Option to Remarket. Subject to the fulfillment of each of ------------------ the conditions set forth in this Section 14.6, the Lessees shall have the option ------------ to market all of, but not less than all of, the Leased Properties for Lessor (the "Remarketing Option"). ------------------ The Lessees' effective exercise and consummation of the Remarketing Option shall be subject to the due and timely fulfillment of each of the following provisions, the failure of any of which, unless waived in writing by Lessor and the 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 14.2. ------------ (a) Not later than twelve months prior to the Lease Termination Date, ▇▇▇▇ Furniture shall give to Lessor and the Agent written notice of the Lessees' exercise of the Remarketing Option. (b) Not later than ten (10) Business Days prior to the Lease Termination Date, each Lessee shall deliver to Lessor and the Agent an environmental assessment of each Leased Property leased by it dated not later than forty-five (45) days prior to the Lease Termination Date. Such environmental assessment shall be prepared by an environmental consultant selected by Lessees and reasonably acceptable to the Agent, shall be in form, detail and substance reasonably satisfactory to the Agent, and shall otherwise indicate no material adverse change in the environmental condition of each Leased Property from that described in the related Environmental Audit. (c) On the date of ▇▇▇▇ Furniture's notice to Lessor and the Agent of the Lessees' exercise of the Remarketing Option, each of the Construction Conditions shall have been timely satisfied and no Event of Default or Potential Event of Default shall exist, and thereafter, no Event of Default or Potential Event of Default shall exist under this Lease. (d) Each Lessee shall have completed all Alterations, restoration and rebuilding of the Leased Properties leased by it pursuant to Sections 6.1, ------------ 6.2, 10.3 and 10.4 (as the case may be) or shall provide reasonable --- ---- ---- assurances acceptable to Lessor that such Alterations will be completed within a reasonable period of time and shall have provided or shall provide reasonable assurances acceptable to Lessor that it will fulfill all of the conditions and requirements in connection therewith pursuant to said Sections, in each case within a reasonable period of time. -------- (e) Each Lessee shall promptly provide any maintenance records relating to each Leased Property leased by it to Lessor, the Agent and any potential purchaser upon request, and shall otherwise do all things reasonably necessary to deliver possession of such Leased Property to the potential purchaser. After reasonable prior notice, each Lessee shall allow Lessor, the Agent and any potential purchaser access to any Leased Property for the purpose of inspecting the same, provided that Lessor, Agent and such potential purchaser shall use best efforts not to disrupt Lessee's business. (f) On the Lease Termination Date, each Lessee shall surrender the Leased Properties leased by it in accordance with Section 14.8 hereof, ------------ unless the Lease has been renewed pursuant to Section 14.9 or the Leased ------------ Properties have been purchased pursuant to Section 14.1 (it being ------------ understood that Lessee may change its position and exercise its option to purchase at any time prior to sale by Lessor to a third party). (g) In connection with any such sale of the Leased Properties, each Lessee will provide to the purchaser all customary "seller's" indemnities in favor of the purchaser (taking into account the location and nature of the Leased Properties and negotiations between Lessee, Lessor and the potential purchaser), representations and warranties regarding title, absence of Liens (except Lessor Liens) and the condition of the Leased Properties, including, without limitation, an environmental indemnity, which shall not extend beyond two years after the closing of such sale. 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, the cost of all 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. To the extent the sum of gross sales proceeds, less the Recourse Deficiency Amount plus costs and expenses of sale, exceed the Lease Balance as of the date of sale, such sums shall be paid over to Lessee. (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 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 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 ▇▇▇▇ Furniture, 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 costs and expenses (including broker fees, --------------- appraisal costs, legal fees and transfer taxes) actually and reasonably 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 ▇▇▇▇ Furniture on the Lease Termination Date. No Lessee shall have the right, power or authority to bind Lessor in connection with any proposed sale of the Leased Properties.
Appears in 1 contract
Option to Remarket. Subject to the fulfillment of each of the ------------------ the conditions set forth in this Section 14.620.1, the Lessees Lessee shall have the option ------------ to market all of, but not less than all of, the Leased Properties for Lessor (the ------------ "Remarketing Option")) to market and complete the sale of all of the Equipment ------------------ for the Lessor. ------------------ The Lessees' 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 as to each item of the failure Equipment as of any of which, unless waived in writing by Lessor and the 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 14.2. ------------dates set forth below.
(a) Not later than twelve (12) months prior to the Lease Termination Expiration Date, ▇▇▇▇ Furniture the Lessee shall give to the Lessor and the Agent written notice of the Lessees' Lessee's exercise of the Remarketing Option, which exercise shall be irrevocable.
(b) Not later than ten three (103) Business Days months prior to the Lease Termination Expiration Date, each the Lessee shall deliver to the Lessor and an Environmental Audit for each item of the Agent an environmental assessment of each Leased Property leased by it dated not later than forty-five (45) days prior to the Lease Termination DateEquipment. Such environmental assessment Environmental Audit shall be prepared by an environmental consultant selected by Lessees the Lessor in the Lessor's reasonable discretion and reasonably acceptable to the Agent, shall be in form, detail and substance contain conclusions reasonably satisfactory to the Lessor as to the environmental status of the Equipment. If any such Environmental Audit indicates any exceptions, the Lessee shall have also delivered prior to the Expiration Date a written statement by such environmental consultant concluding, to the satisfaction of the Agent, and shall otherwise indicate no material adverse change that all such exceptions have been remedied in the environmental condition of each Leased Property from that described in the related Environmental Auditcompliance with Applicable Law.
(c) On the date of ▇▇▇▇ Furniturethe Lessee's notice to the Lessor and the Agent of the Lessees' Lessee's exercise of the Remarketing Option, each of the Construction Conditions shall have been timely satisfied and no Lease Event of Default or Potential Event of Lease Default shall exist, and thereafter, no Lease Event of Default or Potential Event of Lease Default shall exist under this Leaseexist.
(d) Each Subject to the provisions of this paragraph, the Lessee shall have completed all AlterationsModifications, restoration and rebuilding of the Leased Properties leased by it affected Equipment pursuant to Sections 6.1, ------------ 6.2, 10.3 10.1 and 10.4 14.1 (as the case may be) or shall provide reasonable --- ), ------------- ---- ---- assurances acceptable without relying on any Permitted Contest to Lessor that such Alterations will be completed within a reasonable period of time modify its obligations under this Paragraph 20.1(d), and shall have provided or shall provide reasonable assurances acceptable to Lessor that it will fulfill fulfilled all of the conditions and requirements in connection therewith pursuant to said Sections, in each case prior to the date on which the 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 a reasonable period the Lessee's control. In the event, however, that the Lessee has commenced any Modification, restoration or rebuilding of timeany affected Equipment but that such Modification, restoration or rebuilding has not been completed, the Lessee shall nevertheless have the right to exercise the Remarketing Option and shall, thereafter, complete such Modification, restoration or rebuilding promptly and without delay in accordance with the provisions of this Master Lease, and in any event not later than the date upon which the Lessee or the Lessor procures bids from one or more prospective purchasers. --------The Lessee shall have also paid the cost of all Modifications, restorations and rebuilding, commenced prior to the Expiration Date. The Lessee shall not have been excused pursuant to Section 12.1 from complying with the ------------ requirements of this Section 20.1(d).
(e) Each During the Marketing Period, the Lessee shall promptly provide any maintenance records relating to each Leased Property leased by it to shall, as nonexclusive agent for the Lessor, the Agent and any potential purchaser upon request, and shall otherwise do all things reasonably necessary to deliver possession of such Leased Property to the potential purchaser. After reasonable prior notice, each Lessee shall allow Lessor, the Agent and any potential purchaser access to any Leased Property for the purpose of inspecting the same, provided that Lessor, Agent and such potential purchaser shall use its best efforts to sell the Lessor's interest in the Equipment and will attempt to obtain the highest purchase price therefor and for not to disrupt Lessee's businessless than the Fair Market Sales Value.
(f) On the Lease Termination Date, each The Lessee shall surrender procure bids from one or more bona fide prospective purchasers and shall deliver to the Leased Properties leased Lessor and the Lenders not less than sixty (60) days prior to the Expiration Date a binding written unconditional (except as set forth below), irrevocable offer by it in accordance with Section 14.8 hereofsuch purchaser or purchasers offering the highest cash bid to purchase the Equipment (each, ------------ a "Conforming Bid"). 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 Lease has been renewed pursuant to Section 14.9 or Lessor and the Leased ------------ Properties have been purchased pursuant to Section 14.1 (it being ------------ understood that Lessee may change its position and exercise its option to purchase at any time prior to sale by Lessor to a third party)Lenders shall otherwise agree in their sole discretion.
(g) The Lessee shall submit all Conforming Bids to the Lessor and the Lenders, 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 Conforming 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. All Conforming Bids shall be on an all-cash basis unless the Lessor and the Lenders shall otherwise agree in their sole discretion.
(h) In connection with any such sale of any of the Leased PropertiesEquipment, each the Lessee will provide to the purchaser all customary "seller's" indemnities in favor of the purchaser (taking into account the location and nature of the Leased Properties and negotiations between Lessee, Lessor and the potential purchaser)'s indemnities, representations and warranties regarding title, absence of Liens (except Lessor Liens) and the condition of such item of the Leased Properties, Equipment; including, without limitation, an environmental indemnity, which shall not extend beyond two years after indemnity to the closing of such saleextent the same are required by the purchaser. Each The Lessee shall fulfill 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 requirements set forth in clause (b) ---------- of Section 14.5, and such requirements are incorporated herein by ------------ referenceEquipment. As to the Lessor, any such sale shall be made on an "as is, with all faults" basis without representation or warranty by Lessor, 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.
(hi) In connection with any such sale of Leased Properties, each The 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 itEquipment, whether incurred by the Lessor, any Lender, the Agent or such 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, such the Lessee's attorneys' fees, commissions, escrow fees, recording fees, and all applicable documentary and other transfer taxes. To the extent the sum of gross sales proceeds, less the Recourse Deficiency Amount plus costs taxes and expenses of sale, exceed the Lease Balance as of the date of sale, such sums shall be paid over to Lesseeother Impositions.
(ij) The Lessees, jointly and severally, Lessee shall pay to the Agent on or prior to the Lease Termination Expiration Date (or to such other Person as Agent shall notify Lessee in writing, or in the case of Supplemental Rent, to the Person entitled theretoAgent for distribution in accordance with Operative Documents) an amount equal to the Recourse Deficiency Amount, Loan Balance with respect to the Financing Loans plus all accrued and unpaid Basic Rent ---- and (including Supplemental Rent, if any) and all other amounts hereunder which have accrued or will accrue prior to or as of such datethe Expiration Date, in the type of funds specified in Section 3.3 ----------- 3.4 hereof. If -----------
(k) The Lessee shall pay to the Lessees have exercised the Remarketing Option, the following additional provisions shall apply: During the period commencing Lessor on the date twelve months or prior to the scheduled expiration Expiration Date the amounts, if any, required to be paid pursuant to Section 12.2 of ------------ the Participation Agreement.
(l) The purchase of all 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 Equipment shall be at the Lessees' sole expense. 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 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 ▇▇▇▇ Furniture, 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 consummated on the Lease Termination Date, contemporaneously with the Lessees' surrender of the Leased Properties in accordance with Section 14.8 hereof, Expiration Date and ------------ the gross proceeds (the "Gross Remarketing Proceeds") -------------------------- realized from the sale of the sale Equipment (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)Agent; provided, however, -------- ------- that if the sum of Gross Remarketing -------- ------- Proceeds actually received by the gross proceeds Agent in good, collected and indefeasible funds 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) actually and reasonably incurred by the Agent or Lessor in connection with the marketing of the Leased Properties or the sale thereof exceeds exceed the Lease Balance as of such date, then the excess shall be paid to ▇▇▇▇ Furniture the Lessee on the Lease Termination Expiration Date. No If one or more of the foregoing provisions shall not be fulfilled as of the date set forth above with respect to any of the Equipment, or if any of the Equipment is not purchased as aforesaid, or if the conditions set forth in Paragraph 9.1(c) or in Section 9.2 hereof have not been ---------------- ----------- satisfied in accordance with their terms, then the Agent 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 all of the Equipment, in which event all of the Lessee's rights under this Section 20.1 ------------ shall immediately terminate as if never exercised and the Lessee shall be obligated to purchase all of the Equipment pursuant to Section 18.2 on the ------------ Expiration Date. Except as expressly set forth herein, the Lessee shall have the no right, power or authority to bind the Lessor in connection with any proposed sale of any of the Leased PropertiesEquipment.
Appears in 1 contract
Sources: Master Equipment Lease and Security Agreement (Mail Well Inc)
Option to Remarket. Subject to the fulfillment of ------------------ each of ------------------ the conditions set forth in this Section 14.6, the Lessees Lessee shall ------------ have the option ------------ to market all of, but not less than all of, of the Leased Properties Property for the Lessor (the "Remarketing Option"). ------------------ The Lessees' 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, the failure of any of which, unless waived in writing by Lessor the Lessor, the Agent and the Lenders, shall render the Remarketing Option and the Lessees' Lessee's exercise thereof null and void, in which event, each the Lessee shall be obligated to perform its obligations under Section 14.2. ------------
(a) Not later than twelve (12) months prior to the Lease Termination Date, ▇▇▇▇ Furniture the Lessee shall give to the Lessor and the Agent written notice of the Lessees' Lessee's exercise of the Remarketing Option.
(b) Not later than ten (10) Business Days prior to the Lease Termination Date, each the Lessee shall deliver to the Lessor and the Agent an environmental assessment of each the Leased Property leased by it dated not later earlier than forty-five (45) days prior to the Lease Termination Date. Such environmental assessment shall be prepared by an environmental consultant selected by Lessees and reasonably acceptable to the AgentRequired Funding Parties, shall be in form, detail and substance reasonably satisfactory to the Agent, Required Funding Parties and shall otherwise indicate no material adverse change in the environmental condition of each the Leased Property from that to be the same as described in the related Environmental Audit.
(c) On the date of ▇▇▇▇ Furniturethe Lessee's notice to the Lessor and the Agent of the Lessees' Lessee's exercise of the Remarketing Option, each of the Construction Conditions shall have been timely satisfied and no Event of Default or Potential Event of Default shall exist, and thereafter, no Event of Default or Potential Event of Default shall exist under this Lease.
(d) Each The Lessee shall have completed all Alterations, restoration and rebuilding of the Leased Properties Property leased by it pursuant to Sections -------- 6.1, ------------ 6.2, 10.3 and 10.4 (as the case may be) or and shall provide reasonable have fulfilled --- --- ---- ---- assurances acceptable to Lessor that such Alterations will be completed within a reasonable period of time and shall have provided or shall provide reasonable assurances acceptable to Lessor that it will fulfill all of the conditions and requirements in connection therewith pursuant to said Sectionssuch Sections or otherwise as required hereunder or under the other -------- Operative Documents, in each case case, by the date on which the Lessor and the Agent receive the Lessee's notice of the Lessee's exercise of the Remarketing Option (time being of the essence), regardless of whether the same shall be within a reasonable period the Lessee's control. If any use of time. --------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) Each The Lessee shall promptly provide any maintenance records relating to each the Leased Property leased by it to the Lessor, the Agent and any potential purchaser upon request, request and shall otherwise do all things reasonably necessary to deliver possession of such the Leased Property to the potential purchaser. After reasonable prior notice, each The Lessee shall allow the Lessor, the Agent and any potential purchaser access to any the Leased Property for the purpose of inspecting the same, provided that Lessor, Agent and such potential purchaser shall use best efforts not to disrupt Lessee's business.
(f) On the Lease Termination Date, each the Lessee shall surrender the Leased Properties Property leased by it in accordance with Section 14.8 hereof, ------------ unless the Lease has been renewed pursuant to Section 14.9 or the Leased ------------ Properties have been purchased pursuant to Section 14.1 (it being ------------ understood that Lessee may change its position and exercise its option to purchase at any time prior to sale by Lessor to a third party).. ------------
(g) In connection with any such sale of the Lessor's interest in the Leased PropertiesProperty, each the Lessee will provide to the purchaser all customary "seller's" indemnities in favor of the purchaser (taking into account the location and nature of the Leased Properties and negotiations between Lessee, Lessor and requested by the potential purchaser), representations and warranties regarding title, absence of Liens (except Lessor Liens) and the condition of the Leased PropertiesProperty, including, without limitation, an a customary environmental indemnity, which shall not extend beyond two years after the closing of such sale. Each 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 Lessor's interest in the Leased PropertiesProperty, each the Lessee shall pay directly, and not from the sale proceeds, all prorations, credits, costs and expenses of the sale of the Leased Properties Property leased by it, whether incurred by the Lessor, any Lender, the Agent or such the Lessee, including without limitation, the cost of all title insurance, surveys, environmental reports, appraisals, transfer taxes, the Lessor's and the Agent's attorneys' fees, such the Lessee's attorneys' fees, commissions, escrow fees, recording fees, fees and all applicable documentary and other transfer taxes. To the extent the sum of gross sales proceeds, less the Recourse Deficiency Amount plus costs and expenses of sale, exceed the Lease Balance as of the date of sale, such sums shall be paid over to Lessee.
(i) The Lessees, jointly and severally, 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 Lessees have 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 Lease Term, one or more of the Lessees Lessee shall, as nonexclusive agent for the Lessor, use commercially reasonable efforts to sell the Lessor's interest in the Leased Properties Property and will attempt to obtain the highest purchase price therefor. All such marketing of the Leased Properties Property shall be at the Lessees' Lessee's sole expense. Lessee promptly shall submit all bids to the Lessor and the Agent 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- 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 ▇▇▇▇ Furniturethe 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 Properties Property by such purchaser shall occur on the Lease Termination Date, contemporaneously with the Lessees' Lessee's surrender of the Leased Properties 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 Amounts have 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 Lessees 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) actually and reasonably incurred by the Agent or the Lessor in connection with the marketing of the Leased Properties Property or the sale thereof exceeds the Lease Balance as of such date, then the excess shall be paid to ▇▇▇▇ Furniture the Lessee on the Lease Termination Date. No The Lessee shall not have the right, power or authority to bind the Lessor in connection with any proposed sale of the Leased PropertiesProperty.
Appears in 1 contract
Sources: Master Lease Agreement (Jones Financial Companies Lp LLP)
Option to Remarket. Subject to the fulfillment of each of ------------------ the conditions set forth in this Section 14.6, the Lessees shall have the option ------------ to market all of, but not less than all of, the Leased Properties for Lessor (the "Remarketing Option"). ------------------ The Lessees' effective exercise and consummation of the Remarketing Option shall be subject to the due and timely fulfillment of each of the following provisions, the failure of any of which, unless waived in writing by Lessor and the 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 14.2. ------------
(a) Not later than twelve (12) months prior to the Lease Termination Date, ▇▇▇▇▇▇ Furniture shall give to Lessor and the Agent written notice of the Lessees' exercise of the Remarketing Option.
(b) Not later than ten (10) Business Days prior to the Lease Termination Date, each Lessee shall deliver to Lessor and the Agent an environmental assessment of each Leased Property leased by it dated not later more than forty-five one hundred eighty (45180) days prior to the Lease Termination Date. Such environmental assessment shall be prepared by an environmental consultant selected by Lessees the related Lessee and reasonably acceptable satisfactory to the AgentRequired Funding Parties, shall be in form, detail and substance reasonably satisfactory to the AgentRequired Funding Parties, and shall otherwise indicate no material adverse change degradation in the environmental condition of each Leased Property from that conditions beyond those described in the related Environmental AuditAudit for which corrective action is required by Applicable Law and shall not include a recommendation for further investigation to make such determination.
(c) On the date of ▇▇▇▇ Furniture's ▇▇▇' notice to Lessor and the Agent of the Lessees' exercise of the Remarketing Option, each of the Construction Conditions shall have been timely satisfied and no Event of Default or Potential Event of Default shall exist, and thereafter, no Event of Default or Potential Event of Default shall exist under this Lease.
(d) Each Lessee shall have completed in all material respects all Alterations, restoration and rebuilding of the Leased Properties leased by it pursuant to Sections 6.1, ------------ 6.2, 10.3 and 10.4 (as the case may be) or shall provide reasonable and ------------ --- ---- ---- assurances acceptable to Lessor that such Alterations will be completed within a reasonable period of time and shall have provided or shall provide reasonable assurances acceptable to Lessor that it will fulfill fulfilled in all material respects all of the conditions and requirements in connection therewith pursuant to said Sections, in each -------- case by the date on which Lessor and the Agent receive ▇▇▇▇▇▇' notice of the Lessees' exercise of the Remarketing Option (time being of the essence), regardless of whether the same shall be within a reasonable period of time. --------such Lessee's control.
(e) Each 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 upon requestpurchaser, and shall otherwise do all things reasonably necessary to deliver possession of such Leased Property to the potential purchaserpurchaser at the appropriate closing date. After reasonable prior notice, each 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, provided that Lessor, Agent and such potential purchaser shall use best efforts not to disrupt Lessee's business.
(f) On the Lease Termination Date, each Lessee shall surrender the Leased Properties leased by it in accordance with Section 14.8 hereof, ------------ unless the Lease has been renewed pursuant to Section 14.9 or the Leased ------------ Properties have been purchased pursuant to Section 14.1 (it being ------------ understood that Lessee may change its position and exercise its option to purchase at any time prior to sale by Lessor to a third party).. ------------
(g) In connection with any such sale of the Leased Properties, each Lessee will provide to the purchaser all customary "seller's" indemnities in favor of reasonably requested by the potential purchaser (taking into account the location and nature of the Leased Properties and negotiations between Lessee, Lessor and the potential purchaserProperties), representations and warranties regarding title, absence of Liens (except Lessor Liens) and the condition of the Leased Properties, including, without limitation, an environmental indemnity, which shall not extend beyond two years after the closing of such sale. 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 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. To the extent the sum of gross sales proceeds, less the Recourse Deficiency Amount plus costs and expenses of sale, exceed the Lease Balance as of the date of sale, such sums shall be paid over to Lessee.
(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 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 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 ▇▇▇▇ Furniture, 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 costs and expenses (including broker fees, --------------- appraisal costs, legal fees and transfer taxes) actually and reasonably 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 ▇▇▇▇ Furniture on the Lease Termination Date. No Lessee shall have the right, power or authority to bind Lessor in connection with any proposed sale of the Leased Properties.-----------
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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 14.65.7, the Lessees Construction Agent ----------- shall have the option ------------ to market all of, but not less than all of, remarket the Leased Properties 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"). ------------------ The Lessees' 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, the failure of any of which, unless waived in writing by the Lessor and the Lenders, shall render the Construction Default Remarketing Option and the Lessees' Construction Agent's exercise thereof null and void, in which event, each Lessee the Construction Agent shall be obligated to perform its obligations not have any rights under this Section 14.25.7. -----------------------
(a) Not later than twelve months prior five Business Days after Lessor's service of the notice of termination referred to in Section 5.3(a) or (b) or the Lease Termination DateLessor's denial of -------------- --- authorization to remediate any Construction Force Majeure Event under Section ------- 3.4, ▇▇▇▇ Furniture the Construction Agent shall give to the Lessor and the Agent written --- notice of the Lessees' 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 ten thirty (1030) Business Days prior days after Lessor's service of the notice of termination referred to in Section 5.3(a) or (b) or the Lease Termination DateLessor's denial of -------------- --- authorization to remediate any Construction Force Majeure Event under Section ------- 3.4, each Lessee the Construction Agent shall deliver to the Lessor and the Agent an --- environmental assessment of each such Leased Property leased by it dated not later earlier than forty-forty- five (45) days prior to the Lease Termination Datedate of delivery thereof. Such environmental assessment shall be prepared by an environmental consultant selected by Lessees and reasonably acceptable to the AgentRequired Funding Parties, shall be in form, detail and substance reasonably satisfactory to the AgentRequired Funding Parties, and shall otherwise indicate no material adverse change in the environmental condition of each such Leased Property from that to be the same as described in the related Environmental Audit.
(c) On the date of ▇▇▇▇ Furniture's notice to Lessor and the The Construction Agent of the Lessees' exercise of the Remarketing Option, each of the Construction Conditions shall have been timely satisfied and no Event of Default or Potential Event of Default shall exist, and thereafter, no Event of Default or Potential Event of Default shall exist under this Lease.
(d) Each Lessee shall have completed all Alterations, restoration and rebuilding of the Leased Properties leased by it pursuant to Sections 6.1, ------------ 6.2, 10.3 and 10.4 (as the case may be) or shall provide reasonable --- ---- ---- assurances acceptable to Lessor that such Alterations will be completed within a reasonable period of time and shall have provided or shall provide reasonable assurances acceptable to Lessor that it will fulfill all of the conditions and requirements in connection therewith pursuant to said Sections, in each case within a reasonable period of time. --------
(e) Each Lessee shall promptly provide any maintenance records relating to each such Leased Property leased by it to the Lessor, the Agent and any potential purchaser upon request, and shall otherwise do all things reasonably necessary to deliver possession of such Leased Property to the potential purchaser. After reasonable prior notice, each Lessee The Construction Agent shall allow the Lessor, the Agent and any potential purchaser access to any Leased Property for the purpose of inspecting the same, provided that Lessor, Agent and such potential purchaser shall use best efforts not to disrupt Lessee's business.
(fd) On the Lease Termination ninetieth (90/th/) 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 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, each Lessee the Construction Agent shall surrender the such Leased Properties leased by it ----------- Property in accordance with Section 14.8 5.9 hereof, ------------ unless the Lease has been renewed pursuant to Section 14.9 or the Leased ------------ Properties have been purchased pursuant to Section 14.1 (it being ------------ understood that Lessee may change its position and exercise its option to purchase at any time prior to sale by Lessor to a third party).. -----------
(ge) In connection with any such sale of the Leased PropertiesProperty, each Lessee will the Construction Agent shall provide to the purchaser all customary "seller's" indemnities in favor of the purchaser (taking into account the location and nature of the Leased Properties and negotiations between Lessee, Lessor and the potential purchaserProperty), representations and warranties regarding title, absence of Liens (except Lessor Liens) and the condition of the Leased PropertiesProperty, including, without limitation, an environmental indemnity, which shall not extend beyond two years after the closing of such sale. Each Lessee The Construction Agent shall fulfill all of the requirements set forth in clause (b) ---------- of Section 14.514.5 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 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.
(hf) In connection with any such sale of such Leased PropertiesProperty, each Lessee the Construction Agent shall pay directly, and not from the sale proceedsproceeds of remarketing, all prorations, credits, costs and expenses of the sale of the Leased Properties leased by itProperty, whether incurred by the Lessor, any Lender, the Agent or such Lesseethe Construction Agent, including without limitation, the cost of all title insurance, surveyssurvey, environmental reportsreport, appraisalsappraisal, transfer taxes, the Lessor's and the Agent's attorneys' fees, such Lesseethe Construction Agent's attorneys' fees, commissions, escrow fees, recording fees, and all applicable documentary and other transfer taxes. To the extent the sum of gross sales proceeds, less the Recourse Deficiency Amount plus costs and expenses of sale, exceed the Lease Balance as of the date of sale, such sums shall be paid over to Lessee.
(ig) The Lessees, jointly and severally, Construction Agent shall pay to the Agent on immediately following the Lease Termination Date 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 Lessee ----------- Construction Agent in writing, or in the case of Supplemental Rent, to the Person entitled thereto) an amount equal to (i) in the Recourse Deficiency Amountcase of the exercise of remedies under Section 5.3(a) or a payment due under Section 3.4, plus all accrued and unpaid Basic Rent ---- and Supplemental Rentthe -------------- ----------- Construction Failure Payment, and all other amounts hereunder which have accrued prior to or as (ii) in the case of such datethe exercise of remedies under Section 5.3(b), the Permitted Lease Balance, 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. 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 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 ▇▇▇▇ Furniture, 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 costs and expenses (including broker fees, --------------- appraisal costs, legal fees and transfer taxes) actually and reasonably 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 ▇▇▇▇ Furniture on the Lease Termination Date. No Lessee shall have the right, power or authority to bind Lessor in connection with any proposed sale of the Leased Properties.3.3
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