Option to Purchase Demised Premises. Section 35 of the Original Lease is hereby deleted in its entirety and replaced with the following right of first refusal: a. If Landlord should at any time during the term of this Lease receive a bona fide offer (“Refusal Offer”) to purchase any, or all, of the Land, together with any or all improvements thereon (the “ROFR Property”) from a third party and Landlord desires to accept such offer, Landlord shall deliver to Tenant a written notice (“Acquisition Notice”) setting forth the name of the prospective purchaser and the terms and conditions of such Refusal Offer. b. Tenant shall have ten (10) business days from receipt of the Acquisition Notice to exercise its right (“Right of First Refusal”) to purchase the ROFR Property listed in the Acquisition Notice by delivering written notice thereof to Landlord. Delivery of such notice shall obligate Tenant to purchase the ROFR Property (or the applicable portion thereof) on the date which is ninety (90) days after receipt of the Acquisition Notice (or any earlier date requested by Tenant) and on the terms and conditions set forth in the Acquisition Notice. In the event Tenant shall not elect to exercise its Right of First Refusal or fails to timely deliver notice within the ten (10) business day period, Tenant shall conclusively be deemed to have waived its Right of First Refusal as to the transaction described in the Acquisition Notice in question and Landlord may thereupon proceed to sell the ROFR Property (or portion thereof) on the terms and conditions and to the party specified in the Acquisition Notice in question, and in the event the ROFR Property (or portion thereof) is sold as set forth in the Acquisition Notice in question, the Right of First Refusal shall be applicable to any future sales of remaining ROFR Property (or portion thereof), and this Lease shall remain in full force and effect. Modifications may be made in the offer outlined in the Acquisition Notice without the necessity of resubmitting the offer to Tenant, provided that the purchase price is not reduced, the payment terms are not changed, and provided that the closing date is not extended for a period in excess of ninety (90) days. c. Notwithstanding the foregoing, Tenant’s Right of First Refusal described in this Section 5 shall not apply (i) in the event Landlord’s lender forecloses, accepts a deed in lieu of foreclosure or otherwise takes title to the Land, or (ii) to any transfer of the Land to an Affiliate of Landlord. As used in this Section 5.c., “Affiliate” shall mean any entity resulting from a merger or consolidation with Landlord or any entity controlled by, controlling, or under common control with Landlord.
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Samples: Lease Agreement, Lease Agreement (Hewitt Associates Inc), Lease Agreement (Hewitt Associates Inc)
Option to Purchase Demised Premises. Section 35 of the Original Lease 31.01 The Lessee is hereby deleted in its entirety and replaced with given the following right of first refusal:
a. If Landlord should at any time during the term of this Lease receive a bona fide offer (“Refusal Offer”) to purchase any, or all, of the Land, together with any or all improvements thereon (the “ROFR Property”) from a third party and Landlord desires to accept such offer, Landlord shall deliver to Tenant a written notice (“Acquisition Notice”) setting forth the name of the prospective purchaser and the terms and conditions of such Refusal Offer.
b. Tenant shall have ten (10) business days from receipt of the Acquisition Notice to exercise its right (“Right of First Refusal”) option to purchase the ROFR Property listed Demised Premises and the unused development rights, if any, relating to the Tenth Floor Unit reserved by Lessor in the Acquisition Notice by delivering written notice thereof to Landlord. Delivery of such notice shall obligate Tenant to purchase the ROFR Property (or the applicable portion thereof) on the date which is ninety (90) days after receipt of the Acquisition Notice (or any earlier date requested by Tenant) and on Declaration upon the terms and conditions set forth in this Article 31 and in the Acquisition NoticeContract of Sale referred to herein (the “Option”).
31.02 Provided that this Lease is, at the time of the exercise of the Option, in full force and effect and that together with or prior to the exercise of the Option Lessee pays to Lessor all net rent and additional rent then due and unpaid and fully cures all of the then outstanding monetary defaults under this Lease, if any, Lessee may exercise the Option by giving written notice to Lessor at any time from and after December 1, 2015 (the “Threshold Date”), at a price equal to the then fair market value thereof. Xxxxxx Xxxxxx hereby waives any right of first refusal with respect to the Option and the purchase contemplated thereby which he has on the date of this Lease. At the request of Lessee made at any time on or after the date which is six (6) months prior to the Threshold Date and prior to an exercise of the Option by Lessee under Section 31.03 of this Lease, Lessee and Lessor shall in good faith negotiate as to the fair market value of the Tenth Floor Unit. Lessor shall, on request, furnish to Lessee the name and address of Lessor’s attorney. In the event Tenant that Lessor and Lessee are unable to so agree on the fair market value of the Tenth Floor Unit within thirty (30) days after the date of Lessee’s request for a determination thereof, Lessor and Lessee shall each choose a disinterested and independent appraiser, and the two appraisers shall mutually agree upon the fair market value. Each appraiser chosen shall have not elect to exercise its Right of First Refusal or fails to timely deliver notice within the less than ten (10) years experience in the appraisal of commercial real estate in the Borough of Manhattan. Lessor or Lessee, as the case may be, shall deliver a written notice to the other party appointing its appraiser within fifteen (15) business day perioddays after receipt from the other party of a written notice appointing the party’s appraiser. If, Tenant within fifteen (15) business days after appointment of the two appraisers as described above, the two appraisers are unable to agree upon the fair market value of the Tenth Floor Unit, a third disinterested and independent appraiser having the qualifications described in this Paragraph shall conclusively be deemed chosen within five (5) business days thereafter by mutual consent of such first two appraisers, of if such first two appraisers fail to agree upon the appointment of a third appraiser, such appointment shall be made by an authorized representative of the American Arbitration Association or any organization successor thereto (the “AAA”), or, if there be none, by the Supreme Court of the State of New York. In the event a third appraiser is so appointed, fair market value shall be determined by a majority of the appraisers so appointed within thirty (30) days after selection of the third appraiser. The three appraisers shall accord the parties an opportunity to present documentary evidence and expert oral testimony and to have waived its Right the right to cross-examination. The process shall be administered by and in accordance with the rules of First Refusal as to the transaction described AAA in the Acquisition Notice in question City, County and Landlord may thereupon proceed to sell State of New York. The fair market value as so determined by such appraisers shall be binding and conclusive upon Lessor and Lessee for a period of six (6) months following the ROFR Property date of such determination (or portion thereofthe “Option Period”) on the terms and conditions and to the party specified in the Acquisition Notice in question, and shall apply in the event of any subsequent exercise of the ROFR Property purchase Option made by Lessee during such six (6) month Option Period. In the event that Lessee does not exercise the purchase Option during such six (6) month Option Period, then the fair market value of the Tenth Floor Unit shall again be determined in accordance with the provisions hereof for any subsequent exercise of the Option. Lessor and Lessee shall pay the fees and expenses of the respective appraisers appointed by them and shall share equally the fees and expenses of the third appraiser, if any, and any fees imposed upon either by the AAA. Time shall be of the essence with respect to the Lessee’s obligations under this Section 31.02 and Section 31.03 below.
31.03 The election of the Lessee to exercise the Option shall be made during the Option Period by (a) a notice in writing given to the Lessor in accordance with Article 21 of this Lease (the “Exercise Notice”), accompanied by (b) a deposit in an amount equal to ten (10%) percent of the fair market value determined in accordance with Section 31.02 of this Lease payable to the order of the attorney for Lessor who is duly licensed to practice law in the State of New York or portion thereofother mutually satisfactory escrow agent and (c) is sold such other amounts, if any, as shall be required pursuant to Section 31.02. The Exercise Notice shall set forth in a date (the Acquisition Notice in question, “Closing Date”) for the Right closing of First Refusal title to the Demised Premises (the “Closing”) which shall be applicable the earlier to any future sales occur of remaining ROFR Property (or portion thereof), and this Lease shall remain in full force and effect. Modifications may be made in the offer outlined in the Acquisition Notice without the necessity of resubmitting the offer to Tenant, provided that the purchase price is not reduced, the payment terms are not changed, and provided that the closing date is not extended for a period in excess of ninety (90) days.
c. Notwithstanding the foregoing, Tenant’s Right of First Refusal described in this Section 5 shall not apply (i) in the event Landlord’s lender foreclosesatmosphere, accepts a deed in lieu ground, sewer system or any body of foreclosure water, if such material (as determined by any governmental authority) does or otherwise takes title to may, pollute or contaminate the Landsame, or may adversely affect (i) the health, welfare or safety of persons, whether located on the Demised Premises or elsewhere, or (ii) the condition, use or equipment of the Demised Premises or any other real or personal property.
34.04 As used herein, the term “Hazardous Material” shall be deemed to include any hazardous, toxic or harmful substances, wastes, materials, pollutants or contaminants (including, without limitation, asbestos, polychlorinated biphenyls, petroleum products, flammable explosives, radioactive materials, infectious substances or raw materials which include hazardous constituents), or any other substances or materials which are included under or regulated by “Environmental Laws.” As used herein, “Environmental Laws” shall be deemed to mean any and all local, state or federal laws, ordinances, rules or regulations of any governmental authority regarding the use, control, regulation or prohibition of any Hazardous Material or otherwise pertaining to environmental regulation, contamination or clean-up, including, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (42 U.S.C. Section 9601 et seq. and CRF Section 302.1 et seq.), the Resource Conservation and Recovery Act of 1976 (42 U.S.C. Section 6901 et seq.), the Federal Water Pollution Control Act (33 U.S.C. Section 1251 et seq. and 40 CRF Section 116.1 et seq.) and the Hazardous Materials TransportationAct (49 U.S.C. Section 1801 et seq.) and the regulations promulgated pursuant to said laws.
34.05 Lessee hereby agrees that it shall be fully liable for all costs and expenses directly or indirectly related to (i) the use, storage and disposal of Hazardous Material kept on the Premises by the Lessee, (ii) compliance with all Environmental Laws, and (iii) the remediation of any and all Hazardous Materials affecting the Demised Premises at any time hereafter, to the extent that such Hazardous Materials were stored, used and/or permitted at, on or about the Demised Premises at any time by Lessee, its employees, agents, contractors, affiliates, any subtenant and/or assignee. Lessee shall give immediate notice to the Lessor of any violation or potential violation of the provisions of this Article 34 and of the receipt of any notice from any governmental entity or agency asserting that any violation of any Environmental Laws has occurred in, at or about the Demised Premises, shall immediately provide to Lessor copies of any order, notice, permit, application or any other communication from or to any transfer entity or person, including, without limitation, any governmental agencies regarding the environmental condition of the Land Demised Premises and shall defend, indemnify and hold harmless Lessor, its mortgagee, and its and their respective agents, officers, directors, partners and shareholders, from and against any claims, loss, judgments, demands, penalties, fines, liabilities, settlements, damages, costs, or expenses (including, without limitation, attorney and consultant fees, court costs and litigation expenses) of whatever kind or nature, known or unknown, contingent or otherwise, arising out of or in any way related to an Affiliate (i) the presence, disposal, release, or threatened release of Landlord. As used any such Hazardous Material in or upon the soil, water, vegetation, buildings, personal property, persons, animals, or otherwise at any time occurring as hereinabove provided in this Section 5.c.Article 34; (ii) any personal injury (including wrongful death) or property damage (real or personal) arising out of or related to such Hazardous Material; (iii) any lawsuit brought or threatened, “Affiliate” settlement reached or government order relating to such Hazardous Material; and/or (iv) any violation of any laws applicable thereto. The provisions of this Article 34 shall mean be in addition to any entity resulting from a merger or consolidation with Landlord or any entity controlled byother obligations and liabilities Lessee may have to Lessor in law, controllingequity, or under common control with Landlordotherwise and shall survive the termination of this Lease.
Appears in 1 contract
Samples: Lease (Morgans Hotel Group Co.)
Option to Purchase Demised Premises. Section 35 of the Original Lease is hereby deleted in its entirety and replaced with the following right of first refusal:
a. If Landlord should at any time during the term of this Lease receive a bona fide offer (“Refusal Offer”) to purchase any, or all, of the LandLand or the Adjacent Land (as hereinafter defined), together with any or all improvements thereon (collectively, the “ROFR Property”) from a third party and Landlord desires to accept such offer, Landlord shall deliver to Tenant a written notice (“Acquisition Notice”) setting forth the name of the prospective purchaser and the terms and conditions of such Refusal Offer.
b. Tenant shall have ten (10) business days from receipt of the Acquisition Notice to exercise its right (“Right of First Refusal”) to purchase the ROFR Property listed in the Acquisition Notice by delivering written notice thereof to Landlord. Delivery of such notice shall obligate Tenant to purchase the ROFR Property (or the applicable portion thereof) on the date which is ninety (90) days after receipt of the Acquisition Notice (or any earlier date requested by Tenant) and on the terms and conditions set forth in the Acquisition Notice. In the event Tenant shall not elect to exercise its Right of First Refusal or fails to timely deliver notice within the ten (10) business day period, Tenant shall conclusively be deemed to have waived its Right of First Refusal as to the transaction described in the Acquisition Notice in question and Landlord may thereupon proceed to sell the ROFR Property (or portion thereof) on the terms and conditions and to the party specified in the Acquisition Notice in question, and in the event the ROFR Property (or portion thereof) is sold as set forth in the Acquisition Notice in question, the Right of First Refusal shall be applicable to any future sales of remaining ROFR Property (or portion thereof), and this Lease shall remain in full force and effect. Modifications may be made in the offer outlined in the Acquisition Notice without the necessity of resubmitting the offer to Tenant, provided that the purchase price is not reduced, the payment terms are not changed, and provided that the closing date is not extended for a period in excess of ninety (90) days.
c. Notwithstanding the foregoing, Tenant’s Right of First Refusal described in this Section 5 6 shall not apply (i) in the event Landlord’s lender forecloses, accepts a deed in lieu of foreclosure or otherwise takes title to the LandLand or the Adjacent Land which secures such lender’s mortgage, or (ii) to any transfer of the Adjacent Land to an Affiliate of Landlord. As used in this Section 5.c6.c., “Affiliate” shall mean any entity resulting from a merger or consolidation with Landlord or any entity controlled by, controlling, or under common control with Landlord.
Appears in 1 contract
Option to Purchase Demised Premises. Section 35 of 6.1 Landlord hereby grants to Tenant the Original Lease is hereby deleted in its entirety exclusive right and replaced with option to purchase the following right of first refusal:
a. If Landlord should Demised Premises (the "Option") at any time during the term Lease Term for the purchase price of Six Million seven Hundred Thousand Dollars ($6,700,000.00) (the "Purchase Price"), subject to adjustment for settlement prorations and upon the terms and conditions hereinafter set forth in this Section 6. If Tenant desires to exercise the Option during the Lease Term, Tenant shall notify Landlord in writing of its exercise of the Option (the "Exercise Notice"). If Tenant fails to exercise the Option during the Lease Term in accordance with this Lease, the Option shall lapse and terminate, and Tenant shall have no further right to purchase the Demised Premises under this Lease or otherwise, except as the parties may hereafter agree in writing.
6.2 Upon Tenant's receipt of the Exercise Notice, the following terms and conditions of this Section 6.2 shall become and constitute the agreement of Landlord to sell and Tenant to buy the Demised Premises:
(a) The purchase price for the Demised Premises shall be the Purchase Price. The Purchase Price shall be paid by Tenant to Landlord at settlement.
(b) In the event of a failure by Landlord to perform or comply with any of the terms and provisions of this Section 6.2 to be performed and complied with by Landlord within the time or times provided herein, upon five (5) days' notice to Landlord, Tenant shall be repaid any moneys paid by Tenant on account of the Purchase Price, and Tenant shall have all remedies available to it under law and in equity (including, without limitation, specific performance).
(c) Settlement on the purchase of the Demised Premises shall be made at the offices of Klehr, Harrison, Xxxxxx, Branzburg & Xxxxxx LLP, 0000 Xxxxxx Xxxxxx, Xxxxxxxxxxxx, Xxxxxxxxxxxx, 00000, within forty-five (45) days after the date of the Exercise Notice, but in no event later than the date of expiration of the Lease receive a bona fide offer Term or the earlier termination of this Lease.
(“Refusal Offer”i) At settlement, title to purchase anythe Demised Premises shall be free and clear of all leases, liens, judgments, encumbrances, easements, restrictions and objections, except existing building restrictions, ordinances, easements of roads, easements visible upon the ground, privileges or rights of utility or public service companies, and all other encumbrances and/or restrictions recorded against the Land as of the date of execution of this Lease. Except as set forth in this Section 6.2(d)(i), Landlord agrees not to convey or encumber all or any portion of the Premises or any interest therein, or allto encumber the Demised Premises with any judgments, restrictions, easements or other objections without the prior written consent of Tenant, which consent Tenant shall not unreasonably withhold, delay or condition. Landlord may mortgage the Demised Premises without the consent of Tenant, provided the mortgage and other instruments evidencing and/or securing such financing expressly acknowledge and recognize the rights of Tenant set forth in this Lease.
(ii) Excepting only as set forth in Section 6.2(d)(i) above, at settlement title to the Demised Premises shall be in fee simple and insurable as good and marketable at regular rates by a title insurance company selected by Tenant. Search and title insurance costs shall be paid by Tenant.
(iii) In the event title in accordance with this Section 6.2 cannot be conveyed by Landlord, Tenant shall have the option of taking such title as Landlord can give, without abatement of the Purchase Price, except as to monetary lien or liens, or, in the alternative, of terminating this Agreement, in which latter event Tenant shall be repaid any money paid on account of the LandPurchase Price, together with and all interest accrued thereon, and neither party shall have any further rights, duties or all improvements thereon obligations under this Agreement.
(iv) The Demised Premises shall be conveyed by Landlord to Tenant at settlement by good and sufficient deed, containing a special warranty only, prepared by Tenant and delivered to Landlord a reasonable time prior to settlement.
(e) All times provided for in this Section 6 are and shall be of the “ROFR Property”essence, and each extension of any such time or times shall continue to be of the essence of this Agreement. Tender of an executed deed and of the purchase money are hereby waived.
(f) from a third party and Landlord desires to accept such offerAt settlement, Landlord shall deliver to Tenant a written notice (“Acquisition Notice”) setting forth the name sole and exclusive possession of the prospective purchaser Demised Premises by delivery of the deed. At settlement, Landlord and the terms Tenant shall terminate this Lease in writing pursuant to an agreement prepared by Landlord that shall contain customary releases and conditions indemnities in favor of such Refusal OfferLandlord.
b. (i) Tenant shall have ten (10) business days from receipt be responsible for all Impositions for all tax years during the Lease Term, and shall pay and discharge the same at or before settlement. Landlord shall be responsible for all Impositions for all tax years preceding the year in which the Lease Term commenced, and shall pay and discharge the same at or before settlement. Impositions due for the current tax year in which settlement is held shall be apportioned between the parties as of the Acquisition Notice to exercise its right (“Right date of First Refusal”) to purchase the ROFR Property listed in the Acquisition Notice by delivering written notice thereof to Landlord. Delivery of such notice shall obligate Tenant to purchase the ROFR Property (or the applicable portion thereof) settlement on the date which is ninety (90) days after receipt of the Acquisition Notice (or any earlier date requested by Tenant) and on the terms and conditions set forth in the Acquisition Notice. In the event Tenant shall not elect to exercise its Right of First Refusal or fails to timely deliver notice within the ten (10) business day period, Tenant shall conclusively be deemed to have waived its Right of First Refusal as to the transaction described in the Acquisition Notice in question and Landlord may thereupon proceed to sell the ROFR Property (or portion thereof) on the terms and conditions a tax year basis if and to the party specified in extent settlement is held during the Acquisition Notice in question, and in the event the ROFR Property (or portion thereof) is sold as set forth in the Acquisition Notice in question, the Right of First Refusal shall be applicable to any future sales of remaining ROFR Property (or portion thereof), and this Lease shall remain in full force and effect. Modifications may be made in the offer outlined in the Acquisition Notice without the necessity of resubmitting the offer to Tenant, provided that the purchase price is not reduced, the payment terms are not changed, and provided that the closing date is not extended for a period in excess of ninety (90) days.
c. Notwithstanding the foregoing, Tenant’s Right of First Refusal described in this Section 5 shall not apply (i) in the event Landlord’s lender forecloses, accepts a deed in lieu of foreclosure or otherwise takes title to the Land, or (ii) to any transfer first tax year following commencement of the Land to an Affiliate of LandlordLease Term. As used in this Section 5.cLease, "tax year" shall, in each instance, be deemed to be the fiscal year used by the respective taxing or assessing authorities.
(ii) Tenant shall pay all of the real estate transfer taxes imposed upon this transaction.
(i) Landlord represents and warrants to Tenant that, “Affiliate” shall mean as of the Commencement Date, Landlord has no knowledge or notice of any entity resulting from a merger work being done or consolidation with Landlord or any entity controlled by, controllingabout to be done, or of any assessment, violation or other notice issued or about to be issued by any federal, state, municipal or public body or authority, relating to, or with respect to or otherwise affecting the Demised Premises or abutting streets. Landlord agrees to pay for all work done or ordered to be done by or required in order to comply with the requirements of any federal, state, municipal or public body or authority prior to the date of this Lease, whether or not presently assessed or ordered to be done, on or with respect to or otherwise affecting the Demised Premises or abutting streets, or required in order to comply with any existing assessment, violation or similar notice.
(ii) Landlord represents that the Demised Premises is zoned I-2.
(iii) If required by law, Landlord shall deliver to Tenant at or before settlement a certificate from the appropriate municipal department or departments stating whether or not the Demised Premises is in violation of the applicable zoning laws and ordinances and identifying any outstanding notices of any uncorrected violations of the applicable zoning, housing, building, safety or fire ordinances. The certificate shall be dated no earlier than twenty (20) days prior to settlement.
(i) Subject to the other terms and conditions of this Lease, Landlord shall assume the risk of loss by casualty or eminent domain after the date of the Exercise Notice. Tenant shall continuously maintain insurance coverage against loss from fire or other casualty, with all risk and extended coverage endorsement, in an amount not less than the full replacement cost of the Demised Premises, without co-insurance or deductible, and, effective as of the Exercise Date, all such insurance coverages shall name Landlord as the insured and Tenant as an additional insured thereunder. Loss or damage to the Demised Premises as a result of the exercise of the power of eminent domain or as a result of fire or casualty between the date of the Exercise Notice and the time of settlement shall not, at Tenant's option, void or impair the Option, but Tenant shall have the option to: (a) complete settlement and be entitled to the eminent domain award or compensation and a credit for the proceeds of any insurance received by Landlord on account of any such loss or damage, and to an assignment of all claims to such compensation or award and on insurance policies, provided such award, compensation or proceeds shall not exceed the Purchase Price; or (b) terminate this Agreement and be entitled to a return of any monies paid on account of the Purchase Price.
(j) The Demised Premises shall be conveyed upon exercise of the Option in their "AS IS" "WHERE IS" condition, with no representation or warranty being made by Landlord as to the physical or environmental condition of the Demised Premises or the suitability or fitness of the Demised Premises for Tenant's use.
(k) Landlord and Tenant each represents to the other party that it has dealt with no other real estate broker, agent or finder in connection with the Option. Each party hereby agrees to indemnify, defend and hold harmless the other party from and against any and all losses, costs, damages, liabilities and expenses (including reasonable attorneys' fees) arising as a result of a breach of the representations set forth in the preceding sentence. This Section 6.2(k) shall survive settlement and shall not merge with the deed.
(l) A memorandum of the Option may be filed in the office of the Recorder of Deeds for Xxxxxxx County by Landlord and Tenant.
(m) Except as set forth in this Section 6.2(m), the Option may not be assigned, without Landlord's consent, may be withheld or granted by Landlord in its sole discretion. The Option may be assigned by Tenant to any Related Party (as defined in Section 13) without Landlord's consent, provided that Tenant shall, notwithstanding any such assignment, remain liable for full performance of Tenant's obligations under common control this Section 6.2.
(n) Subject to Section 6.2(m), this Section shall inure to the benefit of and be binding upon Landlord and Tenant, and each of their successors and assigns.
(o) This Section 6.2 constitutes the entire understanding between the parties hereto concerning the right of Tenant to purchase the Demised Premises, and all prior agreements, contracts and understandings between the parties concerning the purchase of the Demised premises by Tenant are hereby merged into this Section 6. The parties shall not be bound by any agreements, understandings or conditions respecting the right of Tenant to purchase that Demised Premises other than those expressly set forth in this Section 6.
(p) The Option may not be changed or amended orally. All notices, demands and other communications concerning the Option shall be valid only if given in writing and in the manner set forth in Section 27.
(q) In any proceeding to enforce the Option or obtain any remedy provided for herein or otherwise permitted by law in connection with the Option, Landlord and Tenant hereby knowingly, voluntarily and intentionally waive trial by jury to the fullest extent permitted by law.
(r) The invalidity or unenforceability of any provision of this Section 6 shall in no way affect the validity or enforceability of any other provision of this Section 6.
(s) Failure to insist upon strict compliance with any of the terms, covenants or conditions hereof shall not be deemed a waiver of such terms, covenants or conditions, nor shall any waiver or relinquishment of any right or power hereunder at one time or more times be deemed a waiver or relinquishment of such right or power at any other time or times.
(t) The obligation of Landlord to complete settlement under this Section 6 following Tenant's exercise of the Option is expressly conditioned upon Tenant having performed and complied with all of the agreements, undertakings and obligations that are required under this Lease to be performed or complied with by Tenant at or prior to the completion of settlement under this Section 6 at no cost or expense to Landlord.
Appears in 1 contract
Samples: Lease Agreement (Electronics Boutique Holdings Corp)
Option to Purchase Demised Premises. Section 35 of the Original Lease is hereby deleted in its entirety and replaced with the following right of first refusal:
a. If Landlord should at any time during the term of this Lease receive a bona fide offer (“Refusal Offer”) to purchase any, or all, of the Land, the Adjacent Land (as hereinafter defined), and the Remaining Adjacent Land (as hereinafter defined) together with any or all improvements thereon (collectively, the “ROFR Property”) from a third party and Landlord desires to accept such offer, Landlord shall deliver to Tenant a written notice (“Acquisition Notice”) setting forth the name of the prospective purchaser and the terms and conditions of such Refusal Offer.
b. Tenant shall have ten (10) business days from receipt of the Acquisition Notice to exercise its right (“Right of First Refusal”) to purchase the ROFR Property listed in the Acquisition Notice by delivering written notice thereof to Landlord. Delivery of such notice shall obligate Tenant to purchase the ROFR Property (or the applicable portion thereof) on the date which is ninety (90) days after receipt of the Acquisition Notice (or any earlier date requested by Tenant) and on the terms and conditions set forth in the Acquisition Notice. In the event Tenant shall not elect to exercise its Right of First Refusal or fails to timely deliver notice within the ten (10) business day period, Tenant shall conclusively be deemed to have waived its Right of First Refusal as to the transaction described in the Acquisition Notice in question and Landlord may thereupon proceed to sell the ROFR Property (or portion thereof) on the terms and conditions and to the party specified in the Acquisition Notice in question, and in the event the ROFR Property (or portion thereof) is sold as set forth in the Acquisition Notice in question, the Right of First Refusal shall be applicable to any future sales of remaining ROFR Property (or portion thereof), and this Lease shall remain in full force and effect. Modifications may be made in the offer outlined in the Acquisition Notice without the necessity of resubmitting the offer to Tenant, provided that the purchase price is not reduced, the payment terms are not changed, and provided that the closing date is not extended for a period in excess of ninety (90) days.
c. Notwithstanding any provision of this Lease which may be to the foregoingcontrary, in the event Landlord receives a Refusal Offer to purchase only the Remaining Adjacent Land, or any part thereof, at any time after the Effective Date of this First Amendment, or Landlord receives a Refusal Offer to purchase only the Adjacent Land or the Adjacent Land and the Remaining Adjacent Land at any time after the last day of the Exclusive Development Period (defined in Section 7(a) below) (the land which is the subject of such Refusal Offer being referred to in this Section 6.c. as the “Subject Land”), from a party that intends to develop the Subject Land, Landlord shall have the right to deliver to Tenant’s , concurrently with the Acquisition Notice provided in Section 6.a. above, the Development Notice provided in Section 7(d) or the Remaining Adjacent Land Development Offer Notice provided in Section 8, as applicable (the Development Notice or Remaining Adjacent Land Development Offer Notice together with the Acquisition Notice being referred to herein as the “Notices”). Tenant shall have until the end of the Election Period (defined below) within which to elect either to (i) exercise its Right of First Refusal described as provided in this Section 5 shall 6.b. above with respect to the Subject Land or (ii), as applicable, exercise its Option to Improve Adjacent Land with respect to the Subject Land as provided in Section 7(a) or its Right of First Offer to Develop the Remaining Adjacent Land with respect to the Subject Land as provided in Section 8. In the event Tenant does not apply elect (i) in the event Landlord’s lender forecloses, accepts a deed in lieu of foreclosure or otherwise takes title to the Land, or (ii) to any transfer of above within the Land to an Affiliate of Landlord. As used in this Section 5.c.Election Period, “Affiliate” shall mean any entity resulting from a merger or consolidation with Landlord or any entity controlled by, controlling, or under common control with Landlord.Tenant shall
Appears in 1 contract
Option to Purchase Demised Premises. 37.1 Subject to termination of this Option as set forth in Section 35 37.14 below, Tenant shall have the option to purchase the Demised Premises during the period from June 1, 2001 to October 31, 2001 (the "Option"). Such Option may only be exercised if (1) this Lease is in full force and effect at the time said Option is exercised, (2) Tenant is not in default under any of the Original Lease is hereby deleted in its entirety terms, covenants and replaced with conditions herein at the following right time of first refusal:
a. If Landlord should at any time during the term of this Lease receive a bona fide offer (“Refusal Offer”) to purchase anyexercise; provided, or all, of the Land, together with any or all improvements thereon (the “ROFR Property”) from a third party and Landlord desires to accept such offerhowever, Landlord shall deliver have the right in its sole discretion to waive the non-default condition herein and (3) is exercised by Metris Companies, Inc. or a wholly-owned subsidiary of said company and by no other entity. Exercise may only be made by Tenant a written notice (“Acquisition Notice”) setting forth the name of the prospective purchaser and strictly in accordance with the terms and conditions of such Refusal Offer.
b. Tenant herein, and said Option shall have ten (10) business days from receipt of be at the Acquisition Notice Option Price to exercise its right (“Right of First Refusal”) to purchase the ROFR Property listed be determined in the Acquisition Notice by delivering written notice thereof to Landlord. Delivery of such notice shall obligate Tenant to purchase the ROFR Property (or the applicable portion thereof) on the date which is ninety (90) days after receipt of the Acquisition Notice (or any earlier date requested by Tenant) accordance with Paragraph 37.2 hereof, and on in accordance with the terms and conditions set forth in Paragraphs 37.3 through 37.13 hereof.
37.2 The Option Price for the Acquisition NoticeDemised Premises shall be the Fair Market Value (at exercise of the Option) of the Demised Premises, together with all additions, alterations and replacements thereof (except Tenant's moveable trade fixtures, machinery and equipment). In the event the parties cannot agree upon the Option Price within thirty (30) days after exercise of the within Option, the Fair Market Value of the Demised Premises shall be determined by arbitration in accordance with the provisions of Section 3(c) of this Lease Agreement. The Fair Market Value shall be determined assuming the highest and best use of the Demised Premises and using those of the following assumptions selected by Landlord, which shall be selected by Landlord by written notice to Tenant within thirty (30) days of exercise by Tenant of its Option:
(a) That the Demised Premises are free of and unencumbered by this Lease; or that the Demised Premises are encumbered by this Lease.
(b) That Tenant does not have any option to purchase the Premises; or that Tenant does have the option to purchase the Premises.
(c) That the Demised Premises are subject to and have the benefit of any existing mortgage on the Demised Premises; or that the Demised Premises are not subject to any existing mortgage and is free of mortgages.
37.3 Tenant shall not elect signify its intent to exercise the Option contained in Paragraph 37.1, if at all, by delivering to Landlord, within the Option Period, its Right written notice of First Refusal exercise of such Option, accompanied by an irrevocable letter of credit which allows Landlord to draw upon same without conditions in the event of a default by Tenant hereunder, drawn on a bank reasonably acceptable to Landlord (the "Option Agreement"). The Option Price for the Demised Premises, determined pursuant to Paragraph 37.2 hereof, shall be paid to Landlord by Tenant in the following manner, to-wit.
(a) $500,000.00 by application against such Option Price of Option Deposit, accompanying Tenant's written notice of exercise of the Option.
(b) The balance of such Option Price by wire transfer to Seller's designated bank account in Minneapolis, Minnesota, providing "good funds" on the date of closing.
37.4 Landlord shall, within a reasonable time after receipt of notice of exercise of such Option accompanied by said Option Deposit, and after the Option Price has been determined as above set forth, furnish to Tenant a commitment for an Owner's policy of Title Insurance issued by Old Republic National Title Insurance Company (or fails other title insurance company selected by Landlord and reasonably acceptable to timely Tenant ) showing title to the Demised Premises in Landlord and subject only to the exceptions described in Paragraph 37.5 hereof, and the standard exceptions to an ALTA Form B policy, except as hereinafter provided. Tenant shall pay all costs of issuance of said commitment and any policy issued in connection therewith. Such commitment shall include "extended coverage" over (1) survey exceptions, (2) mechanic's liens arising out of work by or under Landlord as to work theretofor completed, and (3) easements not of record. Tenant shall be allowed thirty (30) days after receipt of such commitment for examination and the marking of objections thereto. Said objections shall be made in writing or deemed to be waived. If any objections are so made, Landlord shall be allowed sixty (60) days to make such title insurable. Pending correction of title, the payments hereunder required shall be postponed, but upon correction of title and within ten (10) days after written notice to Tenant, Tenant shall perform its obligations in accordance with the terms, covenants and conditions of this Section 37. Landlord shall use all reasonable efforts to avoid encumbering of the Demised Property with easements except as permitted herein but this provision shall not constitute a warranty against such easements. If said title is not insurable and is not made so within sixty (60) days from the date of written objection thereto, as above provided, any agreement of purchase resulting from the exercise of such Option shall, at the written election of Tenant, be null and void an the Option Deposit shall be immediately returned to Tenant. In such event neither party shall be liable for damage under such resulting purchase agreement to the other party. Tenant shall exercise its election by declaring such resulting purchase agreement null and void by delivering to Landlord a written notice to such effect within ten (10) days after the expiration of the aforesaid sixty (60) day period. If title to the Demised Premises be found insurable, or be so made within sixty (60) days from the date of written objection thereto, and Tenant shall default in its agreement to pay the balance of the Option Price and continue in default for a period of ten (10) days after written notice of default by Landlord to Tenant, then, in that case, Landlord may terminate such exercise of Option and the resulting purchase agreement, time being of the essence hereof, and retain from the Option Deposit the amount of all third-party out-of-pocket expenses incurred by Landlord as a result of Tenant exercising its option to purchase, plus Fifty Thousand and NO/100 Dollars ($50,000.00), but this provision shall not deprive either party of the right of claim for damages or enforcing specific performance, provided that such action for specific performance shall be commenced within six (6) months after such right of action shall arise.
37.5 Subject to the performance by Tenant, Landlord agrees to execute and deliver a Limited or Special Warranty Deed conveying title to the Demised Premises to Tenant or Guarantor, subject only to the following exceptions:
(a) Building, zoning and subdivision laws, ordinances and State and Federal regulations;
(b) Easements, encumbrances, restrictions and other matters of record at the time of sale;
(c) Rights of Tenant, approved subtenants of Tenant, its successors and assigns;
(d) Real estate taxes and annual installments of special assessments payable subsequent to closing which are not delinquent. An estimated proration shall be made as of closing and an appropriate readjustment made when final tax bills are available;
(e) Matters created which are the obligation of Tenant under this Lease;
(f) Other charges which are the obligation of Tenant under this Lease;
(g) Such other easements, restrictions or encumbrances as may have been consented to by Tenant;
(h) Streets and highway rights-of-way as they may now exist or may then exist;
(i) Any mortgage assumed by Tenant under the provisions of subparagraph 37.7 hereof.
37.6 Closing of said sale, pursuant to the aforementioned exercise of Option, shall be within sixty (60) days after notice of exercise of Option by Tenant, save and except for extensions for determination of the Option Price by arbitration and except for extensions pursuant to paragraph 37.4. All rents and other charges payable by Tenant in respect of the Demised Premises and all other obligations of Tenant hereunder accruing prior to closing shall be paid performed and complied with until such time as the full Option Price has been paid to Landlord. The parties further agree that pro rata adjustments for rent and other matters shall be made as of the date of closing.
37.7 In the event that there is any mortgage encumbering the Demised Premises at the time of closing and the mortgagee or the mortgage, of the accompanying mortgage note or other supplemental mortgage document, requires the payment of a penalty on the prepayment of such mortgage, Teant shall pay such prepayment penalty. If any such mortgage is closed to prepayment, the Option granted herein shall be subject to the terms and conditions of any first mortgage encumbering the Demised Premises at the time of closing, provided Landlord shall be required to cause such mortgage to be assumable by Tenant and Tenant shall receive a credit on the purchase price in an amount equal to the then unpaid principal balance assumed by Tenant on said mortgage and shall indemnify and hold Landlord harmless from any further liability in respect to such mortgage and collateral mortgage documents by assumption agreement satisfactory to Landlord.
37.8 Tenant's Option under this Section 37 shall be subject and subordinate to the lien of any mortgage (and collateral mortgage documents) on the Demised Premises, so long as no such mortgage would preclude, hinder or unreasonably delay Tenant's exercise of its Option as provided herein.
37.9 Time shall be of the essence in the performance of the terms and conditions of this Option. The Option to purchase herein is appurtenant to Tenant's interest in this Lease Agreement and may not be assigned separately therefrom.
37.10 Tenant shall have the right to withdraw its exercise of the Option in the event of condemnation subsequent to exercise of the within Option provided said withdrawal is provided in writing within the ten (10) business day period, days of the final action of the condemning authority condemning a material part or all of the Demised Premises.
37.11 At closing Tenant shall conclusively be deemed deliver to have waived Landlord and Landlord shall deliver to Tenant an agreement, canceling and terminating this Lease Agreement and releasing each party from its Right of First Refusal as obligations to the transaction described other party under this Lease Agreement accruing subsequent to closing.
37.12 Each party shall indemnify, defend and hold harmless the other party from the claim of any broker or agent arising out of exercise of the Option to purchase the Demised Premises claiming through said indemnifying party.
37.13 The Fair Market Value shall not be reduced by reason of damage or destruction by fire or other causes, therefore, the Fair Market Value of the Demised Premises shall be determined in the Acquisition Notice its undamaged state. Landlord shall, however, deliver to Tenant, at closing, all of Landlord's right, title and interest in question and Landlord may thereupon proceed to sell the ROFR Property (any property insurance proceeds arising out of such damage or portion thereof) on the terms and conditions and destruction to the party specified in the Acquisition Notice in question, Demised Premises.
37.14 This Option to Purchase shall be and become null and void and of no further force and effect in the event Tenant has been given an opportunity pursuant to Section 35 to purchase the ROFR Property (or portion thereof) is sold as Demised Premises and failed to exercise its right to purchase set forth in said Section 35 and Landlord subsequently sells or transfers its interest in the Acquisition Notice in questionDemised Premises to an unrelated third party. Thereafter, the Right terms of First Refusal Section 37 shall be applicable to any future sales of remaining ROFR Property (or portion thereof), null and this Lease shall remain in full force and effect. Modifications may be made in the offer outlined in the Acquisition Notice without the necessity of resubmitting the offer to Tenant, provided that the purchase price is not reduced, the payment terms are not changed, and provided that the closing date is not extended for a period in excess of ninety (90) daysvoid.
c. Notwithstanding the foregoing, Tenant’s Right of First Refusal described in this Section 5 shall not apply (i) in the event Landlord’s lender forecloses, accepts a deed in lieu of foreclosure or otherwise takes title to the Land, or (ii) to any transfer of the Land to an Affiliate of Landlord. As used in this Section 5.c., “Affiliate” shall mean any entity resulting from a merger or consolidation with Landlord or any entity controlled by, controlling, or under common control with Landlord.
Appears in 1 contract
Samples: Lease Agreement (Wells Real Estate Investment Trust Inc)
