Lessee’s Right to Terminate. (a) So long as the Lessee can satisfy the Termination Covenants 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 (the "Termination Notice") to the Lessor and the Related Assignee, to terminate the lease of the Facility in its entirety or any other Parcel of Property or Unit of Equipment on the Basic Rent Payment Date at the end of the Initial Term or the Extended Term, by arranging, at its own cost and expense, for the sale of the Facility or any other Property or Equipment in an arm's length transaction on the 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 thereof (the "Cash Proceeds"). In the event the Lessee delivers the eighteen month notice described in the immediately preceding sentence, the Lessee shall be required, on the date it delivers such notice, to pay to the Lessor all amounts owing by the Lessor under the Derivative Option to enable the Lessor to exercise the option described therein. In the event the Lessee is unable to satisfy the Termination Covenants, the Lessee shall not terminate this Lease pursuant to this paragraph (a) as to the Facility in its entirety or any other Property or Equipment unless the Lessee has obtained the prior written consent of the Lessor to such termination of this Lease and the sale of the Facility or such other Property or Equipment and the Related Assignee has been given notice of such termination and consent. In addition, if an Event of Default or 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 Facility or such Property or Equipment and sale of the Facility or such Property or Equipment to its designee in accordance with the terms of this paragraph (a). At the time the Facility or other Property or Equipment is sold pursuant to this paragraph (a), the Lessor shall deliver the documents described in paragraph (g) of Section 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 leased assets being sold, as the case 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 to the purchaser, at no cost 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 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 Material Contracts related to such Facility or Turbine Unit, and in the event any additional consent of any party to 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 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 Facility or such Turbine Unit 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 the 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 Material Contracts and service agreements and pay all sums received under the 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 Material Contracts and service agreements (including all actions with respect to the enforcement of the Lessee's rights and remedies under such Material Contracts and service agreements), and (3) not amend, modify, supplement, waive a provision of, grant any consent under or terminate any such Material Contract or service agreement without the prior written consent of such purchaser. (d) All payments and credits referred to in paragraphs (b) and (c) above shall be made on the termination date of the 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 accrued in respect of the Facility or such other Property or Equipment sold, (ii) if such termination occurs pursuant to paragraph (b) of this Section 12, the Debt Yield-Maintenance Premium payable in respect of the Facility or such other Property or Equipment sold, (iii) any Additional Rent owing in respect of the Facility or such other Property or Equipment sold, (iv) all amounts payable pursuant to Sections 11, 25 and 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 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 title to the 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 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 Facility 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 as the Lessee can satisfy the Termination Covenants and the provisions of this Section 12, and subject to the last sentence of paragraph (a) of Section 13 hereofConditions, 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 Facility in its entirety or any other Parcel of Property or Unit of Equipment Project as a whole (i) on the Basic Rent Payment Date at the end last day of the Initial Term or (ii) on the last day of any Extended TermTerm 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 Facility or any other Property or Equipment Project in an arm's arm's-length transaction on the date of termination and, subject to the provisions of paragraph (b) of this Section 12, Termination Date and the receipt by the Lessor of cash in an amount equal to the sale price thereof of the Project (the "Cash Proceeds"). In the event the Lessee delivers has given a Termination Notice pursuant to this paragraph (a) and has failed to arrange for the eighteen month notice described sale of the Project in an arm's-length transaction on the immediately preceding sentencelast 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 Lessee Cash Proceeds shall be required, on the date it delivers such notice, deemed to pay to the Lessor all amounts owing by the Lessor under the Derivative Option to enable the Lessor to exercise the option described thereinbe $1. In the event the Lessee is unable to satisfy the Termination CovenantsConditions 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) as to the Facility in its entirety or any other Property or Equipment 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 Facility or such other Property or Equipment and the Related Assignee has been given notice of such termination and consentProject. In addition, if the Lessee has given a Termination Notice and an Event of Default or 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 purchaseroccurs, the Termination Notice shall be invalidated and the Lessee shall no longer have the right to cause the termination of the lease of the Facility or such Property or Equipment Project and sale of the Facility or such Property or Equipment Project to its designee in accordance with the terms of this paragraph (a). At the time the Facility or other Property or Equipment Project is sold pursuant to this paragraph (a)Section 12, the Lessor shall deliver the documents described in paragraph (gh) of Section 30 29 hereof, and the Lessor's rights and obligations in respect of the Site Lease and Ground Lease, the Easements, or the Ground Lease, as applicable EPC Contract and any other Project Contract to which the leased assets being sold, as the case may beLessor is a party, 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 cost and to the extent permitted by applicable lawcost, 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 Facility or such Turbine Unit (or any part thereof) 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 Material Contracts related to such Facility or Turbine UnitProject Contracts, and in the event any additional consent of any party to any such Material 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 Material 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, service, fueling, operation or use of the Facility or such Turbine Unit andProject, 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, and (iv) as a condition to the sale of the Facility in its entiretysuch sale, 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 Material Project Contracts and service agreements and pay all sums received under the Material Project 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 Material Project Contracts and service agreements (including all actions with respect to the enforcement of the Lessee's rights and remedies under such Material Contracts and service agreementsProject Contracts), and (3) not amend, modify, supplement, waive a provision of, grant any consent under or terminate any such Material Project 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 lease of the Facility or such other Property or Equipment, as the case may be, 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 (without duplication) (i) all Basic Rent accrued in respect payable through the date of the Facility or such other Property or Equipment soldtermination of this Lease, (ii) if such the Variable Component of Basic Rent accrued through the date of termination occurs pursuant to paragraph (b) of this Section 12, the Debt Yield-Maintenance Premium payable in respect of the Facility or such other Property or Equipment soldLease, (iii) any Additional Rent owing in respect of the Facility or such other Property or Equipment soldowing, (iv) all amounts payable pursuant to Sections 11, 25 24 and 27 26 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 title to its interest in the Facility or such other Property or Equipment 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 Facility or such other Property or Equipment soldProject.
(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
Lessee’s Right to Terminate. (a) So long as the Lessee can satisfy the Termination Covenants and the provisions of this Section 12, and subject to the last sentence of paragraph (a) of Section 13 hereofCovenants, the Lessee shall have the right, upon eighteen (18) months' irrevocable notice to the Lessor (the "Termination Notice") to the Lessor and the Related Assignee), to terminate the lease of the Facility in its entirety or any other Parcel of Property or Unit of Equipment Project as a whole (i) on the last day of the last month of the Lease Term or (ii) on any Basic Rent Payment Date at during the end of the Initial Term or the Extended Renewal Term, by arranging, at its own cost and expense, for the sale of the Facility or any other Property or Equipment Project in an arm's arm's-length transaction on the date of termination and, subject to the provisions of paragraph (b) of this Section 12, and the receipt by the Lessor of cash in an amount equal to the sale price thereof of the Project (the "Cash Proceeds"). In the event the Lessee delivers the eighteen month notice described in the immediately preceding sentence, the Lessee shall be required, on the date it delivers such notice, to pay to the Lessor all amounts owing by the Lessor under the Derivative Option to enable the Lessor to exercise the option described therein. In the event the Lessee is unable to satisfy the Termination Covenants, the Lessee shall not terminate this Lease pursuant to this paragraph (a) as to the Facility in 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 Facility or such other Property or Equipment and the Related Assignee has been given notice of such termination and consentProject. In addition, if an Event of Default or Event of Lease Termination has occurred and is continuing, and, prior to the termination of this Lease, in whole or in part, Lease pursuant to this paragraph (a), the Lessor arranges for the sale of the Facility or such other Property or Equipment 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 Facility or such Property or Equipment Project and sale of the Facility or such Property or Equipment Project to its designee in accordance with the terms of this paragraph (a). At the time the Facility or other Property or Equipment Project is sold pursuant to this paragraph (a)Section 12, the Lessor shall deliver the documents described in paragraph (gi) of Section 30 29 hereof, and the Lessor's rights and obligations in respect of the Site Ground Lease and the Easements, or the Ground Lease, as applicable to the leased assets being sold, as the case 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 to the purchaser, at no cost and to the extent permitted by applicable lawcost, 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 Facility or such Turbine Unit (or any part thereof) 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 Material Contracts related to such Facility or Turbine UnitProject Contracts, and in the event any additional consent of any party to any such Material 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 Material 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, service, fueling, operation or use of the Facility or such Turbine Unit 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 the 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 theretoProject. 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 Material Project Contracts and service agreements and pay all sums received under the Material Project 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 Material Project Contracts and service agreements (including all actions with respect to the enforcement of the Lessee's rights and remedies under such Material Contracts and service agreementsProject Contracts), and (3) not amend, modify, supplement, waive a provision of, grant any consent under or terminate any such Material Project Contract or service agreement without the prior written consent of such purchaser.
(db) 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 Lease Term, or on any Basic Rent Payment Date during any Renewal Term, or the Lessee exercises its option under paragraph (f)(ii) of Section 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 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 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 are equal to or less than the Adjusted Acquisition Cost, but greater than or equal to 29.48% of the Adjusted Acquisition Cost, the Lessee shall pay to the Lessor an amount equal to (A) the Adjusted Acquisition Cost less (B) the Cash Proceeds; and
(iii) if the Cash Proceeds are less than 29.48% of the Adjusted Acquisition Cost (or if there are no Cash Proceeds), the Lessee shall pay to the Lessor an amount equal to the sum of (A) 70.52% 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).
(c) All payments and credits referred to in paragraphs paragraph (b) and (c) above shall be made on the termination date of the lease of the Facility or such other Property or Equipment, as the case may be, 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 (without duplication) (i) all Basic Rent payable and accrued in respect through the date of the Facility or such other Property or Equipment soldtermination of this Lease, (ii) if such termination occurs pursuant to paragraph (b) of this Section 12, the Debt Yield-Maintenance Premium payable in respect of the Facility or such other Property or Equipment soldany Additional Rent owing, (iii) any Additional Rent owing in respect of the Facility or such other Property or Equipment sold, (iv) all amounts payable pursuant to Sections 11, 25 24 and 27 26 hereof, (viv) 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 (viv) 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 70.52% of the Adjusted Acquisition Cost, 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 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 this Section 12, as the case may be, the Lessor shall transfer title to its interest in the Facility or such other Property or Equipment 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 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 Facility or such other Property or Equipment soldProject.
(ed) 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 1212 hereof. 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 Project 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 thirty (6030) 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 12it, if such purchaser shall pay an amount sufficient to render paragraph (b)(iii) or (c)(iii) of this Section 12 hereof inapplicable.
Appears in 1 contract
Lessee’s Right to Terminate. (a) So long as the Lessee can satisfy the Termination Covenants and the provisions of this Section 12, and subject to the last sentence of paragraph (a) of Section 13 hereof, the The Lessee shall have the right, upon eighteen ninety (1890) monthsdays' notice to the Lessor (the "Termination Notice") to the Lessor and the Related Assignee), to terminate the lease of the Facility in its entirety or Property on any other Parcel of Property or Unit of Equipment on the Basic Rent Payment Date at during the end of the Initial Lease Term or the Extended on any Basic Rent Payment Date during any Renewal Term, by arranging, at its own cost and expense, for the sale of the Facility or any other Property or Equipment and the Lessor's rights under the Ground Sublease in an arm's arm's-length transaction on the date of termination and, subject to the provisions of paragraph (b) of this Section 12, and the receipt by the Lessor of cash in an amount equal to the sale price thereof of such Property (the "Cash Proceeds"). In ; provided, however, that if such sale will result in cash proceeds less than the event the Lessee delivers the eighteen month notice described in the immediately preceding sentenceTermination Value plus amounts due under paragraph (c) of this Section 12, the Lessee shall be required, on the date it delivers Lessor and Assignees may elect in their sole discretion not to proceed with such notice, to pay to the Lessor all amounts owing by the Lessor under the Derivative Option to enable the Lessor to exercise the option described therein. In the event the Lessee is unable to satisfy the Termination Covenants, sale and the Lessee shall not terminate this Lease pursuant to this paragraph (a) as to the Facility in its entirety or any other Property or Equipment unless the Lessee has obtained the prior written consent consent, to be granted or withheld in their sole discretion, of the Lessor and Assignees to such termination of this Lease and the sale of the Facility or such other Property or Equipment and the Related Assignee has been given notice of such termination and consent. In additionLessor's rights under the Ground Sublease; provided, further, that if an Event of Default or Event of Lease Termination has occurred and is continuing, and, prior to the termination of this Lease, in whole or in part, Lease pursuant to this paragraph (a), the Lessor arranges for the sale of the Facility or such other Property or Equipment and the Lessor's rights under the Ground Sublease to a third party purchaserpurchaser 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 Facility or such Property or Equipment and sale of the Facility or such Property or Equipment to its designee 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 Facility or other Property or Equipment is sold pursuant to this paragraph (a)Section 12, the Lessor shall deliver the documents described in paragraph (g) of Section 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 leased assets being sold, as the case may be, Sublease 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, .
(ib) the Lessee shall assign to the purchaser, at no cost 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 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 Material Contracts related to such Facility or Turbine Unit, and in the event any additional consent of any party to 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 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 Facility or such Turbine Unit 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 the 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 exercises its right to obtain any consents required terminate the lease of the Property pursuant to this Section 12 or in clause the event a termination of the lease of the Property occurs pursuant to Section 14 hereof and the Lessee chooses to effect a sale pursuant to this Section:
(i) if the Cash Proceeds are greater than the Termination 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 Termination 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 (iiic) of this Section 12 less the immediately preceding sentence, Surrender Payment at such time but are less than the request Termination Value plus the amounts due under paragraph (c) of such purchaserthis Section 12, the Lessee shall agree pay to the Lessor an amount equal to (1A) at the expense Termination Value plus the amounts due under paragraph (c) of this Section 12 less (B) the Cash Proceeds; and
(iii) if the Cash Proceeds are less than the Termination Value plus (without duplication) the amounts due under paragraph (c) of this Section 12 less the Surrender Payment, the Lessee shall pay to the Lessor an amount equal to the sum of (A) the 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 Property has been reduced by wear and tear in excess of that attributable to normal and proper use (the amount of such purchaserexcess wear and tear to be such amount as the Lessor and the Lessee agree, continue to perform under and maintain in full force and effect or if no agreement is reached, the Material Contracts and service agreements and pay all sums received under the Material Contracts and service agreements to such purchaser, (2) at the expense of such purchaser, and subject amount determined pursuant to the receipt of indemnification reasonably acceptable to the Lessee, take all actions requested by such purchaser with respect to such Material Contracts and service agreements (including all actions with respect to the enforcement of the Lessee's rights and remedies under such Material Contracts and service agreementsAppraisal Procedure), and (3) not amend, modify, supplement, waive a provision of, grant any consent under or terminate any such Material Contract or service agreement without the prior written consent of such purchaser.
(dc) All payments and credits referred to in paragraphs paragraph (b) and (c) above shall be made on the termination date of the 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 accrued in respect of the Facility or such other Property or Equipment soldpayable, (ii) if such termination occurs pursuant to paragraph (b) of this Section 12, the Debt Yield-Maintenance Premium payable in respect of the Facility or such other Property or Equipment soldany Additional Rent owing, (iii) any Additional Rent owing in respect of the Facility or such other Property or Equipment sold, (iv) all amounts payable pursuant to Sections 11, 25 and 27 hereof, (viv) 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 (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 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 title to its interest in the Facility or such other Property or Equipment 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 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 Facility or such other Property or Equipment soldthe Lessor's interest in the Ground Sublease.
(ed) 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 1212 hereof. If the Lessee advises the Lessor that either 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 Facility or such other Property or Equipment and the Lessor's interest in the Ground Sublease 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 If the Lessor shall fail to arrange for such sale and shall give the Lessee notice thereof 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, 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 sentenceparagraph (a) of this Section 12, 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 12it, if such purchaser shall pay an amount sufficient to render paragraph (b)(iii) or (c)(iii) of this Section 12 hereof inapplicable.
Appears in 1 contract
Samples: Master Lease Agreement (Minimed Inc)
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 the Termination Covenants Casualty and the provisions Casualty occurs at any time during the Lease Term or (y) three (3) months from the beginning of this Section 12, and subject restoration to restore such Building to the same condition as existed immediately prior to the Casualty and the Casualty occurs during the last sentence of paragraph (a) of Section 13 hereof, the Lessee shall have the right, upon eighteen (18) months' notice months of the then current Lease Term, but Lessor does not elect to terminate this Lease, or (the "Termination Notice"ii) as a result of a Casualty to the Lessor and SBC Building or the Related AssigneeLakewood 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 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 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 lease 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 Facility in its entirety architect’s determination as to the time required to restore such Building or any other Parcel of Property or Unit of Equipment on 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 Basic Rent Payment Date at the end date of the Initial Term 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 Extended Term, by arranging, at its own cost and expense, portion thereof as to which this Lease was terminated) for the sale period of the Facility or any other Property or Equipment in an arm's length transaction time commencing on the 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 thereof (the "Cash Proceeds"). In the event the Lessee delivers the eighteen month notice described in the immediately preceding sentence, the Lessee shall be required, on the date it delivers such notice, to pay to the Lessor all amounts owing by the Lessor under the Derivative Option to enable the Lessor to exercise the option described therein. In the event the Lessee is unable to satisfy the Termination Covenants, the Lessee shall not terminate this Lease pursuant to this paragraph (a) as to the Facility in its entirety or any other Property or Equipment unless the Lessee has obtained the prior written consent of the Lessor to such partial termination of this Lease and ending on the sale last day of the Facility 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 portion thereof) through the end of the then current Lease Term (assuming reasonable periods of time to prepare plans, secure permits and rebuild the Property (or such other Property or Equipment and the Related Assignee has been given notice of such termination and consent. In addition, if an Event of Default or Event of Lease Termination has occurred and is continuing, and, portion thereof) substantially to its condition prior to the termination Casualty and to market and re-lease the Property (or such portion thereof) to another tenant or tenants, all as determined pursuant to Section 12.2(c)). If Lessee terminates this Lease only as to a portion of this Leasethe Property, then, in whole 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) If Lessor and Lessee cannot agree on the discounted Present Value of the Fair Market Rent that Lessor could reasonably be expected to collect after restoration of the Property (or in part, pursuant to this paragraph (aportion thereof), the Lessor arranges for the sale such discounted Present Value of the Facility or such other Property or Equipment to a third party purchaser, the Termination Notice shall Fair Market Rent will be invalidated and the Lessee shall no longer have the right to cause the termination of the lease of the Facility or such Property or Equipment and sale of the Facility or such Property or Equipment to its designee determined by appraisal in accordance with the terms Appraisal Procedure. The period of this paragraph (a). At time required to rebuild the time the Facility or other Property or Equipment is sold pursuant to this paragraph (a)SBC Building, the Eagle Way Building and/or the Lakewood Building, as the case may be, will be determined by two independent registered architects, one selected by Lessor shall deliver and one selected by Lessee, assuming the documents described in paragraph (g) reasonably prompt and efficient engagement of Section 30 hereofand 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 and one selected by Lessee, and each familiar with properties similar to the Lessor's rights Property and obligations with the commercial lease market in respect the area. The determinations of such architects and brokers shall be binding on the Site Lease and parties. If such architects or brokers cannot agree on the Easements, period of time to rebuild or the Ground Leasere-lease such Building or Buildings, as applicable to the leased assets being soldcase may be, within twenty (20) Business Days after the their appointment, then a third architect or broker, as the case may be, shall be assumed selected by the purchaser, with the Lessor released from liability in respect thereof. In additiontwo other architects or brokers, as a condition applicable or, failing agreement as to such third architect or broker within thirty (30) Business Days after the sale appointment of the Facility or any Turbine Unitothers, (i) by the Lessee shall assign to the purchaserAmerican Arbitration Association office in Chicago, at no cost and to the extent permitted by applicable law, all right, title and interest Illinois. The determinations of the Lessee in, to and under all Governmental Actions and Intellectual Property Rights needed for the equipping, maintenance, operation or use relevant periods of time of the Facility three architects 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 Material Contracts related to such Facility or Turbine Unit, and in the event any additional consent of any party to 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 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 Facility or such Turbine Unit 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 the 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 Material Contracts and service agreements and pay all sums received under the 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 Material Contracts and service agreements (including all actions with respect to the enforcement of the Lessee's rights and remedies under such Material Contracts and service agreements), and (3) not amend, modify, supplement, waive a provision of, grant any consent under or terminate any such Material Contract or service agreement without the prior written consent of such purchaser.
(d) All payments and credits referred to in paragraphs (b) and (c) above shall be made on the termination date of the lease of the Facility or such other Property or Equipmentbrokers, 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 be made within twenty (without duplication20) (i) all Basic Rent accrued in respect Business Days of the Facility or such other Property or Equipment sold, (ii) if such termination occurs pursuant to paragraph (b) of this Section 12, the Debt Yield-Maintenance Premium payable in respect appointment of the Facility third such Person; such three time periods shall be averaged and such average time period shall be the time period required to rebuild or such other Property re-lease the applicable Building or Equipment sold, (iii) any Additional Rent owing in respect of the Facility or such other Property or Equipment sold, (iv) all amounts payable pursuant to Sections 11, 25 and 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 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 12Buildings, as the case may be, provided that if any one of the Lessor three determinations diverges from such average by ten percent (10%) or more, that determinations shall transfer title to be discarded and the Facility or such other Property or Equipment to average of the purchaser at remaining two determinations shall be the sale designated by applicable time period binding on the Lesseeparties. The "Cash Proceeds" referred to in paragraphs (b) fees and (c) expenses of this Section 12 the architect and broker appointed by a party shall mean the cash proceeds of sale without reduction for any amounts 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 Facility or such other Property or Equipment soldRent.
(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: Real Estate Sale Contract (Inland American Real Estate Trust, Inc.)
Lessee’s Right to Terminate. (a) So long as the Lessee can satisfy the Regardless of whether any Potential Default, Potential Property Termination, Event of Default or Event of Facility Termination Covenants has occurred and the provisions of this Section 12is continuing, with respect to all Facilities and subject to the last sentence of paragraph (a) of Section 13 hereofall FF&E, the Lessee shall have the right, at any time during the Lease Term or any Renewal Term, upon eighteen not less than fifteen (1815) monthsdays' written notice (the "Termination Notice") to the Lessor Brazos and the Related Assignee, to terminate terminate, on any date specified in such notice, this Facilities Lease with respect to all Facilities and all FF&E, and either (i) purchase or cause its designee to purchase all Facilities and all FF&E, for cash at their respective Acquisition Cost less any Unearned Rent, together with all other amounts then due and payable by Lessee to Brazos hereunder or (ii) with the lease prior written consent of the Facility in its entirety or any other Parcel of Property or Unit of Equipment on the Basic Rent Payment Date at the end of the Initial Term or the Extended Termboth Brazos and Agent, by arrangingarrange, at its own cost and expense, for all Facilities and all FF&E, to be sold for cash pursuant to SECTION 11.4 and with the consequences therein provided, except that such sale of the Facility or any other Property or Equipment in an arm's length transaction must occur on the date of termination and, subject to stipulated in the provisions of paragraph written notice contemplated by this SECTION 11.1.
(b) of this Section 12, the receipt by the Lessor of cash in an amount equal In addition to the sale price thereof (the "Cash Proceeds"). In the event the Lessee delivers the eighteen month notice described in the immediately preceding sentence, the Lessee shall be required, on the date it delivers such notice, Lessee's right to pay to the Lessor all amounts owing by the Lessor under the Derivative Option to enable the Lessor to exercise the option described therein. In the event the Lessee is unable to satisfy the Termination Covenants, the Lessee shall not terminate this Facilities Lease with respect to all Facilities and all FF&E pursuant to this paragraph subsection (a) above, so long as to the Facility in its entirety or any other Property or Equipment unless the Lessee has obtained the prior written consent of the Lessor to such termination of this Lease and the sale of the Facility or such other Property or Equipment and the Related Assignee has been given notice of such termination and consent. In addition, if an no Event of Default or Event of Lease Facility Termination (other than an Event of Facility Termination with respect to the Facility and FF&E to be purchased pursuant to this subsection (b)) has occurred and is continuingcontinuing beyond any applicable grace or curative period, andLessee shall have the right, prior at any time during the Lease Term or any Renewal Term, upon not less than fifteen (15) days' written notice to Brazos and Assignee, to terminate on any date specified in such notice this Facilities Lease with respect to any one or more Facility and the related FF&E (each such Facility and related FF&E specified in such notice being herein called a "PURCHASED FACILITY"), but not with respect to the remaining Facilities, subject to the following terms and conditions:
(i) On the effective date of such termination of this Leasewith respect to the Purchased Facility, in whole Lessee 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 Facility or such Property or Equipment and sale of the Facility or such Property or Equipment to its designee in accordance shall purchase the Purchased Facility for cash equal to the Acquisition Cost less any Unearned Rent with respect to the terms applicable Facility and simultaneously purchase the parcel of this paragraph land on which the Purchased Facility is located (a). At the time the Facility or other Property or Equipment is sold pursuant to this paragraph (a), the Lessor shall deliver the documents described in paragraph (g) of Section 30 hereof, and the Lessor's rights and obligations in respect of the Site Lease and the Easements, or the leasehold interest in such parcel in the case of an Acquired Ground Lease, as applicable to defined in the leased assets being sold, as the case 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, (iGround Lease) the Lessee shall assign to the purchaser, at no cost 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 Acquisition Cost (as defined in the Ground Lease) of such parcel of land or use of the Facility or such Turbine Unit (or any part thereof) and obtained and held by the Lessee at that time, Acquired Ground Lessee.
(ii) the Lessee shall assign to the purchaser, at no cost, and the purchaser shall assume, all right, title and interest The conditions of the Lessee in, to and under the Material Contracts related to such Facility or Turbine Unit, and in the event any additional consent of any party to 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 Material Contracts, either subsection (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 Facility or such Turbine Unit 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 the 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 or (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 below have been satisfied.
(iii) In the good faith judgment of the immediately preceding sentence, at the request of such purchaserLessee, the Purchased Facility shall have become uneconomic for continued use and occupancy by Lessee (such Facility being hereinafter sometimes called an "UNECONOMIC FACILITY") and Lessee shall agree have delivered to Brazos and Assignee a written notice (1an "UNECONOMIC NOTICE") at the expense containing a certificate of an officer of Lessee stating that Lessee has determined that such purchaser, continue to perform under Facility has become uneconomic for continued use and maintain in full force and effect the Material Contracts and service agreements and pay all sums received under the 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 occupancy by Lessee, take all actions requested by such purchaser . If Lessee terminates this Facilities Lease with respect to such Material Contracts and service agreements (including all actions with respect to the enforcement of the Lessee's rights and remedies under such Material Contracts and service agreements), and (3) not amend, modify, supplement, waive a provision of, grant any consent under or terminate any such Material Contract or service agreement without the prior written consent of such purchaser.
(d) All payments and credits referred to in paragraphs (b) and (c) above shall be made on the termination date of the 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 accrued in respect of the Facility or such other Property or Equipment sold, (ii) if such termination occurs pursuant to paragraph (b) of this Section 12, the Debt Yield-Maintenance Premium payable in respect of the Facility or such other Property or Equipment sold, (iii) any Additional Rent owing in respect of the Facility or such other Property or Equipment sold, (iv) all amounts payable pursuant to Sections 11, 25 and 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 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 title to the 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 of sale without reduction for any amounts paid by the Lessee. In the event of a sale pursuant to this Section 12an Uneconomic Facility, neither the Lessee nor any Affiliate of the Lessee shall have the right, for the period commencing six (6) months and ending one (1) year following the date of the purchase of such Economic Facility, to use such Uneconomic Facility for the Facility operation of a retail store by Lessee or such other Property or Equipment soldAffiliate.
(eiv) In its notice given pursuant addition to paragraph (a) of the right to terminate this Section 12Facilities Lease with respect to an Uneconomic Facility, 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 terminate this Facilities Lease with respect to Facilities with respect to which the attributable Acquisition Costs are no more than twenty percent (20%) of the aggregate Acquisition Costs for all Facilities then covered by this Facilities Lease.
(v) In addition to Lessee's right to terminate this Facilities Lease with respect to an Uneconomic Facility pursuant to subsection (iii) above, or to terminate pursuant to subsection (iv), Lessee shall have the right to terminate this Facilities Lease with respect to any one or more Facilities provided that Lessee has delivered to Brazos and the Assignee, on or prior to the notice of termination with respect to such other Property Facilities, an appraisal or Equipment appraisals, in form and substance reasonably satisfactory to Brazos and the Assignee, reflecting that the aggregate fair market value of all Facilities that will remain subject to this Facilities Lease after such termination (assuming completion of all such Facilities) and all Properties that are subject to the Ground Lease after such termination is no less than the aggregate Acquisition Costs of the remaining Facilities (including any Acquisition Costs reasonably expected to be made advanced to a purchaser designated by cause the Lessor, pursuant to paragraph completion of the remaining Facilities) and Acquisition Costs (b) or (cas defined in the Ground Lease) 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 inapplicableremaining Properties.
Appears in 1 contract
Samples: Facilities Lease Agreement (Randalls Food Markets Inc)
Lessee’s Right to Terminate. Notwithstanding anything in this Lease (aincluding but not limited to Article IV hereof) So long as the Lessee can satisfy the Termination Covenants and the provisions of this Section 12, and subject to the last sentence contrary notwithstanding, in the event Lessor fails to give actual possession of paragraph the Premises to Lessee (awith the Exhibit F Tenant Improvements to be installed by Lessor substantially completed) of Section 13 hereofon or before August 31, the 2004, then Lessee shall have the rightoption, upon eighteen (18) months' notice (the "Termination Notice") to the Lessor and the Related Assigneeas 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 Facility Premises (with the Exhibit F Tenant Improvements to be installed by Lessor substantially completed) 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 its entirety or any other Parcel of Property or Unit of Equipment on the Basic Rent Payment Date at the end event Lessor notifies Lessee that Lessor will not be able to give possession of the Initial Term or the Extended Term, Premises by arranging, at its own cost and expense, for the sale of the Facility or any other Property or Equipment in an arm's length transaction on the date of termination andabove specified, subject to as it may be extended as provided above, Lessee may not terminate this Lease under the provisions hereof unless it does so within five (5) business days of paragraph (b) of this Section 12, the receipt by the Lessor Lessee of cash in an amount equal to the sale price thereof (the "Cash Proceeds"). In the event the Lessee delivers the eighteen month notice described in the immediately preceding sentence, the Lessee shall be required, on the date it delivers such notice. Further, to pay to the Lessor all amounts owing by the Lessor under the Derivative Option to enable the Lessor to exercise the option described therein. In the event the Lessee is unable to satisfy the Termination Covenants, the Lessee shall not have the option to terminate this Lease pursuant to this paragraph (a) as Article if Lessee has taken possession of any part of the Premises or commenced to install its equipment, trade fixtures or furniture therein. If Lessee terminates this Lease pursuant to the Facility in its entirety or any other Property or Equipment unless the Lessee has obtained the prior written consent of the Lessor to such termination provisions of this Lease Article XLIV, then the provisions of Article XLII and the sale of the Facility or such other Property or Equipment and the Related Assignee has been given notice of such termination and consent. In addition, if an Event of Default or Event of Lease Termination has occurred and is continuing, and, prior any documents to effectuate 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 Facility or such Property or Equipment and sale of the Facility or such Property or Equipment to its designee in accordance with the terms of this paragraph (a). At the time the Facility or other Property or Equipment is sold pursuant to this paragraph (a), the Lessor shall deliver the documents described in paragraph (g) of Section 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 leased assets being sold, as the case 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 to the purchaser, at no cost 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 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 Material Contracts related to such Facility or Turbine Unit, and in the event any additional consent of any party to 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 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 Facility or such Turbine Unit 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 the 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 Material Contracts and service agreements and pay all sums received under the 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 Material Contracts and service agreements (including all actions with respect to the enforcement of the Lessee's rights and remedies under such Material Contracts and service agreements), and (3) not amend, modify, supplement, waive a provision of, grant any consent under or terminate any such Material Contract or service agreement without the prior written consent of such purchaser.
(d) All payments and credits referred to in paragraphs (b) and (c) above shall be made on the termination date of the 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 accrued in respect of the Facility or such other Property or Equipment sold, (ii) if such termination occurs pursuant to paragraph (b) of this Section 12, the Debt Yield-Maintenance Premium payable in respect of the Facility or such other Property or Equipment sold, (iii) any Additional Rent owing in respect of the Facility or such other Property or Equipment sold, (iv) all amounts payable pursuant to Sections 11, 25 and 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 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 title to the 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 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 Facility 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 therein 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 inapplicableterminate ab initio.
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 The approval of or issuance of a license or permit by any agency, board, court, or other governmental authority necessary for the construction and/or operation of Lessee's Facilities as the now or hereafter intended by Lessee can satisfy the Termination Covenants and the provisions cannot be obtained, or is revoked through no fault of this Section 12Lessee, and subject to the last sentence of paragraph (a) of Section 13 hereof, the or if Lessee shall have the right, upon eighteen (18) months' notice (the "Termination Notice") to the Lessor and the Related Assignee, to terminate the lease of the Facility determines in its entirety sole discretion that the cost of obtaining or retaining any other Parcel of Property such permit or Unit of Equipment on the Basic Rent Payment Date at the end of the Initial Term or the Extended Term, by arranging, at its own cost and expense, for the sale of the Facility or any other Property or Equipment in an arm's length transaction on the date of termination and, subject to the provisions of paragraph approval is unreasonable;
(b) of this Section 12, the receipt by the Lessor of cash in an amount equal to the sale price thereof (the "Cash Proceeds"). In the event the Lessee delivers the eighteen month notice described in the immediately preceding sentence, the Lessee shall be required, determines that technical problems or radio interference problems from other antennas on the date Tower at the Commencement Date or 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 delivers such noticedoes not have acceptable and legally enforceable means of 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 pay an extent which prohibits or materially interferes with Lessee's use of the Premises; or
(f) The relocation of Lessee's Facilities pursuant to the Lessor all amounts owing by the Lessor under the Derivative Option Section 10 is unacceptable to enable the Lessor to exercise the option described thereinLessee. In the event the Lessee is unable to satisfy the Termination CovenantsExcept as otherwise provided herein, the Lessee shall not terminate upon termination of this Lease pursuant to this paragraph (a) as Section, the parties shall be released from all duties, obligations, liabilities and responsibilities under this Lease except for obligations to pay damages to the Facility in its entirety or any other Property or Equipment unless the Lessee has obtained the prior written consent of the Lessor to such termination of this Lease and the sale of the Facility or such other Property or Equipment and the Related Assignee has been given notice of such termination and consent. In additionparty, if an Event of Default or Event of Lease Termination has occurred and is continuingany, and, prior Lessee's obligation 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 Facility or such Property or Equipment and sale of the Facility or such Property or Equipment to remove its designee in accordance with the terms of this paragraph (a). At the time the Facility or other Property or Equipment is sold pursuant to this paragraph (a), the Lessor shall deliver the documents described in paragraph (g) of Section 30 hereof, and the Lessor's rights and obligations in respect of the Site Lease and the Easements, or the Ground Lease, Facilities as applicable to the leased assets being sold, as the case 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 to the purchaser, at no cost 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 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 Material Contracts related to such Facility or Turbine Unitrequired herein, and in the event any additional consent of any party to 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 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 Facility or such Turbine Unit 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 the 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 default, Lessor's obligation to the sale of return to Lessee any Turbine Unitunaccrued rent paid to Lessor prior to termination, 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 Material Contracts and service agreements and pay all sums received under the 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 Material Contracts and service agreements (including all actions with respect to the enforcement of the Lessee's rights and remedies under such Material Contracts and service agreements), and (3) not amend, modify, supplement, waive a provision of, grant any consent under or terminate any such Material Contract or service agreement without the prior written consent of such purchaser.
(d) All payments and credits referred to in paragraphs (b) and (c) above shall be made on the termination date of the 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 accrued in respect of the Facility or such other Property or Equipment sold, (ii) if such termination occurs pursuant to paragraph (b) of this Section 12, the Debt Yield-Maintenance Premium payable in respect of the Facility or such other Property or Equipment sold, (iii) any Additional Rent owing in respect of the Facility or such other Property or Equipment sold, (iv) all amounts payable pursuant to Sections 11, 25 and 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 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 title to the 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 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 Facility 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 right 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 inapplicableset-off.
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 Covenants and the provisions of this Section 12, and subject to the last sentence of paragraph (a) of Section 13 hereofCovenants, the Lessee shall have the right, upon eighteen (18) months' irrevocable notice (the "Termination NoticeTERMINATION NOTICE") to the Lessor and (which notice shall indicate if the Related AssigneeLessee 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 Facility in its entirety or any other Parcel of Property or Unit of Equipment Project as a whole (i) on the Basic Rent Payment Date at last day of the end last month of the Initial Term or the Extended Term or (ii) on any Basic Rent Payment Date during the Renewal Term, by arranging, at its own cost and expense, for the sale of the Facility or any other Property or Equipment Project in an arm's arm's-length transaction on the date of termination and, subject to and the provisions of paragraph (b) of this Section 12, the indefeasible receipt by the Lessor of cash in an amount equal to the sale price thereof of the Project (the "Cash ProceedsCASH PROCEEDS"). In the event the Lessee delivers the eighteen month notice described in the immediately preceding sentence, the Lessee shall be required, on the date it delivers such notice, to pay to the Lessor all amounts owing by the Lessor under the Derivative Option to enable the Lessor to exercise the option described therein. In the event the Lessee is unable to satisfy the Termination Covenants, the Lessee shall not terminate this Lease pursuant to this paragraph (a) as to the Facility in 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 Facility or such other Property or Equipment and the Related Assignee has been given notice of such termination and consentProject. In addition, if an Event of Default or Termination Event of Lease Termination has occurred and is continuing, and, prior to the termination of this Lease, in whole or in part, Lease pursuant to this paragraph (a), the Lessor arranges for the sale of the Facility or such other Property or Equipment 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 Facility or such Property or Equipment Project and sale of the Facility or such Property or Equipment Project to its designee in accordance with the terms of this paragraph (a). At the time the Facility or other Property or Equipment Project is sold pursuant to this paragraph (a)Section 12, the Lessor shall deliver the documents described in paragraph (gi) of Section 30 29 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 leased assets being sold, as the case 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 to the purchaser, at no cost and to the extent permitted by applicable lawcost, 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 Facility or such Turbine Unit (or any part thereof) 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 Material Contracts related to such Facility or Turbine UnitProject Contracts, and in the event any additional consent of any party to any such Material 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 Material 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, service, fueling, operation or use of the Facility or such Turbine Unit 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 the 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 theretoProject. 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 Material Project Contracts and service agreements and pay all sums received under the Material Project 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 Material Project Contracts and service agreements (including all actions with respect to the enforcement of the Lessee's rights and remedies under such Material Contracts and service agreementsProject Contracts), and (3) not amend, modify, supplement, waive a provision of, grant any consent under or terminate any such Material Project 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 last month 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 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 if 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 are equal to or less than the Adjusted Acquisition Cost, 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 pay to the Lessor an amount equal to (A) the Adjusted Acquisition Cost less (B) the Cash Proceeds; and
(iii) if the Cash Proceeds are less than 33.13% of the Adjusted Acquisition Cost (or if there are no Cash Proceeds), the Lessee shall pay to the Lessor an amount equal to the sum of (A) 66.87% 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).
(d) All payments and credits referred to in paragraphs (b) and (c) above shall be made on the termination date of the lease of the Facility or such other Property or Equipment, as the case may be, 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 (without duplication) (i) all Basic Rent accrued in respect payable through the date of the Facility or such other Property or Equipment soldtermination of this Lease, (ii) if such the Variable Component of Basic Rent accrued through the date of termination occurs pursuant to paragraph (b) of this Section 12, the Debt Yield-Maintenance Premium payable in respect of the Facility or such other Property or Equipment soldLease, (iii) any Additional Rent owing in respect of the Facility or such other Property or Equipment soldowing, (iv) all amounts payable pursuant to Sections 11, 25 24 and 27 26 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 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 this Section 12, as the case may be, the Lessor shall transfer title to its interest in the Facility or such other Property or Equipment 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 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 Facility 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 Property or Equipment soldactions (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 this Section 1212 hereof. If the Lessee advises the Lessor that either any 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 Project 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 thirty (6030) 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 12it, if such purchaser shall pay an amount sufficient to render paragraph (b)(iii) of Section 12 or paragraph (c)(iii) of this 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 Covenants and Casualty resulted in damage to all or a substantial part of the provisions Building which will take in excess of this Section 12, and subject to the last sentence of paragraph (ax) of Section 13 hereof, the Lessee shall have the right, upon eighteen (18) months' notice (months from the "Termination Notice") beginning of restoration to restore the Building to the Lessor same condition as existed immediately prior to the Casualty and the Related AssigneeCasualty 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 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 Facility foregoing Casualties described in its entirety clause (i) or any other Parcel (ii), a “Substantial Casualty”), then Lessee may elect to terminate this Lease upon giving notice of Property or Unit of Equipment on the Basic Rent Payment Date at the end such election in writing to Lessor within sixty (60) days after Lessee is notified in writing of the Initial Term 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 Extended Termdate of the notice.
(b) If Lessee elects to terminate this Lease pursuant to Section 12.2(a), by arrangingthen Lessee shall pay to Lessor the excess, at its own cost and expenseif any, of the discounted Present Value of the Rent that would otherwise become due for the sale Property for the period of the Facility or any other Property or Equipment in an arm's length transaction time commencing on the date of termination andof this Lease and ending on the last day of the 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 through the end of the Lease Term (assuming reasonable periods of time to prepare plans, subject secure permits and rebuild the Property substantially to its condition prior to the provisions 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 paragraph 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 damage and restoring the Property. In that event, Lessor shall receive from Lessee either the insurance proceeds (b) of this Section 12plus any deductible), or, if Lessee is then self- insuring, the receipt by 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 the Lease is terminated, then payment to it from either insurance proceeds or Lessee under self-insurance shall be only such amount as represents the fair market value of cash in the Property as of the date of the Casualty, and not an amount equal to the sale price thereof full replacement cost to restore the Property.
(the "Cash Proceeds"). In the event the c) If Lessor and Lessee delivers the eighteen month notice described in the immediately preceding sentence, the Lessee shall be required, cannot agree on the date it delivers such notice, to pay to the Lessor all amounts owing by the Lessor under the Derivative Option to enable the Lessor to exercise the option described therein. In the event the Lessee is unable to satisfy the Termination Covenants, the Lessee shall not terminate this Lease pursuant to this paragraph (a) as to the Facility in its entirety or any other Property or Equipment unless the Lessee has obtained the prior written consent discounted Present Value of the Fair Market Rent that Lessor could reasonably be expected to such termination of this Lease and the sale collect after restoration of the Facility Property (or such other Property or Equipment and the Related Assignee has been given notice of such termination and consent. In addition, if an Event of Default or 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 (aportion thereof), the Lessor arranges for the sale such discounted Present Value of the Facility or such other Property or Equipment to a third party purchaser, the Termination Notice shall Fair Market Rent will be invalidated and the Lessee shall no longer have the right to cause the termination of the lease of the Facility or such Property or Equipment and sale of the Facility or such Property or Equipment to its designee determined by appraisal in accordance with the terms Appraisal Procedure. The period of this paragraph (a)time required to rebuild the Building 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 the Building. At The period of time that it would take to re-lease the time Building after the Facility or other Property or Equipment is sold pursuant to this paragraph (a)reconstruction and/or repair thereof will be determined by two independent commercial real estate brokers, the one selected by Lessor shall deliver the documents described in paragraph (g) of Section 30 hereofand one selected by Lessee, and the Lessor's rights and obligations in respect of the Site Lease and the Easements, or the Ground Lease, as applicable each familiar with properties similar to the leased assets being soldProperty and with the commercial lease market in the 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 the Building within twenty (20) Business Days after the their appointment, then a third architect or broker, as the case may be, shall be assumed selected by the purchaser, with the Lessor released from liability in respect thereof. In additiontwo other architects or brokers, as a condition applicable or, failing agreement as to such third architect or broker within thirty (30) Business Days after the sale appointment of the Facility others, by the American Arbitration Association office in the City (or any Turbine Unitif none, (i) then the Lessee shall assign to the purchaser, at no cost and to the extent permitted by applicable law, all right, title and interest closest city that does have an office). The determinations of the Lessee in, to and under all Governmental Actions and Intellectual Property Rights needed for the equipping, maintenance, operation or use relevant periods of time of the Facility three architects 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 Material Contracts related to such Facility or Turbine Unit, and in the event any additional consent of any party to 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 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 Facility or such Turbine Unit 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 the 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 Material Contracts and service agreements and pay all sums received under the 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 Material Contracts and service agreements (including all actions with respect to the enforcement of the Lessee's rights and remedies under such Material Contracts and service agreements), and (3) not amend, modify, supplement, waive a provision of, grant any consent under or terminate any such Material Contract or service agreement without the prior written consent of such purchaser.
(d) All payments and credits referred to in paragraphs (b) and (c) above shall be made on the termination date of the lease of the Facility or such other Property or Equipmentbrokers, as the case may be, pursuant 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 this Section 12rebuild or re-lease the Building, provided that if any one of the three determinations diverges from such average by ten percent (10%) or more, that determination shall be discarded and the parties average of the remaining two determinations shall account to each other for be the applicable time period binding on the parties. The fees and expenses of the architect and broker appointed by a party shall be paid by such payments party; the fees and credits, and expenses of a 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 pay to the Lessor (without duplication) (i) all Basic Rent accrued in respect such discounted present value of the Facility or such other Property or Equipment sold, (ii) if such termination occurs pursuant to paragraph (b) of this Section 12, the Debt Yield-Maintenance Premium payable in respect of the Facility or such other Property or Equipment sold, (iii) any Additional Rent owing in respect of the Facility or such other Property or Equipment sold, (iv) all amounts payable pursuant to Sections 11, 25 and 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 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 title to the 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 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 Facility or such other Property or Equipment soldRent.
(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 (Carter Validus Mission Critical REIT, 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 Covenants and Casualty resulted in damage to all or a substantial part of the provisions Building which will take in excess of this Section 12, and subject to the last sentence of paragraph (ax) of Section 13 hereof, the Lessee shall have the right, upon eighteen (18) months' notice (months from the "Termination Notice") beginning of restoration to restore the Building to the Lessor same condition as existed immediately prior to the Casualty and the Related AssigneeCasualty 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 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 Facility foregoing Casualties described in its entirety clause (i) or any other Parcel (ii), a “Substantial Casualty”), then Lessee may elect to terminate this Lease upon giving notice of Property or Unit of Equipment on the Basic Rent Payment Date at the end such election in writing to Lessor within sixty (60) days after Lessee is notified in writing of the Initial Term 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 Extended Termdate of the notice.
(b) If Lessee elects to terminate this Lease pursuant to Section 12.2(a), by arrangingthen Lessee shall pay to Lessor the excess, at its own cost and expenseif any, of the discounted Present Value of the Rent that would otherwise become due for the sale Property for the period of the Facility or any other Property or Equipment in an arm's length transaction time commencing on the date of termination andof this Lease and ending on the last day of the 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 through the end of the Lease Term (assuming reasonable periods of time to prepare plans, subject secure permits and rebuild the Property substantially to its condition prior to the provisions 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 paragraph 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 damage and restoring the Property. In that event, Lessor shall receive from Lessee either the insurance proceeds (b) of this Section 12plus any deductible), or, if Lessee is then self-insuring, the receipt by 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 the Lease is terminated, then payment to it from either insurance proceeds or Lessee under self-insurance shall be only such amount as represents the fair market value of cash in the Property as of the date of the Casualty, and not an amount equal to the sale price thereof full replacement cost to restore the Property.
(the "Cash Proceeds"). In the event the c) If Lessor and Lessee delivers the eighteen month notice described in the immediately preceding sentence, the Lessee shall be required, cannot agree on the date it delivers such notice, to pay to the Lessor all amounts owing by the Lessor under the Derivative Option to enable the Lessor to exercise the option described therein. In the event the Lessee is unable to satisfy the Termination Covenants, the Lessee shall not terminate this Lease pursuant to this paragraph (a) as to the Facility in its entirety or any other Property or Equipment unless the Lessee has obtained the prior written consent discounted Present Value of the Fair Market Rent that Lessor could reasonably be expected to such termination of this Lease and the sale collect after restoration of the Facility Property (or such other Property or Equipment and the Related Assignee has been given notice of such termination and consent. In addition, if an Event of Default or 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 (aportion thereof), the Lessor arranges for the sale such discounted Present Value of the Facility or such other Property or Equipment to a third party purchaser, the Termination Notice shall Fair Market Rent will be invalidated and the Lessee shall no longer have the right to cause the termination of the lease of the Facility or such Property or Equipment and sale of the Facility or such Property or Equipment to its designee determined by appraisal in accordance with the terms Appraisal Procedure. The period of this paragraph (a)time required to rebuild the Building 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 the Building. At The period of time that it would take to re-lease the time Building after the Facility or other Property or Equipment is sold pursuant to this paragraph (a)reconstruction and/or repair thereof will be determined by two independent commercial real estate brokers, the one selected by Lessor shall deliver the documents described in paragraph (g) of Section 30 hereofand one selected by Lessee, and the Lessor's rights and obligations in respect of the Site Lease and the Easements, or the Ground Lease, as applicable each familiar with properties similar to the leased assets being soldProperty and with the commercial lease market in the 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 the Building within twenty (20) Business Days after the their appointment, then a third architect or broker, as the case may be, shall be assumed selected by the purchaser, with the Lessor released from liability in respect thereof. In additiontwo other architects or brokers, as a condition applicable or, failing agreement as to such third architect or broker within thirty (30) Business Days after the sale appointment of the Facility others, by the American Arbitration Association office in the City (or any Turbine Unitif none, (i) then the Lessee shall assign to the purchaser, at no cost and to the extent permitted by applicable law, all right, title and interest closest city that does have an office). The determinations of the Lessee in, to and under all Governmental Actions and Intellectual Property Rights needed for the equipping, maintenance, operation or use relevant periods of time of the Facility three architects 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 Material Contracts related to such Facility or Turbine Unit, and in the event any additional consent of any party to 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 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 Facility or such Turbine Unit 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 the 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 Material Contracts and service agreements and pay all sums received under the 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 Material Contracts and service agreements (including all actions with respect to the enforcement of the Lessee's rights and remedies under such Material Contracts and service agreements), and (3) not amend, modify, supplement, waive a provision of, grant any consent under or terminate any such Material Contract or service agreement without the prior written consent of such purchaser.
(d) All payments and credits referred to in paragraphs (b) and (c) above shall be made on the termination date of the lease of the Facility or such other Property or Equipmentbrokers, as the case may be, pursuant 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 this Section 12rebuild or re-lease the Building, provided that if any one of the three determinations diverges from such average by ten percent (10%) or more, that determination shall be discarded and the parties average of the remaining two determinations shall account to each other for be the applicable time period binding on the parties. The fees and expenses of the architect and broker appointed by a party shall be paid by such payments party; the fees and credits, and expenses of a 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 pay to the Lessor (without duplication) (i) all Basic Rent accrued in respect such discounted present value of the Facility or such other Property or Equipment sold, (ii) if such termination occurs pursuant to paragraph (b) of this Section 12, the Debt Yield-Maintenance Premium payable in respect of the Facility or such other Property or Equipment sold, (iii) any Additional Rent owing in respect of the Facility or such other Property or Equipment sold, (iv) all amounts payable pursuant to Sections 11, 25 and 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 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 title to the 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 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 Facility or such other Property or Equipment soldRent.
(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 (Carter Validus Mission Critical REIT, Inc.)
Lessee’s Right to Terminate. (a) So long as the Lessee can satisfy the Termination Covenants no Event of Default has occurred and the provisions is continuing and with respect to any Parcel of this Section 12Property not undergoing any repairs, and subject to the last sentence of paragraph (a) of Section 13 hereofadditions or alterations, the Lessee shall have the right, upon eighteen ninety (1890) monthsdays' notice (the "Termination Notice") to the Lessor and the Related AssigneeLessor, to terminate the lease of the Facility in its entirety or any other Parcel of Property or Unit any or all Units of Equipment on the Basic Rent Payment Date at of the end last month of the Initial Term or on any Basic Rent Payment Date during the Extended Term or the Renewal Term, if any, by arranging, at its own cost and expense, for the sale of the Facility or any other such Property or Equipment in an arm's arms' length transaction on the date of termination and, subject to the provisions of paragraph (b) of this Section 12, and the receipt by the Lessor of cash in an amount equal to the sale price thereof of such Property or Equipment (the "Cash Proceeds"). In the event the Lessee delivers the eighteen month notice described in the immediately preceding sentence; provided that, the Lessee shall be requiredif such sale does not occur, on the date it delivers such notice, to pay to the Lessor all amounts owing by the Lessor under the Derivative Option to enable the Lessor to exercise the option described therein. In the event the Lessee is unable to satisfy the Termination Covenants, the Lessee this Lease shall not terminate this Lease with respect to such Property and Equipment. The lease of Pork Production Facility Equipment may be terminated pursuant to this paragraph (a) as to the Facility Section 12 only in its entirety or any other Property or Equipment unless the Lessee has obtained the prior written consent of the Lessor to such conjunction with a termination of this Lease and the sale of the Facility or such other Property or Equipment and the Related Assignee has been given notice of such termination and consent. In addition, if an Event of Default or 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 Section 12 of the lease of the Pork Production Facility at which such Pork 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 Pork Production Facility, the lease of all of the Pork Production Facility Equipment used, or to be used, in such Property or Pork Production Facility must be terminated pursuant to this Section 12 concurrently therewith. For purposes of this Section 12, in connection with the sale of 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 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 sale of a Poultry Production Facility and the related Poultry Production Facility or Equipment, the term "Cash Proceeds" shall mean the aggregate cash proceeds from the sale of such Property or 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 its designee in accordance with the terms of this paragraph (a)Section 12. At the time the Facility or other a Parcel of Property or Unit of Equipment is sold pursuant to this paragraph (a), the Lessor shall deliver the documents described in paragraph (g) of Section 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 leased assets being sold, as the case 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 to the purchaser, at no cost 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 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 Material Contracts related to such Facility or Turbine Unit, and in the event any additional consent of any party to 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 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 Facility or such Turbine Unit 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 the 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 Material Contracts and service agreements and pay all sums received under the 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 Material Contracts and service agreements (including all actions with respect to the enforcement of the Lessee's rights and remedies under such Material Contracts and service agreements), and (3) not amend, modify, supplement, waive a provision of, grant any consent under or terminate any such Material Contract or service agreement without the prior written consent of such purchaser.
(d) All payments and credits referred to in paragraphs (b) and (c) above shall be made on the termination date of the lease of the Facility or such other Property or Equipment, as the case may be, pursuant to this Section 12, and the parties such Parcel or Unit shall account to each other for such payments and credits, and the Lessee shall pay to the Lessor (without duplication) (i) be in compliance with all Basic Rent accrued in respect of the Facility or such other Property or Equipment sold, (ii) if such termination occurs pursuant to paragraph (b) of this Section 12, the Debt Yield-Maintenance Premium payable in respect of the Facility or such other Property or Equipment sold, (iii) any Additional Rent owing in respect of the Facility or such other Property or Equipment sold, (iv) all amounts payable pursuant to Sections 11, 25 and 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 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 title to the 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 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 Facility 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 Legal Requirements 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 not be subject 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) any Permitted Contest 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 inapplicableany Lien.
Appears in 1 contract
Samples: Lease Agreement (Seaboard Corp /De/)
Lessee’s Right to Terminate. (a) So long as the Lessee can satisfy the Regardless of whether any Potential Default, Potential Property Termination, Event of Default or Event of Property Termination Covenants has occurred and the provisions of this Section 12is continuing, and subject with respect to the last sentence of paragraph (a) of Section 13 hereofall Properties, the Lessee shall have the right, at any time during the Lease Term or any Renewal Term, upon eighteen not less than fifteen (1815) monthsdays' written notice (the "Termination Notice") to the Lessor Brazos and the Related Assignee, to terminate terminate, on any date specified in such notice, this Ground Lease with respect to all Properties, and either (i) purchase or cause its designee to purchase all Properties, for cash at their respective Acquisition Cost less any Unearned Rent, together with all other amounts then due and payable by Lessee to Brazos hereunder or (ii) with the lease prior written consent of the Facility in its entirety or any other Parcel of Property or Unit of Equipment on the Basic Rent Payment Date at the end of the Initial Term or the Extended Termboth Brazos and Agent, by arrangingarrange, at its own cost and expense, for all Properties, to be sold for cash pursuant to SECTION 11.4 and with the consequences therein provided, except that such sale of the Facility or any other Property or Equipment in an arm's length transaction must occur on the date of termination and, subject to stipulated in the provisions of paragraph written notice contemplated by this SECTION 11.1.
(b) of this Section 12, the receipt by the Lessor of cash in an amount equal In addition to the sale price thereof (the "Cash Proceeds"). In the event the Lessee delivers the eighteen month notice described in the immediately preceding sentence, the Lessee shall be required, on the date it delivers such notice, Lessee's right to pay to the Lessor all amounts owing by the Lessor under the Derivative Option to enable the Lessor to exercise the option described therein. In the event the Lessee is unable to satisfy the Termination Covenants, the Lessee shall not terminate this Ground Lease with respect to all Properties pursuant to this paragraph subsection (a) above, so long as to the Facility in its entirety or any other Property or Equipment unless the Lessee has obtained the prior written consent of the Lessor to such termination of this Lease and the sale of the Facility or such other Property or Equipment and the Related Assignee has been given notice of such termination and consent. In addition, if an no Event of Default or Event of Lease Property Termination (other than an Event of Property Termination with respect to the Property to be purchased pursuant to this subsection (b)) has occurred and is continuingcontinuing beyond any applicable grace or curative period, andLessee shall have the right, prior at any time during the Lease Term or any Renewal Term, upon not less than fifteen (15) days' written notice to Brazos and Assignee, to terminate on any date specified in such notice this Ground Lease with respect to any one or more Property (each such Property specified in such notice being herein called a "PURCHASED PROPERTY"), but not with respect to the remaining Properties, subject to the following terms and conditions:
(i) On the effective date of such termination of this Leasewith respect to the Purchased Property, in whole Lessee or in part, pursuant its designee shall purchase the Purchased Property for cash equal to this paragraph (a), the Lessor arranges for Acquisition Cost less any Unearned Rent with respect to the sale of applicable Property and simultaneously purchase the Facility or located on such other Purchased 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 Facility or such Property or Equipment and sale of the Facility or such Property or Equipment to its designee in accordance with the terms of this paragraph (a). At the time the Facility or other Property or Equipment is sold pursuant to this paragraph (a), the Lessor shall deliver the documents described in paragraph (g) of Section 30 hereof, and the Lessor's rights and obligations in respect of the Site Lease and the Easements, or the Ground leasehold interest in such Facility in the case of an Acquired Facilities Lease, as applicable to defined in the leased assets being sold, Facilities Lease) for the Acquisition Cost (as defined in the case 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 Facilities Lease) of the such Facility or any Turbine Unit, (i) the Lessee shall assign to the purchaser, at no cost 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 Facility or such Turbine Unit (or any part thereof) and obtained and held by the Lessee at that time, Acquired Facilities Lessee.
(ii) the Lessee shall assign to the purchaser, at no cost, and the purchaser shall assume, all right, title and interest The conditions of the Lessee in, to and under the Material Contracts related to such Facility or Turbine Unit, and in the event any additional consent of any party to 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 Material Contracts, either subsection (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 Facility or such Turbine Unit 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 the 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 or (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 below have been satisfied.
(iii) In the good faith judgment of the immediately preceding sentence, at the request of such purchaserLessee, the Purchased Property shall have become uneconomic for continued use and occupancy by Lessee (such Property being hereinafter sometimes called an "UNECONOMIC PROPERTY") and Lessee shall agree have delivered to Brazos and Assignee a written notice (1an "UNECONOMIC NOTICE") at the expense containing a certificate of an officer of Lessee stating that Lessee has determined that such purchaser, continue to perform under Property has become uneconomic for continued use and maintain in full force and effect the Material Contracts and service agreements and pay all sums received under the 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 occupancy by Lessee, take all actions requested by such purchaser . If Lessee terminates this Ground Lease with respect to such Material Contracts and service agreements (including all actions with respect to the enforcement of the Lessee's rights and remedies under such Material Contracts and service agreements), and (3) not amend, modify, supplement, waive a provision of, grant any consent under or terminate any such Material Contract or service agreement without the prior written consent of such purchaser.
(d) All payments and credits referred to in paragraphs (b) and (c) above shall be made on the termination date of the 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 accrued in respect of the Facility or such other Property or Equipment sold, (ii) if such termination occurs pursuant to paragraph (b) of this Section 12, the Debt Yield-Maintenance Premium payable in respect of the Facility or such other Property or Equipment sold, (iii) any Additional Rent owing in respect of the Facility or such other Property or Equipment sold, (iv) all amounts payable pursuant to Sections 11, 25 and 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 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 title to the 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 of sale without reduction for any amounts paid by the Lessee. In the event of a sale pursuant to this Section 12an Uneconomic Property, neither the Lessee nor any Affiliate of the Lessee shall have the right, for the period commencing six (6) months and ending one (1) year following the date of the purchase of such Economic Property, to use such Uneconomic Property for the Facility operation of a retail store by Lessee or such other Property or Equipment soldAffiliate.
(eiv) In its notice given pursuant addition to paragraph (a) of the right to terminate this Section 12Ground Lease with respect to an Uneconomic Property, 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 terminate this Ground Lease with respect to Properties with respect to which the attributable Acquisition Costs are no more than twenty percent (20%) of the Facility aggregate Acquisition Costs for all Properties then covered by this Ground Lease.
(v) In addition to Lessee's right to terminate this Ground Lease with respect to an Uneconomic Property pursuant to subsection (iii) above, or to terminate pursuant to subsection (iv), Lessee shall have the right to terminate this Ground Lease with respect to any one or more Properties provided that Lessee has delivered to Brazos and the Assignee, on or prior to the notice of termination with respect to such other Property Properties, an appraisal or Equipment appraisals, in form and substance reasonably satisfactory to Brazos and the Assignee, reflecting that the aggregate fair market value of all Properties that will remain subject to this Ground Lease after such termination and all Facilities that will remain subject to the Facilities Lease after such termination (assuming completion of all such Facilities) is no less than the aggregate Acquisition Costs of the remaining Properties and Acquisition Costs (as defined in the Facilities Lease) of the remaining Facilities (including any such Acquisition Costs reasonably expected to be made advanced to a purchaser designated by cause 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 completion 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 inapplicableremaining Facilities).
Appears in 1 contract
