Lessee’s Right to Terminate. (a) So long as the Lessee can satisfy the Termination Conditions, the Lessee shall have the right, upon eighteen (18) months' notice to the Lessor (the "Termination Notice"), to terminate the lease of the Project as a whole (i) on the last day of the Initial Term or (ii) on the last day of any Extended Term or Renewal Term (either of such dates as identified in the Termination Notice being hereinafter called the "Termination Date"), by arranging, at its own cost and expense, for the sale of the Project in an arm's-length transaction on the Termination Date and the receipt by the Lessor of cash in an amount equal to the sale price of the Project (the "Cash Proceeds"). In the event the Lessee has given a Termination Notice pursuant to this paragraph (a) and has failed to arrange for the sale of the Project in an arm's-length transaction on the last day of the Initial Term pursuant to paragraph (b) of this Section 12, or on the last day of any Extended Term or Renewal Term pursuant to paragraph (c) of this Section 12, the Cash Proceeds shall be deemed to be $1. In the event the Lessee is unable to satisfy the Termination Conditions on the Termination Date, the Lessee shall not terminate this Lease pursuant to this paragraph (a), and the Lessee shall purchase the Project as provided in paragraph (e) of Section 13 hereof, unless the Lessee has obtained the prior written consent of the Lessor and Assignee to such termination of this Lease and the sale of the Project. In addition, if the Lessee has given a Termination Notice and an Event of Default occurs, the Termination Notice shall be invalidated and the Lessee shall no longer have the right to cause the termination of the lease of the Project and sale of the Project to its designee in accordance with the terms of this paragraph (a). At the time the Project is sold pursuant to this Section 12, the Lessor shall deliver the documents described in paragraph (h) of Section 29 hereof, and the Lessor's rights and obligations in respect of the Ground Lease, the Easements, the EPC Contract and any other Project Contract to which the Lessor is a party, shall be assumed by the purchaser, with the Lessor released from liability in respect thereof. In addition, (i) the Lessee shall assign (or if not legally assignable, cooperate and assist to the extent necessary or required in the transfer or reissuance thereof) to the purchaser, at no cost, all right, title and interest of the Lessee in, to and under all Governmental Actions and Intellectual Property Rights needed for the equipping, maintenance, operation or use of the Project and obtained and held by the Lessee at that time, (ii) the Lessee shall assign to the purchaser, at no cost, and the purchaser shall assume, all right, title and interest of the Lessee in, to and under the Project Contracts, and in the event any additional consent of any party to a Project Contract is required as a precondition thereunder to an assignment to any such non-foreclosure purchaser designated by the Lessee, to use its best efforts to obtain any such required consent to such proposed non-foreclosure assignment and assumption of the Project Contracts, (iii) the Lessee shall assign to the purchaser, at no cost, all right, title and interest of the Lessee in, to and under all service agreements in existence at that time in connection with the equipping, maintenance, operation or use of the Project, and (iv) as a condition to such sale, the purchaser shall be entitled to succeed to the Lessor's rights and obligations under the Facility Support Agreement. In the event the Lessee fails to obtain any consents required in clause (ii) of the immediately preceding sentence, at the request of such purchaser, the Lessee shall agree to (1) at the expense of such purchaser, continue to perform under and maintain in full force and effect the Project Contracts and pay all sums received under the Project Contracts to such purchaser, (2) at the expense of such purchaser, and subject to the receipt of indemnification reasonably acceptable to the Lessee, take all actions requested by such purchaser with respect to such Project Contracts (including all actions with respect to the enforcement of the Lessee's rights and remedies under such Project Contracts), and (3) not amend, modify, supplement, waive a provision of, grant any consent under or terminate any such Project Contract without the prior written consent of such purchaser. (b) In the event the Lessee exercises its right to terminate the lease of the Project pursuant to this Section 12 on the last day of the Initial Term, or in the event a termination of the lease of the Project occurs pursuant to paragraph (a) of Section 14 hereof on or before the last day of the Initial Term and the Lessee chooses to effect a sale pursuant to this Section 12: (i) if the Cash Proceeds (or deemed proceeds) are greater than the Adjusted Acquisition Cost, the Lessor shall pay to the Lessee the amount by which such Cash Proceeds exceed the Adjusted Acquisition Cost; (ii) if the Cash Proceeds (or deemed proceeds) are equal to the Adjusted Acquisition Cost, no additional payments shall be required under this clause (ii); and (iii) if the Cash Proceeds (or deemed proceeds) are less than the Adjusted Acquisition Cost (the difference being the "Section 12(b) Shortfall"), the Lessee shall pay to the Lessor an amount equal to the sum of (A) the lesser of (1) the Section 12(b) Shortfall and (2) 83.5% of the Adjusted Acquisition Cost plus (B) the amount by which the residual value of the Project has been reduced by wear and tear in excess of that attributable to normal and proper use (the amount of such excess wear and tear to be such amount as the Lessor and the Lessee agree, or if no agreement is reached, the amount determined pursuant to the Appraisal Procedure). (c) In the event the Lessee exercises its right to terminate the lease of the Project pursuant to this Section 12 on the last day of any Extended Term or any Renewal Term, or in the event a termination of the lease of the Project occurs pursuant to paragraph (a) of Section 14 hereof, or in the event the Lessee exercises its option under paragraph (e) of Section 13 to arrange for the Project to be sold (or if a sale shall be deemed to occur pursuant to such Section 13(e)), and the date on which such termination occurs is during any Extended Term or any Renewal Term and the Lessee chooses to effect a sale pursuant to this Section 12: (i) if the Cash Proceeds (or deemed proceeds) are greater than the Adjusted Acquisition Cost, the Lessor shall pay to the Lessee the amount by which such Cash Proceeds exceed the Adjusted Acquisition Cost; (ii) if the Cash Proceeds (or deemed proceeds) are equal to the Adjusted Acquisition Cost, no additional payments shall be required under this clause (ii); and (iii) if the Cash Proceeds (or deemed proceeds) are less than the Adjusted Acquisition Cost (the difference being the "Section 12(c) Shortfall"), the Lessee shall pay to the Lessor an amount equal to the sum of (A) the lesser of (1) the Section 12(c) Shortfall and (2) 83.5% of the Adjusted Acquisition Cost plus (B) the amount by which the residual value of the Project has been reduced by wear and tear in excess of that attributable to normal and proper use (the amount of such excess wear and tear to be such amount as the Lessor and the Lessee agree, or if no agreement is reached, the amount determined pursuant to the Appraisal Procedure. (d) All payments and credits referred to in paragraphs (b) and (c) above shall be made on the Termination Date of the Project pursuant to this Section 12, and the parties shall account to each other for such payments and credits, and the Lessee shall pay to the Lessor (i) all Basic Rent payable through the date of termination of this Lease, (ii) the Variable Component of Basic Rent accrued through the date of termination of this Lease, (iii) any Additional Rent owing, (iv) all amounts payable pursuant to Sections 11, 24 and 26 hereof, (v) all losses, damages, costs and expenses (including, without limitation, attorneys' fees and expenses, commissions, filing fees and sales or transfer taxes) sustained by the Lessor by reason of such sale, and (vi) all other amounts owing hereunder (after taking into account the application under the Financing Arrangements of such purchase price and other payments hereunder), each as of the Termination Date. Upon indefeasible receipt by the Lessor of the Cash Proceeds and all other amounts then due and owing hereunder, including, without limitation, the amount of excess wear and tear determined pursuant to paragraph (b)(iii) or (c)(iii) of Section 12, as the case may be, the Lessor shall transfer its interest in the Project to the purchaser at the sale designated by the Lessee. The "Cash Proceeds" referred to in paragraphs (b) and (c) of this Section 12 shall mean the cash proceeds (or deemed proceeds) of sale without reduction for any amounts paid by the Lessee. In the event of a sale pursuant to this Section 12, neither the Lessee nor any Affiliate of the Lessee shall purchase the Project.
Appears in 1 contract
Lessee’s Right to Terminate. Lessee may terminate an Addendum, at ---------------------------- its option, after giving not less than thirty (30) days' written notice to Lessor, if:
(a) So long as the Lessee can satisfy the Termination ConditionsThe approval of or issuance of a license or permit by any agency, the Lessee shall have the rightboard, upon eighteen (18) months' notice to the Lessor (the "Termination Notice")court, to terminate the lease of the Project as a whole (i) on the last day of the Initial Term or (ii) on the last day of any Extended Term or Renewal Term (either of such dates as identified in the Termination Notice being hereinafter called the "Termination Date"), by arranging, at its own cost and expense, other governmental authority necessary for the sale construction and/or operation of Lessee's Facilities as now or hereafter intended by Lessee cannot be obtained, or is revoked through no fault of Lessee, or if Lessee determines in its sole discretion that the Project in an arm's-length transaction on the Termination Date and the receipt by the Lessor cost of cash in an amount equal to the sale price of the Project (the "Cash Proceeds"). In the event the Lessee has given a Termination Notice pursuant to this paragraph (a) and has failed to arrange for the sale of the Project in an arm's-length transaction on the last day of the Initial Term pursuant to paragraph obtaining or retaining any such permit or approval is unreasonable;
(b) of this Section 12, Lessee determines that technical problems or radio interference problems from other antennas on the last day of any Extended Term Tower at the Commencement Date or Renewal Term pursuant to paragraph from nearby radio transmitting facilities, which problems cannot reasonably be corrected, preclude Lessee from using the Premises for its intended purpose;
(c) Lessee determines it does not have acceptable and legally enforceable means of this ingress and egress to and from the Premises;
(d) Utilities necessary for Lessee's use of the Premises are not reasonably available;
(e) The Premises are damaged, destroyed, condemned or taken by eminent domain, to an extent which prohibits or materially interferes with Lessee's use of the Premises; or
(f) The relocation of Lessee's Facilities pursuant to Section 1210 is unacceptable to Lessee. Except as otherwise provided herein, the Cash Proceeds shall be deemed to be $1. In the event the Lessee is unable to satisfy the Termination Conditions on the Termination Date, the Lessee shall not terminate upon termination of this Lease pursuant to this paragraph (a)Section, the parties shall be released from all duties, obligations, liabilities and the Lessee shall purchase the Project as provided in paragraph (e) of Section 13 hereof, unless the Lessee has obtained the prior written consent of the Lessor and Assignee to such termination of responsibilities under this Lease and except for obligations to pay damages to the sale of the Project. In additionother party, if the Lessee has given a Termination Notice and an Event of Default occursany, the Termination Notice shall be invalidated and the Lessee shall no longer have the right Lessee's obligation to cause the termination of the lease of the Project and sale of the Project to remove its designee in accordance with the terms of this paragraph (a). At the time the Project is sold pursuant to this Section 12, the Lessor shall deliver the documents described in paragraph (h) of Section 29 hereof, and the Lessor's rights and obligations in respect of the Ground Lease, the Easements, the EPC Contract and any other Project Contract to which the Lessor is a party, shall be assumed by the purchaser, with the Lessor released from liability in respect thereof. In addition, (i) the Lessee shall assign (or if not legally assignable, cooperate and assist to the extent necessary or Facilities as required in the transfer or reissuance thereof) to the purchaser, at no cost, all right, title and interest of the Lessee in, to and under all Governmental Actions and Intellectual Property Rights needed for the equipping, maintenance, operation or use of the Project and obtained and held by the Lessee at that time, (ii) the Lessee shall assign to the purchaser, at no cost, and the purchaser shall assume, all right, title and interest of the Lessee in, to and under the Project Contractsherein, and in the event any additional consent of any party to a Project Contract is required as a precondition thereunder to an assignment to any such non-foreclosure purchaser designated by the Lessee, to use its best efforts to obtain any such required consent to such proposed non-foreclosure assignment and assumption of the Project Contracts, (iii) the Lessee shall assign to the purchaser, at no cost, all right, title and interest of the Lessee in, to and under all service agreements in existence at that time in connection with the equipping, maintenance, operation or use of the Project, and (iv) as a condition to such sale, the purchaser shall be entitled to succeed to the Lessor's rights and obligations under the Facility Support Agreement. In the event the default, Lessor's obligation to return to Lessee fails any unaccrued rent paid to obtain any consents required in clause (ii) of the immediately preceding sentenceLessor prior to termination, at the request of such purchaser, the Lessee shall agree to (1) at the expense of such purchaser, continue to perform under and maintain in full force and effect the Project Contracts and pay all sums received under the Project Contracts to such purchaser, (2) at the expense of such purchaser, and subject to the receipt Lessor's right of indemnification reasonably acceptable to the Lessee, take all actions requested by such purchaser with respect to such Project Contracts (including all actions with respect to the enforcement of the Lessee's rights and remedies under such Project Contracts), and (3) not amend, modify, supplement, waive a provision of, grant any consent under or terminate any such Project Contract without the prior written consent of such purchaserset-off.
(b) In the event the Lessee exercises its right to terminate the lease of the Project pursuant to this Section 12 on the last day of the Initial Term, or in the event a termination of the lease of the Project occurs pursuant to paragraph (a) of Section 14 hereof on or before the last day of the Initial Term and the Lessee chooses to effect a sale pursuant to this Section 12:
(i) if the Cash Proceeds (or deemed proceeds) are greater than the Adjusted Acquisition Cost, the Lessor shall pay to the Lessee the amount by which such Cash Proceeds exceed the Adjusted Acquisition Cost;
(ii) if the Cash Proceeds (or deemed proceeds) are equal to the Adjusted Acquisition Cost, no additional payments shall be required under this clause (ii); and
(iii) if the Cash Proceeds (or deemed proceeds) are less than the Adjusted Acquisition Cost (the difference being the "Section 12(b) Shortfall"), the Lessee shall pay to the Lessor an amount equal to the sum of (A) the lesser of (1) the Section 12(b) Shortfall and (2) 83.5% of the Adjusted Acquisition Cost plus (B) the amount by which the residual value of the Project has been reduced by wear and tear in excess of that attributable to normal and proper use (the amount of such excess wear and tear to be such amount as the Lessor and the Lessee agree, or if no agreement is reached, the amount determined pursuant to the Appraisal Procedure).
(c) In the event the Lessee exercises its right to terminate the lease of the Project pursuant to this Section 12 on the last day of any Extended Term or any Renewal Term, or in the event a termination of the lease of the Project occurs pursuant to paragraph (a) of Section 14 hereof, or in the event the Lessee exercises its option under paragraph (e) of Section 13 to arrange for the Project to be sold (or if a sale shall be deemed to occur pursuant to such Section 13(e)), and the date on which such termination occurs is during any Extended Term or any Renewal Term and the Lessee chooses to effect a sale pursuant to this Section 12:
(i) if the Cash Proceeds (or deemed proceeds) are greater than the Adjusted Acquisition Cost, the Lessor shall pay to the Lessee the amount by which such Cash Proceeds exceed the Adjusted Acquisition Cost;
(ii) if the Cash Proceeds (or deemed proceeds) are equal to the Adjusted Acquisition Cost, no additional payments shall be required under this clause (ii); and
(iii) if the Cash Proceeds (or deemed proceeds) are less than the Adjusted Acquisition Cost (the difference being the "Section 12(c) Shortfall"), the Lessee shall pay to the Lessor an amount equal to the sum of (A) the lesser of (1) the Section 12(c) Shortfall and (2) 83.5% of the Adjusted Acquisition Cost plus (B) the amount by which the residual value of the Project has been reduced by wear and tear in excess of that attributable to normal and proper use (the amount of such excess wear and tear to be such amount as the Lessor and the Lessee agree, or if no agreement is reached, the amount determined pursuant to the Appraisal Procedure.
(d) All payments and credits referred to in paragraphs (b) and (c) above shall be made on the Termination Date of the Project pursuant to this Section 12, and the parties shall account to each other for such payments and credits, and the Lessee shall pay to the Lessor (i) all Basic Rent payable through the date of termination of this Lease, (ii) the Variable Component of Basic Rent accrued through the date of termination of this Lease, (iii) any Additional Rent owing, (iv) all amounts payable pursuant to Sections 11, 24 and 26 hereof, (v) all losses, damages, costs and expenses (including, without limitation, attorneys' fees and expenses, commissions, filing fees and sales or transfer taxes) sustained by the Lessor by reason of such sale, and (vi) all other amounts owing hereunder (after taking into account the application under the Financing Arrangements of such purchase price and other payments hereunder), each as of the Termination Date. Upon indefeasible receipt by the Lessor of the Cash Proceeds and all other amounts then due and owing hereunder, including, without limitation, the amount of excess wear and tear determined pursuant to paragraph (b)(iii) or (c)(iii) of Section 12, as the case may be, the Lessor shall transfer its interest in the Project to the purchaser at the sale designated by the Lessee. The "Cash Proceeds" referred to in paragraphs (b) and (c) of this Section 12 shall mean the cash proceeds (or deemed proceeds) of sale without reduction for any amounts paid by the Lessee. In the event of a sale pursuant to this Section 12, neither the Lessee nor any Affiliate of the Lessee shall purchase the Project.
Appears in 1 contract
Samples: Multiple Site Tower Attachment Lease Agreement (Triton Management Co Inc)
Lessee’s Right to Terminate. (a) So long as the Lessee can satisfy the Termination Conditionsno Event of Default has occurred and is continuing and with respect to any Parcel of Property not undergoing any repairs, additions or alterations, the Lessee shall have the right, upon eighteen ninety (1890) monthsdays' notice to the Lessor (the "Termination Notice")Lessor, to terminate the lease of the Project as a whole (i) any Parcel of Property or any or all Units of Equipment on the Basic Rent Payment Date of the last day month of the Initial Term or (ii) on any Basic Rent Payment Date during the last day of any Extended Term or the Renewal Term (either of such dates as identified in the Termination Notice being hereinafter called the "Termination Date")Term, if any, by arranging, at its own cost and expense, for the sale of the Project such Property or Equipment in an arm's-arms' length transaction on the Termination Date date of termination and the receipt by the Lessor of cash in an amount equal to the sale price of the Project such Property or Equipment (the "Cash Proceeds"); provided that, if such sale does not occur, this Lease shall not terminate with respect to such Property and Equipment. In the event the Lessee has given a Termination Notice The lease of Pork Production Facility Equipment may be terminated pursuant to this paragraph (a) and has failed Section 12 only in conjunction with a termination pursuant to arrange for the sale this Section 12 of the Project in an arm's-length transaction on the last day lease of the Initial Term Pork Production Facility at which such Pork Production Facility Equipment is used, or is to be used, and conversely, upon the termination pursuant to paragraph (b) this Section 12 of the lease of a Pork Production Facility, the lease of all of the Pork Production Facility Equipment used, or to be used, in such Pork Production Facility must be terminated pursuant to this Section 12 concurrently therewith. For purposes of this Section 12, or on in connection with the last day sale of any Extended Term or Renewal Term a Pork Production Facility and the related Pork Production Facility Equipment, the term "Cash Proceeds" shall mean the aggregate cash proceeds from the sale of such Pork Production Facility and Pork Production Facility Equipment and "Adjusted Acquisition Cost" shall mean the aggregate of the Adjusted Acquisition Costs of the Pork Production Facility and the Pork Production Facility Equipment being sold pursuant to paragraph (c) this Section 12. The lease of Poultry Production Facility Equipment may be terminated pursuant to this Section 12 only in conjunction with a termination pursuant to this Section 12 of the lease of the Poultry Production Facility at which such Poultry Production Facility Equipment is used, or is to be used, and conversely, upon the termination pursuant to this Section 12 of the lease of a Poultry Production Facility, the lease of all of the Poultry Production Facility Equipment used, or to be used, in such Poultry Production Facility must be terminated pursuant to this Section 12 concurrently therewith. For purposes of this Section 12, in connection with the Cash Proceeds shall be deemed to be $1. In sale of a Poultry Production Facility and the event the Lessee is unable to satisfy the Termination Conditions on the Termination Daterelated Poultry Production Facility Equipment, the Lessee term "Cash Proceeds" shall not terminate this Lease mean the aggregate cash proceeds from the sale of such Poultry Production Facility and Poultry Production Facility Equipment and "Adjusted Acquisition Cost" shall mean the aggregate of the Adjusted Acquisition Costs of the Poultry Production Facility and the Poultry Production Facility Equipment being sold pursuant to this paragraph (a), and the Lessee shall purchase the Project as provided in paragraph (e) of Section 13 hereof, unless the Lessee has obtained the prior written consent of the Lessor and Assignee to such termination of this Lease and the sale of the Project. In addition, if the Lessee has given a Termination Notice and an Event of Default occurs, the Termination Notice shall be invalidated and the Lessee shall no longer have the right to cause the termination of the lease of the Project and sale of the Project to its designee in accordance with the terms of this paragraph (a)12. At the time the Project a Parcel of Property or Unit of Equipment is sold pursuant to this Section 12, the Lessor shall deliver the documents described in paragraph (h) of Section 29 hereof, and the Lessor's rights and obligations in respect of the Ground Lease, the Easements, the EPC Contract and any other Project Contract to which the Lessor is a party, such Parcel or Unit shall be assumed by the purchaser, in compliance with the Lessor released from liability in respect thereof. In addition, (i) the Lessee all Legal Requirements and shall assign (or if not legally assignable, cooperate and assist to the extent necessary or required in the transfer or reissuance thereof) to the purchaser, at no cost, all right, title and interest of the Lessee in, to and under all Governmental Actions and Intellectual Property Rights needed for the equipping, maintenance, operation or use of the Project and obtained and held by the Lessee at that time, (ii) the Lessee shall assign to the purchaser, at no cost, and the purchaser shall assume, all right, title and interest of the Lessee in, to and under the Project Contracts, and in the event any additional consent of any party to a Project Contract is required as a precondition thereunder to an assignment be subject to any such non-foreclosure purchaser designated by the Lessee, to use its best efforts to obtain any such required consent to such proposed non-foreclosure assignment and assumption of the Project Contracts, (iii) the Lessee shall assign to the purchaser, at no cost, all right, title and interest of the Lessee in, to and under all service agreements in existence at that time in connection with the equipping, maintenance, operation or use of the Project, and (iv) as a condition to such sale, the purchaser shall be entitled to succeed to the Lessor's rights and obligations under the Facility Support Agreement. In the event the Lessee fails to obtain any consents required in clause (ii) of the immediately preceding sentence, at the request of such purchaser, the Lessee shall agree to (1) at the expense of such purchaser, continue to perform under and maintain in full force and effect the Project Contracts and pay all sums received under the Project Contracts to such purchaser, (2) at the expense of such purchaser, and subject to the receipt of indemnification reasonably acceptable to the Lessee, take all actions requested by such purchaser with respect to such Project Contracts (including all actions with respect to the enforcement of the Lessee's rights and remedies under such Project Contracts), and (3) not amend, modify, supplement, waive a provision of, grant any consent under or terminate any such Project Contract without the prior written consent of such purchaser.
(b) In the event the Lessee exercises its right to terminate the lease of the Project pursuant to this Section 12 on the last day of the Initial Term, or in the event a termination of the lease of the Project occurs pursuant to paragraph (a) of Section 14 hereof on or before the last day of the Initial Term and the Lessee chooses to effect a sale pursuant to this Section 12:
(i) if the Cash Proceeds (or deemed proceeds) are greater than the Adjusted Acquisition Cost, the Lessor shall pay to the Lessee the amount by which such Cash Proceeds exceed the Adjusted Acquisition Cost;
(ii) if the Cash Proceeds (or deemed proceeds) are equal to the Adjusted Acquisition Cost, no additional payments shall be required under this clause (ii); and
(iii) if the Cash Proceeds (or deemed proceeds) are less than the Adjusted Acquisition Cost (the difference being the "Section 12(b) Shortfall"), the Lessee shall pay to the Lessor an amount equal to the sum of (A) the lesser of (1) the Section 12(b) Shortfall and (2) 83.5% of the Adjusted Acquisition Cost plus (B) the amount by which the residual value of the Project has been reduced by wear and tear in excess of that attributable to normal and proper use (the amount of such excess wear and tear to be such amount as the Lessor and the Lessee agree, or if no agreement is reached, the amount determined pursuant to the Appraisal Procedure).
(c) In the event the Lessee exercises its right to terminate the lease of the Project pursuant to this Section 12 on the last day of any Extended Term Permitted Contest or any Renewal Term, or in the event a termination of the lease of the Project occurs pursuant to paragraph (a) of Section 14 hereof, or in the event the Lessee exercises its option under paragraph (e) of Section 13 to arrange for the Project to be sold (or if a sale shall be deemed to occur pursuant to such Section 13(e)), and the date on which such termination occurs is during any Extended Term or any Renewal Term and the Lessee chooses to effect a sale pursuant to this Section 12:
(i) if the Cash Proceeds (or deemed proceeds) are greater than the Adjusted Acquisition Cost, the Lessor shall pay to the Lessee the amount by which such Cash Proceeds exceed the Adjusted Acquisition Cost;
(ii) if the Cash Proceeds (or deemed proceeds) are equal to the Adjusted Acquisition Cost, no additional payments shall be required under this clause (ii); and
(iii) if the Cash Proceeds (or deemed proceeds) are less than the Adjusted Acquisition Cost (the difference being the "Section 12(c) Shortfall"), the Lessee shall pay to the Lessor an amount equal to the sum of (A) the lesser of (1) the Section 12(c) Shortfall and (2) 83.5% of the Adjusted Acquisition Cost plus (B) the amount by which the residual value of the Project has been reduced by wear and tear in excess of that attributable to normal and proper use (the amount of such excess wear and tear to be such amount as the Lessor and the Lessee agree, or if no agreement is reached, the amount determined pursuant to the Appraisal ProcedureLien.
(d) All payments and credits referred to in paragraphs (b) and (c) above shall be made on the Termination Date of the Project pursuant to this Section 12, and the parties shall account to each other for such payments and credits, and the Lessee shall pay to the Lessor (i) all Basic Rent payable through the date of termination of this Lease, (ii) the Variable Component of Basic Rent accrued through the date of termination of this Lease, (iii) any Additional Rent owing, (iv) all amounts payable pursuant to Sections 11, 24 and 26 hereof, (v) all losses, damages, costs and expenses (including, without limitation, attorneys' fees and expenses, commissions, filing fees and sales or transfer taxes) sustained by the Lessor by reason of such sale, and (vi) all other amounts owing hereunder (after taking into account the application under the Financing Arrangements of such purchase price and other payments hereunder), each as of the Termination Date. Upon indefeasible receipt by the Lessor of the Cash Proceeds and all other amounts then due and owing hereunder, including, without limitation, the amount of excess wear and tear determined pursuant to paragraph (b)(iii) or (c)(iii) of Section 12, as the case may be, the Lessor shall transfer its interest in the Project to the purchaser at the sale designated by the Lessee. The "Cash Proceeds" referred to in paragraphs (b) and (c) of this Section 12 shall mean the cash proceeds (or deemed proceeds) of sale without reduction for any amounts paid by the Lessee. In the event of a sale pursuant to this Section 12, neither the Lessee nor any Affiliate of the Lessee shall purchase the Project.
Appears in 1 contract
Samples: Lease Agreement (Seaboard Corp /De/)
Lessee’s Right to Terminate. (a) So long as the Lessee can satisfy the Termination ConditionsCovenants, the Lessee shall have the right, upon eighteen (18) months' irrevocable notice (the "TERMINATION NOTICE") to the Lessor (which notice shall indicate if the "Termination Notice"Lessee will cause the Guarantor to assume the outstanding indebtedness of the Lessor under its Financing Arrangements pursuant to the terms of paragraph (d) of this Section 12 at the end of the Initial Term), to terminate the lease of the Project as a whole (i) on the last day of the last month of the Initial Term or the Extended Term or (ii) on any Basic Rent Payment Date during the last day of any Extended Term or Renewal Term (either of such dates as identified in the Termination Notice being hereinafter called the "Termination Date")Term, by arranging, at its own cost and expense, for the sale of the Project in an arm's-length transaction on the Termination Date date of termination and the indefeasible receipt by the Lessor of cash in an amount equal to the sale price of the Project (the "Cash ProceedsCASH PROCEEDS"). In the event the Lessee has given a Termination Notice pursuant to this paragraph (a) and has failed to arrange for the sale of the Project in an arm's-length transaction on the last day of the Initial Term pursuant to paragraph (b) of this Section 12, or on the last day of any Extended Term or Renewal Term pursuant to paragraph (c) of this Section 12, the Cash Proceeds shall be deemed to be $1. In the event the Lessee is unable to satisfy the Termination Conditions on the Termination DateCovenants, the Lessee shall not terminate this Lease pursuant to this paragraph (a), and the Lessee shall purchase the Project as provided in paragraph (e) of Section 13 hereof, unless the Lessee has obtained the prior written consent of the Lessor and Assignee to such termination of this Lease and the sale of the Project. In addition, if the Lessee has given a Termination Notice and an Event of Default occursor Termination Event has occurred and is continuing, and, prior to the termination of this Lease pursuant to this paragraph (a), the Lessor arranges for the sale of the Project to a third party purchaser, the Termination Notice shall be invalidated and the Lessee shall no longer have the right to cause the termination of the lease of the Project and sale of the Project to its designee in accordance with the terms of this paragraph (a). At the time the Project is sold pursuant to this Section 12, the Lessor shall deliver the documents described in paragraph (hi) of Section 29 hereof, and the Lessor's rights and obligations in respect of the Ground Lease, the Easements, the EPC Contract and any other Project Contract to which the Lessor is a party, shall be assumed by the purchaser, with the Lessor released from liability in respect thereof. In addition, (i) the Lessee shall assign (or if not legally assignable, cooperate and assist to the extent necessary or required in the transfer or reissuance thereof) to the purchaser, at no cost, all right, title and interest of the Lessee in, to and under all Governmental Actions and Intellectual Property Rights needed for the THIS LEASE AGREEMENT IS CONFIDENTIAL AND PROPRIETARY equipping, maintenance, operation or use of the Project and obtained and held by the Lessee at that time, (ii) the Lessee shall assign to the purchaser, at no cost, and the purchaser shall assume, all right, title and interest of the Lessee in, to and under the Project Contracts, and in the event any additional consent of any party to a Project Contract is required as a precondition thereunder to an assignment to any such non-foreclosure purchaser designated by the Lessee, to use its best efforts to obtain any such required consent to such proposed non-foreclosure assignment and assumption of the Project Contracts, and (iii) the Lessee shall assign to the purchaser, at no cost, all right, title and interest of the Lessee in, to and under all service agreements in existence at that time in connection with the equipping, maintenance, operation or use of the Project, and (iv) as a condition to such sale, the purchaser shall be entitled to succeed to the Lessor's rights and obligations under the Facility Support Agreement. In the event the Lessee fails to obtain any consents required in clause (ii) of the immediately preceding sentence, at the request of such purchaser, the Lessee shall agree to (1) at the expense of such purchaser, continue to perform under and maintain in full force and effect the Project Contracts and pay all sums received under the Project Contracts to such purchaser, (2) at the expense of such purchaser, and subject to the receipt of indemnification reasonably acceptable to the Lessee, take all actions requested by such purchaser with respect to such Project Contracts (including all actions with respect to the enforcement of the Lessee's rights and remedies under such Project Contracts), and (3) not amend, modify, supplement, waive a provision of, grant any consent under or terminate any such Project Contract without the prior written consent of such purchaser.
(b) In the event the Lessee exercises its right to terminate the lease of the Project pursuant to this Section 12 on the last day of the last month of the Initial Term, Term or in the event a termination of the lease of the Project occurs pursuant to paragraph (a) of Section 14 hereof and the date on which such termination occurs is on or before the last day of the last month of the Initial Term and the Lessee chooses to effect a sale pursuant to this Section 12:
(i) if the Cash Proceeds are greater than the Adjusted Acquisition Cost plus the Modified Call Premium, the Lessor shall pay to the Lessee the amount by which such Cash Proceeds exceed the Adjusted Acquisition Cost plus the Modified Call Premium;
(ii) if the Cash Proceeds are equal to or less than the Adjusted Acquisition Cost plus the Modified Call Premium, but greater than or equal to 27.06% of the Adjusted Acquisition Cost plus the Modified Call Premium, the Lessee shall pay to the Lessor an amount equal to (A) the Adjusted Acquisition Cost plus the Modified Call Premium less (B) the Cash Proceeds; and
(iii) if the Cash Proceeds are less than 27.06% of the Adjusted Acquisition Cost plus the Modified Call Premium (or deemed proceedsif there are no Cash Proceeds), the Lessee shall pay to the Lessor an amount equal to the sum of (A) 72.94% of the Adjusted Acquisition Cost and (B) the amount, if any, by which the residual value of the Project has been reduced by wear and tear in excess of that attributable to normal and proper use (the amount of such excess wear and tear to be such amount as the Lessor and the Lessee agree, or if no agreement is reached, the amount determined pursuant to the Appraisal Procedure). THIS LEASE AGREEMENT IS CONFIDENTIAL AND PROPRIETARY
(c) In the event the Lessee exercises its right to terminate the lease of the Project pursuant to this Section 12 on the last day of the last month of the Extended Term or on any Basic Rent Payment Date during any Renewal Term or in the event a termination of the lease of the Project occurs pursuant to paragraph (a) of Section 14 hereof or the Lessee exercises its option under paragraph (e) of Section 13 to arrange for the Project to be sold and the date on which such termination occurs or such option is exercised is on or before the last day of the last month of the Extended Term or during any Renewal Term and the Lessee chooses to effect a sale pursuant to this Section 12:
(i) if the Cash Proceeds are greater than the Adjusted Acquisition Cost, the Lessor shall pay to the Lessee the amount by which such Cash Proceeds exceed the Adjusted Acquisition Cost;
(ii) if the Cash Proceeds (or deemed proceeds) are equal to or less than the Adjusted Acquisition Cost, no additional payments but greater than or equal to the percentage of the Adjusted Acquisition Cost described in Exhibit H hereto and for the periods described therein, the Lessee shall be required under this clause pay to the Lessor an amount equal to (ii)A) the Adjusted Acquisition Cost less (B) the Cash Proceeds; and
(iii) if the Cash Proceeds (or deemed proceeds) are less than 33.13% of the Adjusted Acquisition Cost (the difference being the "Section 12(b) Shortfall"or if there are no Cash Proceeds), the Lessee shall pay to the Lessor an amount equal to the sum of (A) the lesser of (1) the Section 12(b) Shortfall and (2) 83.566.87% of the Adjusted Acquisition Cost plus and (B) the amount amount, if any, by which the residual value of the Project has been reduced by wear and tear in excess of that attributable to normal and proper use (the amount of such excess wear and tear to be such amount as the Lessor and the Lessee agree, or if no agreement is reached, the amount determined pursuant to the Appraisal Procedure).
(c) In the event the Lessee exercises its right to terminate the lease of the Project pursuant to this Section 12 on the last day of any Extended Term or any Renewal Term, or in the event a termination of the lease of the Project occurs pursuant to paragraph (a) of Section 14 hereof, or in the event the Lessee exercises its option under paragraph (e) of Section 13 to arrange for the Project to be sold (or if a sale shall be deemed to occur pursuant to such Section 13(e)), and the date on which such termination occurs is during any Extended Term or any Renewal Term and the Lessee chooses to effect a sale pursuant to this Section 12:
(i) if the Cash Proceeds (or deemed proceeds) are greater than the Adjusted Acquisition Cost, the Lessor shall pay to the Lessee the amount by which such Cash Proceeds exceed the Adjusted Acquisition Cost;
(ii) if the Cash Proceeds (or deemed proceeds) are equal to the Adjusted Acquisition Cost, no additional payments shall be required under this clause (ii); and
(iii) if the Cash Proceeds (or deemed proceeds) are less than the Adjusted Acquisition Cost (the difference being the "Section 12(c) Shortfall"), the Lessee shall pay to the Lessor an amount equal to the sum of (A) the lesser of (1) the Section 12(c) Shortfall and (2) 83.5% of the Adjusted Acquisition Cost plus (B) the amount by which the residual value of the Project has been reduced by wear and tear in excess of that attributable to normal and proper use (the amount of such excess wear and tear to be such amount as the Lessor and the Lessee agree, or if no agreement is reached, the amount determined pursuant to the Appraisal Procedure.
(d) All payments and credits referred to in paragraphs (b) and (c) above shall be made on the Termination Date termination date of the lease of the Project pursuant to this Section 12, and the parties shall account to each other for such payments and credits, and the Lessee shall pay to the Lessor (i) all Basic Rent payable through the date of termination of this Lease, (ii) the Variable Component of Basic Rent accrued through the date of termination of this Lease, (iii) any Additional Rent owing, (iv) all amounts payable pursuant to Sections 11, 24 and 26 hereof, (v) all losses, damages, costs and expenses (including, without limitation, attorneys' fees and expenses, commissions, filing fees and sales or transfer taxes) sustained by the Lessor by reason of such sale, and (vi) all other amounts owing hereunder (after taking into account the application under the Financing Arrangements of such purchase price and other payments hereunder), each as of the Termination Datetermination date; PROVIDED, HOWEVER, that with respect to the amounts described in clause (v) of this sentence, the Lessee shall not be obligated to pay any such amounts that, when combined with the amounts paid by the Lessee pursuant to paragraph (b) or (c) of this Section 12, as the case may be, exceed an amount equal to 72.94% of the Adjusted Acquisition Cost (in the case of a termination pursuant to such paragraph (b)) or 66.87% of the Adjusted Acquisition Cost (in the case of a termination pursuant to such paragraph (c)), plus the amount, if any, by which the residual value of the Project has been reduced by wear and tear in excess of that attributable to normal and proper use (the amount of such excess wear and tear to THIS LEASE AGREEMENT IS CONFIDENTIAL AND PROPRIETARY be such amount as the Lessor and the Lessee agree, or if no agreement is reached, the amount determined pursuant to the Appraisal Procedure). Upon indefeasible receipt by the Lessor of the Cash Proceeds and all other amounts then due and owing hereunder, including, without limitation, the amount of excess wear and tear determined pursuant to paragraph (b)(iii) or (c)(iii) of Section 12, as the case may be, the Lessor shall transfer its interest in the Project to the purchaser at the sale designated by the Lessee. The "Cash ProceedsCASH PROCEEDS" referred to in paragraphs (b) and (c) of this Section 12 shall mean the cash proceeds (or deemed proceeds) of sale without reduction for any amounts paid by the Lessee. In the event of a sale pursuant to this Section 12, neither the Lessee nor any Affiliate of the Lessee shall purchase the Project; PROVIDED, HOWEVER, that if (A) the Lessee exercises its right to terminate the lease of the Project pursuant to paragraph (b) of Section 12 hereof on the last day of the last month of the Initial Term, (B) such sale results in the applicability of paragraph (b)(ii) or paragraph (b)(iii) of Section 12, and (C) the Lessee provided notice to the Lessor pursuant to paragraph (a) of this Section 12 that it will cause the Guarantor to assume the outstanding indebtedness of the Lessor under its Financing Arrangements, the Lessee shall be required, as an alternative to making the payment required under such paragraph (b)(ii) or paragraph (b)(iii), as the case may be, to cause the Guarantor to assume the Lessor's outstanding indebtedness under all Financing Arrangements pursuant to the terms and conditions of such Financing Arrangements, in a principal amount equal to the amount the Lessee would have been obligated to pay to the Lessor pursuant to such paragraph (b)(ii) or paragraph (b)(iii), as the case may be (the "ASSUMED INDEBTEDNESS AMOUNT"), on the terms and conditions required for such assumption of indebtedness under such Financing Arrangements. Upon such assumption of indebtedness, the Lessor and the Assignee shall execute and deliver documentation permitting the Guarantor to assume the Lessor's obligations under the Financing Arrangements, and to release the Lessor from all obligations in respect of the Financing Arrangements, this Lease, the Agreement for Lease, and all related documents, and the Lessor and Assignee shall take all such other actions (at the Lessee's cost and expense) as are reasonably necessary to permit such assumption by the Guarantor. In the event the Guarantor assumes the outstanding indebtedness of the Lessor under its Financing Arrangements pursuant to this paragraph (d), if the Cash Proceeds plus the Assumed Indebtedness Amount are greater than the Adjusted Acquisition Cost plus the Modified Call Premium, the Lessor shall pay to the Lessee the amount by which the Cash Proceeds plus the Assumed Indebtedness Amount exceed the Adjusted Acquisition Cost plus the Modified Call Premium.
(e) In its notice given pursuant to paragraph (a) of this Section 12, the Lessee shall advise the Lessor if the sale provided for in such notice will result in the applicability of paragraph (b)(iii) or (c)(iii) of Section 12 hereof. If the Lessee advises the Lessor that any such paragraph will be applicable, the Lessor shall have the right to arrange for a sale of the Project to be made to a purchaser designated by the Lessor, if such purchaser will pay an amount greater than the amount offered by the Lessee's purchaser. Unless the Lessor shall arrange for such sale and shall give the Lessee notice thereof within thirty (30) days of the Lessor's receipt of the Lessee's notice, the Lessee may proceed with the sale to a purchaser designated by it. Within thirty (30) days of the Lessee's receipt of the Lessor's notice provided for in the preceding sentence, the Lessee may arrange for such sale to be made to another purchaser designated by it, if such purchaser shall pay an amount sufficient to render paragraph (b)(iii) of Section 12 or paragraph (c)(iii) of Section 12 hereof inapplicable. THIS LEASE AGREEMENT IS CONFIDENTIAL AND PROPRIETARY
Appears in 1 contract
Lessee’s Right to Terminate. (a) So long as If (i) the Lessee can satisfy architect determines in accordance with Section 12.1 above that the Termination Conditions, Casualty resulted in damage to all or a substantial part of the Lessee shall have the right, upon Building which will take in excess of (x) eighteen (18) months' notice months from the beginning of restoration to restore the Building to the same condition as existed immediately prior to the Casualty and the Casualty occurs at any time during the Lease Term or (y) three (3) months from the beginning of restoration to restore the Building to the same condition as existed immediately prior to the Casualty and the Casualty occurs during the last twelve (12) months of the then current Lease Term, but Lessor (the "Termination Notice"), does not elect to terminate this Lease, or (ii) as a result of a Casualty to the lease Building, Lessee must either (A) cease its operations at such Building for a period of fifteen (15) months or more, (B) move a Substantial Portion of its operations from the Building or relocate a Substantial Percentage of its employees from the Building to another location not on the Property for a period of fifteen (15) months or more or (C) lay off a Substantial Percentage of its employees working at the Building for a period of fifteen (15) months or more (any of the Project as a whole foregoing Casualties described in clause (i) or (ii), a “Substantial Casualty”), then Lessee may elect to terminate this Lease upon giving notice of such election in writing to Lessor within sixty (60) days after Lessee is notified in writing of the architect’s determination as to the time required to restore the Building or Lessee determines that a Substantial Casualty under clause (ii) above has occurred, which notice shall specify a termination date not earlier than sixty (60) days after the date of the notice.
(b) If Lessee elects to terminate this Lease pursuant to Section 12.2(a), then Lessee shall pay to Lessor the excess, if any, of the discounted Present Value of the Rent that would otherwise become due for the Property for the period of time commencing on the date of termination of this Lease and ending on the last day of the Initial Lease Term or (ii) on over the last day discounted Present Value of any Extended Term or Renewal the Fair Market Rent that Lessor can reasonably be expected to collect after restoration of the Property through the end of the Lease Term (assuming reasonable periods of time to prepare plans, secure permits and rebuild the Property substantially to its condition prior to the Casualty and to market and re-lease the Property to another tenant or tenants, all as determined pursuant to Section 12.2(c)). Lessee’s obligation to rebuild is separate from, and not affected by, Lessee’s and Lessor’s rights hereunder to terminate the Lease. If the Lease is terminated by either Lessee or Lessor as the result of such dates as identified a Casualty, then Lessor shall have the option, by giving written notice to Lessee, to rebuild and restore the Property in lieu of Lessee repairing the Termination Notice being hereinafter called damage and restoring the "Termination Date"Property. In that event, Lessor shall receive from Lessee either the insurance proceeds (plus any deductible), by arrangingor, at its own cost if Lessee is then self- insuring, the amount that would have been received in insurance proceeds (including any deductible) paid in response to the adjusted loss to restore the Property from damage due to the casualty. Lessor acknowledges that if it elects not to have the Property restored after a casualty and expensethe Lease is terminated, for then payment to it from either insurance proceeds or Lessee under self-insurance shall be only such amount as represents the sale fair market value of the Project in an arm's-length transaction on Property as of the Termination Date date of the Casualty, and the receipt by the Lessor of cash in not an amount equal to the sale price of full replacement cost to restore the Project (the "Cash Proceeds"). In the event the Lessee has given a Termination Notice pursuant to this paragraph (a) and has failed to arrange for the sale of the Project in an arm's-length transaction on the last day of the Initial Term pursuant to paragraph (b) of this Section 12, or on the last day of any Extended Term or Renewal Term pursuant to paragraph (c) of this Section 12, the Cash Proceeds shall be deemed to be $1. In the event the Lessee is unable to satisfy the Termination Conditions on the Termination Date, the Lessee shall not terminate this Lease pursuant to this paragraph (a), and the Lessee shall purchase the Project as provided in paragraph (e) of Section 13 hereof, unless the Lessee has obtained the prior written consent of the Lessor and Assignee to such termination of this Lease and the sale of the Project. In addition, if the Lessee has given a Termination Notice and an Event of Default occurs, the Termination Notice shall be invalidated and the Lessee shall no longer have the right to cause the termination of the lease of the Project and sale of the Project to its designee in accordance with the terms of this paragraph (a). At the time the Project is sold pursuant to this Section 12, the Lessor shall deliver the documents described in paragraph (h) of Section 29 hereof, and the Lessor's rights and obligations in respect of the Ground Lease, the Easements, the EPC Contract and any other Project Contract to which the Lessor is a party, shall be assumed by the purchaser, with the Lessor released from liability in respect thereof. In addition, (i) the Lessee shall assign (or if not legally assignable, cooperate and assist to the extent necessary or required in the transfer or reissuance thereof) to the purchaser, at no cost, all right, title and interest of the Lessee in, to and under all Governmental Actions and Intellectual Property Rights needed for the equipping, maintenance, operation or use of the Project and obtained and held by the Lessee at that time, (ii) the Lessee shall assign to the purchaser, at no cost, and the purchaser shall assume, all right, title and interest of the Lessee in, to and under the Project Contracts, and in the event any additional consent of any party to a Project Contract is required as a precondition thereunder to an assignment to any such non-foreclosure purchaser designated by the Lessee, to use its best efforts to obtain any such required consent to such proposed non-foreclosure assignment and assumption of the Project Contracts, (iii) the Lessee shall assign to the purchaser, at no cost, all right, title and interest of the Lessee in, to and under all service agreements in existence at that time in connection with the equipping, maintenance, operation or use of the Project, and (iv) as a condition to such sale, the purchaser shall be entitled to succeed to the Lessor's rights and obligations under the Facility Support Agreement. In the event the Lessee fails to obtain any consents required in clause (ii) of the immediately preceding sentence, at the request of such purchaser, the Lessee shall agree to (1) at the expense of such purchaser, continue to perform under and maintain in full force and effect the Project Contracts and pay all sums received under the Project Contracts to such purchaser, (2) at the expense of such purchaser, and subject to the receipt of indemnification reasonably acceptable to the Lessee, take all actions requested by such purchaser with respect to such Project Contracts (including all actions with respect to the enforcement of the Lessee's rights and remedies under such Project Contracts), and (3) not amend, modify, supplement, waive a provision of, grant any consent under or terminate any such Project Contract without the prior written consent of such purchaser.
(b) In the event the Lessee exercises its right to terminate the lease of the Project pursuant to this Section 12 on the last day of the Initial Term, or in the event a termination of the lease of the Project occurs pursuant to paragraph (a) of Section 14 hereof on or before the last day of the Initial Term and the Lessee chooses to effect a sale pursuant to this Section 12:
(i) if the Cash Proceeds (or deemed proceeds) are greater than the Adjusted Acquisition Cost, the Lessor shall pay to the Lessee the amount by which such Cash Proceeds exceed the Adjusted Acquisition Cost;
(ii) if the Cash Proceeds (or deemed proceeds) are equal to the Adjusted Acquisition Cost, no additional payments shall be required under this clause (ii); and
(iii) if the Cash Proceeds (or deemed proceeds) are less than the Adjusted Acquisition Cost (the difference being the "Section 12(b) Shortfall"), the Lessee shall pay to the Lessor an amount equal to the sum of (A) the lesser of (1) the Section 12(b) Shortfall and (2) 83.5% of the Adjusted Acquisition Cost plus (B) the amount by which the residual value of the Project has been reduced by wear and tear in excess of that attributable to normal and proper use (the amount of such excess wear and tear to be such amount as the Lessor and the Lessee agree, or if no agreement is reached, the amount determined pursuant to the Appraisal Procedure)Property.
(c) In If Lessor and Lessee cannot agree on the event the Lessee exercises its right to terminate the lease discounted Present Value of the Project pursuant Fair Market Rent that Lessor could reasonably be expected to this Section 12 on the last day of any Extended Term or any Renewal Term, or in the event a termination collect after restoration of the lease Property (or portion thereof), such discounted Present Value of the Project occurs pursuant to paragraph (a) of Section 14 hereof, or Fair Market Rent will be determined by appraisal in the event the Lessee exercises its option under paragraph (e) of Section 13 to arrange for the Project to be sold (or if a sale shall be deemed to occur pursuant to such Section 13(e)), and the date on which such termination occurs is during any Extended Term or any Renewal Term and the Lessee chooses to effect a sale pursuant to this Section 12:
(i) if the Cash Proceeds (or deemed proceeds) are greater than the Adjusted Acquisition Cost, the Lessor shall pay to the Lessee the amount by which such Cash Proceeds exceed the Adjusted Acquisition Cost;
(ii) if the Cash Proceeds (or deemed proceeds) are equal to the Adjusted Acquisition Cost, no additional payments shall be required under this clause (ii); and
(iii) if the Cash Proceeds (or deemed proceeds) are less than the Adjusted Acquisition Cost (the difference being the "Section 12(c) Shortfall"), the Lessee shall pay to the Lessor an amount equal to the sum of (A) the lesser of (1) the Section 12(c) Shortfall and (2) 83.5% of the Adjusted Acquisition Cost plus (B) the amount by which the residual value of the Project has been reduced by wear and tear in excess of that attributable to normal and proper use (the amount of such excess wear and tear to be such amount as the Lessor and the Lessee agree, or if no agreement is reached, the amount determined pursuant to accordance with the Appraisal Procedure.
(d) All payments . The period of time required to rebuild the Building will be determined by two independent registered architects, one selected by Lessor and credits referred one selected by Lessee, assuming the reasonably prompt and efficient engagement of and work by architects, contractors and others necessary to rebuild the Building. The period of time that it would take to re-lease the Building after the reconstruction and/or repair thereof will be determined by two independent commercial real estate brokers, one selected by Lessor and one selected by Lessee, and each familiar with properties similar to the Property and with the commercial lease market in paragraphs (b) the area. The determinations of such architects and (c) above brokers shall be made binding on the Termination Date parties. If such architects or brokers cannot agree on the period of time to rebuild or re-lease the Project pursuant to this Section 12Building within twenty (20) Business Days after the their appointment, and the parties shall account to each other for such payments and credits, and the Lessee shall pay to the Lessor (i) all Basic Rent payable through the date of termination of this Lease, (ii) the Variable Component of Basic Rent accrued through the date of termination of this Lease, (iii) any Additional Rent owing, (iv) all amounts payable pursuant to Sections 11, 24 and 26 hereof, (v) all losses, damages, costs and expenses (including, without limitation, attorneys' fees and expenses, commissions, filing fees and sales then a third architect or transfer taxes) sustained by the Lessor by reason of such sale, and (vi) all other amounts owing hereunder (after taking into account the application under the Financing Arrangements of such purchase price and other payments hereunder), each as of the Termination Date. Upon indefeasible receipt by the Lessor of the Cash Proceeds and all other amounts then due and owing hereunder, including, without limitation, the amount of excess wear and tear determined pursuant to paragraph (b)(iii) or (c)(iii) of Section 12broker, as the case may be, shall be selected by the Lessor shall transfer its interest two other architects or brokers, as applicable or, failing agreement as to such third architect or broker within thirty (30) Business Days after the appointment of the others, by the American Arbitration Association office in the Project to City (or if none, then the purchaser at the sale designated by the Lesseeclosest city that does have an office). The "Cash Proceeds" referred determinations of the relevant periods of time of the three architects or brokers, as the case may be, shall be made within twenty (20) Business Days of the appointment of the third such Person; such three time periods shall be averaged and such average time period shall be the time period required to in paragraphs rebuild or re-lease the Building, provided that if any one of the three determinations diverges from such average by ten percent (b10%) or more, that determination shall be discarded and (c) the average of this Section 12 the remaining two determinations shall mean be the cash proceeds (or deemed proceeds) applicable time period binding on the parties. The fees and expenses of sale without reduction for any amounts the architect and broker appointed by a party shall be paid by such party; the Lessee. In the event fees and expenses of a sale pursuant third architect or broker shall be divided equally between the two parties. Lessee shall be released from any and all obligations hereunder arising from and after such termination, other than the obligation to this Section 12, neither the Lessee nor any Affiliate pay such discounted present value of the Lessee shall purchase the ProjectRent.
Appears in 1 contract
Samples: Lease Agreement (Carter Validus Mission Critical REIT, Inc.)
Lessee’s Right to Terminate. (a) So long as the Lessee can satisfy the Termination Conditions, the The Lessee shall have the right, upon eighteen ninety (1890) monthsdays' notice to the Lessor (the "Termination Notice"), to terminate the lease of the Project as a whole (i) Property on any Basic Rent Payment Date during the last day of the Initial Lease Term or (ii) on the last day of any Extended Term or Basic Rent Payment Date during any Renewal Term (either of such dates as identified in the Termination Notice being hereinafter called the "Termination Date")Term, by arranging, at its own cost and expense, for the sale of the Project Property and the Lessor's rights under the Ground Sublease in an arm's-length transaction on the Termination Date date of termination and the receipt by the Lessor of cash in an amount equal to the sale price of the Project such Property (the "Cash Proceeds"). In ; provided, however, that if such sale will result in cash proceeds less than the event the Lessee has given a Termination Notice pursuant to this paragraph (a) and has failed to arrange for the sale of the Project in an arm's-length transaction on the last day of the Initial Term pursuant to paragraph (b) of this Section 12, or on the last day of any Extended Term or Renewal Term pursuant to Value plus amounts due under paragraph (c) of this Section 12, the Cash Proceeds shall be deemed Lessor and Assignees may elect in their sole discretion not to be $1. In the event the Lessee is unable to satisfy the Termination Conditions on the Termination Date, proceed with such sale and the Lessee shall not terminate this Lease pursuant to this paragraph (a), and the Lessee shall purchase the Project as provided in paragraph (e) of Section 13 hereof, unless the Lessee has obtained the prior written consent consent, to be granted or withheld in their sole discretion, of the Lessor and Assignee Assignees to such termination of this Lease and the sale of such Property and the Project. In additionLessor's rights under the Ground Sublease; provided, further, that if the Lessee has given a Termination Notice and an Event of Default occurshas occurred and is continuing, and, prior to the termination of this Lease pursuant to this paragraph (a), the Lessor arranges for the sale of the Property and the Lessor's rights under the Ground Sublease to a third party purchaser in accordance with the provisions of Section 19 hereof, the Termination Notice shall be invalidated and the Lessee shall no longer have the right to cause the termination of the lease of the Project Property and sale of the Project to its designee Property and the Lessor's rights under the Ground Sublease in accordance with the terms of this paragraph (a)) until such Event of Default has been effectively cured by the Lessee. At the time the Project Property is sold pursuant to this Section 12, the Lessor shall deliver the documents described in paragraph (h) of Section 29 hereof, and the Lessor's rights and obligations in respect of the Ground Lease, the Easements, the EPC Contract and any other Project Contract to which the Lessor is a party, Sublease shall be assumed by the purchaser, with the Lessor released from liability in respect thereof. In addition, (i) the Lessee shall assign (or if not legally assignable, cooperate and assist to the extent necessary or required in the transfer or reissuance thereof) to the purchaser, at no cost, all right, title and interest of the Lessee in, to and under all Governmental Actions and Intellectual Property Rights needed for the equipping, maintenance, operation or use of the Project and obtained and held by the Lessee at that time, (ii) the Lessee shall assign to the purchaser, at no cost, and the purchaser shall assume, all right, title and interest of the Lessee in, to and under the Project Contracts, and in the event any additional consent of any party to a Project Contract is required as a precondition thereunder to an assignment to any such non-foreclosure purchaser designated by the Lessee, to use its best efforts to obtain any such required consent to such proposed non-foreclosure assignment and assumption of the Project Contracts, (iii) the Lessee shall assign to the purchaser, at no cost, all right, title and interest of the Lessee in, to and under all service agreements in existence at that time in connection with the equipping, maintenance, operation or use of the Project, and (iv) as a condition to such sale, the purchaser shall be entitled to succeed to the Lessor's rights and obligations under the Facility Support Agreement. In the event the Lessee fails to obtain any consents required in clause (ii) of the immediately preceding sentence, at the request of such purchaser, the Lessee shall agree to (1) at the expense of such purchaser, continue to perform under and maintain in full force and effect the Project Contracts and pay all sums received under the Project Contracts to such purchaser, (2) at the expense of such purchaser, and subject to the receipt of indemnification reasonably acceptable to the Lessee, take all actions requested by such purchaser with respect to such Project Contracts (including all actions with respect to the enforcement of the Lessee's rights and remedies under such Project Contracts), and (3) not amend, modify, supplement, waive a provision of, grant any consent under or terminate any such Project Contract without the prior written consent of such purchaser.
(b) In the event the Lessee exercises its right to terminate the lease of the Project Property pursuant to this Section 12 on the last day of the Initial Term, or in the event a termination of the lease of the Project Property occurs pursuant to paragraph (a) of Section 14 hereof on or before the last day of the Initial Term and the Lessee chooses to effect a sale pursuant to this Section 12Section:
(i) if the Cash Proceeds (or deemed proceeds) are greater than the Adjusted Acquisition CostTermination Value plus the amounts due under paragraph (c) of this Section 12, the Lessor shall pay to the Lessee the amount by which such Cash Proceeds exceed the Adjusted Acquisition CostTermination Value plus the amounts due under paragraph (c) of this Section 12;
(ii) if the Cash Proceeds equal or exceed the Termination Value plus the amounts due under paragraph (or deemed proceedsc) of this Section 12 less the Surrender Payment at such time but are less than the Termination Value plus the amounts due under paragraph (c) of this Section 12, the Lessee shall pay to the Lessor an amount equal to (A) the Adjusted Acquisition Cost, no additional payments shall be required Termination Value plus the amounts due under paragraph (c) of this clause Section 12 less (ii)B) the Cash Proceeds; and
(iii) if the Cash Proceeds (or deemed proceeds) are less than the Adjusted Acquisition Cost Termination Value plus (without duplication) the difference being amounts due under paragraph (c) of this Section 12 less the "Section 12(b) Shortfall")Surrender Payment, the Lessee shall pay to the Lessor an amount equal to the sum of (A) the lesser of (1) the Section 12(b) Shortfall and (2) 83.5% of the Adjusted Acquisition Cost Surrender Payment, plus (B) the amounts due under paragraph (c) of this Section 12 (without duplication), plus (C) the amount by which the residual value of the Project Property has been reduced by wear and tear in excess of that attributable to normal and proper use (the amount of such excess wear and tear to be such amount as the Lessor and the Lessee agree, or if no agreement is reached, the amount determined pursuant to the Appraisal Procedure).
(c) In the event the Lessee exercises its right to terminate the lease of the Project pursuant to this Section 12 on the last day of any Extended Term or any Renewal Term, or in the event a termination of the lease of the Project occurs pursuant to paragraph (a) of Section 14 hereof, or in the event the Lessee exercises its option under paragraph (e) of Section 13 to arrange for the Project to be sold (or if a sale shall be deemed to occur pursuant to such Section 13(e)), and the date on which such termination occurs is during any Extended Term or any Renewal Term and the Lessee chooses to effect a sale pursuant to this Section 12:
(i) if the Cash Proceeds (or deemed proceeds) are greater than the Adjusted Acquisition Cost, the Lessor shall pay to the Lessee the amount by which such Cash Proceeds exceed the Adjusted Acquisition Cost;
(ii) if the Cash Proceeds (or deemed proceeds) are equal to the Adjusted Acquisition Cost, no additional payments shall be required under this clause (ii); and
(iii) if the Cash Proceeds (or deemed proceeds) are less than the Adjusted Acquisition Cost (the difference being the "Section 12(c) Shortfall"), the Lessee shall pay to the Lessor an amount equal to the sum of (A) the lesser of (1) the Section 12(c) Shortfall and (2) 83.5% of the Adjusted Acquisition Cost plus (B) the amount by which the residual value of the Project has been reduced by wear and tear in excess of that attributable to normal and proper use (the amount of such excess wear and tear to be such amount as the Lessor and the Lessee agree, or if no agreement is reached, the amount determined pursuant to the Appraisal Procedure.
(d) All payments and credits referred to in paragraphs paragraph (b) and (c) above shall be made on the Termination Date termination date of the Project lease of the Property pursuant to this Section 12, and the parties shall account to each other for such payments and credits, and the Lessee shall pay to the Lessor (without duplication) (i) all Basic Rent payable through the date of termination of this Leasepayable, (ii) the Variable Component of Basic Rent accrued through the date of termination of this Lease, (iii) any Additional Rent owing, (iviii) all amounts payable pursuant to Sections 11, 24 25 and 26 27 hereof, (viv) all losses, damages, costs and expenses (including, without limitation, attorneys' fees and expenses, commissions, filing fees and sales or transfer taxes) sustained by the Lessor by reason of such sale, and (viv) all other amounts owing by Lessee hereunder (after taking into account the application and under the Financing Arrangements of such purchase price and other payments hereunder)any Related Documents, each as of the Termination Datetermination date. Upon indefeasible receipt by the Lessor of the Cash Proceeds and all other amounts then due and owing hereunder, including, without limitation, the amount of excess wear and tear determined pursuant to paragraph (b)(iii) or (c)(iii) of this Section 12, as the case may be, the Lessor shall transfer its interest in the Project Property and the Ground Sublease to the purchaser at the sale designated by the Lessee. The "Cash Proceeds" referred to in paragraphs paragraph (b) and (c) of this Section 12 hereof shall mean the cash proceeds (or deemed proceeds) of sale without reduction for any amounts paid by the Lessee. In the event of a sale pursuant to this Section 12, neither the Lessee nor or any Affiliate of the Lessee shall purchase the ProjectProperty or the Lessor's interest in the Ground Sublease.
(d) In its notice given pursuant to paragraph (a) of this Section 12, the Lessee shall advise the Lessor if the sale provided for in such notice will result in the applicability of paragraph (b)(iii) of Section 12 hereof. If the Lessee advises the Lessor that such paragraph will be applicable, the Lessor and the Assignees shall have the right in their sole and absolute discretion (i) to preclude such sale or (ii) to arrange for a sale of the Property and the Lessor's interest in the Ground Sublease to be made to a purchaser designated by the Lessor, if such purchaser will pay an amount greater than the amount offered by the Lessee's purchaser. If the Lessor shall fail to arrange for such sale and shall give the Lessee notice that it is consenting to the sale requested by the Lessee, the Lessee may proceed with the sale to the purchaser designated by it. In the event the Lessor fails to consent to the sale requested by the Lessee within sixty (60) days of the Lessor's receipt of the Lessee's notice provided for in paragraph (a) of this Section 12, the Lessee may arrange for such sale to be made to another purchaser designated by it, if such purchaser shall pay an amount sufficient to render paragraph (b)(iii) of Section 12 hereof inapplicable.
Appears in 1 contract
Samples: Master Lease Agreement (Minimed Inc)
Lessee’s Right to Terminate. (a) So long as the Lessee can satisfy the Termination ConditionsCovenants and the provisions of this Section 12, and subject to the last sentence of paragraph (a) of Section 13 hereof, the Lessee shall have the right, upon eighteen (18) months' notice to the Lessor (the "Termination Notice")) to the Lessor and the Related Assignee, to terminate the lease of the Project as a whole (i) Facility in its entirety or any other Parcel of Property or Unit of Equipment on the last day Basic Rent Payment Date at the end of the Initial Term or (ii) on the last day of any Extended Term or Renewal Term (either of such dates as identified in the Termination Notice being hereinafter called the "Termination Date")Term, by arranging, at its own cost and expense, for the sale of the Project Facility or any other Property or Equipment in an arm's-arm's length transaction on the Termination Date and date of termination and, subject to the provisions of paragraph (b) of this Section 12, the receipt by the Lessor of cash in an amount equal to the sale price of the Project thereof (the "Cash Proceeds"). In the event the Lessee has given a Termination Notice pursuant to this paragraph (a) and has failed to arrange for delivers the sale of eighteen month notice described in the Project in an arm's-length transaction immediately preceding sentence, the Lessee shall be required, on the last day of date it delivers such notice, to pay to the Initial Term pursuant Lessor all amounts owing by the Lessor under the Derivative Option to paragraph (b) of this Section 12, or on enable the last day of any Extended Term or Renewal Term pursuant Lessor to paragraph (c) of this Section 12, exercise the Cash Proceeds shall be deemed to be $1option described therein. In the event the Lessee is unable to satisfy the Termination Conditions on the Termination DateCovenants, the Lessee shall not terminate this Lease pursuant to this paragraph (a), and ) as to the Lessee shall purchase the Project as provided Facility in paragraph (e) of Section 13 hereof, its entirety or any other Property or Equipment unless the Lessee has obtained the prior written consent of the Lessor and Assignee to such termination of this Lease and the sale of the ProjectFacility or such other Property or Equipment and the Related Assignee has been given notice of such termination and consent. In addition, if the Lessee has given a Termination Notice and an Event of Default occursor Event of Lease Termination has occurred and is continuing, and, prior to the termination of this Lease, in whole or in part, pursuant to this paragraph (a), the Lessor arranges for the sale of the Facility or such other Property or Equipment to a third party purchaser, the Termination Notice shall be invalidated and the Lessee shall no longer have the right to cause the termination of the lease of the Project Facility or such Property or Equipment and sale of the Project Facility or such Property or Equipment to its designee in accordance with the terms of this paragraph (a). At the time the Project Facility or other Property or Equipment is sold pursuant to this Section 12paragraph (a), the Lessor shall deliver the documents described in paragraph (hg) of Section 29 30 hereof, and the Lessor's rights and obligations in respect of the Site Lease and the Easements, or the Ground Lease, as applicable to the Easementsleased assets being sold, as the EPC Contract and any other Project Contract to which the Lessor is a partycase may be, shall be assumed by the purchaser, with the Lessor released from liability in respect thereof. In addition, as a condition to the sale of the Facility or any Turbine Unit, (i) the Lessee shall assign (or if not legally assignable, cooperate and assist to the extent necessary or required in the transfer or reissuance thereof) to the purchaser, at no costcost and to the extent permitted by applicable law, all right, title and interest of the Lessee in, to and under all Governmental Actions and Intellectual Property Rights needed for the equipping, maintenance, operation or use of the Project Facility or such Turbine Unit (or any part thereof) and obtained and held by the Lessee at that time, (ii) the Lessee shall assign to the purchaser, at no cost, and the purchaser shall assume, all right, title and interest of the Lessee in, to and under the Project ContractsMaterial Contracts related to such Facility or Turbine Unit, and in the event any additional consent of any party to a Project any such Material Contract is required as a precondition thereunder to an assignment to any such non-foreclosure purchaser designated by the Lessee, to use its best efforts to obtain any such required consent to such proposed non-foreclosure assignment and assumption of the Project Material Contracts, (iii) the Lessee shall assign to the purchaser, at no cost, all right, title and interest of the Lessee in, to and under all service agreements in existence at that time in connection with the equipping, maintenance, service, fueling, operation or use of the ProjectFacility or such Turbine Unit and, and in the event any additional consent of any party other than an Affiliate of the Lessee is required for such assignment, the Lessee shall use its best efforts to obtain such required consent, (iv) as a condition to such salethe sale of the Facility in its entirety, the purchaser shall be entitled to succeed to the Lessor's rights and obligations under the Facility Support Agreement and (v) as a condition to the sale of any Turbine Unit, the purchaser shall be entitled to receive an agreement with the Lessee, substantially similar to the terms of the Facility Support Agreement, relating to such Turbine Unit and the facilities and services related thereto. In the event the Lessee fails to obtain any consents required in clause (ii) or (iii) of the immediately preceding sentence, at the request of such purchaser, the Lessee shall agree to (1) at the expense of such purchaser, continue to perform under and maintain in full force and effect the Project Material Contracts and service agreements and pay all sums received under the Project Material Contracts and service agreements to such purchaser, (2) at the expense of such purchaser, and subject to the receipt of indemnification reasonably acceptable to the Lessee, take all actions requested by such purchaser with respect to such Project Material Contracts and service agreements (including all actions with respect to the enforcement of the Lessee's rights and remedies under such Project ContractsMaterial Contracts and service agreements), and (3) not amend, modify, supplement, waive a provision of, grant any consent under or terminate any such Project Material Contract or service agreement without the prior written consent of such purchaser.
(b) In the event the Lessee exercises its right to terminate the lease of the Project pursuant to this Section 12 on the last day of the Initial Term, or in the event a termination of the lease of the Project occurs pursuant to paragraph (a) of Section 14 hereof on or before the last day of the Initial Term and the Lessee chooses to effect a sale pursuant to this Section 12:
(i) if the Cash Proceeds (or deemed proceeds) are greater than the Adjusted Acquisition Cost, the Lessor shall pay to the Lessee the amount by which such Cash Proceeds exceed the Adjusted Acquisition Cost;
(ii) if the Cash Proceeds (or deemed proceeds) are equal to the Adjusted Acquisition Cost, no additional payments shall be required under this clause (ii); and
(iii) if the Cash Proceeds (or deemed proceeds) are less than the Adjusted Acquisition Cost (the difference being the "Section 12(b) Shortfall"), the Lessee shall pay to the Lessor an amount equal to the sum of (A) the lesser of (1) the Section 12(b) Shortfall and (2) 83.5% of the Adjusted Acquisition Cost plus (B) the amount by which the residual value of the Project has been reduced by wear and tear in excess of that attributable to normal and proper use (the amount of such excess wear and tear to be such amount as the Lessor and the Lessee agree, or if no agreement is reached, the amount determined pursuant to the Appraisal Procedure).
(c) In the event the Lessee exercises its right to terminate the lease of the Project pursuant to this Section 12 on the last day of any Extended Term or any Renewal Term, or in the event a termination of the lease of the Project occurs pursuant to paragraph (a) of Section 14 hereof, or in the event the Lessee exercises its option under paragraph (e) of Section 13 to arrange for the Project to be sold (or if a sale shall be deemed to occur pursuant to such Section 13(e)), and the date on which such termination occurs is during any Extended Term or any Renewal Term and the Lessee chooses to effect a sale pursuant to this Section 12:
(i) if the Cash Proceeds (or deemed proceeds) are greater than the Adjusted Acquisition Cost, the Lessor shall pay to the Lessee the amount by which such Cash Proceeds exceed the Adjusted Acquisition Cost;
(ii) if the Cash Proceeds (or deemed proceeds) are equal to the Adjusted Acquisition Cost, no additional payments shall be required under this clause (ii); and
(iii) if the Cash Proceeds (or deemed proceeds) are less than the Adjusted Acquisition Cost (the difference being the "Section 12(c) Shortfall"), the Lessee shall pay to the Lessor an amount equal to the sum of (A) the lesser of (1) the Section 12(c) Shortfall and (2) 83.5% of the Adjusted Acquisition Cost plus (B) the amount by which the residual value of the Project has been reduced by wear and tear in excess of that attributable to normal and proper use (the amount of such excess wear and tear to be such amount as the Lessor and the Lessee agree, or if no agreement is reached, the amount determined pursuant to the Appraisal Procedure.
(d) All payments and credits referred to in paragraphs (b) and (c) above shall be made on the Termination Date termination date of the Project lease of the Facility or such other Property or Equipment, as the case may be, pursuant to this Section 12, and the parties shall account to each other for such payments and credits, and the Lessee shall pay to the Lessor (without duplication) (i) all Basic Rent payable through accrued in respect of the date of termination of this LeaseFacility or such other Property or Equipment sold, (ii) the Variable Component of Basic Rent accrued through the date of if such termination occurs pursuant to paragraph (b) of this LeaseSection 12, the Debt Yield-Maintenance Premium payable in respect of the Facility or such other Property or Equipment sold, (iii) any Additional Rent owingowing in respect of the Facility or such other Property or Equipment sold, (iv) all amounts payable pursuant to Sections 11, 24 25 and 26 27 hereof, (v) all losses, damages, costs and expenses (including, without limitation, reasonable attorneys' fees and expenses, commissions, filing fees and sales or transfer taxes) sustained by the Lessor by reason of such sale, and (vi) all other amounts owing hereunder (after taking into account the application under the Financing Arrangements of such purchase price and other payments hereunder), each as of the Termination Datetermination date. Upon indefeasible receipt by the Lessor of the Cash Proceeds and all other amounts then due and owing hereunder, including, without limitation, the amount of excess wear and tear determined pursuant to paragraph (b)(iii) or (c)(iii) of this Section 12, as the case may be, the Lessor shall transfer its interest in title to the Project Facility or such other Property or Equipment to the purchaser at the sale designated by the Lessee. The "Cash Proceeds" referred to in paragraphs (b) and (c) of this Section 12 shall mean the cash proceeds (or deemed proceeds) of sale without reduction for any amounts paid by the Lessee. In the event of a sale pursuant to this Section 12, neither the Lessee nor any Affiliate of the Lessee shall purchase the ProjectFacility or such other Property or Equipment sold.
(e) In its notice given pursuant to paragraph (a) of this Section 12, the Lessee shall advise the Lessor if the sale provided for in such notice will result in the applicability of paragraph (b)(iii) or (c)(iii) of this Section 12. If the Lessee advises the Lessor that either such paragraph will be applicable, the Lessor shall have the right to arrange for a sale of the Facility or such other Property or Equipment to be made to a purchaser designated by the Lessor, pursuant to paragraph (b) or (c) of this Section 12, as the case may be, if such purchaser will pay an amount greater than the amount offered by the Lessee's purchaser. Unless the Lessor shall arrange for such sale and shall give the Lessee notice thereof within sixty (60) days of the Lessor's receipt of the Lessee's notice, the Lessee may proceed with the sale to a purchaser designated by it. Within thirty (30) days of the Lessee's receipt of the Lessor's notice provided for in the preceding sentence, the Lessee may arrange for such sale to be made to another purchaser designated by it pursuant to paragraph (b) or (c) of this Section 12, if such purchaser shall pay an amount sufficient to render paragraph (b)(iii) or (c)(iii) of this Section 12 inapplicable.
Appears in 1 contract
Samples: Lease Agreement (Keyspan Corp)
Lessee’s Right to Terminate. (a) So long If (i) the architect determines in accordance with Section 12.1 above that the Casualty resulted in damage to all or a substantial part of the SBC Building or the Lakewood Building which will take in excess of (x) twelve (12) months from the beginning of restoration to restore such Building to the same condition as existed immediately prior to the Lessee can satisfy Casualty and the Termination Conditions, Casualty occurs at any time during the Lessee shall have Lease Term or (y) three (3) months from the right, upon beginning of restoration to restore such Building to the same condition as existed immediately prior to the Casualty and the Casualty occurs during the last eighteen (18) months' notice months of the then current Lease Term, but Lessor does not elect to terminate this Lease, or (ii) as a result of a Casualty to the Lessor SBC Building or the Lakewood Building, Lessee must either (A) cease its operations at such Building for a period of nine (9) months or more, (B) move a Substantial Portion of its operations from such Building or relocate a Substantial Percentage of its employees from such Building to another location not on the "Termination Notice"), to terminate the lease Property for a period of nine (9) months or more or (C) lay off a Substantial Percentage of its employees for a period of nine (9) months or more (any of the Project as a whole foregoing Casualties described in clause (i) or (ii), a “Substantial Casualty”), then Lessee may elect to terminate this Lease in whole or, if applicable, as to the Lakewood Building, upon giving notice of such election in writing to Lessor within seventy-five (75) days after Lessee is notified in writing of the architect’s determination as to the time required to restore such Building or Lessee determines that a Substantial Casualty under clause (ii) above has occurred, which notice shall specify a termination date not earlier than sixty (60) days after the date of the notice. Notwithstanding the foregoing, if a Substantial Casualty affects only the Lakewood Building or is a Substantial Casualty as to the Lakewood Building but is not a Substantial Casualty as to the SBC Building, then Lessee may only terminate this Lease in part as to the Lakewood Building and not as to the SBC Building (which Lessor shall be obligated to restore pursuant to Section 12.1). If Lessee fails to timely provide such notice, Lessee shall be deemed to have waived its right to terminate this Lease, in which event this Lease shall remain in full force and effect and Lessee shall be obligated to pay the Rent during the period of repair, restoration or rebuilding, provided that any rent interruption insurance proceeds shall be payable solely to Lessee.
(b) If Lessor elects to rebuild the Property but Lessee elects to terminate this Lease in whole or in part pursuant to Section 12.2(a), then Lessee shall pay to Lessor the excess, if any, of the discounted Present Value of the Rent that would otherwise become due for the Property (or the portion thereof as to which this Lease was terminated) for the period of time commencing on the date of termination or partial termination of this Lease and ending on the last day of the Initial then current Lease Term over the discounted Present Value of the Fair Market Rent that Lessor can reasonably be expected to collect after restoration of the Property (or (iiportion thereof) on through the last day end of any Extended Term or Renewal the then current Lease Term (either assuming reasonable periods of time to prepare plans, secure permits and rebuild the Property (or such dates as identified in the Termination Notice being hereinafter called the "Termination Date"), by arranging, at portion thereof) substantially to its own cost and expense, for the sale of the Project in an arm's-length transaction on the Termination Date and the receipt by the Lessor of cash in an amount equal condition prior to the sale price of Casualty and to market and re-lease the Project (the "Cash Proceeds"). In the event the Lessee has given a Termination Notice pursuant to this paragraph (a) and has failed to arrange for the sale of the Project in an arm's-length transaction on the last day of the Initial Term pursuant to paragraph (b) of this Section 12, or on the last day of any Extended Term or Renewal Term pursuant to paragraph (c) of this Section 12, the Cash Proceeds shall be deemed to be $1. In the event the Lessee is unable to satisfy the Termination Conditions on the Termination Date, the Lessee shall not terminate this Lease pursuant to this paragraph (a), and the Lessee shall purchase the Project as provided in paragraph (e) of Section 13 hereof, unless the Lessee has obtained the prior written consent of the Lessor and Assignee to such termination of this Lease and the sale of the Project. In addition, if the Lessee has given a Termination Notice and an Event of Default occurs, the Termination Notice shall be invalidated and the Lessee shall no longer have the right to cause the termination of the lease of the Project and sale of the Project to its designee in accordance with the terms of this paragraph (a). At the time the Project is sold pursuant to this Section 12, the Lessor shall deliver the documents described in paragraph (h) of Section 29 hereof, and the Lessor's rights and obligations in respect of the Ground Lease, the Easements, the EPC Contract and any other Project Contract to which the Lessor is a party, shall be assumed by the purchaser, with the Lessor released from liability in respect thereof. In addition, (i) the Lessee shall assign Property (or if not legally assignable, cooperate and assist to the extent necessary or required in the transfer or reissuance such portion thereof) to the purchaser, at no costanother tenant or tenants, all right, title and interest of the Lessee in, to and under all Governmental Actions and Intellectual Property Rights needed for the equipping, maintenance, operation or use of the Project and obtained and held by the Lessee at that time, (ii) the Lessee shall assign to the purchaser, at no cost, and the purchaser shall assume, all right, title and interest of the Lessee in, to and under the Project Contracts, and in the event any additional consent of any party to a Project Contract is required as a precondition thereunder to an assignment to any such non-foreclosure purchaser designated by the Lessee, to use its best efforts to obtain any such required consent to such proposed non-foreclosure assignment and assumption of the Project Contracts, (iii) the Lessee shall assign to the purchaser, at no cost, all right, title and interest of the Lessee in, to and under all service agreements in existence at that time in connection with the equipping, maintenance, operation or use of the Project, and (iv) as a condition to such sale, the purchaser shall be entitled to succeed to the Lessor's rights and obligations under the Facility Support Agreement. In the event the Lessee fails to obtain any consents required in clause (ii) of the immediately preceding sentence, at the request of such purchaser, the Lessee shall agree to (1) at the expense of such purchaser, continue to perform under and maintain in full force and effect the Project Contracts and pay all sums received under the Project Contracts to such purchaser, (2) at the expense of such purchaser, and subject to the receipt of indemnification reasonably acceptable to the Lessee, take all actions requested by such purchaser with respect to such Project Contracts (including all actions with respect to the enforcement of the Lessee's rights and remedies under such Project Contracts), and (3) not amend, modify, supplement, waive a provision of, grant any consent under or terminate any such Project Contract without the prior written consent of such purchaser.
(b) In the event the Lessee exercises its right to terminate the lease of the Project pursuant to this Section 12 on the last day of the Initial Term, or in the event a termination of the lease of the Project occurs pursuant to paragraph (a) of Section 14 hereof on or before the last day of the Initial Term and the Lessee chooses to effect a sale pursuant to this Section 12:
(i) if the Cash Proceeds (or deemed proceeds) are greater than the Adjusted Acquisition Cost, the Lessor shall pay to the Lessee the amount by which such Cash Proceeds exceed the Adjusted Acquisition Cost;
(ii) if the Cash Proceeds (or deemed proceeds) are equal to the Adjusted Acquisition Cost, no additional payments shall be required under this clause (ii); and
(iii) if the Cash Proceeds (or deemed proceeds) are less than the Adjusted Acquisition Cost (the difference being the "Section 12(b) Shortfall"), the Lessee shall pay to the Lessor an amount equal to the sum of (A) the lesser of (1) the Section 12(b) Shortfall and (2) 83.5% of the Adjusted Acquisition Cost plus (B) the amount by which the residual value of the Project has been reduced by wear and tear in excess of that attributable to normal and proper use (the amount of such excess wear and tear to be such amount as the Lessor and the Lessee agree, or if no agreement is reached, the amount determined pursuant to Section 12.2(c)). If Lessee terminates this Lease only as to a portion of the Appraisal Procedure)Property, then, in addition to the payment provided for above but subject to Section 13.1, Lessee’s obligation to pay Rent as to the portion of the Property as to which this Lease shall remain in effect shall continue unabated, provided that any rent interruption insurance proceeds shall be payable solely to Lessee.
(c) In If Lessor and Lessee cannot agree on the event the Lessee exercises its right to terminate the lease discounted Present Value of the Project pursuant Fair Market Rent that Lessor could reasonably be expected to this Section 12 on the last day of any Extended Term or any Renewal Term, or in the event a termination collect after restoration of the lease Property (or portion thereof), such discounted Present Value of the Project occurs pursuant to paragraph (a) of Section 14 hereof, or Fair Market Rent will be determined by appraisal in the event the Lessee exercises its option under paragraph (e) of Section 13 to arrange for the Project to be sold (or if a sale shall be deemed to occur pursuant to such Section 13(e)), and the date on which such termination occurs is during any Extended Term or any Renewal Term and the Lessee chooses to effect a sale pursuant to this Section 12:
(i) if the Cash Proceeds (or deemed proceeds) are greater than the Adjusted Acquisition Cost, the Lessor shall pay to the Lessee the amount by which such Cash Proceeds exceed the Adjusted Acquisition Cost;
(ii) if the Cash Proceeds (or deemed proceeds) are equal to the Adjusted Acquisition Cost, no additional payments shall be required under this clause (ii); and
(iii) if the Cash Proceeds (or deemed proceeds) are less than the Adjusted Acquisition Cost (the difference being the "Section 12(c) Shortfall"), the Lessee shall pay to the Lessor an amount equal to the sum of (A) the lesser of (1) the Section 12(c) Shortfall and (2) 83.5% of the Adjusted Acquisition Cost plus (B) the amount by which the residual value of the Project has been reduced by wear and tear in excess of that attributable to normal and proper use (the amount of such excess wear and tear to be such amount as the Lessor and the Lessee agree, or if no agreement is reached, the amount determined pursuant to accordance with the Appraisal Procedure.
(d) All payments and credits referred . The period of time required to in paragraphs (b) and (c) above shall be made on rebuild the Termination Date of the Project pursuant to this Section 12, and the parties shall account to each other for such payments and credits, and the Lessee shall pay to the Lessor (i) all Basic Rent payable through the date of termination of this Lease, (ii) the Variable Component of Basic Rent accrued through the date of termination of this Lease, (iii) any Additional Rent owing, (iv) all amounts payable pursuant to Sections 11, 24 and 26 hereof, (v) all losses, damages, costs and expenses (including, without limitation, attorneys' fees and expenses, commissions, filing fees and sales or transfer taxes) sustained by the Lessor by reason of such sale, and (vi) all other amounts owing hereunder (after taking into account the application under the Financing Arrangements of such purchase price and other payments hereunder), each as of the Termination Date. Upon indefeasible receipt by the Lessor of the Cash Proceeds and all other amounts then due and owing hereunder, including, without limitationSBC Building, the amount of excess wear and tear determined pursuant to paragraph (b)(iii) or (c)(iii) of Section 12Eagle Way Building and/or the Lakewood Building, as the case may be, will be determined by two independent registered architects, one selected by Lessor and one selected by Lessee, assuming the reasonably prompt and efficient engagement of and work by architects, contractors and others necessary to rebuild such Building or Buildings. The period of time that it would take to re-lease such Building or Buildings after the reconstruction and/or repair thereof will be determined by two independent commercial real estate brokers, one selected by Lessor shall transfer its interest and one selected by Lessee, and each familiar with properties similar to the Property and with the commercial lease market in the Project area. The determinations of such architects and brokers shall be binding on the parties. If such architects or brokers cannot agree on the period of time to rebuild or re-lease such Building or Buildings, as the purchaser at case may be, within twenty (20) Business Days after the sale designated their appointment, then a third architect or broker, as the case may be, shall be selected by the Lesseetwo other architects or brokers, as applicable or, failing agreement as to such third architect or broker within thirty (30) Business Days after the appointment of the others, by the American Arbitration Association office in Chicago, Illinois. The "Cash Proceeds" referred determinations of the relevant periods of time of the three architects or brokers, as the case may be, shall be made within twenty (20) Business Days of the appointment of the third such Person; such three time periods shall be averaged and such average time period shall be the time period required to in paragraphs rebuild or re-lease the applicable Building or Buildings, as the case may be, provided that if any one of the three determinations diverges from such average by ten percent (b10%) or more, that determinations shall be discarded and (c) the average of this Section 12 the remaining two determinations shall mean be the cash proceeds (or deemed proceeds) applicable time period binding on the parties. The fees and expenses of sale without reduction for any amounts the architect and broker appointed by a party shall be paid by such party; the Lessee. In the event fees and expenses of a sale pursuant third architect or broker shall be divided equally between the two parties. Lessee shall be released from any and all obligations hereunder arising from and after such termination, other than the obligation to this Section 12, neither the Lessee nor any Affiliate pay such discounted present value of the Lessee shall purchase the ProjectRent.
Appears in 1 contract
Samples: Real Estate Sale Contract (Inland American Real Estate Trust, Inc.)
Lessee’s Right to Terminate. (a) So long as If (i) the Lessee can satisfy architect determines in accordance with Section 12.1 above that the Termination Conditions, Casualty resulted in damage to all or a substantial part of the Lessee shall have the right, upon Building which will take in excess of (x) eighteen (18) months' notice months from the beginning of restoration to restore the Building to the same condition as existed immediately prior to the Casualty and the Casualty occurs at any time during the Lease Term or (y) three (3) months from the beginning of restoration to restore the Building to the same condition as existed immediately prior to the Casualty and the Casualty occurs during the last twelve (12) months of the then current Lease Term, but Lessor (the "Termination Notice"), does not elect to terminate this Lease, or (ii) as a result of a Casualty to the lease Building, Lessee must either (A) cease its operations at such Building for a period of fifteen (15) months or more, (B) move a Substantial Portion of its operations from the Building or relocate a Substantial Percentage of its employees from the Building to another location not on the Property for a period of fifteen (15) months or more or (C) lay off a Substantial Percentage of its employees working at the Building for a period of fifteen (15) months or more (any of the Project as a whole foregoing Casualties described in clause (i) or (ii), a “Substantial Casualty”), then Lessee may elect to terminate this Lease upon giving notice of such election in writing to Lessor within sixty (60) days after Lessee is notified in writing of the architect’s determination as to the time required to restore the Building or Lessee determines that a Substantial Casualty under clause (ii) above has occurred, which notice shall specify a termination date not earlier than sixty (60) days after the date of the notice.
(b) If Lessee elects to terminate this Lease pursuant to Section 12.2(a), then Lessee shall pay to Lessor the excess, if any, of the discounted Present Value of the Rent that would otherwise become due for the Property for the period of time commencing on the date of termination of this Lease and ending on the last day of the Initial Lease Term or (ii) on over the last day discounted Present Value of any Extended Term or Renewal the Fair Market Rent that Lessor can reasonably be expected to collect after restoration of the Property through the end of the Lease Term (assuming reasonable periods of time to prepare plans, secure permits and rebuild the Property substantially to its condition prior to the Casualty and to market and re-lease the Property to another tenant or tenants, all as determined pursuant to Section 12.2(c)). Lessee’s obligation to rebuild is separate from, and not affected by, Lessee’s and Lessor’s rights hereunder to terminate the Lease. If the Lease is terminated by either Lessee or Lessor as the result of such dates as identified a Casualty, then Lessor shall have the option, by giving written notice to Lessee, to rebuild and restore the Property in lieu of Lessee repairing the Termination Notice being hereinafter called damage and restoring the "Termination Date"Property. In that event, Lessor shall receive from Lessee either the insurance proceeds (plus any deductible), by arrangingor, at its own cost if Lessee is then self-insuring, the amount that would have been received in insurance proceeds (including any deductible) paid in response to the adjusted loss to restore the Property from damage due to the casualty. Lessor acknowledges that if it elects not to have the Property restored after a casualty and expensethe Lease is terminated, for then payment to it from either insurance proceeds or Lessee under self-insurance shall be only such amount as represents the sale fair market value of the Project in an arm's-length transaction on Property as of the Termination Date date of the Casualty, and the receipt by the Lessor of cash in not an amount equal to the sale price of full replacement cost to restore the Project (the "Cash Proceeds"). In the event the Lessee has given a Termination Notice pursuant to this paragraph (a) and has failed to arrange for the sale of the Project in an arm's-length transaction on the last day of the Initial Term pursuant to paragraph (b) of this Section 12, or on the last day of any Extended Term or Renewal Term pursuant to paragraph (c) of this Section 12, the Cash Proceeds shall be deemed to be $1. In the event the Lessee is unable to satisfy the Termination Conditions on the Termination Date, the Lessee shall not terminate this Lease pursuant to this paragraph (a), and the Lessee shall purchase the Project as provided in paragraph (e) of Section 13 hereof, unless the Lessee has obtained the prior written consent of the Lessor and Assignee to such termination of this Lease and the sale of the Project. In addition, if the Lessee has given a Termination Notice and an Event of Default occurs, the Termination Notice shall be invalidated and the Lessee shall no longer have the right to cause the termination of the lease of the Project and sale of the Project to its designee in accordance with the terms of this paragraph (a). At the time the Project is sold pursuant to this Section 12, the Lessor shall deliver the documents described in paragraph (h) of Section 29 hereof, and the Lessor's rights and obligations in respect of the Ground Lease, the Easements, the EPC Contract and any other Project Contract to which the Lessor is a party, shall be assumed by the purchaser, with the Lessor released from liability in respect thereof. In addition, (i) the Lessee shall assign (or if not legally assignable, cooperate and assist to the extent necessary or required in the transfer or reissuance thereof) to the purchaser, at no cost, all right, title and interest of the Lessee in, to and under all Governmental Actions and Intellectual Property Rights needed for the equipping, maintenance, operation or use of the Project and obtained and held by the Lessee at that time, (ii) the Lessee shall assign to the purchaser, at no cost, and the purchaser shall assume, all right, title and interest of the Lessee in, to and under the Project Contracts, and in the event any additional consent of any party to a Project Contract is required as a precondition thereunder to an assignment to any such non-foreclosure purchaser designated by the Lessee, to use its best efforts to obtain any such required consent to such proposed non-foreclosure assignment and assumption of the Project Contracts, (iii) the Lessee shall assign to the purchaser, at no cost, all right, title and interest of the Lessee in, to and under all service agreements in existence at that time in connection with the equipping, maintenance, operation or use of the Project, and (iv) as a condition to such sale, the purchaser shall be entitled to succeed to the Lessor's rights and obligations under the Facility Support Agreement. In the event the Lessee fails to obtain any consents required in clause (ii) of the immediately preceding sentence, at the request of such purchaser, the Lessee shall agree to (1) at the expense of such purchaser, continue to perform under and maintain in full force and effect the Project Contracts and pay all sums received under the Project Contracts to such purchaser, (2) at the expense of such purchaser, and subject to the receipt of indemnification reasonably acceptable to the Lessee, take all actions requested by such purchaser with respect to such Project Contracts (including all actions with respect to the enforcement of the Lessee's rights and remedies under such Project Contracts), and (3) not amend, modify, supplement, waive a provision of, grant any consent under or terminate any such Project Contract without the prior written consent of such purchaser.
(b) In the event the Lessee exercises its right to terminate the lease of the Project pursuant to this Section 12 on the last day of the Initial Term, or in the event a termination of the lease of the Project occurs pursuant to paragraph (a) of Section 14 hereof on or before the last day of the Initial Term and the Lessee chooses to effect a sale pursuant to this Section 12:
(i) if the Cash Proceeds (or deemed proceeds) are greater than the Adjusted Acquisition Cost, the Lessor shall pay to the Lessee the amount by which such Cash Proceeds exceed the Adjusted Acquisition Cost;
(ii) if the Cash Proceeds (or deemed proceeds) are equal to the Adjusted Acquisition Cost, no additional payments shall be required under this clause (ii); and
(iii) if the Cash Proceeds (or deemed proceeds) are less than the Adjusted Acquisition Cost (the difference being the "Section 12(b) Shortfall"), the Lessee shall pay to the Lessor an amount equal to the sum of (A) the lesser of (1) the Section 12(b) Shortfall and (2) 83.5% of the Adjusted Acquisition Cost plus (B) the amount by which the residual value of the Project has been reduced by wear and tear in excess of that attributable to normal and proper use (the amount of such excess wear and tear to be such amount as the Lessor and the Lessee agree, or if no agreement is reached, the amount determined pursuant to the Appraisal Procedure)Property.
(c) In If Lessor and Lessee cannot agree on the event the Lessee exercises its right to terminate the lease discounted Present Value of the Project pursuant Fair Market Rent that Lessor could reasonably be expected to this Section 12 on the last day of any Extended Term or any Renewal Term, or in the event a termination collect after restoration of the lease Property (or portion thereof), such discounted Present Value of the Project occurs pursuant to paragraph (a) of Section 14 hereof, or Fair Market Rent will be determined by appraisal in the event the Lessee exercises its option under paragraph (e) of Section 13 to arrange for the Project to be sold (or if a sale shall be deemed to occur pursuant to such Section 13(e)), and the date on which such termination occurs is during any Extended Term or any Renewal Term and the Lessee chooses to effect a sale pursuant to this Section 12:
(i) if the Cash Proceeds (or deemed proceeds) are greater than the Adjusted Acquisition Cost, the Lessor shall pay to the Lessee the amount by which such Cash Proceeds exceed the Adjusted Acquisition Cost;
(ii) if the Cash Proceeds (or deemed proceeds) are equal to the Adjusted Acquisition Cost, no additional payments shall be required under this clause (ii); and
(iii) if the Cash Proceeds (or deemed proceeds) are less than the Adjusted Acquisition Cost (the difference being the "Section 12(c) Shortfall"), the Lessee shall pay to the Lessor an amount equal to the sum of (A) the lesser of (1) the Section 12(c) Shortfall and (2) 83.5% of the Adjusted Acquisition Cost plus (B) the amount by which the residual value of the Project has been reduced by wear and tear in excess of that attributable to normal and proper use (the amount of such excess wear and tear to be such amount as the Lessor and the Lessee agree, or if no agreement is reached, the amount determined pursuant to accordance with the Appraisal Procedure.
(d) All payments . The period of time required to rebuild the Building will be determined by two independent registered architects, one selected by Lessor and credits referred one selected by Lessee, assuming the reasonably prompt and efficient engagement of and work by architects, contractors and others necessary to rebuild the Building. The period of time that it would take to re-lease the Building after the reconstruction and/or repair thereof will be determined by two independent commercial real estate brokers, one selected by Lessor and one selected by Lessee, and each familiar with properties similar to the Property and with the commercial lease market in paragraphs (b) the area. The determinations of such architects and (c) above brokers shall be made binding on the Termination Date parties. If such architects or brokers cannot agree on the period of time to rebuild or re-lease the Project pursuant to this Section 12Building within twenty (20) Business Days after the their appointment, and the parties shall account to each other for such payments and credits, and the Lessee shall pay to the Lessor (i) all Basic Rent payable through the date of termination of this Lease, (ii) the Variable Component of Basic Rent accrued through the date of termination of this Lease, (iii) any Additional Rent owing, (iv) all amounts payable pursuant to Sections 11, 24 and 26 hereof, (v) all losses, damages, costs and expenses (including, without limitation, attorneys' fees and expenses, commissions, filing fees and sales then a third architect or transfer taxes) sustained by the Lessor by reason of such sale, and (vi) all other amounts owing hereunder (after taking into account the application under the Financing Arrangements of such purchase price and other payments hereunder), each as of the Termination Date. Upon indefeasible receipt by the Lessor of the Cash Proceeds and all other amounts then due and owing hereunder, including, without limitation, the amount of excess wear and tear determined pursuant to paragraph (b)(iii) or (c)(iii) of Section 12broker, as the case may be, shall be selected by the Lessor shall transfer its interest two other architects or brokers, as applicable or, failing agreement as to such third architect or broker within thirty (30) Business Days after the appointment of the others, by the American Arbitration Association office in the Project to City (or if none, then the purchaser at the sale designated by the Lesseeclosest city that does have an office). The "Cash Proceeds" referred determinations of the relevant periods of time of the three architects or brokers, as the case may be, shall be made within twenty (20) Business Days of the appointment of the third such Person; such three time periods shall be averaged and such average time period shall be the time period required to in paragraphs rebuild or re-lease the Building, provided that if any one of the three determinations diverges from such average by ten percent (b10%) or more, that determination shall be discarded and (c) the average of this Section 12 the remaining two determinations shall mean be the cash proceeds (or deemed proceeds) applicable time period binding on the parties. The fees and expenses of sale without reduction for any amounts the architect and broker appointed by a party shall be paid by such party; the Lessee. In the event fees and expenses of a sale pursuant third architect or broker shall be divided equally between the two parties. Lessee shall be released from any and all obligations hereunder arising from and after such termination, other than the obligation to this Section 12, neither the Lessee nor any Affiliate pay such discounted present value of the Lessee shall purchase the ProjectRent.
Appears in 1 contract
Samples: Lease Agreement (Carter Validus Mission Critical REIT, Inc.)
Lessee’s Right to Terminate. Notwithstanding anything in this Lease (aincluding but not limited to Article IV hereof) So long as to the contrary notwithstanding, in the event Lessor fails to give actual possession of the Premises to Lessee can satisfy (with the Termination ConditionsExhibit F Tenant Improvements to be installed by Lessor substantially completed) on or before August 31, the 2004, then Lessee shall have the rightoption, upon eighteen (18) months' notice to the Lessor (the "Termination Notice")as its sole remedy, to terminate this Lease upon notice to Lessor given subsequent to such date and prior to the lease date that Lessor tenders possession of the Project as a whole Premises (iwith the Exhibit F Tenant Improvements to be installed by Lessor substantially completed) on to Lessee. The date August 31, 2004, shall be extended for fire, casualty, strike, action or inaction of governmental authority, terrorism, shortages of fuel, labor or supplies, or other reasons beyond Lessor's control, including, but not limited to, acts of Lessee and delays caused by Lessee. Further, in the last day event Lessor notifies Lessee that Lessor will not be able to give possession of the Initial Term or Premises by the date above specified, as it may be extended as provided above, Lessee may not terminate this Lease under the provisions hereof unless it does so within five (ii5) on the last day business days of any Extended Term or Renewal Term (either receipt by Lessee of such dates as identified in the Termination Notice being hereinafter called the "Termination Date")notice. Further, by arranging, at its own cost and expense, for the sale of the Project in an arm's-length transaction on the Termination Date and the receipt by the Lessor of cash in an amount equal to the sale price of the Project (the "Cash Proceeds"). In the event the Lessee has given a Termination Notice pursuant to this paragraph (a) and has failed to arrange for the sale of the Project in an arm's-length transaction on the last day of the Initial Term pursuant to paragraph (b) of this Section 12, or on the last day of any Extended Term or Renewal Term pursuant to paragraph (c) of this Section 12, the Cash Proceeds shall be deemed to be $1. In the event the Lessee is unable to satisfy the Termination Conditions on the Termination Date, the Lessee shall not have the option to terminate this Lease pursuant to this paragraph (a), and the Lessee shall purchase the Project as provided in paragraph (e) of Section 13 hereof, unless the Article if Lessee has obtained the prior written consent taken possession of any part of the Lessor and Assignee Premises or commenced to such termination of install its equipment, trade fixtures or furniture therein. If Lessee terminates this Lease and the sale of the Project. In addition, if the Lessee has given a Termination Notice and an Event of Default occurs, the Termination Notice shall be invalidated and the Lessee shall no longer have the right to cause the termination of the lease of the Project and sale of the Project to its designee in accordance with the terms of this paragraph (a). At the time the Project is sold pursuant to this Section 12, the Lessor shall deliver the documents described in paragraph (h) of Section 29 hereof, and the Lessor's rights and obligations in respect of the Ground Lease, the Easements, the EPC Contract and any other Project Contract to which the Lessor is a party, shall be assumed by the purchaser, with the Lessor released from liability in respect thereof. In addition, (i) the Lessee shall assign (or if not legally assignable, cooperate and assist to the extent necessary or required in the transfer or reissuance thereof) to the purchaser, at no cost, all right, title and interest of the Lessee in, to and under all Governmental Actions and Intellectual Property Rights needed for the equipping, maintenance, operation or use of the Project and obtained and held by the Lessee at that time, (ii) the Lessee shall assign to the purchaser, at no cost, and the purchaser shall assume, all right, title and interest of the Lessee in, to and under the Project Contracts, and in the event any additional consent of any party to a Project Contract is required as a precondition thereunder to an assignment to any such non-foreclosure purchaser designated by the Lessee, to use its best efforts to obtain any such required consent to such proposed non-foreclosure assignment and assumption of the Project Contracts, (iii) the Lessee shall assign to the purchaser, at no cost, all right, title and interest of the Lessee in, to and under all service agreements in existence at that time in connection with the equipping, maintenance, operation or use of the Project, and (iv) as a condition to such sale, the purchaser shall be entitled to succeed to the Lessor's rights and obligations under the Facility Support Agreement. In the event the Lessee fails to obtain any consents required in clause (ii) of the immediately preceding sentence, at the request of such purchaser, the Lessee shall agree to (1) at the expense of such purchaser, continue to perform under and maintain in full force and effect the Project Contracts and pay all sums received under the Project Contracts to such purchaser, (2) at the expense of such purchaser, and subject to the receipt of indemnification reasonably acceptable to the Lessee, take all actions requested by such purchaser with respect to such Project Contracts (including all actions with respect to the enforcement of the Lessee's rights and remedies under such Project Contracts), and (3) not amend, modify, supplement, waive a provision of, grant any consent under or terminate any such Project Contract without the prior written consent of such purchaser.
(b) In the event the Lessee exercises its right to terminate the lease of the Project pursuant to this Section 12 on the last day of the Initial Term, or in the event a termination of the lease of the Project occurs pursuant to paragraph (a) of Section 14 hereof on or before the last day of the Initial Term and the Lessee chooses to effect a sale pursuant to this Section 12:
(i) if the Cash Proceeds (or deemed proceeds) are greater than the Adjusted Acquisition Cost, the Lessor shall pay to the Lessee the amount by which such Cash Proceeds exceed the Adjusted Acquisition Cost;
(ii) if the Cash Proceeds (or deemed proceeds) are equal to the Adjusted Acquisition Cost, no additional payments shall be required under this clause (ii); and
(iii) if the Cash Proceeds (or deemed proceeds) are less than the Adjusted Acquisition Cost (the difference being the "Section 12(b) Shortfall"), the Lessee shall pay to the Lessor an amount equal to the sum of (A) the lesser of (1) the Section 12(b) Shortfall and (2) 83.5% of the Adjusted Acquisition Cost plus (B) the amount by which the residual value of the Project has been reduced by wear and tear in excess of that attributable to normal and proper use (the amount of such excess wear and tear to be such amount as the Lessor and the Lessee agree, or if no agreement is reached, the amount determined pursuant to the Appraisal Procedure).
(c) In the event the Lessee exercises its right to terminate the lease of the Project pursuant to this Section 12 on the last day of any Extended Term or any Renewal Term, or in the event a termination of the lease of the Project occurs pursuant to paragraph (a) of Section 14 hereof, or in the event the Lessee exercises its option under paragraph (e) of Section 13 to arrange for the Project to be sold (or if a sale shall be deemed to occur pursuant to such Section 13(e)), and the date on which such termination occurs is during any Extended Term or any Renewal Term and the Lessee chooses to effect a sale pursuant to this Section 12:
(i) if the Cash Proceeds (or deemed proceeds) are greater than the Adjusted Acquisition Cost, the Lessor shall pay to the Lessee the amount by which such Cash Proceeds exceed the Adjusted Acquisition Cost;
(ii) if the Cash Proceeds (or deemed proceeds) are equal to the Adjusted Acquisition Cost, no additional payments shall be required under this clause (ii); and
(iii) if the Cash Proceeds (or deemed proceeds) are less than the Adjusted Acquisition Cost (the difference being the "Section 12(c) Shortfall"), the Lessee shall pay to the Lessor an amount equal to the sum of (A) the lesser of (1) the Section 12(c) Shortfall and (2) 83.5% of the Adjusted Acquisition Cost plus (B) the amount by which the residual value of the Project has been reduced by wear and tear in excess of that attributable to normal and proper use (the amount of such excess wear and tear to be such amount as the Lessor and the Lessee agree, or if no agreement is reached, the amount determined pursuant to the Appraisal Procedure.
(d) All payments and credits referred to in paragraphs (b) and (c) above shall be made on the Termination Date of the Project pursuant to this Section 12, and the parties shall account to each other for such payments and credits, and the Lessee shall pay to the Lessor (i) all Basic Rent payable through the date of termination provisions of this LeaseArticle XLIV, (ii) then the Variable Component provisions of Basic Rent accrued through Article XLII and any documents to effectuate the date of termination of this Lease, (iii) any Additional Rent owing, (iv) all amounts payable pursuant to Sections 11, 24 and 26 hereof, (v) all losses, damages, costs and expenses (including, without limitation, attorneys' fees and expenses, commissions, filing fees and sales or transfer taxes) sustained by the Lessor by reason of such sale, and (vi) all other amounts owing hereunder (after taking into account the application under the Financing Arrangements of such purchase price and other payments hereunder), each as of the Termination Date. Upon indefeasible receipt by the Lessor of the Cash Proceeds and all other amounts then due and owing hereunder, including, without limitation, the amount of excess wear and tear determined pursuant to paragraph (b)(iii) or (c)(iii) of Section 12, as the case may be, the Lessor provided for therein shall transfer its interest in the Project to the purchaser at the sale designated by the Lessee. The "Cash Proceeds" referred to in paragraphs (b) and (c) of this Section 12 shall mean the cash proceeds (or deemed proceeds) of sale without reduction for any amounts paid by the Lessee. In the event of a sale pursuant to this Section 12, neither the Lessee nor any Affiliate of the Lessee shall purchase the Projectterminate ab initio.
Appears in 1 contract
Lessee’s Right to Terminate. (a) So long as the Lessee can satisfy the Termination ConditionsCovenants, the Lessee shall have the right, upon eighteen (18) months' irrevocable notice to the Lessor (the "Termination Notice"), to terminate the lease of the Project as a whole (i) on the last day of the Initial last month of the Lease Term or (ii) on any Basic Rent Payment Date during the last day of any Extended Term or Renewal Term (either of such dates as identified in the Termination Notice being hereinafter called the "Termination Date")Term, by arranging, at its own cost and expense, for the sale of the Project in an arm's-length transaction on the Termination Date date of termination and the receipt by the Lessor of cash in an amount equal to the sale price of the Project (the "Cash Proceeds"). In the event the Lessee has given a Termination Notice pursuant to this paragraph (a) and has failed to arrange for the sale of the Project in an arm's-length transaction on the last day of the Initial Term pursuant to paragraph (b) of this Section 12, or on the last day of any Extended Term or Renewal Term pursuant to paragraph (c) of this Section 12, the Cash Proceeds shall be deemed to be $1. In the event the Lessee is unable to satisfy the Termination Conditions on the Termination DateCovenants, the Lessee shall not terminate this Lease pursuant to this paragraph (a), and the Lessee shall purchase the Project as provided in paragraph (e) of Section 13 hereof, unless the Lessee has obtained the prior written consent of the Lessor and Assignee to such termination of this Lease and the sale of the Project. In addition, if the Lessee has given a Termination Notice and an Event of Default occurshas occurred and is continuing, and, prior to the termination of this Lease pursuant to this paragraph (a), the Lessor arranges for the sale of the Project to a third party purchaser, the Termination Notice shall be invalidated and the Lessee shall no longer have the right to cause the termination of the lease of the Project and sale of the Project to its designee in accordance with the terms of this paragraph (a). At the time the Project is sold pursuant to this Section 12, the Lessor shall deliver the documents described in paragraph (hi) of Section 29 hereof, and the Lessor's rights and obligations in respect of the Ground Lease, the Easements, the EPC Contract and any other Project Contract to which the Lessor is a party, Lease shall be assumed by the purchaser, with the Lessor released from liability in respect thereof. In addition, (i) the Lessee shall assign (or if not legally assignable, cooperate and assist to the extent necessary or required in the transfer or reissuance thereof) to the purchaser, at no cost, all right, title and interest of the Lessee in, to and under all Governmental Actions and Intellectual Property Rights needed for the equipping, maintenance, operation or use of the Project and obtained and held by the Lessee at that time, (ii) the Lessee shall assign to the purchaser, at no cost, and the purchaser shall assume, all right, title and interest of the Lessee in, to and under the Project Contracts, and in the event any additional consent of any party to a Project Contract is required as a precondition thereunder to an assignment to any such non-foreclosure purchaser designated by the Lessee, to use its best efforts to obtain any such required consent to such proposed non-foreclosure assignment and assumption of the Project Contracts, and (iii) the Lessee shall assign to the purchaser, at no cost, all right, title and interest of the Lessee in, to and under all service agreements in existence at that time in connection with the equipping, maintenance, operation or use of the Project, and (iv) as a condition to such sale, the purchaser shall be entitled to succeed to the Lessor's rights and obligations under the Facility Support Agreement. In the event the Lessee fails to obtain any consents required in clause (ii) of the immediately preceding sentence, at the request of such purchaser, the Lessee shall agree to (1) at the expense of such purchaser, continue to perform under and maintain in full force and effect the Project Contracts and pay all sums received under the Project Contracts to such purchaser, (2) at the expense of such purchaser, and subject to the receipt of indemnification reasonably acceptable to the Lessee, take all actions requested by such purchaser with respect to such Project Contracts (including all actions with respect to the enforcement of the Lessee's rights and remedies under such Project Contracts), and (3) not amend, modify, supplement, waive a provision of, grant any consent under or terminate any such Project Contract without the prior written consent of such purchaser.
(b) In the event the Lessee exercises its right to terminate the lease of the Project pursuant to this Section 12 on the last day of the Initial last month of the Lease Term, or in on any Basic Rent Payment Date during any Renewal Term, or the event a termination of the lease of the Project occurs pursuant to Lessee exercises its option under paragraph (af)(ii) of Section 14 hereof 13 to arrange for the Project to be sold and the date on which such option is exercised is on or before the last day of the Initial last month of the Lease Term or during any Renewal Term and the Lessee chooses to effect a sale pursuant to this Section 12:
(i) if the Cash Proceeds (or deemed proceeds) are greater than the Adjusted Acquisition Cost, the Lessor shall pay to the Lessee the amount by which such Cash Proceeds exceed the Adjusted Acquisition Cost;
(ii) if the Cash Proceeds (or deemed proceeds) are equal to or less than the Adjusted Acquisition Cost, no additional payments but greater than or equal to 29.48% of the Adjusted Acquisition Cost, the Lessee shall be required under this clause pay to the Lessor an amount equal to (ii)A) the Adjusted Acquisition Cost less (B) the Cash Proceeds; and
(iii) if the Cash Proceeds (or deemed proceeds) are less than 29.48% of the Adjusted Acquisition Cost (the difference being the "Section 12(b) Shortfall"or if there are no Cash Proceeds), the Lessee shall pay to the Lessor an amount equal to the sum of (A) the lesser of (1) the Section 12(b) Shortfall and (2) 83.570.52% of the Adjusted Acquisition Cost plus and (B) the amount amount, if any, by which the residual value of the Project has been reduced by wear and tear in excess of that attributable to normal and proper use (the amount of such excess wear and tear to be such amount as the Lessor and the Lessee agree, or if no agreement is reached, the amount determined pursuant to the Appraisal Procedure).
(c) In All payments and credits referred to in paragraph (b) above shall be made on the event the Lessee exercises its right to terminate termination date of the lease of the Project pursuant to this Section 12 on the last day of any Extended Term or any Renewal Term, or in the event a termination of the lease of the Project occurs pursuant to paragraph (a) of Section 14 hereof, or in the event the Lessee exercises its option under paragraph (e) of Section 13 to arrange for the Project to be sold (or if a sale shall be deemed to occur pursuant to such Section 13(e))12, and the date on which parties shall account to each other for such termination occurs is during any Extended Term or any Renewal Term payments and the Lessee chooses to effect a sale pursuant to this Section 12:
(i) if the Cash Proceeds (or deemed proceeds) are greater than the Adjusted Acquisition Costcredits, the Lessor shall pay to the Lessee the amount by which such Cash Proceeds exceed the Adjusted Acquisition Cost;
(ii) if the Cash Proceeds (or deemed proceeds) are equal to the Adjusted Acquisition Cost, no additional payments shall be required under this clause (ii); and
(iii) if the Cash Proceeds (or deemed proceeds) are less than the Adjusted Acquisition Cost (the difference being the "Section 12(c) Shortfall"), and the Lessee shall pay to the Lessor (i) all Basic Rent payable and accrued through the date of termination of this Lease, (ii) any Additional Rent owing, (iii) all amounts payable pursuant to Sections 11, 24 and 26 hereof, (iv) all costs and expenses (including, without limitation, attorneys' fees and expenses, commissions, filing fees and sales or transfer taxes) sustained by the Lessor by reason of such sale, and (v) all other amounts owing hereunder (after taking into account the application under the Financing Arrangements of such purchase price and other payments hereunder), each as of the termination date; provided, however, that with respect to the amounts described in clause (iv) and (v) of this sentence, the Lessee shall not be obligated to pay any such amounts that, when combined with the amounts paid by the Lessee pursuant to paragraph (b) of this Section 12, exceed an amount equal to the sum of (A) the lesser of (1) the Section 12(c) Shortfall and (2) 83.570.52% of the Adjusted Acquisition Cost Cost, plus (B) the amount amount, if any, by which the residual value of the Project has been reduced by wear and tear in excess of that attributable to normal and proper use (the amount of such excess wear and tear to be such amount as the Lessor and the Lessee agree, or if no agreement is reached, the amount determined pursuant to the Appraisal Procedure.
(d) All payments and credits referred to in paragraphs (b) and (c) above shall be made on the Termination Date of the Project pursuant to this Section 12, and the parties shall account to each other for such payments and credits, and the Lessee shall pay to the Lessor (i) all Basic Rent payable through the date of termination of this Lease, (ii) the Variable Component of Basic Rent accrued through the date of termination of this Lease, (iii) any Additional Rent owing, (iv) all amounts payable pursuant to Sections 11, 24 and 26 hereof, (v) all losses, damages, costs and expenses (including, without limitation, attorneys' fees and expenses, commissions, filing fees and sales or transfer taxes) sustained by the Lessor by reason of such sale, and (vi) all other amounts owing hereunder (after taking into account the application under the Financing Arrangements of such purchase price and other payments hereunder), each as of the Termination Date. Upon indefeasible receipt by the Lessor of the Cash Proceeds and all other amounts then due and owing hereunder, including, without limitation, the amount of excess wear and tear determined pursuant to paragraph (b)(iii) or (c)(iii) of Section 12, as the case may be, the Lessor shall transfer its interest in the Project to the purchaser at the sale designated by the Lessee. The "Cash Proceeds" referred to in paragraphs paragraph (b) and (c) of this Section 12 shall mean the cash proceeds (or deemed proceeds) of sale without reduction for any amounts paid by the Lessee. In the event of a sale pursuant to this Section 12, neither the Lessee nor any Affiliate of the Lessee shall purchase the Project.
(d) In its notice given pursuant to paragraph (a) of this Section 12, the Lessee shall advise the Lessor if the sale provided for in such notice will result in the applicability of paragraph (b)(iii) of Section 12 hereof. If the Lessee advises the Lessor that such paragraph will be applicable, the Lessor shall have the right to arrange for a sale of the Project to be made to a purchaser designated by the Lessor, if such purchaser will pay an amount greater than the amount offered by the Lessee's purchaser. Unless the Lessor shall arrange for such sale and shall give the Lessee notice thereof within thirty (30) days of the Lessor's receipt of the Lessee's notice, the Lessee may proceed with the sale to a purchaser designated by it. Within thirty (30) days of the Lessee's receipt of the Lessor's notice provided for in the preceding sentence, the Lessee may arrange for such sale to be made to another purchaser designated by it, if such purchaser shall pay an amount sufficient to render paragraph (b)(iii) of Section 12 hereof inapplicable.
Appears in 1 contract
Lessee’s Right to Terminate. Section 19 (ag) So long of the Sublease is hereby deleted and the following is inserted in its place:
(i) Notwithstanding anything to the contrary set forth herein and provided that Lessee is not then in default under this Sublease and that this Sublease is in full force and effect, in the event that the annual Fixed Rent for the period from the tenth anniversary of the Rent Commencement Date through the Expiration Date is finally determined to be more than $33 per rentable square feet of the Demised Premises as then constituted (it being agreed for such purposes that the Demised Premises constitute 55,400 rentable square feet as of the date hereof), Lessee can satisfy shall have the Termination Conditionsright (subject to Lessor's right to override within 30 days after the date of such final determination, to terminate this Sublease effective as of the date which is the last day of the thirteenth month following the date of such final determination. All of the terms and conditions of this Sublease and the obligations of Lessee hereunder shall thereupon continue in full force and effect, except that, notwithstanding such final determination, the annual Fixed Rent shall be $33 per rentable square foot for the Demised Premises as then constituted and except that the Expiration Date shall for all purposes hereof be deemed to be the date which is the last day of the thirteenth month following the date of such final determination.
(ii) Notwithstanding, the exercise by Lessee of the foregoing termination right, Lessor shall have the right, upon eighteen (18) months' exercisable by notice to the Lessor (the "Termination Notice")Lessee given within 60 days after Lessor's receipt of Lessee's termination notice, to terminate override and render void and of no force and effect the lease exercise by Lessee of the Project as a whole (i) on the last day foregoing termination right. All of the Initial Term or (ii) on the last day terms and conditions of any Extended Term or Renewal Term (either of such dates as identified in the Termination Notice being hereinafter called the "Termination Date"), by arranging, at its own cost and expense, for the sale of the Project in an arm's-length transaction on the Termination Date this Sublease and the receipt by the Lessor obligations of cash in an amount equal to the sale price of the Project (the "Cash Proceeds"). In the event the Lessee has given a Termination Notice pursuant to this paragraph (a) and has failed to arrange for the sale of the Project in an arm's-length transaction on the last day of the Initial Term pursuant to paragraph (b) of this Section 12, or on the last day of any Extended Term or Renewal Term pursuant to paragraph (c) of this Section 12, the Cash Proceeds hereunder shall be deemed to be $1. In the event the Lessee is unable to satisfy the Termination Conditions on the Termination Date, the Lessee shall not terminate this Lease pursuant to this paragraph (a), and the Lessee shall purchase the Project as provided in paragraph (e) of Section 13 hereof, unless the Lessee has obtained the prior written consent of the Lessor and Assignee to such termination of this Lease and the sale of the Project. In addition, if the Lessee has given a Termination Notice and an Event of Default occurs, the Termination Notice shall be invalidated and the Lessee shall no longer have the right to cause the termination of the lease of the Project and sale of the Project to its designee in accordance with the terms of this paragraph (a). At the time the Project is sold pursuant to this Section 12, the Lessor shall deliver the documents described in paragraph (h) of Section 29 hereof, and the Lessor's rights and obligations in respect of the Ground Lease, the Easements, the EPC Contract and any other Project Contract to which the Lessor is a party, shall be assumed by the purchaser, with the Lessor released from liability in respect thereof. In addition, (i) the Lessee shall assign (or if not legally assignable, cooperate and assist to the extent necessary or required in the transfer or reissuance thereof) to the purchaser, at no cost, all right, title and interest of the Lessee in, to and under all Governmental Actions and Intellectual Property Rights needed for the equipping, maintenance, operation or use of the Project and obtained and held by the Lessee at that time, (ii) the Lessee shall assign to the purchaser, at no cost, and the purchaser shall assume, all right, title and interest of the Lessee in, to and under the Project Contracts, and in the event any additional consent of any party to a Project Contract is required as a precondition thereunder to an assignment to any such non-foreclosure purchaser designated by the Lessee, to use its best efforts to obtain any such required consent to such proposed non-foreclosure assignment and assumption of the Project Contracts, (iii) the Lessee shall assign to the purchaser, at no cost, all right, title and interest of the Lessee in, to and under all service agreements in existence at that time in connection with the equipping, maintenance, operation or use of the Project, and (iv) as a condition to such sale, the purchaser shall be entitled to succeed to the Lessor's rights and obligations under the Facility Support Agreement. In the event the Lessee fails to obtain any consents required in clause (ii) of the immediately preceding sentence, at the request of such purchaser, the Lessee shall agree to (1) at the expense of such purchaser, thereupon continue to perform under and maintain in full force and effect until the Project Contracts and pay all sums received under originally scheduled Expiration Date, except that , notwithstanding such final determination, the Project Contracts to such purchaser, (2) at the expense of such purchaser, and subject to the receipt of indemnification reasonably acceptable to the Lessee, take all actions requested by such purchaser with respect to such Project Contracts (including all actions with respect to the enforcement annual Fixed Rent shall be $33 per rentable square foot of the Lessee's rights and remedies under such Project Contracts), and Demised Premises as then constituted (3) not amend, modify, supplement, waive a provision of, grant any consent under or terminate any such Project Contract without the prior written consent of such purchaser.
(b) In the event the Lessee exercises its right to terminate the lease of the Project pursuant to this Section 12 on the last day of the Initial Term, or in the event a termination of the lease of the Project occurs pursuant to paragraph (a) of Section 14 hereof on or before the last day of the Initial Term and the Lessee chooses to effect a sale pursuant to this Section 12:
(i) if the Cash Proceeds (or deemed proceeds) are greater than the Adjusted Acquisition Cost, the Lessor shall pay to the Lessee the amount by which such Cash Proceeds exceed the Adjusted Acquisition Cost;
(ii) if the Cash Proceeds (or deemed proceeds) are equal to the Adjusted Acquisition Cost, no additional payments shall be required under this clause (ii); and
(iii) if the Cash Proceeds (or deemed proceeds) are less than the Adjusted Acquisition Cost (the difference it being the "Section 12(b) Shortfall"), the Lessee shall pay to the Lessor an amount equal to the sum of (A) the lesser of (1) the Section 12(b) Shortfall and (2) 83.5% of the Adjusted Acquisition Cost plus (B) the amount by which the residual value of the Project has been reduced by wear and tear in excess of that attributable to normal and proper use (the amount of such excess wear and tear to be such amount as the Lessor and the Lessee agree, or if no agreement is reached, the amount determined pursuant to the Appraisal Procedure).
(c) In the event the Lessee exercises its right to terminate the lease of the Project pursuant to this Section 12 on the last day of any Extended Term or any Renewal Term, or in the event a termination of the lease of the Project occurs pursuant to paragraph (a) of Section 14 hereof, or in the event the Lessee exercises its option under paragraph (e) of Section 13 to arrange for the Project to be sold (or if a sale shall be deemed to occur pursuant to such Section 13(e)), and the date on which such termination occurs is during any Extended Term or any Renewal Term and the Lessee chooses to effect a sale pursuant to this Section 12:
(i) if the Cash Proceeds (or deemed proceeds) are greater than the Adjusted Acquisition Cost, the Lessor shall pay to the Lessee the amount by which such Cash Proceeds exceed the Adjusted Acquisition Cost;
(ii) if the Cash Proceeds (or deemed proceeds) are equal to the Adjusted Acquisition Cost, no additional payments shall be required under this clause (ii); and
(iii) if the Cash Proceeds (or deemed proceeds) are less than the Adjusted Acquisition Cost (the difference being the "Section 12(c) Shortfall"), the Lessee shall pay to the Lessor an amount equal to the sum of (A) the lesser of (1) the Section 12(c) Shortfall and (2) 83.5% of the Adjusted Acquisition Cost plus (B) the amount by which the residual value of the Project has been reduced by wear and tear in excess of that attributable to normal and proper use (the amount of such excess wear and tear to be such amount as the Lessor and the Lessee agree, or if no agreement is reached, the amount determined pursuant to the Appraisal Procedure.
(d) All payments and credits referred to in paragraphs (b) and (c) above shall be made on the Termination Date of the Project pursuant to this Section 12, and the parties shall account to each other agreed for such payments and credits, and purposes that the Lessee shall pay to the Lessor (i) all Basic Rent payable through the date of termination of this Lease, (ii) the Variable Component of Basic Rent accrued through the date of termination of this Lease, (iii) any Additional Rent owing, (iv) all amounts payable pursuant to Sections 11, 24 and 26 hereof, (v) all losses, damages, costs and expenses (including, without limitation, attorneys' fees and expenses, commissions, filing fees and sales or transfer taxes) sustained by the Lessor by reason of such sale, and (vi) all other amounts owing hereunder (after taking into account the application under the Financing Arrangements of such purchase price and other payments hereunder), each Demised Premises constitute 55,400 rentable square feet as of the Termination Date. Upon indefeasible receipt by the Lessor of the Cash Proceeds and all other amounts then due and owing hereunder, including, without limitation, the amount of excess wear and tear determined pursuant to paragraph (b)(iii) or (c)(iii) of Section 12, as the case may be, the Lessor shall transfer its interest in the Project to the purchaser at the sale designated by the Lessee. The date hereof)."Cash Proceeds" referred to in paragraphs (b) and (c) of this Section 12 shall mean the cash proceeds (or deemed proceeds) of sale without reduction for any amounts paid by the Lessee. In the event of a sale pursuant to this Section 12, neither the Lessee nor any Affiliate of the Lessee shall purchase the Project.
Appears in 1 contract
Samples: Sublease (Coty Us Inc)
Lessee’s Right to Terminate. (a) So long as the Lessee can satisfy the Termination Conditions, the Provided that no Event of Default has occurred and then remains unremedied to Lessor's satisfaction:
A. Lessee shall have the rightoption to terminate prior to the expiration of the primary lease term provided that (i) a minimum of thirty-six (36) monthly payments shall have been made from the Commencement Date of the primary term, upon eighteen (18ii) months' not less than 180 days prior notice to exercise the Lessor early termination option shall have been given in writing to Lessor, (iii) termination shall be effective on the date (the "Termination NoticeDate"), to terminate ) which is the lease later of the Project as a whole (ia) on the last day of the Initial Term month following expiration of full months from the Commencement Date of the primary term or (iib) on the last day of any Extended Term the month following expiration of the 180 day notice period, and (iv) Lessee shall pay on or Renewal Term (either of such dates as identified in prior to the Termination Notice being hereinafter called the "Termination Date"), by arranging, at its own cost and expense, for the sale of the Project in an arm's-length transaction on the Termination Date and the receipt by the Lessor of cash in an amount equal to the sale price excess, if any, of the Project Termination Value (the "Cash Proceeds"). In the event the Lessee has given a Termination Notice pursuant to this paragraph (aas hereinafter defined) and has failed all other sums due Lessor under this Lease including all rents due and owing to arrange for the sale of the Project in an arm's-length transaction on the last day of the Initial Term pursuant Lessor up to paragraph (b) of this Section 12, or on the last day of any Extended Term or Renewal Term pursuant to paragraph (c) of this Section 12, the Cash Proceeds shall be deemed to be $1. In the event the Lessee is unable to satisfy and including the Termination Conditions on Date.
B. During the period from receipt of notice by Lessor until the Termination Date, the Lessor and Lessee shall not terminate this Lease pursuant to this paragraph (a), and the Lessee shall purchase the Project as provided in paragraph (e) of Section 13 hereof, unless the Lessee has obtained the prior written consent of the Lessor and Assignee to such termination of this Lease and the sale of the Project. In addition, if the Lessee has given a Termination Notice and an Event of Default occurs, the Termination Notice shall be invalidated and the Lessee shall no longer have the right to cause the termination of the lease of the Project and sale of the Project to its designee in accordance with the terms of this paragraph (a). At the time the Project is sold pursuant to this Section 12, the Lessor shall deliver the documents described in paragraph (h) of Section 29 hereof, and the Lessor's rights and obligations in respect of the Ground Lease, the Easements, the EPC Contract and any other Project Contract to which the Lessor is a party, shall be assumed by the purchaser, with the Lessor released from liability in respect thereof. In addition, (i) the Lessee shall assign (or if not legally assignable, cooperate and assist to the extent necessary or required in the transfer or reissuance thereof) to the purchaser, at no cost, all right, title and interest of the Lessee in, to and under all Governmental Actions and Intellectual Property Rights needed for the equipping, maintenance, operation or use of the Project and obtained and held by the Lessee at that time, (ii) the Lessee shall assign to the purchaser, at no cost, and the purchaser shall assume, all right, title and interest of the Lessee in, to and under the Project Contracts, and in the event any additional consent of any party to a Project Contract is required as a precondition thereunder to an assignment to any such non-foreclosure purchaser designated by the Lessee, to each use its best efforts to obtain any such required consent to such proposed nonfirm written offers for the re-foreclosure assignment and assumption of the Project Contracts, (iii) the Lessee shall assign to the purchaser, at no cost, all right, title and interest of the Lessee in, to and under all service agreements in existence at that time in connection with the equipping, maintenance, operation or use of the Project, and (iv) as a condition to such sale, the purchaser shall be entitled to succeed to the Lessor's rights and obligations under the Facility Support Agreement. In the event the Lessee fails to obtain any consents required in clause (ii) of the immediately preceding sentence, at the request of such purchaser, the Lessee shall agree to (1) at the expense of such purchaser, continue to perform under and maintain in full force and effect the Project Contracts and pay all sums received under the Project Contracts to such purchaser, (2) at the expense of such purchaser, and subject to the receipt of indemnification reasonably acceptable to the Lessee, take all actions requested by such purchaser with respect to such Project Contracts (including all actions with respect to the enforcement of the Lessee's rights and remedies under such Project Contracts), and (3) not amend, modify, supplement, waive a provision of, grant any consent under or terminate any such Project Contract without the prior written consent of such purchaser.
(b) In the event the Lessee exercises its right to terminate the lease of the Project pursuant Equipment, and each party shall submit to this Section 12 on the last day other copies of the Initial Term, or in the event all offers received. No offer shall be considered a termination of the Qualified Offer to re-lease of the Project occurs pursuant to paragraph (a) of Section 14 hereof on or before the last day of the Initial Term and the Lessee chooses to effect a sale pursuant to this Section 12:
unless (i) if the Cash Proceeds (or deemed proceeds) are greater than the Adjusted Acquisition Cost, the Lessor shall pay to the Lessee the amount offer and offeror have been approved in all respects by which such Cash Proceeds exceed the Adjusted Acquisition Cost;
(ii) if the Cash Proceeds (or deemed proceeds) are equal to the Adjusted Acquisition Cost, no additional payments shall be required under this clause (ii); and
(iii) if the Cash Proceeds (or deemed proceeds) are less than the Adjusted Acquisition Cost (the difference being the "Section 12(b) Shortfall"), the Lessee shall pay to the Lessor an amount equal to the sum of (A) the lesser of (1) the Section 12(b) Shortfall and (2) 83.5% of the Adjusted Acquisition Cost plus (B) the amount by which the residual value of the Project has been reduced by wear and tear in excess of that attributable to normal and proper use (the amount of such excess wear and tear to be such amount as the Lessor and the Lessee agree, or if no agreement is reached, the amount determined pursuant to the Appraisal Procedure).
(c) In the event the Lessee exercises its right to terminate the lease of the Project pursuant to this Section 12 on the last day of any Extended Term or any Renewal Term, or in the event a termination of the lease of the Project occurs pursuant to paragraph (a) of Section 14 hereof, or in the event the Lessee exercises its option under paragraph (e) of Section 13 to arrange for the Project to be sold (or if a sale shall be deemed to occur pursuant to such Section 13(e))by Lessor's assignee, and the date on which such termination occurs is during any Extended Term or any Renewal Term and the Lessee chooses to effect a sale pursuant to this Section 12:
(i) if the Cash Proceeds (or deemed proceeds) are greater than the Adjusted Acquisition Cost, the Lessor shall pay to the Lessee the amount by which such Cash Proceeds exceed the Adjusted Acquisition Cost;
(ii) if the Cash Proceeds (or deemed proceeds) are equal to the Adjusted Acquisition Cost, no additional payments shall be required under this clause (ii); and
(iii) if the Cash Proceeds (or deemed proceeds) are less than the Adjusted Acquisition Cost (the difference being the "Section 12(c) Shortfall"), the Lessee shall pay to the Lessor an amount equal to the sum of (A) the lesser of (1) the Section 12(c) Shortfall and (2) 83.5% of the Adjusted Acquisition Cost plus (B) the amount by which the residual value of the Project has been reduced by wear and tear in excess of that attributable to normal and proper use (the amount of such excess wear and tear to be such amount as the Lessor and the Lessee agree, or if no agreement is reached, the amount determined pursuant to the Appraisal Procedure.
(d) All payments and credits referred to in paragraphs (b) and (c) above shall be made on the Termination Date of the Project pursuant to this Section 12, and the parties shall account to each other for such payments and credits, and the Lessee shall pay to the Lessor (i) all Basic Rent payable through the date of termination of this Lease, (ii) the Variable Component of Basic Rent accrued through the date of termination of this Lease, (iii) any Additional Rent owing, (iv) all amounts payable pursuant offer is received prior to Sections 11, 24 and 26 hereof, (v) all losses, damages, costs and expenses (including, without limitation, attorneys' fees and expenses, commissions, filing fees and sales or transfer taxes) sustained by the Lessor by reason of such sale, and (vi) all other amounts owing hereunder (after taking into account the application under the Financing Arrangements of such purchase price and other payments hereunder), each as of the Termination DateDate and can be accepted on such date. Upon indefeasible receipt by the Lessor of the Cash Proceeds and all other amounts If no Qualified Offer to re-lease has been received then due and owing hereunder, including, without limitation, the amount of excess wear and tear determined pursuant to paragraph (b)(iii) or (c)(iii) of Section 12, as the case may be, the Lessor shall transfer its interest in the Project to the purchaser at the sale designated by the Lessee. The "Cash Proceeds" referred to in paragraphs (b) and (c) of this Section 12 shall mean the cash proceeds (or deemed proceeds) of sale without reduction for any amounts paid by the Lessee. In the event of a sale pursuant to this Section 12, neither the Lessee nor any Affiliate of the Lessee shall purchase continue the Projectlease until expiration.
Appears in 1 contract
Samples: Master Equipment Lease Agreement (American Income Partners v a LTD Partnership)
