Common use of Application of Sale Proceeds and Recourse Payments Clause in Contracts

Application of Sale Proceeds and Recourse Payments. (a) On the Return Date, in connection with the Lessee’s exercise of the Return Option, the Lessee shall pay to the Lessor all Rent then due together with all other amounts due and payable by the Lessee to the Lessor or any Indemnitee. The Lessee also shall cause to be paid to the Lessor, from the aggregate Sale Proceeds (after application of gross sale proceeds to payment of any deed or transfer tax thereon not paid by the purchaser thereof and payment or reimbursement to the Lessee and/or the Lessor for any costs or expenses incurred by the Lessee and/or the Lessor in connection with the actions required under Sections 22.1 and 22.2, excluding any provision thereof which expressly specifies that the Lessee’s costs shall not be reimbursable out of gross sale proceeds), the aggregate outstanding Break Even Price as of the Return Date (as determined after the payment of all Rent due on such date and application of all other payments hereunder by Lessee in accordance with Section 22.3(c) hereof). If the Sale Proceeds exceed the Break Even Price as of the Return Date, the Lessee shall retain or be entitled to receive the portion of the Sale Proceeds in excess thereof. If the Sale Proceeds are less than the aggregate outstanding Break Even Price, the Lessee shall pay or shall cause to be paid to the Lessor, as Supplemental Rent, on the Return Date, in addition to the Sale Proceeds, an additional amount equal to the lesser of (x) the amount that the Break Even Price exceeds the Sale Proceeds or, (y) provided no Default or Event of Default (other than an Event of Default that is declared solely and exclusively on the basis of one or more 97-1 Events of Default with respect to which the Lessor has not yet commenced exercising remedies) has occurred and is continuing, the Recourse Deficiency Amount. (b) The obligation of the Lessee to pay the amounts determined pursuant to Sections 22.3(a) and 22.4 shall be recourse obligations of the Lessee, and such payments by the Lessee shall not limit any other obligation of the Lessee under the Operative Documents, including pursuant to Article VII of the Participation Agreement. (c) If on any date the Lessor shall receive any amounts that constitute payment of the Recourse Deficiency Amount and any Sale Proceeds following Lessee’s election to return or deemed election to have returned the Leased Property at the Return Date, the Lessor shall apply such amounts in the following order of priority: first, to the Lessor, so much of such amount as is required to reimburse the Lessor for any fees, costs, expenses, Taxes or other loss incurred by it (to the extent not previously reimbursed); second, to the Lessor, so much of such amounts as are required to pay all expenses or fees incurred by the Lessor in connection therewith including Break Funding Amounts, if any; third, to the Lessor, so much of such amount as is required to pay all accrued Yield thereon; fourth, to the Lessor, so much of such amounts as are required to pay in full the outstanding amount of the Lease Balance; fifth, to the Lessor, so much of such amounts as are required to pay all outstanding obligations of Lessee pursuant to the Operative Documents including all indemnities due and payable; and sixth, to Lessee, the balance of such amount, if any.

Application of Sale Proceeds and Recourse Payments. (a) On the Return Date, in connection with the Lessee’s exercise of the Return Option, the Lessee shall pay to the Lessor all Rent then due together with all other amounts due and payable by the Lessee to the Lessor or any Indemnitee. The Lessee also shall cause to be paid to the Lessor, from the aggregate Sale Proceeds - Special Land Value (after application of gross sale proceeds to payment of any deed or transfer tax thereon not paid by the purchaser thereof and payment or reimbursement to the Lessee and/or the Lessor for any costs or expenses incurred by the Lessee and/or the Lessor in connection with the actions required under Sections 22.1 and 22.2, excluding any provision thereof which expressly specifies that the Lessee’s costs shall not be reimbursable out of gross sale proceeds), the aggregate outstanding Break Even Price - Special Land Value as of the Return Date (as determined after the payment of all Rent due on such date and application of all other payments hereunder by Lessee in accordance with Section 22.3(c) hereof). If the Sale Proceeds - Special Land Value exceed the Break Even Price - Special Land Value as of the Return Date, the Lessee shall retain or be entitled to receive the portion of the Sale Proceeds - Special Land Value in excess thereof. If the Sale Proceeds - Special Land Value are less than the aggregate outstanding Break Even PricePrice - Special Land Value, the Lessee shall pay or shall cause to be paid to the Lessor, as Supplemental Rent, on the Return Date, in addition to the Sale ProceedsProceeds - Special Land Value, an additional amount equal to the lesser of (A) the sum of (x) the amount that the Break Even Price (Improvements) exceeds the Sale Proceeds or, (Improvements) and (y) the amount that the Break Even Price (Land) exceeds the Sale Proceeds (Land) or (B) provided no Default or Event of Default (other than an Event of Default that is declared solely and exclusively on the basis of one or more 97-1 Events of Default with respect to which the Lessor has not yet commenced exercising remedies) has occurred and is continuing, the Recourse Deficiency Amount. (b) The obligation of the Lessee to pay the amounts determined pursuant to Sections 22.3(a) and 22.4 shall be recourse obligations of the Lessee, and such payments by the Lessee shall not limit any other obligation of the Lessee under the Operative Documents, including pursuant to Article VII of the Participation Agreement. (c) If on any date the Lessor shall receive any amounts that constitute payment of the Recourse Deficiency Amount and any Sale Proceeds following Lessee’s election to return or deemed election to have returned the Leased Property at the Return Date, the Lessor shall apply such amounts in the following order of priority: first, to the Lessor, so much of such amount as is required to reimburse the Lessor for any fees, costs, expenses, Taxes or other loss incurred by it (to the extent not previously reimbursed); second, to the Lessor, so much of such amounts as are required to pay all expenses or fees incurred by the Lessor in connection therewith including Break Funding Amounts, if any; third, to the Lessor, so much of such amount as is required to pay all accrued Yield thereon; fourth, to the Lessor, so much of such amounts as are required to pay in full the outstanding amount of the Lease Balance; fifth, to the Lessor, so much of such amounts as are required to pay all outstanding obligations of Lessee pursuant to the Operative Documents including all indemnities due and payable; and sixth, to Lessee, the balance of such amount, if any. (d) If the Lessee elects or is deemed to have elected the Return Option with respect to the Leased Property, at the time of such election, the Lessee and the Lessor shall use the Valuation Procedure (as defined below) to determine the ratio, expressed as a percentage, of the Fair Market Value of the Site at the time of such election, divided by the Fair Market Value of the Leased Property at such time (such percentage, the “Land Value Percentage” for the Leased Property; the “Improvements Value Percentage” for the Leased Property shall be 100% minus the Land Value Percentage). If the Leased Property is sold on the Return Date in accordance with the terms of Section 22.2, for purposes of calculating the Break Even Price (Improvements) and the Break Even Price (Land) set forth in Section 22.4(a)(i), the Lease Balance shall be allocated between the Site and Improvements by multiplying the then outstanding Lease Balance (the original Lease Balance minus any Qualified Prepayments) times (A) the Improvements Value Percentage for the Break Even Price (Improvements) calculation and (B) the Land Value Percentage for the Break Even Price (Land) calculation. For determining the ratio described above or for determining the Fair Market Value of the Leased Property or any other amount which may, pursuant to any provision of any Operative Document, be determined by an appraisal procedure, the Lessor and the Lessee shall use the following procedure (the “Valuation Procedure”). The Lessor and the Lessee shall endeavor to reach a mutual agreement as to such amount for a period of ten (10) days from commencement of the Valuation Procedure under the applicable section of this Lease and, if they cannot agree within ten (10) days, then the Lessor shall order a valuation to be issued by an independent, qualified appraiser or licensed broker with at least ten years of experience in the commercial real estate market or commercial mortgage loan market in and around Fremont, CA which shall promptly but within fifteen (15) days determine the Fair Market Value of the respective Leased Properties including an appraisal of the related Site and the Improvements. The fees and expenses of the appraiser appointed by the Lessor shall be paid by the Lessee.

Application of Sale Proceeds and Recourse Payments. ​ (a) On the Return Date, in connection with the Lessee’s exercise of the Return Option, the Lessee shall pay to the Lessor all Rent then due together with all other amounts due and payable by the Lessee to the Lessor or any Indemnitee. The Lessee also shall cause to be paid to the Lessor, from the aggregate Sale Proceeds (after application of gross sale proceeds to payment of any deed or transfer tax thereon to the extent not paid by the purchaser thereof and payment or reimbursement to the Lessee and/or Lessee, the Lessor and any other party (including a buyer or potential buyer) to the extent the Lessor and the Lessee have agreed to such payment for any costs or expenses incurred by the Lessee and/or ​ ​ ​ ​ Lessee, the Lessor or such other party in connection with the actions required under Sections 22.1 and 22.2this Article XXII, excluding any provision thereof of Article XXII which expressly specifies that the Lessee’s costs shall not be reimbursable out of gross sale proceeds), the aggregate outstanding Break Even Price Lease Balance as of the Return Date (as determined after the payment of all Rent due on such date and application of all other payments hereunder by Lessee in accordance with Section 22.3(c) hereofdate). If the Sale Proceeds exceed the Break Even Price Lease Balance as of the Return Date, the Lessee shall retain or be entitled to receive the portion of the Sale Proceeds in excess thereof. If the Sale Proceeds are less than the aggregate outstanding Break Even PriceLease Balance, the Lessee shall pay or shall cause to be paid to the Lessor, as Supplemental Rent, on the Return Date, in addition to the Sale Proceeds, an additional amount (the “Deficiency”) equal to the lesser of (x) the amount that the Break Even Price Lease Balance exceeds the Sale Proceeds or, (y) provided no Default or Event of Default is continuing (other than an Event of Default that in which case, this clause (y) will not apply and the Lessee shall be responsible for the Lease Balance (and, in the case where the Lease Balance is declared solely and exclusively on the basis of one or more 97-1 Events of Default with respect to which paid, the Lessor has not yet commenced exercising remedies) has occurred and is continuingshall convey to the Lessee or its designee the Leased Property in accordance with Section 23.11)), the Return Price Recourse Deficiency Amount. (b) The obligation of the Lessee to pay the amounts determined pursuant to Sections 22.3(a) and 22.4 shall be recourse obligations of the Lessee, and such payments by the Lessee shall not limit any other obligation of the Lessee under the Operative Documents, including pursuant to Article VII of the Participation Agreement. (c) If on any date the Lessor shall receive any amounts that constitute payment of the Recourse Deficiency Amount and any Sale Proceeds following Lessee’s election to return or deemed election to have returned the Leased Property at the Return Date, the Lessor shall apply such amounts in the following order of priority: first, to the Lessor, so much of such amount as is required to reimburse the Lessor for any fees, costs, expenses, Taxes or other loss incurred by it (to the extent not previously reimbursed); second, to the Lessor, so much of such amounts as are required to pay all expenses or fees incurred by the Lessor in connection therewith including Break Funding Amounts, if any; third, to the Lessor, so much of such amount as is required to pay all accrued Yield thereon; fourth, to the Lessor, so much of such amounts as are required to pay in full the outstanding amount of the Lease Balance; fifth, to the Lessor, so much of such amounts as are required to pay all outstanding obligations of Lessee pursuant to the Operative Documents including all indemnities due and payable; and sixth, to Lessee, the balance of such amount, if any.

Application of Sale Proceeds and Recourse Payments. (a) On the Return Date, in connection with the Lessee’s exercise of the Return Option, the Lessee shall pay to the Lessor all Rent then due together with all other amounts due and payable by the Lessee to the Lessor or any Indemnitee. The Lessee also shall cause to be paid to the Lessor, from the aggregate Sale Proceeds (after application of gross sale proceeds to payment of any deed or transfer tax thereon not paid by the purchaser thereof and payment or reimbursement to the Lessee and/or the Lessor for any costs or expenses incurred by the Lessee and/or the Lessor in connection with the actions required under Sections 22.1 and 22.2, excluding any provision thereof which expressly specifies that the Lessee’s costs shall not be reimbursable out of gross sale proceeds), the aggregate outstanding Break Even Price as of the Return Date (as determined after the payment of all Rent due on such date and application of all other payments hereunder by Lessee in accordance with Section 22.3(c) hereof). If the Sale Proceeds exceed the Break Even Price as of the Return Date, the Lessee shall retain or be entitled to receive the portion of the Sale Proceeds in excess thereof. If the Sale Proceeds are less than the aggregate outstanding Break Even Price, the Lessee shall pay or shall cause to be paid to the Lessor, as Supplemental Rent, on the Return Date, in addition to the Sale Proceeds, an additional amount equal to the lesser of (x) the amount that the Break Even Price exceeds the Sale Proceeds or, (y) provided no Default or Event of Default (other than an Event of Default that is declared solely and exclusively on the basis of one or more 97-1 Events of Default with respect to which the Lessor has not yet commenced exercising remedies) has occurred and is continuing, the Recourse Deficiency Amount. (b) The obligation of the Lessee to pay the amounts determined pursuant to Sections 22.3(a) and 22.4 shall be recourse obligations of the Lessee, and such payments by the Lessee shall not limit any other obligation of the Lessee under the Operative Documents, including pursuant to Article VII of the Participation Agreement. (c) If on any date the Lessor shall receive any amounts that constitute payment of the Recourse Deficiency Amount and any Sale Proceeds following Lessee’s election to return or deemed election to have returned the Leased Property at the Return Date, the Lessor shall apply such amounts in the following order of priority: first, to the Lessor, so much of such amount as is required to reimburse the Lessor for any fees, costs, expenses, Taxes or other loss incurred by it (to the extent not previously reimbursed); second, to the Lessor, so much of such amounts as are required to pay all expenses or fees incurred by the Lessor in connection therewith including Break Funding Amounts, if any; third, to the Lessee, an amount equal to the lesser of the Force Majeure Losses and the amount paid by the Lessee pursuant to the last sentence of Section 22.3(a) above fourth, to the Lessor, so much of such amount as is required to pay all accrued Yield thereon; fourthfifth, to the Lessor, so much of such amounts as are required to pay in full the outstanding amount of the Lease Balance; fifthsixth, to the Lessor, so much of such amounts as are required to pay all outstanding obligations of Lessee pursuant to the Operative Documents including all indemnities due and payable; and sixthseventh, to Lessee, the balance of such amount, if any.

Application of Sale Proceeds and Recourse Payments. (a) On the Return Date, in connection with the Lessee’s exercise of the Return Option, the Lessee shall pay to the Lessor all Rent then due together with all other amounts due and payable by the Lessee to the Lessor or any Indemnitee. The Lessee also shall cause to be paid to the Lessor, from the aggregate Sale Proceeds (after application of gross sale proceeds to payment of any deed or transfer tax thereon to the extent not paid by the purchaser thereof and payment or reimbursement to the Lessee and/or Lessee, the Lessor and any other party (including a buyer or potential buyer) to the extent the Lessor and the Lessee have agreed to such payment for any costs or expenses incurred by the Lessee and/or Lessee, the Lessor or such other party in connection with the actions required under Sections 22.1 and 22.2this Article XXII, excluding any provision thereof of Article XXII which expressly specifies that the Lessee’s costs shall not be reimbursable out of gross sale proceeds), the aggregate outstanding Break Even Price Lease Balance as of the Return Date (as determined after the payment of all Rent due on such date and application of all other payments hereunder by Lessee in accordance with Section 22.3(c) hereofdate). If the Sale Proceeds exceed the Break Even Price Lease Balance as of the Return Date, the Lessee shall retain or be entitled to receive the portion of the Sale Proceeds in excess thereof. If the Sale Proceeds are less than the aggregate outstanding Break Even PriceLease Balance, the Lessee shall pay or shall cause to be paid to the Lessor, as Supplemental Rent, on the Return Date, in addition to the Sale Proceeds, an additional amount (the “Deficiency”) equal to the lesser of (x) the amount that the Break Even Price Lease Balance exceeds the Sale Proceeds or, (y) provided no Default or Event of Default is continuing (other than an Event of Default that in which case, this clause (y) will not apply and the Lessee shall be responsible for the Lease Balance (and, in the case where the Lease Balance is declared solely and exclusively on the basis of one or more 97-1 Events of Default with respect to which paid, the Lessor has not yet commenced exercising remedies) has occurred and is continuingshall convey to the Lessee or its designee the Leased Property in accordance with Section 23.11)), the Return Price Recourse Deficiency Amount. (b) The obligation of the Lessee to pay the amounts determined pursuant to Sections 22.3(a) and 22.4 shall be recourse obligations of the Lessee, and such payments by the Lessee shall not limit any other obligation of the Lessee under the Operative Documents, including pursuant to Article VII of the Participation Agreement. (c) If on any date the Lessor shall receive any amounts that constitute payment of the Recourse Deficiency Amount and any Sale Proceeds following Lessee’s election to return or deemed election to have returned the Leased Property at the Return Date, the Lessor shall apply such amounts in the following order of priority: first, to the Lessor, so much of such amount as is required to reimburse the Lessor for any fees, costs, expenses, Taxes or other loss incurred by it (to the extent not previously reimbursed); second, to the Lessor, so much of such amounts as are required to pay all expenses or fees incurred by the Lessor in connection therewith including Break Funding Amounts, if any; third, to the Lessor, so much of such amount as is required to pay all accrued Yield thereon; fourth, to the Lessor, so much of such amounts as are required to pay in full the outstanding amount of the Lease Balance; fifth, to the Lessor, so much of such amounts as are required to pay all outstanding obligations of Lessee pursuant to the Operative Documents including all indemnities due and payable; and sixth, to Lessee, the balance of such amount, if any.