderLessor's reasonable discretion and shall contain conclusions reasonably satisfactory to the Agent Certificate Holder Lessor as to the environmental status of each Propertythe Properties. If any such Environmental Audit indicates any exceptions calling for a Phase Two environmental assessmentexceptions, the Lessee shall have also delivered prior to the Expiration Date a Phase Two environmental assessment by such environmental consultant and a written statement by such environmental consultant indicating that all such exceptions have been remedied in compliance with Applicable Law.
(c) On the date of the Lessee's notice to the Agent Certificate Holder of the Lessee's exercise of the Remarketing Option, no Lease Event of Default or Lease Default shall exist, and, thereafter, no Lease Event of Default or Lease Default shall occur.
(d) The Completion Date shall have occurred with respect to each Property prior to the Lessee's delivery of notice of its intention to exercise the Remarketing Option, and each parcel of Land subject to any ground lease shall be a separate tax lot.
(e) The Lessee shall have substantially completed all Modifications, restoration and rebuilding of the relevant affected Properties pursuant to Sections 10.1 and 14.1 (as the case may be) and shall have fulfilled all of the conditions and requirements in connection therewith pursuant to such said Sections, in each case prior to the date on which the Agent Certificate Holder Lessor receives the Lessee's notice of the Lessee's intention to exercise the Remarketing Option (time being of the essence), regardless of whether the same shall be within the Lessee's control. The Lessee shall have also paid the cost of all Modifications commenced prior to the Expiration Date. The Lessee shall not have been excused pursuant to Section 12.1 from complying with any Applicable Law that involved the extension of the ultimate imposition of such Applicable Law beyond the Expiration Dateof the Term. Any Permitted Property Liens (other than Lessor Liens) on any Property that were contested by the Lessee shall have been removed removed.
(d) During the Marketing Period, the Lessee shall, as nonexclusive agent for the Lessor, use its best efforts to sell the Lessor's interest in the Properties and will attempt to obtain the highest purchase price therefor and for not less than the Fair Market Sales Value. The Lessee will be responsible for hiring brokers and making the Properties available for inspection by prospective purchasers. The Lessee shall promptly upon request permit inspection of any Property and any maintenance records relating to any Property by the Lessor, any Participant and any potential purchasers, and shall otherwise do all things necessary to sell and deliver possession of the Properties to any purchaser. All such marketing of the Properties shall be at the Lessee's sole expense. The Lessee shall allow the Lessor and any potential qualified purchaser reasonable access to the Properties for the purpose of inspecting the same.
(e) The Lessee shall procure bids from one or more bona fide prospective purchasers and shall deliver to the Lessor and the Agent Certificate Holder Participants not less than ninety (90) days prior to the Expiration Date a binding written unconditional (except as set forth below), irrevocable offer by such purchaser or purchasers offering the highest bid to purchase the Properties. No such purchaser shall be the Lessee or any Subsidiary or Affiliate of the Lessee. The written offer must specify the Expiration Date as the closing date unless the Lessor and the Participants shall otherwise agree in their sole discretion.
(f) The Lessee shall submit all bids to the Lessor and the Participants, and the Lessor will have the right to submit any one or more bids. Any sale by the Lessee shall be for the highest cash bid submitted to the Lessor. The determination of the highest bid shall be made by the Lessor prior to the end of the Marketing Period, but in any event, the Lessor shall have received evidence satisfactory no obligation to it approve any bid for any Property unless each highest bid plus an amount that all Liens may be paid by the Lessee in its sole and absolute discretion (other than Lessor Liens and uncontested Permitted Property Liens of the type described in clauses (iaddition to its obligations under Section 20.1(i)), (vii)together with such bid, (ix) equals or exceeds the Property Balance. All bids shall be on an all-cash basis unless the Lessor and (x) of the definition thereof) have been removedParticipants shall otherwise agree in their sole discretion.
Appears in 1 contract
Option to Remarket. Subject to the fulfillment of ------------------ each of the conditions set forth in this Section 20.1 and Section 20.2 (collectively, the "Return Conditions")14.6, the Lessee shall have ------------ the option to market all of the Leased Property for the Lessor (the "Remarketing Option") to remarket and complete the sale of all of the Properties for the Lessor Trust). The Lessee's effective exercise and consummation of ------------------ the Remarketing Option shall be subject to the due and timely fulfillment of each of the following provisions provisions, the failure of any of which, unless waived in writing by the Lessor, the Agent and the provisions of Lenders, shall render the Remarketing Option and the Lessee's exercise thereof null and void, in which event, the Lessee shall be obligated to perform its obligations under Section 20.2 as to each of the Properties as of the dates set forth below.14.2. ------------
(a) Unless a longer period is called for pursuant to any Requirement of Law, on the date not Not later than three hundred sixty-five twelve (36512) days months prior to the Expiration Lease Termination Date, the Lessee shall give to the Agent Certificate Holder Lessor and the Administrative Agent written notice of the Lessee's exercise of the Remarketing Option.
(b) Not later than one hundred and twenty ten (12010) days Business Days prior to the Expiration Lease Termination Date, the Lessee shall deliver to the Lessor and the Agent Certificate Holder an Environmental Audit for each Propertyenvironmental assessment of the Leased Property leased by it dated not earlier than forty-five (45) days prior to the Lease Termination Date. Such Environmental Audit environmental assessment shall be prepared by an environmental consultant selected by the Agent Certificate Holder Required Funding Parties, shall be in the Agent Certificate Holder's discretion form, detail and shall contain conclusions substance reasonably satisfactory to the Agent Certificate Holder as to Required Funding Parties and shall otherwise indicate the environmental status condition of each Property. If any such the Leased Property to be the same as described in the Environmental Audit indicates any exceptions calling for a Phase Two environmental assessment, the Lessee shall have also delivered prior to the Expiration Date a Phase Two environmental assessment by such environmental consultant and a written statement by such environmental consultant indicating that all such exceptions have been remedied in compliance with Applicable LawAudit.
(c) On the date of the Lessee's notice to the Lessor and the Agent Certificate Holder of the Lessee's exercise of the Remarketing Option, each of the Construction Conditions shall have been timely satisfied and no Lease Event of Default or Lease Potential Event of Default shall exist, and, and thereafter, no Lease Event of Default or Lease Potential Event of Default shall occurexist under this Lease.
(d) The Completion Date shall have occurred with respect to each Property prior to the Lessee's delivery of notice of its intention to exercise the Remarketing Option, and each parcel of Land subject to any ground lease shall be a separate tax lot.
(e) The Lessee shall have substantially completed all ModificationsAlterations, restoration and rebuilding of the relevant Properties Leased Property leased by it pursuant to Sections 10.1 6.1, ------------ 6.2, 10.3 and 14.1 10.4 (as the case may be) and shall have fulfilled all of the --- ---- ---- conditions and requirements in connection therewith pursuant to such SectionsSections or otherwise as required hereunder or under the other Operative -------- Documents, in each case prior to case, by the date on which the Lessor and the Agent Certificate Holder receives receive the Lessee's notice of the Lessee's intention to exercise of the Remarketing Option (time being of the essence), regardless of whether the same shall be within the Lessee's control. If any use of the Leased Property has substantially changed the character of the Leased Property (without implying any consent to such use by the Lessor or the Agent), the Lessee shall, if requested by the Lessor or the Agent, restore the Leased Property to its general character as of the commencement of this Lease, except for normal wear and tear.
(e) The Lessee shall have also paid promptly provide any maintenance records relating to the Leased Property leased by it to the Lessor, the Agent and any potential purchaser upon request and shall otherwise do all things necessary to deliver possession of the Leased Property to the potential purchaser. The Lessee shall allow the Lessor, the Agent and any potential purchaser access to the Leased Property for the purpose of inspecting the same.
(f) On the Lease Termination Date, the Lessee shall surrender the Leased Property leased by it in accordance with Section 14.8 hereof. ------------
(g) In connection with any such sale of the Leased Property, the Lessee will provide to the purchaser all customary "seller's" indemnities requested by the potential purchaser, representations and warranties regarding title, absence of Liens (except Lessor Liens) and the condition of the Leased Property, including, without limitation, a customary environmental indemnity. The Lessee shall fulfill all of the requirements set forth in clause (b) of Section 14.5, and such requirements are ---------- ------------ incorporated herein by reference. As to the Lessor, any such sale shall be made on an "as is, with all faults" basis without representation or warranty by the Lessor, other than the absence of Lessor Liens.
(h) In connection with any such sale of the Leased Property, the Lessee shall pay directly, and not from the sale proceeds, all prorations, credits, costs and expenses of the sale of the Leased Property leased by it, whether incurred by the Lessor, any Lender, the Agent or the Lessee, including without limitation, the cost of all Modifications commenced title insurance, surveys, environmental reports, appraisals, transfer taxes, the Lessor's and the Agent's attorneys' fees, the Lessee's attorneys' fees, commissions, escrow fees, recording fees and all applicable documentary and other transfer taxes.
(i) The Lessee shall pay to the Agent on the Lease Termination Date (or to such other Person as the Agent shall notify the Lessee in writing, or in the case of Supplemental Rent, to the Person entitled thereto) an amount equal to the Recourse Deficiency Amount, plus all accrued ---- and unpaid Basic Rent and Supplemental Rent, and all other amounts hereunder which have accrued prior to or as of such date, in the type of funds specified in Section 3.3 hereof. ----------- If the Lessee has exercised the Remarketing Option, the following additional provisions shall apply: During the period commencing on the date twelve (12) months prior to the Expiration scheduled expiration of the Lease Term, the Lessee shall, as nonexclusive agent for the Lessor, use commercially reasonable efforts to sell the Lessor's interest in the Leased Property and will attempt to obtain the highest purchase price therefor. All such marketing of the Leased Property shall be at the Lessee's sole expense. Lessee promptly shall submit all bids to the Lessor and the Agent, and the Lessor and the Agent will have the right to review the same and the right to submit any one or more bids. All bids shall be on an all-cash basis. In no event shall such bidder be the Lessee or any Subsidiary or Affiliate of the Lessee. The written offer must specify the Lease Termination Date as the closing date. If, and only if, the aggregate selling price (net of closing costs and prorations, as reasonably estimated by the Agent) is less than the difference between the Lease Balance at such time minus the Recourse Deficiency Amount, then the Lessor or the Agent may, in its sole and absolute discretion, by notice to the Lessee, reject such offer to purchase, in which event the parties will proceed according to the provisions of Section 14.7 ------------ hereof. If neither the Lessor nor the Agent rejects such purchase offer as provided above, the closing of such purchase of the Leased Property by such purchaser shall occur on the Lease Termination Date, contemporaneously with the Lessee's surrender of the Leased Property in accordance with Section 14.8 ------------ hereof, and the gross proceeds of the sale (i.e., without deduction for any marketing, closing or other costs, prorations or commissions) shall be paid directly to the Agent (or the Lessor if the Funded Amount has been fully paid); provided, however, that if the sum of the gross proceeds from such -------- ------- sale plus the Recourse Deficiency Amount paid by the Lessee on the Lease ---- Termination Date pursuant to Section 14.6(i), minus any and all costs and --------------- expenses (including broker fees, appraisal costs, legal fees and transfer taxes) incurred by the Agent or the Lessor in connection with the marketing of the Leased Property or the sale thereof exceeds the Lease Balance as of such date, then the excess shall be paid to the Lessee on the Lease Termination Date. The Lessee shall not have been excused pursuant the right, power or authority to Section 12.1 from complying bind the Lessor in connection with any Applicable Law that involved the extension proposed sale of the ultimate imposition of such Applicable Law beyond the Expiration Date. Any Permitted Property Liens (other than Lessor Liens) on any Property that were contested by Lessee shall have been removed and the Agent Certificate Holder shall have received evidence satisfactory to it that all Liens (other than Lessor Liens and uncontested Permitted Property Liens of the type described in clauses (i), (vii), (ix) and (x) of the definition thereof) have been removedLeased Property.
Appears in 1 contract
Sources: Master Lease Agreement (Jones Financial Companies Lp LLP)
Option to Remarket. Subject Notwithstanding any provisions of this Agreement ------------------ and the Operative Documents to the contrary and subject to the fulfillment of each of the conditions set forth in this Section 20.1 and Section 20.2 (collectively5.7, the "Return Conditions"), the Lessee Construction Agent ----------- shall have the option to remarket the Leased Property with respect to which a Construction Agency Event of Default has occurred for the Lessor or with respect to which the Lessee shall be required to pay the Construction Failure Payment pursuant to Section 3.4 (the "Construction Default Remarketing Option") to remarket and complete the sale of all of the Properties for the Lessor Trust). The Lessee----------- --------------------------------------- Construction Agent's effective exercise and consummation of the Construction Default Remarketing Option shall be subject to the due and timely fulfillment of each of the following provisions provisions, the failure of any of which, unless waived in writing by the Lessor and the provisions of Lenders, shall render the Construction Default Remarketing Option and the Construction Agent's exercise thereof null and void, in which event, the Construction Agent shall not have any rights under this Section 20.2 as to each of the Properties as of the dates set forth below.5.7. -----------
(a) Unless a longer period is called for pursuant to any Requirement of Law, on the date not Not later than three hundred sixty-five Business Days after Lessor's service of the notice of termination referred to in Section 5.3(a) or (365b) days prior or the Lessor's denial of -------------- --- authorization to the Expiration Dateremediate any Construction Force Majeure Event under Section ------- 3.4, the Lessee Construction Agent shall give to the Agent Certificate Holder Lessor and the Administrative Agent written --- notice of the LesseeConstruction Agent's exercise of the Construction Default Remarketing Option.. The date of such notice shall be the "CDRO Notice Date"; ----------------
(b) Not later than one hundred thirty (30) days after Lessor's service of the notice of termination referred to in Section 5.3(a) or (b) or the Lessor's denial of -------------- --- authorization to remediate any Construction Force Majeure Event under Section ------- 3.4, the Construction Agent shall deliver to the Lessor and twenty the Agent an --- environmental assessment of such Leased Property dated not earlier than forty- five (12045) days prior to the Expiration Date, the Lessee shall deliver to the Agent Certificate Holder an Environmental Audit for each Propertydate of delivery thereof. Such Environmental Audit environmental assessment shall be prepared by an environmental consultant selected by the Agent Certificate Holder Required Funding Parties, shall be in the Agent Certificate Holder's discretion form, detail and shall contain conclusions substance reasonably satisfactory to the Agent Certificate Holder as to Required Funding Parties, and shall otherwise indicate the environmental status condition of each Property. If any such Leased Property to be the same as described in the related Environmental Audit indicates any exceptions calling for a Phase Two environmental assessment, the Lessee shall have also delivered prior to the Expiration Date a Phase Two environmental assessment by such environmental consultant and a written statement by such environmental consultant indicating that all such exceptions have been remedied in compliance with Applicable LawAudit.
(c) On the date of the Lessee's notice The Construction Agent shall promptly provide any maintenance records relating to such Leased Property to the Lessor, the Agent Certificate Holder and any potential purchaser upon request, and shall otherwise do all things necessary to deliver possession of such Leased Property to the Lessee's exercise potential purchaser. The Construction Agent shall allow the Lessor, the Agent and any potential purchaser access to any Leased Property for the purpose of inspecting the Remarketing Option, no Lease Event of Default or Lease Default shall exist, and, thereafter, no Lease Event of Default or Lease Default shall occursame.
(d) The Completion Date shall have occurred with respect to each Property prior to On the Lesseeninetieth (90/th/) day (such date, or such later date as the Lessor may specify in writing, being the "CDRO Closing Date") after Lessor's delivery ----------------- service of the notice of its intention termination referred to exercise in Section 5.3(a) or (b) or the Remarketing Option-------------- --- Lessor's denial of authorization to remediate any Construction Force Majeure Event under Section 3.4, and each parcel of Land subject to any ground lease the Construction Agent shall be a separate tax lot.surrender such Leased ----------- Property in accordance with Section 5.9 hereof. -----------
(e) The Lessee shall have substantially completed all Modifications, restoration and rebuilding In connection with any such sale of the relevant Properties pursuant Leased Property, the Construction Agent shall provide to Sections 10.1 the purchaser all customary "seller's" indemnities (taking into account the location and 14.1 nature of the Leased Property), representations and warranties regarding title, absence of Liens (as the case may beexcept Lessor Liens) and the condition of the Leased Property, including, without limitation, an environmental indemnity. The Construction Agent shall have fulfilled fulfill all of the conditions requirements set forth in clause (b) of Section 14.5 of the Lease (mutatis mutandis, as if Construction Agent were a Lessee, purchasing the Leased Property in accordance with the provisions of Section 14.1 of the Lease), and such requirements in connection therewith pursuant to such Sections, in each case prior are incorporated herein by reference. As to the date Lessor, any such sale shall be made on which an "as is, with all faults" basis without representation or warranty by the Lessor, other than the absence of Lessor Liens.
(f) In connection with any such sale of such Leased Property, the Construction Agent shall pay from the proceeds of remarketing, all prorations, credits, costs and expenses of the sale of the Leased Property, whether incurred by the Lessor, any Lender, the Agent Certificate Holder receives or the Lessee's notice of the Lessee's intention to exercise the Remarketing Option (time being of the essence)Construction Agent, regardless of whether the same shall be within the Lessee's control. Lessee shall have also paid including without limitation, the cost of all Modifications commenced prior title insurance, survey, environmental report, appraisal, transfer taxes, the Lessor's and the Agent's attorneys' fees, the Construction Agent's attorneys' fees, commissions, escrow fees, recording fees, and all applicable documentary and other transfer taxes.
(g) The Construction Agent shall pay to the Expiration Date. Lessee shall not have been excused Agent immediately following the delivery of the termination notice pursuant to Section 12.1 from complying with 5.3(a) or (b) or the -------------- --- Lessor's denial of authorization to remediate any Applicable Law that involved Construction Force Majeure Event under Section 3.4, (or to such other Person as Agent shall notify ----------- Construction Agent in writing, or in the extension case of Supplemental Rent, to the Person entitled thereto) an amount equal to (i) in the case of the ultimate imposition exercise of such Applicable Law beyond remedies under Section 5.3(a) or a payment due under Section 3.4, the Expiration Date. Any Permitted Property Liens -------------- ----------- Construction Failure Payment, or (other than Lessor Liensii) on any Property that were contested by Lessee shall have been removed and in the Agent Certificate Holder shall have received evidence satisfactory to it that all Liens (other than Lessor Liens and uncontested Permitted Property Liens case of the type described in clauses (iexercise of remedies under Section 5.3(b), (vii)the Permitted Lease Balance, (ix) and (x) in the type of the definition thereof) have been removed.funds -------------- specified in Section 3.3
Appears in 1 contract
Option to Remarket. Subject to the fulfillment of each of the conditions set forth in this Section 20.1 and Section 20.2 (collectively, the "Return Conditions")SECTION 22.1, the Lessee shall have the option (the "Remarketing OptionREMARKETING OPTION") to remarket market for the Lessor and complete the sale of all all, but not less than all, of the Properties Lessor's interest in the Property on the Expiration Date for the Lessor TrustLessor. The Lessee's effective exercise and consummation of the Remarketing Option shall be subject to the due and timely fulfillment of each of the following provisions and the provisions of Section 20.2 as to each of the Properties as of the dates set forth below.
(a) Unless a longer period is called for pursuant to any Requirement of Law, on the date not Not later than three one hundred sixty-five eighty (365180) days prior to the Expiration Date, the Lessee shall give to the Agent Certificate Holder and the Administrative Agent Lessor written notice of the Lessee's exercise of the Remarketing Option, which exercise shall be irrevocable (except by delivery of a Purchase Notice and consummation of the exercise of the Purchase Option prior to the earlier of (i) the Expiration Date or (ii) the date on which the Lessor enters into a binding contract to sell the Property pursuant to the exercise of the Remarketing Option).
(b) Not later than one hundred and twenty (120) days prior to the Expiration Date, the The Lessee shall deliver to the Agent Certificate Holder Lessor an Environmental Audit for each Propertyof the Property together with its notice of exercise of the Remarketing Option. Such Environmental Audit shall be prepared by an environmental consultant selected by the Agent Certificate Holder Lessor in the Agent Certificate HolderLessor's reasonable discretion and shall contain conclusions reasonably satisfactory to the Agent Certificate Holder Lessor as to the environmental status of each the Property. If any such Environmental Audit indicates any material exceptions calling for a Phase Two environmental assessmentreasonably requiring remedy or further investigation, the Lessee shall have also delivered prior to the Expiration Date a Phase Two environmental assessment by such environmental consultant and a written statement by such environmental consultant indicating that all prior to the Expiration Date showing the completion of the remedying of such exceptions have been remedied in compliance with Applicable LawEnvironmental Laws.
(c) On the date of the Lessee's notice to the Agent Certificate Holder Lessor of the Lessee's exercise of the Remarketing Option, no Lease Event of Default or Lease Default shall exist, and, and thereafter, no uncured Lease Event of Default or Lease Default shall occurexist.
(d) The Completion Date shall have occurred with respect to each Property prior to the Lessee's delivery of notice of its intention to exercise the Remarketing Option, and each parcel of Land subject to any ground lease shall be a separate tax lot.
(e) The Lessee shall have substantially completed in all material respects all Modifications, restoration and rebuilding of the relevant Properties Property pursuant to Sections 10.1 SECTIONS 11.1 and 14.1 15.1(e) (as the case may be) and shall have fulfilled in all material respects all of the conditions and requirements in connection therewith pursuant to such said Sections, in each case prior to by the date on which the Agent Certificate Holder Lessor receives the Lessee's notice of the Lessee's intention to exercise of the Remarketing Option (time being of the essence), regardless of whether the same shall be within the Lessee's control. The Lessee shall have also paid the cost of all Modifications commenced prior to the Expiration Date. The Lessee shall not have been excused pursuant to Section 12.1 SECTION 13.1 from complying with any Applicable Law that involved the extension of the ultimate imposition of such Applicable Law beyond the Expiration Datelast day of the Term. Any Permitted Property Liens (other than Lessor Liens) Exceptions on any the Property that were contested by the Lessee shall have been removed removed.
(e) During the Marketing Period, the Lessee shall, as nonexclusive agent for the Lessor, use commercially reasonable efforts to sell the Lessor's interest in the Property on or prior to the Expiration Date (without diminishing the Lessee's obligation to consummate the sale on the Expiration Date) and will attempt to obtain the highest purchase price therefor and for not less than the Fair Market Sales Value. The Lessee will be responsible for hiring and compensating brokers and making the Property available for inspection by prospective purchasers. The Lessee shall promptly upon request permit inspection of the Property and any maintenance records relating to the Property by the Lessor, any Participant and any potential purchasers, and shall otherwise do all things necessary to sell and deliver possession of the Property to any purchaser. All such marketing of the Property shall be at the Lessee's sole expense. The Lessee shall allow the Lessor and any potential qualified purchaser reasonable access to the Property for the purpose of inspecting the same.
(f) The Lessee shall submit all bids to the Lessor and the Agent, and the Lessor will have the right to review the same and the right to submit any one or more bids. All bids shall be on an all-cash basis unless the Lessor, the Agent and the Participants shall otherwise agree in their sole discretion. Should the Lessee procure bids from one or more bona fide prospective purchasers, the Lessee shall deliver to the Lessor and the Agent Certificate Holder not less than ninety (90) days prior to the Expiration Date a binding written unconditional (except as set forth below), irrevocable offer by such purchaser or purchasers offering the highest bid to purchase the Property. No such purchaser shall have received evidence satisfactory be the Lessee, or any Subsidiary or Affiliate of the Lessee. The written offer must specify the Expiration Date as the closing date unless the Lessor, the Agent and the Participants shall otherwise agree in their sole discretion.
(g) In connection with any such sale of the Property, the Lessee will provide to it that the purchaser (if the purchaser so requires) all customary "seller's" indemnities, representations and warranties regarding title, absence of Liens (other than Lessor Liens and uncontested except Permitted Property Liens of the type Exceptions described in clauses (i), (vii), (ixiv) and (xvi) of the definition thereofof such term, Liens for taxes not yet due, easements, rights-of-way, agreements and other rights permitted pursuant to SECTION 12.2 and Lessor Liens) and the condition of the Property, as well as such other terms and conditions as may be negotiated between the Lessee and the purchaser. The Lessee or the purchaser, as applicable, shall have been removedobtained, at its cost and expense, all required governmental and regulatory consents and approvals and shall have made all filings as required by Applicable Law in order to carry out and complete the transfer of the Property. As to the Lessor, any such sale shall be made on an "as is, with all faults" basis without representation or warranty by the Lessor other than the absence of Lessor Liens and Liens created by the Operative Documents. Any agreement as to such sale shall be made subject to the Lessor's rights hereunder.
(h) Unless and to the extent paid for by the purchaser, the Lessee shall pay directly all prorations, credits, costs and expenses of the sale of the Property acceptable to the Lessor and the Participants, whether incurred by the Lessor, the Participants or the Lessee, including without limitation, the cost of all title insurance, surveys, environmental reports, appraisals, transfer taxes, the Lessor's, the Participants' and the Agent's reasonable attorneys' fees, the Lessee's attorneys' fees, commissions, escrow fees, recording fees, and all applicable documentary and other transfer taxes, but excluding all costs associated with the existence or removal of Lessor Liens, which costs Lessor agrees to bear, Lessor hereby covenanting to cause the removal of all Lessor Liens at its expense.
(i) The Lessee shall pay to the Agent on the Expiration Date (or to such other Person as the Lessor shall notify the Lessee in writing, or in the case of Supplemental Rent, to the Person entitled thereto) an amount equal to the Existing Facility and Tenant Improvements Residual Value Guarantee Amount (which shall be paid in accordance with Section 3.22 of the Participation Agreement) and, if applicable, the Expansion Improvements Residual Value Guarantee Amount, PLUS (without duplication) all Rent and all other amounts hereunder which have accrued or will accrue prior to or as of the Expiration Date, in the type of funds specified in SECTION 3.4 hereof.
(j) If, within ninety (90) days prior to the Expiration Date, it is determined (based upon the highest bid by a purchaser to purchase the Property pursuant to PARAGRAPH (f) of this SECTION 22.1) that there would, after giving effect to the proposed sale of the Property, be a Shortfall Amount, the Lessee (i) shall cause to be delivered to the Lessor and the Agent the End of Term Report required by Section 13.2 of the Participation Agreement and (ii) shall on the Expiration Date pay to the Agent (or to such other person as the Lessor shall notify the Lessee in writing), the amounts (not to exceed the Shortfall Amount) required to be paid pursuant to Section 13.2 of the Participation Agreement.
(k) The purchase of the Property shall be consummated on the Expiration Date following the payment by the Lessee pursuant to PARAGRAPHS (i) and (j) above and contemporaneously with the Lessee's surrender of the Property pursuant to SECTION 19.1(b) and the Net Sales Proceeds of the sale of the Property shall be paid directly to the Agent; PROVIDED, HOWEVER, that if the sum of the Net Sale Proceeds from such sale of the Property plus the Residual Value Guarantee Amount paid by Lessee pursuant to PARAGRAPH (i) above exceeds the Asset Termination Value as of such date, then the excess shall be paid to the Lessee on the Expiration Date.
(l) The Lessee shall not be entitled to exercise or consummate the Remarketing Option if a circumstance that would permit the Lessor to require the Lessee to repurchase the Property under SECTION 16.3 exists and is continuing.
(m) No subleases affecting the Property shall be in effect on the Expiration Date.
Appears in 1 contract
Option to Remarket. Subject to the fulfillment of each of the conditions set forth in this Section 20.1 and Section 20.2 (collectively, the "Return Conditions")20.1, the Lessee shall have the option (the "Remarketing Option") to remarket and complete the sale of all of the Properties Property for the Lessor TrustAgent Lessor. The Lessee's effective exercise and consummation of the Remarketing Option shall be subject to the due and timely fulfillment of each of the following provisions and the provisions of Section 20.2 as to each of the Properties as of the dates set forth below. Failure by the Lessee to timely satisfy in any material respect any of the following provisions of this Section 20.1, or any of the provisions of Section 20.2, shall be deemed to be an election by the Lessee, without further act thereby, of its Purchase Option for the Property and any previous election of the Remarketing Option shall automatically terminate.
(a) Unless a longer period is called for pursuant to any Requirement of Law, on the any date not later than three hundred sixty-five (365) between 365 days and 180 days prior to the Expiration Date, the Lessee shall give to the Agent Certificate Holder Lessor and the Administrative Agent written notice of the Lessee's exercise of the Remarketing Option, which exercise shall be irrevocable by the Lessee.
(b) Not later than one hundred and twenty ninety (12090) days prior to the Expiration Date, the Lessee shall deliver to the Agent Certificate Holder Lessor an Environmental Audit for each the Property. Such Environmental Audit shall be prepared by an environmental consultant selected by the Agent Certificate Holder in Lessor and reasonably acceptable to the Agent Certificate Holder's discretion Lessee and shall contain conclusions satisfactory to indicating that the Agent Certificate Holder as to consultant found no Environmental Violations at the environmental status of each Property. If any such Environmental Audit indicates any exceptions calling for a Phase Two environmental assessment, the Lessee shall have also delivered prior to the Expiration Date a Phase Two environmental assessment by such environmental consultant and a written statement by such environmental consultant indicating that all such exceptions have been remedied in compliance in all material respects with Applicable LawLaw or shall have delivered to Agent Lessor cash collateral or a letter of credit reasonably acceptable to Agent Lessor from a bank reasonably acceptable to Agent Lessor in the amount reasonably estimated by Agent Lessor to be necessary to remedy such exceptions.
(c) On the date of the Lessee's notice to the Agent Certificate Holder Lessor of the Lessee's exercise of the Remarketing Option, no Lease Event of Default or Lease Default shall exist, and, thereafter, no Lease Event of Default or Lease Default shall occur.
(d) The Completion Date shall have occurred with respect to each Property prior to the Lessee's delivery of notice of its intention to exercise the Remarketing Option, and each parcel of Land subject to any ground lease shall be a separate tax lot[Intentionally Omitted.]
(e) The Lessee shall have substantially completed in all material respects all Modifications, restoration and rebuilding of the relevant Properties Property pursuant to Sections 10.1 and 14.1 (as the case may be) and shall have fulfilled all of the conditions and requirements in connection therewith pursuant to such Sections, in each case prior to the date on which the Agent Certificate Holder Lessor receives the Lessee's notice of the Lessee's intention to exercise the Remarketing Option (time being of the essence), regardless of whether the same shall be within the Lessee's control. The Lessee shall have also paid to the extent due the cost of all Modifications commenced prior to the Expiration Date. The Lessee shall not have been excused pursuant to Section 12.1 12.l from complying with any Applicable Law that involved the extension of the ultimate imposition of such Applicable Law beyond the Expiration DateDate unless the Lessee shall have provided for adequate bond to secure any required payments. Any Permitted Property Liens (other than Lessor Liens) on any the Property that were contested by the Lessee shall have been removed on or prior to the Expiration Date and the Agent Certificate Holder Lessor shall have received evidence satisfactory to it that all Liens (other than Lessor Liens and uncontested Permitted Property Liens of the type described in clauses (i), (vii), (ixviii) and (x) of the definition thereof) have been removed. The Property shall be in good operating condition, ordinary wear and tear excepted.
Appears in 1 contract
Sources: Master Lease, Deed of Trust and Security Agreement (Alumax Inc)
Option to Remarket. Subject to the fulfillment of each of the conditions set forth in this Section 20.1 SECTION 14.6, and Section 20.2 (collectivelyprovided that no Lessee has exercised a Partial Purchase Option, the "Return Conditions"), the Lessee Lessees shall have the option to market all of, but not less than all of, the Leased Properties for Lessor (the "Remarketing OptionREMARKETING OPTION") to remarket and complete the sale of all of the Properties for the Lessor Trust). The Lessee's Lessees' effective exercise and consummation of the Remarketing Option shall be subject to the due and timely fulfillment of each of the following provisions provisions, the failure of any of which, unless waived in writing by Lessor and the provisions of Section 20.2 as Lenders, shall render the Remarketing Option and the Lessees' exercise thereof null and void, in which event, each Lessee shall be obligated to each of the Properties as of the dates set forth belowperform its obligations under SECTION 14.2.
(a) Unless a longer period is called for pursuant to any Requirement of Law, on the date not Not later than three hundred sixty-five (365) days twelve months prior to the Expiration Lease Termination Date, the Lessee Company shall give to the Agent Certificate Holder Lessor and the Administrative Syndication Agent written notice of the Lessee's Lessees' exercise of the Remarketing Option.
(b) Not later than one hundred ten (10) Business Days prior to the Lease Termination Date, each Lessee shall deliver to Lessor and twenty the Syndication Agent an environmental assessment of each Leased Property leased by it dated not later than forty-five (12045) days prior to the Expiration Lease Termination Date, the Lessee shall deliver to the Agent Certificate Holder an Environmental Audit for each Property. Such Environmental Audit environmental assessment shall be prepared by an environmental consultant selected by the Agent Certificate Holder Required Funding Parties, shall be in the Agent Certificate Holder's discretion form, detail and shall contain conclusions substance reasonably satisfactory to the Agent Certificate Holder as to Required Funding Parties, and shall otherwise indicate the environmental status condition of each Property. If any such Leased Property to be the same as described in the related Environmental Audit indicates any exceptions calling for a Phase Two environmental assessment, the Lessee shall have also delivered prior to the Expiration Date a Phase Two environmental assessment by such environmental consultant and a written statement by such environmental consultant indicating that all such exceptions have been remedied in compliance with Applicable LawAudit.
(c) On the date of the LesseeCompany's notice to Lessor and the Syndication Agent Certificate Holder of the Lessee's Lessees' exercise of the Remarketing Option, each of the Construction Conditions shall have been timely satisfied and no Lease Event of Default or Lease Potential Event of Default shall exist, and, and thereafter, no Lease Event of Default or Lease Potential Event of Default shall occurexist under this Lease.
(d) The Completion Date shall have occurred with respect to each Property prior to the Lessee's delivery of notice of its intention to exercise the Remarketing Option, and each parcel of Land subject to any ground lease shall be a separate tax lot.
(e) The Each Lessee shall have substantially completed all ModificationsAlterations, restoration and rebuilding of the relevant Leased Properties leased by it pursuant to Sections 10.1 SECTIONS 6.1, 6.2, 10.3 and 14.1 10.4 (as the case may be) and shall have fulfilled all of the conditions and requirements in connection therewith pursuant to such Sectionssaid SECTIONS, in each case prior to by the date on which Lessor and the Syndication Agent Certificate Holder receives receive the LesseeCompany's notice of the Lessee's intention to exercise of the Remarketing Option (time being of the essence), regardless of whether the same shall be within the any Lessee's control. .
(e) Each Lessee shall have also paid promptly provide any maintenance records relating to each Leased Property leased by it to Lessor, the Syndication Agent and any potential purchaser upon request, and shall otherwise do all things necessary to deliver possession of such Leased Property to the potential purchaser. Each Lessee shall allow Lessor, the Syndication Agent and any potential purchaser access to any Leased Property for the purpose of inspecting the same.
(f) On the Lease Termination Date, each Lessee shall surrender the Leased Properties leased by it in accordance with SECTION 14.8 hereof.
(g) In connection with any such sale of the Leased Properties, each Lessee will provide to the purchaser all customary "seller's" indemnities requested by the potential purchaser (taking into account the location and nature of the Leased Properties), representations and warranties regarding title, absence of Liens (except Lessor Liens) and the condition of the Leased Properties, including, without limitation, a customary environmental indemnity. Each Lessee shall fulfill all of the requirements set forth in CLAUSE (b) of SECTION 14.5, and such requirements are incorporated herein by reference. As to Lessor, any such sale shall be made on an "as is, with all faults" basis without representation or warranty by Lessor, other than the absence of Lessor Liens.
(h) In connection with any such sale of Leased Properties, each Lessee shall pay directly, and not from the sale proceeds, all prorations, credits, costs and expenses of the sale of the Leased Properties leased by it, whether incurred by Lessor, any Lender, the Syndication Agent or such Lessee, including without limitation, the cost of all Modifications commenced title insurance, surveys, environmental reports, appraisals, transfer taxes, Lessor's and the Syndication Agent's attorneys' fees, such Lessee's attorneys' fees, commissions, escrow fees, recording fees, and all applicable documentary and other transfer taxes.
(i) The Lessees, jointly and severally, shall pay to the Syndication Agent on the Lease Termination Date (or to such other Person as Syndication Agent shall notify Lessee in writing, or in the case of Supplemental Rent, to the Person entitled thereto) an amount equal to the Recourse Deficiency Amount, PLUS all accrued and unpaid Basic Rent and Supplemental Rent, and all other amounts hereunder which have accrued prior to or as of such date, in the type of funds specified in SECTION 3.3 hereof. If the Lessees have exercised the Remarketing Option, the following additional provisions shall apply: During the period commencing on the date twelve months prior to the Expiration scheduled expiration of the Lease Term, one or more of the Lessees shall, as nonexclusive agent for Lessor, use commercially reasonable efforts to sell Lessor's interest in the Leased Properties and will attempt to obtain the highest purchase price therefor. All such marketing of the Leased Properties shall be at the Lessees' sole expense. Each Lessee promptly shall submit all bids to Lessor and the Syndication Agent and Lessor and the Syndication Agent will have the right to review the same and the right to submit any one or more bids. All bids shall be on an all-cash basis. In no event shall such bidder be Lessee or any Subsidiary or Affiliate of Lessee. The written offer must specify the Lease Termination Date as the closing date. If, and only if, the aggregate selling price (net of closing costs and prorations, as reasonably estimated by the Syndication Agent) is less than the difference between the Lease Balance at such time minus the Recourse Deficiency Amount, then Lessor or the Syndication Agent may, in its sole and absolute discretion, by notice to the Company, reject such offer to purchase, in which event the parties will proceed according to the provisions of SECTION 14.7 hereof. If neither Lessor nor the Syndication Agent rejects such purchase offer as provided above, the closing of such purchase of the Leased Properties by such purchaser(s) shall occur on the Lease Termination Date, contemporaneously with the Lessees' surrender of the Leased Properties in accordance with SECTION 14.8 hereof, and the gross proceeds of the sale (i.e., without deduction for any marketing, closing or other costs, prorations or commissions) shall be paid directly to the Syndication Agent (or Lessor if the Funded Amounts have been fully paid); PROVIDED, HOWEVER, that if the sum of the gross proceeds from such sale plus the Recourse Deficiency Amount paid by the Lessees on the Lease Termination Date pursuant to SECTION 14.6(i), minus any and all costs and expenses (including broker fees, appraisal costs, legal fees and transfer taxes) incurred by the Syndication Agent or Lessor in connection with the marketing of the Leased Properties or the sale thereof exceeds the Lease Balance as of such date, then the excess shall be paid to the Company on the Lease Termination Date. Lessee shall not have been excused pursuant to Section 12.1 from complying with any Applicable Law that involved the extension of the ultimate imposition of such Applicable Law beyond the Expiration Date. Any Permitted Property Liens (other than Lessor Liens) on any Property that were contested by No Lessee shall have been removed and the Agent Certificate Holder shall have received evidence satisfactory right, power or authority to it that all Liens (other than bind Lessor Liens and uncontested Permitted Property Liens in connection with any proposed sale of the type described in clauses (i), (vii), (ix) and (x) of the definition thereof) have been removedLeased Properties.
Appears in 1 contract
Option to Remarket. Subject to the fulfillment of each of the conditions set forth in this Section 20.1 and Section 20.2 (collectively, the "Return Conditions")22.1, the Lessee shall have the option (the "Remarketing Option") to remarket market for the Lessor and complete the sale of all all, but not less than all, of the Properties Lessor's interest in the Property, together with the Lessor's rights under the Ground Lease (except for the Lessor TrustLessor's rights of indemnification), on the Expiration Date for the Lessor. The Lessee's effective exercise and consummation of the Remarketing Option shall be subject to the due and timely fulfillment of each of the following provisions and the provisions of Section 20.2 as to each of the Properties as of the dates set forth below.
(a) Unless a longer period is called for pursuant to any Requirement of Law, on the date not Not later than three one hundred sixty-five eighty (365180) days prior to the Expiration Date, the Lessee shall give to the Agent Certificate Holder and the Administrative Agent Lessor written notice of the Lessee's exercise of the Remarketing Option, which exercise shall be irrevocable (except by delivery of a Purchase Notice and consummation of the exercise of the Purchase Option prior to the earlier of (i) the Expiration Date or (ii) the date on which the Lessor enters into a binding contract to sell the Property pursuant to the exercise of the Remarketing Option).
(b) Not later than one hundred and twenty (120) days prior to the Expiration Date, the The Lessee shall deliver to the Agent Certificate Holder Lessor an Environmental Audit for each Propertyof the Property together with its notice of exercise of the Remarketing Option. Such Environmental Audit shall be prepared by an environmental consultant selected by the Agent Certificate Holder Lessor in the Agent Certificate HolderLessor's reasonable discretion and shall contain conclusions satisfactory to the Agent Certificate Holder as to no change in the environmental status of each Propertythe Property from that existing at the Ground Lease Interest Acquisition Date. If any such Environmental Audit indicates any material exceptions calling for a Phase Two environmental assessmentreasonably requiring remedy or further investigation, the Lessee shall have also delivered prior to the Expiration Date a Phase Two environmental assessment by such environmental consultant and a written statement by such environmental consultant indicating that all prior to the Expiration Date showing the completion of the remedying of such exceptions have been remedied in compliance with Applicable Law.
(c) On the date of the Lessee's notice to the Agent Certificate Holder of the Lessee's exercise of the Remarketing Option, no Lease Event of Default or Lease Default shall exist, and, thereafter, no Lease Event of Default or Lease Default shall occur.
(d) The Completion Date shall have occurred with respect to each Property prior to the Lessee's delivery of notice of its intention to exercise the Remarketing Option, and each parcel of Land subject to any ground lease shall be a separate tax lot.
(e) The Lessee shall have substantially completed all Modifications, restoration and rebuilding of the relevant Properties pursuant to Sections 10.1 and 14.1 (as the case may be) and shall have fulfilled all of the conditions and requirements in connection therewith pursuant to such Sections, in each case prior to the date on which the Agent Certificate Holder receives the Lessee's notice of the Lessee's intention to exercise the Remarketing Option (time being of the essence), regardless of whether the same shall be within the Lessee's control. Lessee shall have also paid the cost of all Modifications commenced prior to the Expiration Date. Lessee shall not have been excused pursuant to Section 12.1 from complying with any Applicable Law that involved the extension of the ultimate imposition of such Applicable Law beyond the Expiration Date. Any Permitted Property Liens (other than Lessor Liens) on any Property that were contested by Lessee shall have been removed and the Agent Certificate Holder shall have received evidence satisfactory to it that all Liens (other than Lessor Liens and uncontested Permitted Property Liens of the type described in clauses (i), (vii), (ix) and (x) of the definition thereof) have been removed.
Appears in 1 contract
Sources: Master Lease (Peoplesoft Inc)
Option to Remarket. Subject to the fulfillment of each of the conditions set forth in this Section 20.1 and Section 20.2 (collectively14.6, the "Return Conditions"), the Lessee Lessees shall have the option to market all of, but not less than all of, the Leased Properties for Lessor (the "Remarketing Option") to remarket and complete the sale of all of the Properties for the Lessor Trust). The Lessee's Lessees' effective exercise and consummation of the Remarketing Option shall be subject to the due and timely fulfillment of each of the following provisions provisions, the failure of any of which, unless waived in writing by Lessor and the provisions of Lenders, shall render the Remarketing Option and the Lessees' exercise thereof null and void, in which event, each Lessee shall be obligated to perform its obligations under Section 20.2 as to each of the Properties as of the dates set forth below14.2.
(a) Unless a longer period is called for pursuant to any Requirement of Law, on the date not Not later than three hundred sixty-five (365) days twelve months prior to the Expiration scheduled Lease Termination Date, the Lessee ChoicePoint shall give to the Agent Certificate Holder Lessor and the Administrative Agent written notice of the Lessee's Lessees' exercise of the Remarketing Option.
(b) Not later than one hundred ten (10) Business Days prior to the Lease Termination Date, each Lessee shall deliver to Lessor and twenty the Agent an environmental assessment of each Leased Property leased by it dated not earlier than forty-five (12045) days prior to the Expiration Lease Termination Date, the Lessee shall deliver to the Agent Certificate Holder an Environmental Audit for each Property. Such Environmental Audit environmental assessment shall be prepared by an environmental consultant selected by the Agent Certificate Holder in the Agent Certificate Holder's discretion related Lessee and shall contain conclusions reasonably satisfactory to the Agent Certificate Holder as Required Funding Parties, shall be in form, detail and substance reasonably satisfactory to the Required Funding Parties, and shall otherwise indicate no degradation in environmental status of each Property. If any such conditions beyond those described in the related Environmental Audit indicates any exceptions calling and shall not include a recommendation for a Phase Two environmental assessment, the Lessee shall have also delivered prior further investigation to the Expiration Date a Phase Two environmental assessment by make such environmental consultant and a written statement by such environmental consultant indicating that all such exceptions have been remedied in compliance with Applicable Lawdetermination.
(c) On the date of the LesseeChoicePoint's notice to Lessor and the Agent Certificate Holder of the Lessee's Lessees' exercise of the Remarketing Option, no Lease Event each of Default or Lease Default the Construction Conditions shall exist, and, thereafter, no Lease Event of Default or Lease Default shall occurhave been timely satisfied.
(d) The Completion Date shall have occurred with respect to Except during the Construction Term for the related Leased Property, each Property prior to the Lessee's delivery of notice of its intention to exercise the Remarketing Option, and each parcel of Land subject to any ground lease shall be a separate tax lot.
(e) The Lessee shall have substantially completed all ModificationsAlterations, restoration and rebuilding of the relevant Leased Properties leased by it pursuant to Sections 10.1 6.1, 6.2, 10.3 and 14.1 10.4 (as the case may be) and shall have fulfilled in all material respects all of the conditions and requirements in connection therewith pursuant to such said Sections, in each case prior to by the date on which Lessor and the Agent Certificate Holder receives the Lesseereceive ChoicePoint's notice of the Lessee's intention to Lessees' exercise of the Remarketing Option (time being of the essence), regardless of whether the same shall be within the such Lessee's control. .
(e) Upon request by the Agent, each Lessee shall have also promptly provide any maintenance records relating to each Leased Property leased by it to Lessor, the Agent and any potential purchaser, and shall otherwise do all things necessary to deliver possession of such Leased Property to the potential purchaser at the appropriate closing date. Each Lessee shall allow Lessor, the Agent and any potential purchaser reasonable access during normal business hours to any Leased Property for the purpose of inspecting the same.
(f) On the Lease Termination Date, each Lessee shall surrender the Leased Properties leased by it in accordance with Section 14.8 hereof.
(g) In connection with any such sale of the Leased Properties, each Lessee will provide to the purchaser all customary "seller's" indemnities requested by the potential purchaser (taking into account the location and nature of the Leased Properties), representations and warranties regarding title, absence of Liens (except Lessor Liens) and the condition of the Leased Properties. Each Lessee shall fulfill all of the requirements set forth in clause (b) of Section 14.5, and such requirements are incorporated herein by reference. As to Lessor, any such sale shall be made on an "as is, with all faults" basis without representation or warranty by Lessor, other than the absence of Lessor Liens.
(h) In connection with any such sale of Leased Properties, each Lessee shall pay directly, and not from the sale proceeds, all prorations, credits, costs and expenses of the sale of the Leased Properties leased by it, whether incurred by Lessor, any Lender, the Agent or such Lessee, including without limitation, to the extent not paid by the purchaser, the cost of all Modifications commenced title insurance, surveys, environmental reports, appraisals, transfer taxes, Lessor's and the Agent's attorneys' fees, such Lessee's attorneys' fees, commissions, escrow fees, recording fees, and all applicable documentary and other transfer taxes.
(i) The Lessees, jointly and severally, shall pay to the Agent on the Lease Termination Date (or to such other Person as Agent shall notify Lessee in writing, or in the case of Supplemental Rent, to the Person entitled thereto) an amount equal to the Recourse Deficiency Amount, plus all accrued and unpaid Basic Rent and Supplemental Rent, and all other amounts hereunder which have accrued prior to or as of such date, in the type of funds specified in Section 3.3 hereof. If the Lessees have exercised the Remarketing Option, the following additional provisions shall apply: During the period commencing on the date twelve months prior to the Expiration Datescheduled expiration of the Lease Term, one or more of the Lessees shall, as nonexclusive agent for Lessor, use commercially reasonable efforts to sell Lessor's interest in the Leased Properties and will attempt to obtain the highest purchase price therefor. All such marketing of the Leased Properties shall be at the Lessees' sole expense. Lessee promptly shall not submit all bids to Lessor and the Agent and Lessor; the Agent will have the right to review the same; and the Agent and Lessor will have the right to submit any one or more bids. All bids shall be on an all-cash basis. In no event shall such bidder be a Lessee or any Subsidiary or Affiliate of a Lessee. The written offer must specify the Lease Termination Date as the closing date. If, and only if, the aggregate selling price (net of closing costs and prorations, as reasonably estimated by the Agent) is less than the difference between the Lease Balance at such time minus the Recourse Deficiency Amount, then Lessor or the Agent may, in its sole and absolute discretion, by notice to ChoicePoint, given within 30 days of receipt of such offer, reject such offer to purchase, in which event the parties will proceed according to the provisions of Section 14.7 hereof. If neither Lessor nor the Agent rejects such purchase offer as provided above, the closing of such purchase of the Leased Properties by such purchaser shall occur on the Lease Termination Date, contemporaneously with the Lessees' surrender of the Leased Properties in accordance with Section 14.8 hereof, and the gross proceeds of the sale (i.e., without deduction for any marketing, closing or other costs, prorations or commissions) shall be paid directly to the Agent (or Lessor if the Funded Amounts have been excused fully paid); provided, however, that if the sum of the gross proceeds from such sale plus the Recourse Deficiency Amount paid by the Lessees on the Lease Termination Date pursuant to Section 12.1 from complying 14.6(i), minus any and all reasonable costs and expenses (including broker fees, appraisal costs, reasonable legal fees and transfer taxes) incurred by the Agent or Lessor in connection with any Applicable Law that involved the extension marketing of the ultimate imposition Leased Properties or the sale thereof exceeds the Lease Balance as of such Applicable Law beyond date, then the Expiration excess shall be paid to ChoicePoint on the Lease Termination Date. Any Permitted Property Liens (other than Lessor Liens) on any Property that were contested by No Lessee shall have been removed and the Agent Certificate Holder shall have received evidence satisfactory right, power or authority to it that all Liens (other than bind Lessor Liens and uncontested Permitted Property Liens in connection with any proposed sale of the type described in clauses (i), (vii), (ix) and (x) of the definition thereof) have been removedLeased Properties.
Appears in 1 contract
Option to Remarket. Subject to the fulfillment of each of the conditions set forth in this Section 20.1 and Section 20.2 (collectively14.6, the "Return Conditions"), the Lessee Lessees shall have the option to market any of the Leased Properties for Lessor (the "“Remarketing Option") to remarket and complete the sale of all of the Properties for the Lessor Trust”). The Lessee's Lessees’ effective exercise and consummation of the Remarketing Option shall be subject to the due and timely fulfillment of each of the following provisions provisions, the failure of any of which, unless waived in writing by Lessor and the provisions of Lenders, shall render the Remarketing Option and the Lessees’ exercise thereof null and void, in which event, each Lessee shall be obligated to perform its obligations under Section 20.2 as to each of the Properties as of the dates set forth below14.2.
(a) Unless a longer period is called for pursuant to any Requirement of Law, on the date not Not later than three hundred sixty-five (365) days twelve months prior to the Expiration Lease Termination Date, the Lessee Concord shall give to the Agent Certificate Holder Lessor and the Administrative Agent written notice of the Lessee's Lessees’ exercise of the Remarketing Option, which notice shall specify the Leased Property or Leased Properties that will be remarketed.
(b) Not later than one hundred ten (10) Business Days prior to the Lease Termination Date, each Lessee shall deliver to Lessor and twenty the Agent an environmental assessment of each Leased Property leased by it and to be remarketed dated not earlier than forty-five (12045) days prior to the Expiration Lease Termination Date, the Lessee shall deliver to the Agent Certificate Holder an Environmental Audit for each Property. Such Environmental Audit environmental assessment shall be prepared by an environmental consultant selected by the Agent Certificate Holder in the Agent Certificate Holder's discretion related Lessee and shall contain conclusions reasonably satisfactory to the Agent Certificate Holder as Required Funding Parties, shall be in form, detail and substance reasonably satisfactory to the Required Funding Parties, and shall otherwise indicate no degradation in environmental status of each Property. If any such conditions beyond those described in the related Environmental Audit indicates any exceptions calling for which corrective action is required by Applicable Law and shall not include a Phase Two environmental assessment, the Lessee shall have also delivered prior recommendation for further investigation to the Expiration Date a Phase Two environmental assessment by make such environmental consultant and a written statement by such environmental consultant indicating that all such exceptions have been remedied in compliance with Applicable Lawdetermination.
(c) On the date of the Lessee's Concord’s notice to Lessor and the Agent Certificate Holder of the Lessee's Lessees’ exercise of the Remarketing Option, each of the Construction Conditions shall have been timely satisfied with respect to the Leased Property or Leased Properties being remarketed and no Lease Event of Default or Lease Potential Event of Default shall exist, and, and thereafter, no Lease Event of Default or Lease Potential Event of Default shall occurexist under this Lease.
(d) The Completion Date shall have occurred with respect to each Property prior to the Lessee's delivery of notice of its intention to exercise the Remarketing Option, and each parcel of Land subject to any ground lease shall be a separate tax lot.
(e) The Each Lessee shall have substantially completed in all Modificationsmaterial respects all Alterations, restoration and rebuilding of the relevant Leased Property or Leased Properties leased by it and to be remarketed pursuant to Sections 10.1 6.1, 6.2, 10.3 and 14.1 10.4 (as the case may be) and shall have fulfilled in all material respects all of the conditions and requirements in connection therewith pursuant to such said Sections, in each case prior to by the date on which Lessor and the Agent Certificate Holder receives the Lessee's receive Concord’s notice of the Lessee's intention to Lessees’ exercise of the Remarketing Option (time being of the essence), regardless of whether the same shall be within such Lessee’s control.
(e) Upon request by the Agent, each Lessee shall promptly provide any maintenance records relating to each Leased Property leased by it and to be remarketed to Lessor, the Agent and any potential purchaser, and shall otherwise do all things necessary to deliver possession of such Leased Property to the potential purchaser at the appropriate closing date. Each Lessee shall allow Lessor, the Agent and any potential purchaser reasonable access during normal business hours to any Leased Property to be remarketed for the purpose of inspecting the same.
(f) On the Lease Termination Date, each Lessee shall surrender the related Leased Property or Leased Properties leased by it and being remarketed in accordance with Section 14.8 hereof.
(g) In connection with any such sale of the Leased Properties, each Lessee will provide to the purchaser all customary “seller’s” indemnities requested by the potential purchaser (taking into account the location and nature of the related Leased Property or Leased Properties), representations and warranties regarding title, absence of Liens (except Lessor Liens) and the condition of the related Leased Property or Leased Properties. Each Lessee shall fulfill all of the requirements set forth in clause (b) of Section 14.5, and such requirements are incorporated herein by reference. As to Lessor, any such sale shall be made on an “as is, with all faults” basis without representation or warranty by Lessor, other than the absence of Lessor Liens.
(h) The Lessees, jointly and severally, shall pay to the Agent on the Lease Termination Date (or to such other Person as Agent shall notify Lessee in writing, or in the case of Supplemental Rent, to the Person entitled thereto) an amount equal to the Recourse Deficiency Amount for the Leased Property or Leased Properties that were the subject of the Remarketing Option, plus all accrued and unpaid Basic Rent and Supplemental Rent, and all other amounts hereunder with respect to such Leased Property or Leased Properties which have accrued prior to or as of such date that are then unpaid, in the type of funds specified in Section 3.3 hereof. If the Lessees have exercised the Remarketing Option, the following additional provisions shall apply: During the period commencing on the date twelve months prior to the scheduled expiration of the Lease Term, one or more of the Lessees shall, as nonexclusive agent for Lessor, use commercially reasonable efforts to sell Lessor’s interest in the Leased Properties that will be remarketed and will attempt to obtain the highest purchase price therefor. Lessee promptly shall submit all bids to Lessor and the Agent and Lessor and the Agent will have the right to review the same and the right to submit any one or more bids. All bids shall be on an all-cash basis. In no event shall such bidder be a Lessee or any Subsidiary or Affiliate of a Lessee's control. The written offer must specify the Lease Termination Date as the closing date. If, and only if, the Net Selling Price, as reasonably estimated by the Agent is less than an amount equal to the difference between the aggregate Leased Property Balances for the Leased Properties that are the subject of the Remarketing Option at such time minus the Recourse Deficiency Amount for such remarketed Leased Properties, then Lessor or the Agent may, in its sole and absolute discretion, by notice to Concord, reject such offer to purchase, in which event the parties will proceed according to the provisions of Section 14.7 hereof. If neither Lessor nor the Agent rejects such purchase offer as provided above, the closing of such purchase of the related Leased Properties by such purchaser shall occur on the Lease Termination Date, contemporaneously with the Lessees’ surrender of the related Leased Property or Leased Properties in accordance with Section 14.8 hereof. The Net Selling Price shall be paid directly to the Agent (or Lessor if the Funded Amounts have been fully paid) and shall be distributed pursuant to Section 3.4(a) of the Loan Agreement. No Lessee shall have also paid the cost of all Modifications commenced prior right, power or authority to the Expiration Date. Lessee shall not have been excused pursuant to Section 12.1 from complying bind Lessor in connection with any Applicable Law that involved the extension proposed sale of the ultimate imposition of such Applicable Law beyond the Expiration Date. Any Permitted Property Liens (other than Lessor Liens) on any Property that were contested by Lessee shall have been removed and the Agent Certificate Holder shall have received evidence satisfactory to it that all Liens (other than Lessor Liens and uncontested Permitted Property Liens of the type described in clauses (i), (vii), (ix) and (x) of the definition thereof) have been removedLeased Properties.
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Option to Remarket. Subject to the fulfillment of each of the conditions set forth in this Section 20.1 and Section 20.2 (collectively14.6, the "Return Conditions"), the Lessee Lessees shall have the option to market all of, but not less than all of, the Leased Properties for Lessor (the "Remarketing Option") to remarket and complete the sale of all of the Properties for the Lessor Trust). The Lessee's Lessees' effective exercise and consummation of the Remarketing Option shall be subject to the due and timely fulfillment of each of the following provisions provisions, the failure of any of which, unless waived in writing by Lessor and the provisions of Lenders, shall render the Remarketing Option and the Lessees' exercise thereof null and void, in which event, each Lessee shall be obligated to perform its obligations under Section 20.2 as to each of the Properties as of the dates set forth below14.2.
(a) Unless a longer period is called for pursuant to any Requirement of Law, on the date not Not later than three hundred sixty-five (365) days twelve months prior to the Expiration Lease Termination Date, the Lessee DTD shall give to the Agent Certificate Holder Lessor and the Administrative Agent written notice of the Lessee's Lessees' exercise of the Remarketing Option.
(b) Not later than one hundred ten (10) Business Days prior to the Lease Termination Date, each Lessee shall deliver to Lessor and twenty the Agent an environmental assessment of each Leased Property leased by it dated not later than forty-five (12045) days prior to the Expiration Lease Termination Date, the Lessee shall deliver to the Agent Certificate Holder an Environmental Audit for each Property. Such Environmental Audit environmental assessment shall be prepared by an environmental consultant selected by the Agent Certificate Holder in the Agent Certificate Holder's discretion related Lessee and shall contain conclusions reasonably satisfactory to the Agent Certificate Holder as Required Funding Parties, shall be in form, detail and substance reasonably satisfactory to the Required Funding Parties, and shall otherwise indicate no degradation in environmental status of each Property. If any such conditions beyond those described in the related Environmental Audit indicates any exceptions calling for which corrective action is required by Applicable Law and shall not include a Phase Two environmental assessment, the Lessee shall have also delivered prior recommendation for further investigation to the Expiration Date a Phase Two environmental assessment by make such environmental consultant and a written statement by such environmental consultant indicating that all such exceptions have been remedied in compliance with Applicable Lawdetermination.
(c) On the date of the LesseeDTD's notice to Lessor and the Agent Certificate Holder of the Lessee's Lessees' exercise of the Remarketing Option, each of the Construction Conditions shall have been timely satisfied and no Lease Event of Default or Lease Potential Event of Default shall exist, and, and thereafter, no Lease Event of Default or Lease Potential Event of Default shall occurexist under this Lease.
(d) The Completion Date shall have occurred with respect to each Property prior to the Lessee's delivery of notice of its intention to exercise the Remarketing Option, and each parcel of Land subject to any ground lease shall be a separate tax lot.
(e) The Each Lessee shall have substantially completed in all Modificationsmaterial respects all Alterations, restoration and rebuilding of the relevant Leased Properties leased by it pursuant to Sections 10.1 6.1, 6.2, 10.3 and 14.1 10.4 (as the case may be) and shall have fulfilled in all material respects all of the conditions and requirements in connection therewith pursuant to such said Sections, in each case prior to by the date on which Lessor and the Agent Certificate Holder receives the Lesseereceive DTD's notice of the Lessee's intention to Lessees' exercise of the Remarketing Option (time being of the essence), regardless of whether the same shall be within the such Lessee's control. .
(e) Upon request by the Agent, each Lessee shall have also promptly provide any maintenance records relating to each Leased Property leased by it to Lessor, the Agent and any potential purchaser, and shall otherwise do all things necessary to deliver possession of such Leased Property to the potential purchaser at the appropriate closing date. Each Lessee shall allow Lessor, the Agent and any potential purchaser reasonable access during normal business hours to any Leased Property for the purpose of inspecting the same.
(f) On the Lease Termination Date, each Lessee shall surrender the Leased Properties leased by it in accordance with Section 14.8 hereof.
(g) In connection with any such sale of the Leased Properties, each Lessee will provide to the purchaser all customary "seller's" indemnities requested by the potential purchaser (taking into account the location and nature of the Leased Properties), representations and warranties regarding title, absence of Liens (except Lessor Liens) and the condition of the Leased Properties. Each Lessee shall fulfill all of the requirements set forth in clause (b) of Section 14.5, and such requirements are incorporated herein by reference. As to Lessor, any such sale shall be made on an "as is, with all faults" basis without representation or warranty by Lessor, other than the absence of Lessor Liens.
(h) In connection with any such sale of Leased Properties, each Lessee shall pay directly, and not from the sale proceeds, all prorations, credits, costs and expenses of the sale of the Leased Properties leased by it, whether incurred by Lessor, any Lender, the Agent or such Lessee, including without limitation, to the extent not paid by the purchaser, the cost of all Modifications commenced title insurance, surveys, environmental reports, appraisals, transfer taxes, Lessor's and the Agent's attorneys' fees, such Lessee's attorneys' fees, commissions, escrow fees, recording fees, and all applicable documentary and other transfer taxes.
(i) The Lessees, jointly and severally, shall pay to the Agent on the Lease Termination Date (or to such other Person as Agent shall notify Lessee in writing, or in the case of Supplemental Rent, to the Person entitled thereto) an amount equal to the Recourse Deficiency Amount, plus all accrued and unpaid Basic Rent and Supplemental Rent, and all other amounts hereunder which have accrued prior to or as of such date, in the type of funds specified in Section 3.3 hereof. If the Lessees have exercised the Remarketing Option, the following additional provisions shall apply: During the period commencing on the date twelve months prior to the Expiration Datescheduled expiration of the Lease Term, one or more of the Lessees shall, as nonexclusive agent for Lessor, use commercially reasonable efforts to sell Lessor's interest in the Leased Properties and will attempt to obtain the highest purchase price therefor. All such marketing of the Leased Properties shall be at the Lessees' sole expense. Lessee promptly shall not submit all bids to Lessor and the Agent and Lessor and the Agent will have the right to review the same and the right to submit any one or more bids. All bids shall be on an all-cash basis. In no event shall such bidder be a Lessee or any Subsidiary or Affiliate of a Lessee. The written offer must specify the Lease Termination Date as the closing date. If, and only if, the aggregate selling price (net of closing costs and prorations, as reasonably estimated by the Agent) is less than the difference between the Lease Balance at such time minus the Recourse Deficiency Amount, then Lessor or the Agent may, in its sole and absolute discretion, by notice to DTD, reject such offer to purchase, in which event the parties will proceed according to the provisions of Section 14.7 hereof. If neither Lessor nor the Agent rejects such purchase offer as provided above, the closing of such purchase of the Leased Properties by such purchaser shall occur on the Lease Termination Date, contemporaneously with the Lessees' surrender of the Leased Properties in accordance with Section 14.8 hereof, and the gross proceeds of the sale (i.e., without deduction for any marketing, closing or other costs, prorations or commissions) shall be paid directly to the Agent (or Lessor if the Funded Amounts have been excused fully paid); provided, however, that if the sum of the gross proceeds from such sale plus the Recourse Deficiency Amount paid by the Lessees on the Lease Termination Date pursuant to Section 12.1 from complying 14.6(i), minus any and all reasonable costs and expenses (including broker fees, appraisal costs, reasonable legal fees and transfer taxes) incurred by the Agent or Lessor in connection with any Applicable Law that involved the extension marketing of the ultimate imposition Leased Properties or the sale thereof exceeds the Lease Balance as of such Applicable Law beyond date, then the Expiration excess shall be paid to DTD on the Lease Termination Date. Any Permitted Property Liens (other than Lessor Liens) on any Property that were contested by No Lessee shall have been removed and the Agent Certificate Holder shall have received evidence satisfactory right, power or authority to it that all Liens (other than bind Lessor Liens and uncontested Permitted Property Liens in connection with any proposed sale of the type described in clauses (i), (vii), (ix) and (x) of the definition thereof) have been removedLeased Properties.
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