Option to Remarket; Surrender Option. Subject to the ------------------------------------ fulfillment of each of the conditions set forth in this Section 14.6, Lessee ------------ shall have the option to either (i) market the Leased Property for Lessor (the "Remarketing Option") or (ii) surrender the Leased Property to Lessor (the ------------------ "Surrender Option"). ---------------- Lessee's effective exercise and consummation of the Remarketing Option or the Surrender Option, as the case may be, shall be subject to the due and timely fulfillment of each of the following provisions, the failure of any of which shall render the Remarketing Option or the Surrender Option, as the case may be, and Lessee's exercise thereof null and void, in which event, Lessee shall be obligated to perform its obligations under Section 14.2. ------------ (a) Not later than 270 days prior to the Lease Termination Date, Lessee shall give to Lessor and the Agent written notice of Lessee's exercise of the Remarketing Option or the Surrender Option, as the case may be, which exercise shall be irrevocable and shall state whether Lessee has exercised the Remarketing Option or the Surrender Option. (b) Not later than ten (10) Business Days prior to the Lease Termination Date, Lessee shall deliver to Lessor and the Agent an environmental assessment of the Leased Property dated not later than forty- five (45) days prior to the Lease Termination Date. Such environmental assessment shall be prepared by an environmental consultant approved by the Required Funding Parties in their reasonable discretion, shall be in form, detail and substance reasonably satisfactory to the Required Funding Parties, and shall otherwise indicate the environmental condition of the Leased Property to be the same as described in the Environmental Audit. (c) On the date of Lessee's notice to Lessor and the Agent of Lessee's exercise of the Remarketing Option or the Surrender Option, as the case may be, each of the Construction Conditions shall have been timely satisfied and no Event of Default or Potential Event of Default shall exist, and thereafter, no Event of Default or Potential Event of Default shall exist under this Lease. (d) Lessee shall have completed all Alterations, restoration and rebuilding of the Leased Property pursuant to Sections 6.1, 6.2, 10.3 and ------------ --- ---- 10.4 (as the case may be) and shall ---- have fulfilled all of the conditions and requirements in connection therewith pursuant to said Sections, in each case by the date on which -------- Lessor and the Agent receive Lessee's notice of Lessee's exercise of the Remarketing Option or the Surrender Option, as the case may be (time being of the essence), regardless of whether the same shall be within Lessee's control. (e) Lessee shall promptly provide any maintenance records relating to the Leased Property to Lessor, the Agent and any potential purchaser upon request, and shall otherwise do all things necessary to deliver possession of the Leased Property to the purchaser. Lessee shall allow Lessor, the Agent and any potential purchaser access to the Leased Property for the purpose of inspecting the same during regular business hours (or as otherwise agreed by Lessee). (f) On the Lease Termination Date, Lessee shall surrender the Leased Property in accordance with Section 14.8 hereof. ------------ (g) In connection with any such sale of the Leased Property, Lessee will provide to the purchaser all customary "seller's" indemnities, representations and warranties regarding title, absence of Liens (except Lessor Liens and the Liens of the Operative Documents) and the condition of the Leased Property, including, without limitation, an environmental indemnity. Lessee shall fulfill all of the requirements set forth in clause ------ (b) of Section 14.5, and such requirements are incorporated herein by --- ------------ reference. As to Lessor, any such sale shall be made on an "as is, with all faults" basis by special warranty deed by Lessor, which shall include a warranty as to the absence of Lessor Liens and the Liens of the Operative Documents, but shall exclude any warranty with respect to Liens created by Lessee as Lessor's agent. (h) In connection with any such sale of Leased Property, Lessee shall pay directly, and not from the sale proceeds, all prorations, credits, costs and expenses of the sale of the Leased Property, whether incurred by Lessor, any Lender, the Agent or Lessee, including without limitation, the cost of all title insurance, surveys, environmental reports, appraisals, transfer taxes, Lessor's and the Agent's attorneys' fees, Lessee's attorneys' fees, commissions, escrow fees, recording fees, and all applicable documentary and other transfer taxes. (i) In addition to the gross proceeds of the sale of the Leased Property (but subject to the penultimate sentence of this Section 14.6), ------------ Lessee shall pay to the Agent on the Lease Termination Date (or to such other Person as Agent shall notify Lessee in writing, or in the case of Supplemental Rent, to the Person entitled thereto) an amount equal to the Recourse Deficiency Amount, plus all Basic Rent and Supplemental Rent, and ---- all other amounts hereunder which have accrued prior to or as of such date, in the type of funds specified in Section 3.3 hereof. ----------- If Lessee has exercised the Remarketing Option, the following additional provisions shall apply: During the period commencing on the date of Lessee's notice pursuant to Section 14.6(a), Lessee shall, as nonexclusive agent for --------------- Lessor, use commercially reasonable efforts to sell Lessor's interest in the Leased Property and will attempt to obtain the highest purchase price therefor. All such marketing of the Leased Property shall be at Lessee's sole expense. Lessee shall submit all bids to Lessor and the Agent and Lessor and the Agent will have the right to review the same and the right to submit any one or more bids. All bids shall be on an all-cash basis. In no event shall such bidder be Lessee or any Subsidiary or Affiliate of Lessee. The written offer must specify the Lease Termination Date as the closing date. If, and only if, the selling price (net of closing costs and prorations, as reasonably estimated by the Agent) is less than the difference between the Lease Balance at such time minus the Recourse Deficiency Amount, then the Agent (as directed by the Required Lenders) may, in its sole and absolute discretion, by notice to Lessee, reject such offer to purchase, in which event the parties will proceed according to the provisions of Section 14.7 [Rejection of Sale] hereof. If the Agent does not ------------ reject such purchase offer as provided above, the closing of such purchase of the Leased Property by such purchaser shall occur on the Lease Termination Date, contemporaneously with Lessee's surrender of the Leased Property in accordance with Section 14.8 hereof, and the gross proceeds of the sale (i.e., without ------------ deduction for any marketing, closing or other costs, prorations or commissions) shall be paid directly to the Agent (or Lessor if the Loans have been fully paid); provided, however, that if the sum of the gross proceeds from such sale -------- ------- plus the Recourse Deficiency Amount paid by Lessee on the Lease Termination Date pursuant to Section 14.6(i), minus any and all costs and expenses (including --------------- broker fees, appraisal costs, legal fees and transfer taxes) incurred by the Agent or Lessor in connection with the marketing of the Leased Property or the sale thereof exceeds the Lease Balance as of such date, then the excess shall be paid to Lessee on the Lease Termination Date. Lessee shall have no right, power or authority to bind Lessor in connection with any proposed sale of the Leased Property.
Appears in 1 contract
Option to Remarket; Surrender Option. Subject to the ------------------------------------ fulfillment of each of the conditions set forth in this Section 14.6, Lessee ------------ shall have the option to either (i) market the Leased Property for Lessor (the "Remarketing Option") or (ii) surrender the Leased Property to Lessor (the ------------------ "Surrender Option"). ---------------- Lessee's effective exercise and consummation of the Remarketing Option or the Surrender Option, as the case may be, shall be subject to the due and timely fulfillment of each of the following provisions, the failure of any of which shall render the Remarketing Option or the Surrender Option, as the case may be, and Lessee's exercise thereof null and void, in which event, Lessee shall be obligated to perform its obligations under Section 14.2. ------------.
(a) Not later than 270 days twelve months prior to the Lease Termination Date, Lessee shall give to Lessor and the Agent written notice of Lessee's exercise of the Remarketing Option or the Surrender Option, as the case may be, which exercise shall be irrevocable and shall state whether Lessee has exercised the Remarketing Option or the Surrender Option.
(b) Not later than ten (10) Business Days prior to the Lease Termination Date, Lessee shall deliver to Lessor and the Agent an environmental assessment of the Leased Property dated not later than forty- forty-five (45) days prior to the Lease Termination Date. Such environmental assessment shall be prepared by an environmental consultant approved by the Required Funding Parties in their reasonable discretionParties, shall be in form, detail and substance reasonably satisfactory to the Required Funding Parties, and shall otherwise indicate the environmental condition of the Leased Property to be the same as described in the Environmental Audit.
(c) On the date of Lessee's notice to Lessor and the Agent of Lessee's exercise of the Remarketing Option or the Surrender Option, as the case may be, each of the Construction Conditions shall have been timely satisfied and no Event of Default or Potential Event of Default shall exist, and thereafter, no Event of Default or Potential Event of Default shall exist under this Lease.
(d) Lessee shall have completed all Alterations, restoration and rebuilding of the Leased Property pursuant to Sections 6.1, 6.2, 10.3 and ------------ --- ---- 10.4 (as the case may be) and shall ---- have fulfilled all of the conditions and requirements in connection therewith pursuant to said Sections, in each case by the date on which -------- Lessor and the Agent receive Lessee's notice of Lessee's exercise of the Remarketing Option or the Surrender Option, as the case may be (time being of the essence), regardless of whether the same shall be within Lessee's control.
(e) Lessee shall promptly provide any maintenance records relating to the Leased Property to Lessor, the Agent and any potential purchaser upon request, and shall otherwise do all things necessary to deliver possession of the Leased Property to the purchaser. Lessee shall allow Lessor, the Agent and any potential purchaser access to the Leased Property for the purpose of inspecting the same during regular business hours (or as otherwise agreed by Lessee).
(f) On the Lease Termination Date, Lessee shall surrender the Leased Property in accordance with Section 14.8 hereof. ------------.
(g) In connection with any such sale of the Leased PropertyProperty pursuant to the Remarketing Option, Lessee will provide to the purchaser all customary "seller's" indemnities, representations and warranties regarding title, absence of Liens (except Lessor Liens and the Liens of the Operative DocumentsLiens) and the condition of the Leased Property, including, without limitation, an environmental indemnityindemnity identical in all material respects to the environmental indemnity set forth in Section 7.2 of the Master Agreement. Lessee shall fulfill all of the requirements set forth in clause ------ (b) of Section 14.5, and such requirements are incorporated herein by --- ------------ reference. As to Lessor, any such sale shall be made on an "as is, with all faults" basis by special without representation or warranty deed by Lessor, which shall include a warranty as to other than the absence of Lessor Liens and the Liens of the Operative Documents, but shall exclude any warranty with respect to Liens created by Lessee as Lessor's agentLiens.
(h) In connection with any such sale of Leased Property, Lessee shall pay directly, and not from the sale proceeds, all prorations, credits, costs and expenses of the sale of the Leased Property, whether incurred by Lessor, any Lender, the Agent or Lessee, including without limitation, the cost of all title insurance, surveys, environmental reports, appraisals, transfer taxes, Lessor's and the Agent's attorneys' fees, Lessee's attorneys' fees, commissions, escrow fees, recording fees, and all applicable documentary and other transfer taxes.
(i) In addition to the gross proceeds of the sale of the Leased Property (but subject to the penultimate sentence of this Section 14.6), ------------ Lessee shall pay to the Agent on the Lease Termination Date (or to such other Person as Agent shall notify Lessee in writing, or in the case of Supplemental Rent, to the Person entitled thereto) an amount equal to the Recourse Deficiency Amount, plus all Basic Rent and Supplemental Rent, and ---- all other amounts hereunder which have accrued prior to or as of such datedate and remain unpaid, in the type of funds specified in Section 3.3 hereof. ----------- If Lessee has exercised the Remarketing Option, the following additional provisions shall apply: During the period commencing on the date twelve months prior to the scheduled expiration of Lessee's notice pursuant to Section 14.6(a)the Lease Term, Lessee shall, as nonexclusive agent for --------------- Lessor, use commercially reasonable efforts to sell Lessor's interest in the Leased Property and will attempt to obtain the highest purchase price therefor. All such marketing of the Leased Property shall be at Lessee's sole expense. Lessee shall submit all bids to Lessor and the Agent and Lessor and the Agent will have the right to review the same and the right to submit any one or more bids. All bids shall be on an all-cash basis. In no event shall such bidder the Agent be required to accept a bid submitted by Lessee or any Subsidiary or Affiliate of Lessee. The written offer must specify the Lease Termination Date as the closing date. If, and only if, the selling price (net of closing costs and prorations, as reasonably estimated by the Agent) is less than the difference between an amount equal to the Lease Balance at such time minus the Recourse Deficiency Amount, then Lessor or the Agent (as directed by the Required Lenders) may, in its sole and absolute discretion, by notice to Lessee, reject such offer to purchase, in which event the parties will proceed according to the provisions of Section 14.7 [Rejection of Sale] hereof. If neither Lessor nor the Agent does not ------------ reject rejects such purchase offer as provided above, the closing of such purchase of the Leased Property by such purchaser shall occur on the Lease Termination Date, contemporaneously with Lessee's surrender of the Leased Property in accordance with Section 14.8 hereof, and the gross proceeds of the sale (i.e., without ------------ deduction for any marketing, closing or other costs, prorations or commissions) shall be paid directly to the Agent (or Lessor if the Loans have been fully paid)Agent; provided, however, that if the sum of the gross proceeds from such sale -------- ------- plus the Recourse Deficiency Amount paid by Lessee on the Lease Termination Date pursuant to Section 14.6(i), minus any and all costs and expenses (including --------------- broker fees, appraisal costs, legal fees and transfer taxes) incurred by the Agent or Lessor in connection with the marketing of the Leased Property or the sale thereof exceeds the Lease Balance as of such date, then the excess shall be paid to Lessee on the Lease Termination Date. Lessee shall have no right, power or authority to bind Lessor in connection with any proposed sale of the Leased Property.
Appears in 1 contract
Option to Remarket; Surrender Option. Subject to the ------------------------------------ fulfillment of each of the conditions set forth in this Section 14.6, Lessee ------------ shall have the option to either (i) market all of, but not less than all of, the Leased Property Properties for Lessor (the "Remarketing Option") or (ii) surrender all of, but not less than all of, the Leased Property Properties to Lessor (the ------------------ "Surrender Option"). ---------------- Lessee's effective exercise and consummation of the Remarketing Option or the Surrender Option, as the case may be, shall be subject to the due and timely fulfillment of each of the following provisions, the failure of any of which which, unless waived in writing by Lessor and the Lenders, shall render the Remarketing Option or the Surrender Option, as the case may be, and Lessee's exercise thereof null and void, in which event, Lessee shall be obligated to perform its obligations under Section 14.2. ------------.
(a) Not later than 270 days twelve months prior to the Lease Termination Date, Lessee shall give to Lessor and the Agent written notice of Lessee's exercise of the Remarketing Option or the Surrender Option, as the case may be, which exercise shall be irrevocable and shall state whether Lessee has exercised elected the Remarketing Option or the Surrender Option.
(b) Not later than ten (10) Business Days prior to the Lease Termination Date, Lessee shall deliver to Lessor and the Agent an environmental assessment of the each Leased Property dated not later than forty- forty-five (45) days prior to the Lease Termination Date. Such environmental assessment shall be prepared by an environmental consultant approved selected by the Required Funding Parties in their reasonable discretionParties, shall be in form, detail and substance reasonably satisfactory to the Required Funding Parties, and shall otherwise indicate the environmental condition of the each Leased Property to be the same as described in the related Environmental Audit.
(c) On the date of Lessee's notice to Lessor and the Agent of Lessee's exercise of the Remarketing Option Option, or the Surrender Option, as the case may be, each of the Construction Conditions shall have been timely satisfied and no Event of Default or Potential Event of Default shall exist, and thereafter, no Event of Default or Potential Event of Default shall exist under this Lease.
(d) Lessee shall have completed all Alterations, restoration and rebuilding of the Leased Property Properties pursuant to Sections 6.1, 6.2, 10.3 and ------------ --- ---- 10.4 (as the case may be) and shall ---- have fulfilled all of the conditions and requirements in connection therewith pursuant to said Sections, in each case by the date on which -------- Lessor and the Agent receive Lessee's notice of Lessee's exercise of the Remarketing Option or the Surrender Option, as the case may be (time being of the essence), regardless of whether the same shall be within Lessee's control.
(e) Lessee shall promptly provide any maintenance records relating to the each Leased Property to Lessor, the Agent and any potential purchaser upon request, and shall otherwise do all things necessary to deliver possession of the such Leased Property to the potential purchaser. Lessee shall allow Lessor, the Agent and any potential purchaser access to the any Leased Property for the purpose of inspecting the same during regular business hours (or as otherwise agreed by Lessee)same.
(f) On the Lease Termination Date, Lessee shall surrender the Leased Property Properties in accordance with Section 14.8 hereof. ------------.
(g) In connection with any such sale of the Leased PropertyProperties, Lessee will provide to the purchaser all customary "seller's" indemnities, representations and warranties regarding title, absence of Liens (except Lessor Liens and the Liens of the Operative DocumentsLiens) and the condition of the Leased PropertyProperties, including, without limitation, an environmental indemnity. Lessee shall fulfill all of the requirements set forth in clause ------ (b) of Section 14.5, and such requirements are incorporated herein by --- ------------ reference. As to Lessor, any such sale shall be made on an "as is, with all faults" basis by special without representation or warranty deed by Lessor, which shall include a warranty as to other than the absence of Lessor Liens and the Liens of the Operative Documents, but shall exclude any warranty with respect to Liens created by Lessee as Lessor's agentLiens.
(h) In connection with any such sale of Leased PropertyProperties, Lessee shall pay directly, and not from the sale proceeds, all prorations, credits, costs and expenses of the sale of the Leased PropertyProperties, whether incurred by Lessor, any Lender, the Agent or Lessee, including without limitation, the cost of all title insurance, surveys, environmental reports, appraisals, transfer taxes, Lessor's and the Agent's attorneys' fees, Lessee's attorneys' fees, commissions, escrow fees, recording fees, and all applicable documentary and other transfer taxes.
(i) In addition to the gross proceeds of the sale of the Leased Property (but subject to the penultimate sentence of this Section 14.6), ------------ Lessee shall pay to the Agent on the Lease Termination Date (or to such other Person as Agent shall notify Lessee in writing, or in the case of Supplemental Rent, to the Person entitled thereto) an amount equal to the Recourse Deficiency Amount, plus all accrued and unpaid Basic Rent and Supplemental Rent, and ---- all other amounts hereunder which have accrued prior to or as of such date, in the type of funds specified in Section 3.3 hereof. ----------- If Lessee has exercised the Remarketing Option, the following additional provisions shall apply: During the period commencing on the date of Lessee's notice pursuant to Section 14.6(a), Lessee shall, as nonexclusive agent for --------------- Lessor, use commercially reasonable efforts to sell Lessor's interest in the Leased Property and will attempt to obtain the highest purchase price therefor. All such marketing of the Leased Property shall be at Lessee's sole expense. Lessee shall submit all bids to Lessor and the Agent and Lessor and the Agent will have the right to review the same and the right to submit any one or more bids. All bids shall be on an all-cash basis. In no event shall such bidder be Lessee or any Subsidiary or Affiliate of Lessee. The written offer must specify the Lease Termination Date as the closing date. If, and only if, the selling price (net of closing costs and prorations, as reasonably estimated by the Agent) is less than the difference between the Lease Balance at such time minus the Recourse Deficiency Amount, then the Agent (as directed by the Required Lenders) may, in its sole and absolute discretion, by notice to Lessee, reject such offer to purchase, in which event the parties will proceed according to the provisions of Section 14.7 [Rejection of Sale] hereof. If the Agent does not ------------ reject such purchase offer as provided above, the closing of such purchase of the Leased Property by such purchaser shall occur on the Lease Termination Date, contemporaneously with Lessee's surrender of the Leased Property in accordance with Section 14.8 hereof, and the gross proceeds of the sale (i.e., without ------------ deduction for any marketing, closing or other costs, prorations or commissions) shall be paid directly to the Agent (or Lessor if the Loans have been fully paid); provided, however, that if the sum of the gross proceeds from such sale -------- ------- plus the Recourse Deficiency Amount paid by Lessee on the Lease Termination Date pursuant to Section 14.6(i), minus any and all costs and expenses (including --------------- broker fees, appraisal costs, legal fees and transfer taxes) incurred by the Agent or Lessor in connection with the marketing of the Leased Property or the sale thereof exceeds the Lease Balance as of such date, then the excess shall be paid to Lessee on the Lease Termination Date. Lessee shall have no right, power or authority to bind Lessor in connection with any proposed sale of the Leased Property.3.3
Appears in 1 contract
Samples: Master Agreement (Ruby Tuesday Inc)
Option to Remarket; Surrender Option. Subject to the ------------------------------------ fulfillment of each of the conditions set forth in this Section SECTION 14.6, Lessee ------------ shall have the option to either (i) market the Leased Property for Lessor (the "Remarketing OptionREMARKETING OPTION") or (ii) surrender the Leased Property to Lessor (the ------------------ "Surrender OptionSURRENDER OPTION"). ---------------- Lessee's effective exercise and consummation of the Remarketing Option or the Surrender Option, as the case may be, shall be subject to the due and timely fulfillment of each of the following provisions, the failure of any of which shall render the Remarketing Option or the Surrender Option, as the case may be, and Lessee's exercise thereof null and void, in which event, Lessee shall be obligated to perform its obligations under Section SECTION 14.2. ------------.
(a) Not later than 270 days twelve months prior to the Lease Termination Date, Lessee shall give to Lessor and the Agent written notice of Lessee's exercise of the Remarketing Option or the Surrender Option, as the case may be, which exercise shall be irrevocable and shall state whether Lessee has exercised the Remarketing Option or the Surrender Option.
(b) Not later than ten (10) Business Days prior to the Lease Termination Date, Lessee shall deliver to Lessor and the Agent an environmental assessment of the Leased Property dated not later than forty- forty-five (45) days prior to the Lease Termination Date. Such environmental assessment shall be prepared by an environmental consultant approved by the Required Funding Parties in their reasonable discretionParties, shall be in form, detail and substance reasonably satisfactory to the Required Funding Parties, and shall otherwise indicate the environmental condition of the Leased Property to be the same as described in the related Environmental Audit.
(c) On the date of Lessee's notice to Lessor and the Agent of Lessee's exercise of the Remarketing Option or the Surrender Option, as the case may be, each of the Construction Conditions Completion Date shall have been timely satisfied occurred and no Event of Default or Potential Event of Default shall exist, and thereafter, no Event of Default or Potential Event of Default shall exist under this Lease.
(d) Lessee shall have completed all Alterations, restoration and rebuilding of the Leased Property pursuant to Sections SECTIONS 6.1, 6.2, 10.3 and ------------ --- ---- 10.4 (as the case may be) and shall ---- have fulfilled all of the conditions and requirements in connection therewith pursuant to said SectionsSECTIONS, in each case by the date on which -------- Lessor and the Agent receive Lessee's notice of Lessee's exercise of the Remarketing Option or the Surrender Option, as the case may be (time being of the essence), regardless of whether whet her the same shall be within Lessee's control.
(e) Lessee shall promptly provide any maintenance records relating to the Leased Property to Lessor, the Agent and any potential purchaser upon request, and shall otherwise do all things necessary to deliver possession of the Leased Property to the purchaser. Lessee shall allow Lessor, the Agent and any potential purchaser access to the Leased Property for the purpose of inspecting the same during regular business hours (or as otherwise agreed by Lessee).
(f) On the Lease Termination Date, Lessee shall surrender the Leased Property in accordance with Section SECTION 14.8 hereof. ------------.
(g) In connection with any such sale of the Leased Property, Lessee will provide to the purchaser all customary "seller's" indemnities, representations and warranties regarding title, absence of Liens (except Lessor Liens and the Liens of the Operative DocumentsLiens) and the condition of the Leased Property, including, without limitation, an environmental indemnity. Lessee shall fulfill all of the requirements set forth in clause ------ CLAUSE (bB) of Section SECTION 14.5, and such requirements are incorporated herein by --- ------------ reference. As to Lessor, e any such sale shall be made on an "as is, with all faults" basis by special without representation or warranty deed by Lessor, which shall include a warranty as to other than the absence of Lessor Liens and the Liens of the Operative Documents, but shall exclude any warranty with respect to Liens created by Lessee as Lessor's agentLiens.
(h) In connection with any such sale of Leased Property, Lessee shall pay directly, and not from the sale proceeds, all prorations, credits, costs and expenses of the sale of the Leased Property, whether incurred by Lessor, any Lender, the Agent or Lessee, including without limitation, the cost of all title insurance, surveys, environmental reports, appraisals, transfer taxes, Lessor's and the Agent's attorneys' fees, Lessee's attorneys' fees, commissions, escrow fees, recording fees, and all applicable documentary and other transfer taxes.
(i) In addition to the gross proceeds of the sale of the Leased Property (but subject to the penultimate sentence of this Section 14.6), ------------ Lessee shall pay to the Agent on the Lease Termination Date (or to such other Person as Agent shall notify Lessee in writing, or in the case of Supplemental Rent, to the Person entitled thereto) an amount equal to the Recourse Deficiency Amount, plus PLUS all Basic Rent and Supplemental Rent, and ---- all other amounts hereunder which have accrued prior to or as of such date, in the type of funds specified in Section 3.3 hereof. ----------- If Lessee has exercised the Remarketing Option, the following additional provisions shall apply: During the period commencing on the date of Lessee's notice pursuant to Section 14.6(a), Lessee shall, as nonexclusive agent for --------------- Lessor, use commercially reasonable efforts to sell Lessor's interest in the Leased Property and will attempt to obtain the highest purchase price therefor. All such marketing of the Leased Property shall be at Lessee's sole expense. Lessee shall submit all bids to Lessor and the Agent and Lessor and the Agent will have the right to review the same and the right to submit any one or more bids. All bids shall be on an all-cash basis. In no event shall such bidder be Lessee or any Subsidiary or Affiliate of Lessee. The written offer must specify the Lease Termination Date as the closing date. If, and only if, the selling price (net of closing costs and prorations, as reasonably estimated by the Agent) is less than the difference between the Lease Balance at such time minus the Recourse Deficiency Amount, then the Agent (as directed by the Required Lenders) may, in its sole and absolute discretion, by notice to Lessee, reject such offer to purchase, in which event the parties will proceed according to the provisions of Section 14.7 [Rejection of Sale] hereof. If the Agent does not ------------ reject such purchase offer as provided above, the closing of such purchase of the Leased Property by such purchaser shall occur on the Lease Termination Date, contemporaneously with Lessee's surrender of the Leased Property in accordance with Section 14.8 hereof, and the gross proceeds of the sale (i.e., without ------------ deduction for any marketing, closing or other costs, prorations or commissions) shall be paid directly to the Agent (or Lessor if the Loans have been fully paid); provided, however, that if the sum of the gross proceeds from such sale -------- ------- plus the Recourse Deficiency Amount paid by Lessee on the Lease Termination Date pursuant to Section 14.6(i), minus any and all costs and expenses (including --------------- broker fees, appraisal costs, legal fees and transfer taxes) incurred by the Agent or Lessor in connection with the marketing of the Leased Property or the sale thereof exceeds the Lease Balance as of such date, then the excess shall be paid to Lessee on the Lease Termination Date. Lessee shall have no right, power or authority to bind Lessor in connection with any proposed sale of the Leased Property.SECTION 3.3
Appears in 1 contract
Option to Remarket; Surrender Option. Subject to the ------------------------------------ fulfillment of each of the conditions set forth in this Section SECTION 14.6, Lessee ------------ shall have the option to either (i) market the Leased Property for Lessor (the "Remarketing OptionREMARKETING OPTION") or (ii) surrender the Leased Property to Lessor (the ------------------ "Surrender OptionSURRENDER OPTION"). ---------------- Lessee's effective exercise and consummation of the Remarketing Option or the Surrender Option, as the case may be, shall be subject to the due and timely fulfillment of each of the following provisions, the failure of any of which shall render the Remarketing Option or the Surrender Option, as the case may be, and Lessee's exercise thereof null and void, in which event, Lessee shall be obligated to perform its obligations under Section SECTION 14.2. ------------.
(a) Not later than 270 days twelve months prior to the Lease Termination Date, Lessee shall give to Lessor and the Agent written notice of Lessee's exercise of the Remarketing Option or the Surrender Option, as the case may be, which exercise shall be irrevocable and shall state whether Lessee has exercised the Remarketing Option or the Surrender Option.
(b) Not later than ten (10) Business Days prior to the Lease Termination Date, Lessee shall deliver to Lessor and the Agent an environmental assessment of the Leased Property dated not later than forty- forty-five (45) days prior to the Lease Termination Date. Such environmental assessment shall be prepared by an environmental consultant approved by the Required Funding Parties in their reasonable discretionParties, shall be in form, detail and substance reasonably satisfactory to the Required Funding Parties, and shall otherwise indicate the environmental condition of the Leased Property to be the same as described in the related Environmental Audit.
(c) On the date of Lessee's notice to Lessor and the Agent of Lessee's exercise of the Remarketing Option or the Surrender Option, as the case may be, each of the Construction Conditions Completion Date shall have been timely satisfied occurred and no Event of Default or Potential Event of Default shall exist, and thereafter, no Event of Default or Potential Event of Default shall exist under this Lease.
(d) Lessee shall have completed all Alterations, restoration and rebuilding of the Leased Property pursuant to Sections SECTIONS 6.1, 6.2, 10.3 and ------------ --- ---- 10.4 (as the case may be) and shall ---- have fulfilled all of the conditions and requirements in connection therewith pursuant to said SectionsSECTIONS, in each case by the date on which -------- Lessor and the Agent receive Lessee's notice of Lessee's exercise of the Remarketing Option or the Surrender Option, as the case may be (time being of the essence), regardless of whether the same shall be within Lessee's control.
(e) Lessee shall promptly provide any maintenance records relating to the Leased Property to Lessor, the Agent and any potential purchaser upon request, and shall otherwise do all things necessary to deliver possession of the Leased Property to the purchaser. Lessee shall allow Lessor, the Agent and any potential purchaser access to the Leased Property for the purpose of inspecting the same during regular business hours (or as otherwise agreed by Lessee).
(f) On the Lease Termination Date, Lessee shall surrender the Leased Property in accordance with Section SECTION 14.8 hereof. ------------.
(g) In connection with any such sale of the Leased Property, Lessee will provide to the purchaser all customary "seller's" indemnities, representations and warranties regarding title, absence of Liens (except Lessor Liens and the Liens of the Operative DocumentsLiens) and the condition of the Leased Property, including, without limitation, an environmental indemnity. Lessee shall fulfill all of the requirements set forth in clause ------ CLAUSE (bB) of Section SECTION 14.5, and such requirements are incorporated herein by --- ------------ reference. As to Lessor, any such sale shall be made on an "as is, with all faults" basis by special without representation or warranty deed by Lessor, which shall include a warranty as to other than the absence of Lessor Liens and the Liens of the Operative Documents, but shall exclude any warranty with respect to Liens created by Lessee as Lessor's agentLiens.
(h) In connection with any such sale of Leased Property, Lessee shall pay directly, and not from the sale proceeds, all prorations, credits, costs and expenses of the sale of the Leased Property, whether incurred by Lessor, any Lender, the Agent or Lessee, including without limitation, the cost of all title insurance, surveys, environmental reports, appraisals, transfer taxes, Lessor's and the Agent's attorneys' fees, Lessee's attorneys' fees, commissions, escrow fees, recording fees, and all applicable documentary and other transfer taxes.
(i) In addition to the gross proceeds of the sale of the Leased Property (but subject to the penultimate sentence of this Section 14.6), ------------ Lessee shall pay to the Agent on the Lease Termination Date (or to such other Person as Agent shall notify Lessee in writing, or in the case of Supplemental Rent, to the Person entitled thereto) an amount equal to the Recourse Deficiency Amount, plus PLUS all Basic Rent and Supplemental Rent, and ---- all other amounts hereunder which have accrued prior to or as of such date, in the type of funds specified in Section 3.3 hereof. ----------- If Lessee has exercised the Remarketing Option, the following additional provisions shall apply: During the period commencing on the date of Lessee's notice pursuant to Section 14.6(a), Lessee shall, as nonexclusive agent for --------------- Lessor, use commercially reasonable efforts to sell Lessor's interest in the Leased Property and will attempt to obtain the highest purchase price therefor. All such marketing of the Leased Property shall be at Lessee's sole expense. Lessee shall submit all bids to Lessor and the Agent and Lessor and the Agent will have the right to review the same and the right to submit any one or more bids. All bids shall be on an all-cash basis. In no event shall such bidder be Lessee or any Subsidiary or Affiliate of Lessee. The written offer must specify the Lease Termination Date as the closing date. If, and only if, the selling price (net of closing costs and prorations, as reasonably estimated by the Agent) is less than the difference between the Lease Balance at such time minus the Recourse Deficiency Amount, then the Agent (as directed by the Required Lenders) may, in its sole and absolute discretion, by notice to Lessee, reject such offer to purchase, in which event the parties will proceed according to the provisions of Section 14.7 [Rejection of Sale] hereof. If the Agent does not ------------ reject such purchase offer as provided above, the closing of such purchase of the Leased Property by such purchaser shall occur on the Lease Termination Date, contemporaneously with Lessee's surrender of the Leased Property in accordance with Section 14.8 hereof, and the gross proceeds of the sale (i.e., without ------------ deduction for any marketing, closing or other costs, prorations or commissions) shall be paid directly to the Agent (or Lessor if the Loans have been fully paid); provided, however, that if the sum of the gross proceeds from such sale -------- ------- plus the Recourse Deficiency Amount paid by Lessee on the Lease Termination Date pursuant to Section 14.6(i), minus any and all costs and expenses (including --------------- broker fees, appraisal costs, legal fees and transfer taxes) incurred by the Agent or Lessor in connection with the marketing of the Leased Property or the sale thereof exceeds the Lease Balance as of such date, then the excess shall be paid to Lessee on the Lease Termination Date. Lessee shall have no right, power or authority to bind Lessor in connection with any proposed sale of the Leased Property.SECTION 3.3
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