Common use of Return Option Procedures Clause in Contracts

Return Option Procedures. (a) If the Lessee elects or is deemed to have elected the Return Option and the Lessor elects to require the Lessee to offer to sell the Leased Property, at the option of the Lessor, (x) the purchaser shall be reasonably entitled (whether on or before the Return Date or thereafter) to be granted a temporary easement or other right of access from the Lessee on the Leased Property to enable the purchaser to have access over paths and streets necessary to remarket the Leased Property (the “Easement”) (which obligation of the Lessee to grant such Easement hereunder shall survive the termination of this Lease), or (y) the Lessee shall use commercially reasonable efforts as non-exclusive agent for the Lessor to obtain the highest all cash purchase price for the Leased Property. In the event the Lessee receives any bid, the Lessee shall within five (5) Business Days after receipt thereof and, at least five (5) Business Days prior to the Return Date, certify to the Lessor in writing the amount and terms of such bid and the name and address of the party (who shall not be the Lessee or any Subsidiary of the Lessee or, unless the sum of (i) the Sale Proceeds pursuant to a proposed bid which the Lessee desires to accept plus (ii) the Recourse Deficiency Amount plus (iii) any amount payable pursuant to Section 7.5 of the Participation Agreement is not less than the Break Even Price, any Person with whom the Lessee has an understanding or arrangement regarding their future use, possession or ownership of the Leased Property or the Lessor’s other rights, title and interest in and to the Leased Property, but who may be the Lessor, any Affiliate thereof, or any Person contacted by the Lessor (other than any Person otherwise forbidden from being such purchaser pursuant to the foregoing parenthetical)) submitting such bid, and the Lessee and any sublessee shall confirm in writing both to the Lessor and to the bidder that it will vacate the Leased Property and take such reasonable steps as may be required to grant to the bidder the Easement on or before the Return Date. (b) If the sum of (i) the Sales Proceeds pursuant to a proposed bid which the Lessee desires to accept plus (ii) the Recourse Deficiency Amount plus (iii) any amount payable pursuant to Section 7.5 of the Participation Agreement is not less than the Break Even Price, then the Lessee shall determine and accept the winning bid; otherwise, Lessor shall have the right, in its sole and absolute discretion to accept or reject any bid so presented by the Lessee. As non-exclusive selling agent, Lessee’s expenses and the out-of-pocket expenses incurred by the Lessor in connection with any such bidding and sale process pursuant to this Section 22.1 as well as all costs and expenses incurred by the Lessor or a buyer or potential buyer of the Leased Property to place the Leased Property in the condition required by Section 9.1, shall be deducted from the Sale Proceeds. On the Return Date, so long as no Event of Default or Default (other than an Event of Default that is declared solely and exclusively on the basis of one or more 97-1 Events of Default with respect to which the Lessor has not yet commenced exercising remedies) shall have occurred and be continuing: (w) the Lessee shall transfer all of the Lessee’s right, title and interest in the Leased Property if any, that the Lessor does not yet hold pursuant to the terms of the Operative Documents to the bidder, if any, which shall have submitted the bid (if any) accepted pursuant to this Section 22.1(b), in the same manner and in the same condition and otherwise in accordance with all of the terms of this Lease, warranted free and clear of all Liens other than Permitted Liens described in clauses (a) and (b) of the definition thereof; (x) subject to the prior or current payment by the Lessee of all amounts due under clause (y) of this sentence, the Lessor shall comply with any conditions to transfer set forth in Section 22.2 and the transfer provisions of Section 22.1(b) in order to transfer its interests in the Leased Property for cash to such bidder; (y) the Lessee, as non-exclusive selling agent, shall simultaneously pay to the Lessor all of the amounts required pursuant to Section 22.3; and (z) after payment in full of all amounts owing to the Lessor hereunder and under the terms of the bid, this Lease shall terminate or, at Lessee’s option, shall be assigned by Lessor without recourse or warranty by Lessor to a designee concurrent with the payment of such designated amount. The Lessor shall not have any responsibility for procuring any purchaser; provided, however, that the Lessor and its designees may engage in activities to market and sell the Leased Property and may terminate Lessee as its non-exclusive selling agent upon one (1) Business Day’s notice. Any such activities reasonably undertaken by the Lessor pursuant to this Section 22.1(b) shall be at the Lessor’s sole cost and expense (which shall be deducted from the Sale Proceeds in accordance with the foregoing), shall not reduce the Lessee’s obligations, as non-exclusive selling agent, under this Section 22.1(b) or during the Extended Remarketing Period) to use commercially reasonable efforts, as non-exclusive selling agent, to sell the Leased Property in accordance with the requirements of this Section 22.1(b) and Section 22.2. If the Sale Proceeds exceed the Break Even Price as of the Return Date, the Lessee shall retain or be entitled to receive the portion of the Sale Proceeds in excess thereof. If the Sale Proceeds are less than the aggregate outstanding Break Even Price, the Lessee shall pay or shall cause to be paid to the Lessor, as Supplemental Rent, on the date of such sale (but not later than the Return Date), in addition to the Sale Proceeds, an additional amount as set forth in the last sentence of Section 22.3(a) hereof.

Return Option Procedures. (a) If the Lessee elects or is deemed to have elected the Return Option and Option, the Lessor elects may elect to require the Lessee to offer to sell the Leased PropertyLessee, at the option of as non-exclusive selling agent for the Lessor, (x) the purchaser shall be reasonably entitled (whether on or before the Return Date or thereafter) to be granted use commercially reasonable efforts to hire a temporary easement or other right of access from the Lessee on the Leased Property to enable the purchaser to have access over paths and streets necessary qualified/licenses commercial real estate brokerage to remarket the Leased Property (the “Easement”) (which obligation of the Lessee to grant such Easement hereunder shall survive the termination of this Lease), or (y) the Lessee shall use commercially reasonable efforts as non-exclusive agent for the Lessor to and obtain the highest all cash purchase price for the Leased Propertysale thereof from the date of such request to the Return Date, subject to any extension thereof pursuant to Section 22.4(b). In the event the Lessee receives any bid, the Lessee shall within five (5) Business Days after receipt thereof and, at least five twenty (520) Business Days prior to the Return Date, certify to the Lessor in writing the amount and terms of such bid and the name and address of the party (who provided, such party shall not be (x) the Lessee or any Subsidiary Affiliate of the Lessee orLessee, unless the sum of or (iy) the Sale Proceeds pursuant to a proposed bid which the Lessee desires to accept plus (ii) the Recourse Deficiency Amount plus (iii) any amount payable pursuant to Section 7.5 of the Participation Agreement is not less than the Break Even Price, any Person with whom the Lessee has an understanding or arrangement regarding their future use, possession or ownership of the Leased Property or the Lessor’s other rights, title and interest in and to the Leased Property, but who unless, in the case of the foregoing subsections (x) or (y) the sum of (i) the Sale Proceeds pursuant to a proposed bid which the Lessee desires to accept plus (ii) the Recourse Deficiency Amount (as set forth in the Lease Supplement hereto) plus (iii) any amount payable pursuant to Section 7.7 of the Participation Agreement is equal to or greater than the Adjusted Lease Balance; provided further, such party may be the Lessor, any Affiliate thereof, or any other Person contacted by the Lessor (other than any Person otherwise forbidden from being such purchaser pursuant to as referenced in the foregoing parentheticalsubsections (x) or (y))) submitting such bid, and the Lessee and any sublessee shall confirm in writing both to the Lessor and to the bidder that it will surrender and vacate the Leased Property and take such reasonable steps as may be required to grant to the bidder the Easement in accordance with Section 22.5 hereof on or before the Return Date. (b) . If the sum of (i) the Sales Sale Proceeds pursuant to a proposed bid which the Lessee desires to accept plus (ii) the Recourse Deficiency Amount plus (iii) any amount payable pursuant to Section 7.5 7.7 of the Participation Agreement is not less in cash and is equal to or greater than the Break Even PriceAdjusted Lease Balance, then the Lessee shall determine and accept the winning bidbid without the consent of the Lessor; otherwise, the Lessor shall have the right, in its sole and absolute discretion discretion, to consent to such sale and the Lessor shall have the right, in its sole and absolute discretion, to accept or reject any bid so presented by the LesseeLessee to the extent any portion of the Lessor Investment plus the Lessor’s Gain would remain unpaid. Unless, pursuant to the terms of the bid submitted, the Sale Proceeds shall exceed the aggregate outstanding Adjusted Lease Balance as of the Return Date, any Participant may submit a bid to the Lessor with a copy thereof to the Lessee not later than five (5) Business Days prior to the Return Date. As non-exclusive selling agent, the Lessee’s expenses and the out-of-pocket expenses incurred by the Lessor Administrative Agent and each Participant in connection with any such bidding and sale process pursuant to this Section 22.1 as well as all costs and expenses incurred by the Lessor or any party (including a buyer or potential buyer of buyer) to the Leased Property extent the Lessor and the Lessee have agreed to such payment to place the Leased Property in the condition required by Section 9.1, shall be deducted from the Sale Proceeds. On the Return Date, so long as no Event of Default or Default (other than an Event of Default that is declared solely and exclusively on the basis of one or more 97-1 Events of Default with respect to which the Lessor has not yet commenced exercising remedies) shall have occurred and be continuing: (w) the Lessee shall transfer all of the Lessee’s right, title and interest in the Leased Property if any, that the Lessor does not yet hold pursuant to the terms of the Operative Documents to the bidder, if any, which shall have submitted the bid (if any) accepted pursuant to this Section 22.1(b), in the same manner and in the same condition and otherwise in accordance with all of the terms of this Lease, warranted free and clear of all Liens other than Permitted Liens described in clauses (a) and (b) of the definition thereof; (x) subject to the prior or current payment by the Lessee of all amounts due under clause (y) of this sentence, the Lessor shall comply with any conditions to transfer set forth in Section 22.2 and the transfer provisions of Section 22.1(b) in order to transfer its interests in the Leased Property for cash to such bidder; (y) the Lessee, as non-exclusive selling agent, shall simultaneously pay to the Lessor all of the amounts required pursuant to Section 22.3; and (z) after payment in full of all amounts owing to the Lessor hereunder and under the terms of the bid, this Lease shall terminate or, at Lessee’s option, shall be assigned by Lessor without recourse or warranty by Lessor to a designee concurrent with the payment of such designated amount. The Lessor shall not have any responsibility for procuring any purchaser; provided, however, that the Lessor and its designees may engage in activities to market and sell the Leased Property and may terminate Lessee as its non-exclusive selling agent upon one (1) Business Day’s notice. Any such activities reasonably undertaken by the Lessor pursuant to this Section 22.1(b) shall be at the Lessor’s sole cost and expense (which shall be deducted from the Sale Proceeds in accordance with the foregoing), shall not reduce the Lessee’s obligations, as non-exclusive selling agent, under this Section 22.1(b) or during the Extended Remarketing Period) to use commercially reasonable efforts, as non-exclusive selling agent, to sell the Leased Property in accordance with the requirements of this Section 22.1(b) and Section 22.2. If the Sale Proceeds exceed the Break Even Price as of the Return Date, the Lessee shall retain or be entitled to receive the portion of the Sale Proceeds in excess thereof. If the Sale Proceeds are less than the aggregate outstanding Break Even Price, the Lessee shall pay or shall cause to be paid to the Lessor, as Supplemental Rent, on the date of such sale (but not later than the Return Date), in addition to the Sale Proceeds, an additional amount as set forth in the last sentence of Section 22.3(a) hereof.

Return Option Procedures. (a) If the Lessee elects or is deemed to have elected the Return Option Option, and the Lessor elects to require the Lessee to offer to assign Lessor’s Ground Lease interests and to sell the Leased PropertyFacility, at the option of the Lessor, (x) the purchaser shall be reasonably entitled (whether on or before the Return Date or ​ ​ ​ ​ thereafter) to (i) (A) be granted a temporary easement or other right ground lease in lieu of access the Ground Lease, from the Lessee, as ground lessor, substantially in the form of such Ground Lease, as modified by the Estoppel Certificate (the “Third Party Ground Lease”), free and clear of any Lien other than the Liens created pursuant to the Additional Easement, Lessor Liens, the Liens set forth on Schedule III to the Participation Agreement and any Liens arising after the Closing Date which have been expressly approved by the Participants in accordance with the Operative Documents (the “Return Option Liens”), which leasehold estate shall be evidenced of record by a memorandum of the Third Party Ground Lease in form and substance reasonably acceptable to Lessee as ground lessor and such purchaser, and the Ground Lessor acknowledge that the Facility and other improvements on the Leased Property Site shall not revert to the Ground Lessor until the expiration or termination of the Third Party Ground Lease, and (B) if not otherwise provided in the Third Party Ground Lease, be granted easements on portions of the Overall Parcel (the “Additional Easement”) to (i) enable the purchaser to reasonably operate and have access over paths and streets use of paths, lots (including parking lots) and private ways necessary to remarket ensure the Leased Property continued operation of the Facility, or (ii) remain in compliance with Applicable Laws and Regulations including, without limitation, zoning ordinances and the California Subdivision Map Act, as applicable, which easement shall not be a “Easement”) blanket easement” and is in all other respects reasonably acceptable to Lessor and Ground Lessor (which obligation of the Lessee to grant or cause to be granted such Third Party Ground Lease and Additional Easement hereunder shall survive the termination of this Lease) provided, however, to the extent necessary to enable Ground Lessor to reasonably operate improvements located on the Overall Parcel other than the Site, Lessor or such purchaser shall grant an easement over the Site in favor of the Ground Lessor, which easement shall not be a “blanket easement” and shall be in all other respects reasonably acceptable to Lessor and Ground Lessor (which obligation of Lessor or such purchaser to grant or cause to be granted such Third Party Ground Lease and Additional Easement hereunder shall survive the termination of this Lease), or (ii) be assigned the rights of the Lessor, as lessee under the Ground Lease, for the remaining term thereof, free and clear of any Lien other than the Return Option Liens and be granted the Additional Easement (which obligation of the Lessee to grant the Additional Easement hereunder shall survive the termination of this Lease), and (y) the Lessee shall use commercially reasonable efforts as non-exclusive agent for the Lessor to remarket the Leased Property and obtain the highest all cash purchase price for the Leased Propertysale of the Facility and the leasehold interests in the Site from the date of such request to the Return Date, subject to any extension thereof pursuant to Section 22.4(b). In the event the Lessee receives any bid, the Lessee shall within five (5) Business Days after receipt thereof and, at least five twenty (520) Business Days prior to the Return Date, certify to the Lessor in writing the amount and terms of such bid and the name and address of the party (who provided, such party shall not be (x) the Lessee or any Subsidiary Affiliate of the Lessee orLessee, unless the sum of or (iy) the Sale Proceeds pursuant to a proposed bid which the Lessee desires to accept plus (ii) the Recourse Deficiency Amount plus (iii) any amount payable pursuant to Section 7.5 of the Participation Agreement is not less than the Break Even Price, any Person with whom the Lessee has an understanding or arrangement regarding their future use, possession or ownership of the Leased Property or the Lessor’s other rights, title and interest in and to the Leased Property, but who may be unless, in the Lessor, any Affiliate thereof, or any Person contacted by the Lessor (other than any Person otherwise forbidden from being such purchaser pursuant to case of the foregoing parenthetical)subsections (x) submitting such bid, and the Lessee and any sublessee shall confirm in writing both to the Lessor and to the bidder that it will vacate the Leased Property and take such reasonable steps as may be required to grant to the bidder the Easement on or before the Return Date. (by) If the sum of (i) the Sales Sale Proceeds pursuant to a proposed bid which the Lessee desires to accept plus (ii) the Return Price Recourse Deficiency Amount (as set forth in the Lease Supplement hereto) plus (iii) any amount payable pursuant to Section 7.7 of the Participation Agreement is equal to or greater than the Lease Balance; provided further, such party may be the Lessor, any Affiliate thereof, or any other Person contacted by the Lessor (other than as referenced in the foregoing subsections (x) or (y))) submitting such bid, and the Lessee and any ground Lessee or sublessee shall confirm in writing both to the Lessor and to the bidder that it will ​ ​ ​ ​ surrender and vacate the Facility and take such reasonable steps as may be required to grant to the bidder the Third Party Ground Lease on or before the Return Date. ​ If the sum of (i) the Sale Proceeds pursuant to a proposed bid which the Lessee desires to accept plus (ii) the Return Price Recourse Deficiency Amount plus (iii) any amount payable pursuant to Section 7.5 7.7 of the Participation Agreement is not less equal to or greater than the Break Even PriceLease Balance, then the Lessee shall determine and accept the winning bid; otherwise, the Lessor shall have the right, in its sole and absolute discretion, to consent to such sale and the Lessor shall have the right, in its sole and absolute discretion to accept or reject any bid so presented by the LesseeLessee to the extent any portion of its Lessor Investment would remain unpaid. Unless pursuant to the terms of the bid submitted, the Sale Proceeds shall exceed the aggregate outstanding Lease Balance as of the Return Date, any Participant may submit a bid to the Lessee not later than five (5) Business Days prior to the Return Date. As non-exclusive selling agent, Lessee’s expenses and the out-of-pocket expenses incurred by the Lessor and each other Participant in connection with any such bidding and sale process pursuant to this Section 22.1 as well as all costs and expenses incurred by the Lessor or any party (including a buyer or potential buyer of buyer) to the Leased Property extent the Lessor and the Lessee have agreed to such payment to place the Leased Property and the Site in the condition required by Section 9.1, shall be deducted from the Sale Proceeds. ​ (b) On or before the Return Date, so long as no Event of Default or Default (other than an Event of Default that is declared solely and exclusively on the basis of one or more 97-1 Events of Default with respect to which the Lessor has not yet commenced exercising remedies) shall have occurred and be continuing: (wi) the Lessee shall (a) prepare, in form and substance reasonably satisfactory to the lessee under the Ground Lease or Third Party Ground Lease an acknowledgement that the Facility and other improvements on the Site shall not revert to the Ground Lessor until the expiration or termination of the Third Party Ground Lease or the Ground Lease, (b) transfer all of the Lessee’s right, title and interest in and to the Leased Property if anyhereunder, that the Lessor does not yet hold pursuant to the terms of the Operative Documents to extent required by the bidder, if any, which shall have submitted the bid (if any) accepted pursuant to this Section 22.1(b22.1(a), in the same manner and in the same condition and otherwise in accordance with all of the terms of this Lease, warranted free and clear of all Liens other than Permitted Liens described in clauses (a) ; and (bc) if applicable, prepare, in form and substance reasonably satisfactory to the purchaser of the definition thereofFacility under Section 22.1(a), a Third Party Ground Lease and the Additional Easement; (xii) subject to the prior or current payment by the Lessee of all amounts due under clause (yiii) of this sentence, the Lessor shall comply with any conditions to transfer set forth in Section 22.2 and the transfer provisions of Section 22.1(b) 23.11 in order to transfer its interests in the Leased Property for cash to such bidder; (yiii) the Lessee, as non-non- exclusive selling agent, shall simultaneously pay to the Lessor all of the amounts required pursuant to Section 22.3; and (ziv) after payment in full of all amounts owing to the Lessor hereunder and under the terms of the bid, this Lease shall terminate orterminate; and (v) subject to the conditions set forth in subsection (d) below, at Lessee’s optionleast thirty (30) days prior to the Return Date, Lessor and Lessee shall enter into the Additional Easement; provided, however, that any return of the Leased Property under a Return Option shall be assigned by Lessor without recourse conditioned upon the absence of any Default or warranty by Lessor to a designee concurrent with Event of Default on the payment of such designated amount. The Return Date (in which case, this subsection will not apply and the Lessee shall be responsible for the Lease Balance (and, in the case where the Lease Balance is paid, the Lessor shall not convey to the Lessee or its designee the Leased Property in accordance with Section 23.11)). Neither the Administrative Agent nor any Participant shall have any responsibility for procuring any purchaser; provided, however, that the Lessor and its designees may may, at the direction of the Required Participants, engage in activities to market and sell the Leased Property and may terminate Lessee so long as its non-exclusive selling agent upon one (1) Business Daysuch activities do not conflict with Lessee’s noticeremarketing activities. Any such activities reasonably undertaken by the Lessor pursuant to this Section 22.1(b) 22.1 shall be at the LessorLessee’s sole cost and expense (which shall be deducted from the Sale Proceeds in accordance with the foregoing), ) and shall not reduce change the ​ ​ ​ ​ Lessee’s obligations, as non-exclusive selling agent, under this Section 22.1(b) 22.1 or during the Extended Remarketing PeriodPeriod (as defined in Section 22.4) to use commercially reasonable efforts, as non-exclusive selling agent, to sell the Leased Property in accordance with the requirements of this Section 22.1(bArticle XXII. (c) and Section 22.2. If the Sale Proceeds exceed the Break Even Price as of On the Return Date, the Lessor or any purchaser of the Leased Property, if sold, shall pay to the Lessee the Fair Market Rental Value of the Site subject to the Ground Lease or Third Party Ground Lease for the remainder of the term of the Ground Lease or the term of the Third Party Ground Lease, commencing on the Lease Expiration Date. Such amount shall not affect the calculation of any other amount owed by any party to the Operative Documents and shall be paid by wire transfer to the Lessee at such place as the Lessee shall retain or specify in writing to the Lessor pursuant to Schedule 11 to the Participation Agreement. The term “Fair Market Rental Value of the Site” means the value for the Site that would be entitled to receive obtained in an arm’s-length transaction for the leasing of such portion of the Sale Proceeds Site for the remainder of the term of the Ground Lease or the term of the Third Party Ground Lease, between an informed and willing lessee-user (other than a lessee currently in excess thereofpossession) under no compulsion to lease and an informed and willing lessor under no compulsion to lease, as the same shall be specified by agreement between the Lessor and the Lessee or, if not agreed to by Lessor and the Lessee, upon the election of the Return Option, within a period of fifteen (15) days after either party requests the determination, then as specified in an appraisal mutually agreed to by two real estate appraisers, one of which shall be appointed by the Lessor and the other of which shall be appointed by Lessee, or, if such appraisers cannot agree on such appraisal, an appraisal arrived at by a third independent real estate appraiser chosen by the mutual consent of the two appraisers, or if they do not agree, appointed by the American Arbitration Association. If either party should fail to appoint an appraiser within fifteen (15) days of receiving notice of the appointment of an appraiser by the other party, then such appraisal shall be made by the appraiser appointed by the first party. If the Sale Proceeds are less than two appraisers cannot agree on such appraisal and fail to appoint a third appraiser within fifteen (15) days after the aggregate outstanding Break Even Priceappointment of the second appraiser, the Lessee shall pay or shall cause to be paid then either party may apply to the Lessor, as Supplemental Rent, on American Arbitration Association to make such appointment. The appraisal shall be completed within thirty (30) days of the date appointment of such sale (but not later than the last appraiser appointed and before the consummation of the Return Date), in addition to the Sale Proceeds, an additional amount as set forth in the last sentence of Section 22.3(a) hereof.Option. ​

Return Option Procedures. (a) If the Lessee elects or is deemed to have elected the Return Option Option, and the Lessor elects to require the Lessee to offer to assign Lessor’s Ground Lease interests and to sell the Leased PropertyFacility, at the option of the Lessor, (x) the purchaser shall be reasonably entitled (whether on or before the Return Date or thereafter) to (i) (A) be granted a temporary easement or other right ground lease in lieu of access the Ground Lease, from the Lessee, as ground lessor, substantially in the form of such Ground Lease, as modified by the Estoppel Certificate (the “Third Party Ground Lease”), free and clear of any Lien other than the Liens created pursuant to the Additional Easement, Lessor Liens, the Liens set forth on Schedule III to the Participation Agreement and any Liens arising after the Closing Date which have been expressly approved by the Participants in accordance with the Operative Documents (the “Return Option Liens”), which leasehold estate shall be evidenced of record by a memorandum of the Third Party Ground Lease in form and substance reasonably acceptable to Lessee as ground lessor and such purchaser, and the Ground Lessor acknowledge that the Facility and other improvements on the Leased Property Site shall not revert to the Ground Lessor until the expiration or termination of the Third Party Ground Lease, and (B) if not otherwise provided in the Third Party Ground Lease, be granted easements on portions of the Overall Parcel (the “Additional Easement”) to (i) enable the purchaser to reasonably operate and have access over paths and streets use of paths, lots (including parking lots) and private ways necessary to remarket ensure the Leased Property continued operation of the Facility, or (ii) remain in compliance with Applicable Laws and Regulations including, without limitation, zoning ordinances and the California Subdivision Map Act, as applicable, which easement shall not be a “Easement”) blanket easement” and is in all other respects reasonably acceptable to Lessor and Ground Lessor (which obligation of the Lessee to grant or cause to be granted such Third Party Ground Lease and Additional Easement hereunder shall survive the termination of this Lease) provided, however, to the extent necessary to enable Ground Lessor to reasonably operate improvements located on the Overall Parcel other than the Site, Lessor or such purchaser shall grant an easement over the Site in favor of the Ground Lessor, which easement shall not be a “blanket easement” and shall be in all other respects reasonably acceptable to Lessor and Ground Lessor (which obligation of Lessor or such purchaser to grant or cause to be granted such Third Party Ground Lease and Additional Easement hereunder shall survive the termination of this Lease), or (ii) be assigned the rights of the Lessor, as lessee under the Ground Lease, for the remaining term thereof, free and clear of any Lien other than the Return Option Liens and be granted the Additional Easement (which obligation of the Lessee to grant the Additional Easement hereunder shall survive the termination of this Lease), and (y) the Lessee shall use commercially reasonable efforts as non-exclusive agent for the Lessor to remarket the Leased Property and obtain the highest all cash purchase price for the Leased Propertysale of the Facility and the leasehold interests in the Site from the date of such request to the Return Date, subject to any extension thereof pursuant to Section 22.4(b). In the event the Lessee receives any bid, the Lessee shall within five (5) Business Days after receipt thereof and, at least five twenty (520) Business Days prior to the Return Date, certify to the Lessor in writing the amount and terms of such bid and the name and address of the party (who provided, such party shall not be (x) the Lessee or any Subsidiary Affiliate of the Lessee orLessee, unless the sum of or (iy) the Sale Proceeds pursuant to a proposed bid which the Lessee desires to accept plus (ii) the Recourse Deficiency Amount plus (iii) any amount payable pursuant to Section 7.5 of the Participation Agreement is not less than the Break Even Price, any Person with whom the Lessee has an understanding or arrangement regarding their future use, possession or ownership of the Leased Property or the Lessor’s other rights, title and interest in and to the Leased Property, but who may be unless, in the Lessor, any Affiliate thereof, or any Person contacted by the Lessor (other than any Person otherwise forbidden from being such purchaser pursuant to case of the foregoing parenthetical)subsections (x) submitting such bid, and the Lessee and any sublessee shall confirm in writing both to the Lessor and to the bidder that it will vacate the Leased Property and take such reasonable steps as may be required to grant to the bidder the Easement on or before the Return Date. (by) If the sum of (i) the Sales Sale Proceeds pursuant to a proposed bid which the Lessee desires to accept plus (ii) the Return Price Recourse Deficiency Amount (as set forth in the Lease Supplement hereto) plus (iii) any amount payable pursuant to Section 7.7 of the Participation Agreement is equal to or greater than the Lease Balance; provided further, such party may be the Lessor, any Affiliate thereof, or any other Person contacted by the Lessor (other than as referenced in the foregoing subsections (x) or (y))) submitting such bid, and the Lessee and any ground Lessee or sublessee shall confirm in writing both to the Lessor and to the bidder that it will surrender and vacate the Facility and take such reasonable steps as may be required to grant to the bidder the Third Party Ground Lease on or before the Return Date. If the sum of (i) the Sale Proceeds pursuant to a proposed bid which the Lessee desires to accept plus (ii) the Return Price Recourse Deficiency Amount plus (iii) any amount payable pursuant to Section 7.5 7.7 of the Participation Agreement is not less equal to or greater than the Break Even PriceLease Balance, then the Lessee shall determine and accept the winning bid; otherwise, the Lessor shall have the right, in its sole and absolute discretion, to consent to such sale and the Lessor shall have the right, in its sole and absolute discretion to accept or reject any bid so presented by the LesseeLessee to the extent any portion of its Lessor Investment would remain unpaid. Unless pursuant to the terms of the bid submitted, the Sale Proceeds shall exceed the aggregate outstanding Lease Balance as of the Return Date, any Participant may submit a bid to the Lessee not later than five (5) Business Days prior to the Return Date. As non-exclusive selling agent, Lessee’s expenses and the out-of-pocket expenses incurred by the Lessor and each other Participant in connection with any such bidding and sale process pursuant to this Section 22.1 as well as all costs and expenses incurred by the Lessor or any party (including a buyer or potential buyer of buyer) to the Leased Property extent the Lessor and the Lessee have agreed to such payment to place the Leased Property and the Site in the condition required by Section 9.1, shall be deducted from the Sale Proceeds. . (b) On or before the Return Date, so long as no Event of Default or Default (other than an Event of Default that is declared solely and exclusively on the basis of one or more 97-1 Events of Default with respect to which the Lessor has not yet commenced exercising remedies) shall have occurred and be continuing: (wi) the Lessee shall (a) prepare, in form and substance reasonably satisfactory to the lessee under the Ground Lease or Third Party Ground Lease an acknowledgement that the Facility and other improvements on the Site shall not revert to the Ground Lessor until the expiration or termination of the Third Party Ground Lease or the Ground Lease, (b) transfer all of the Lessee’s right, title and interest in and to the Leased Property if anyhereunder, that the Lessor does not yet hold pursuant to the terms of the Operative Documents to extent required by the bidder, if any, which shall have submitted the bid (if any) accepted pursuant to this Section 22.1(b22.1(a), in the same manner and in the same condition and otherwise in accordance with all of the terms of this Lease, warranted free and clear of all Liens other than Permitted Liens described in clauses (a) ; and (bc) if applicable, prepare, in form and substance reasonably satisfactory to the purchaser of the definition thereofFacility under Section 22.1(a), a Third Party Ground Lease and the Additional Easement; (xii) subject to the prior or current payment by the Lessee of all amounts due under clause (yiii) of this sentence, the Lessor shall comply with any conditions to transfer set forth in Section 22.2 and the transfer provisions of Section 22.1(b) 23.11 in order to transfer its interests in the Leased Property for cash to such bidder; (yiii) the Lessee, as non-exclusive selling agent, shall simultaneously pay to the Lessor all of the amounts required pursuant to Section 22.3; and (ziv) after payment in full of all amounts owing to the Lessor hereunder and under the terms of the bid, this Lease shall terminate orterminate; and (v) subject to the conditions set forth in subsection (d) below, at Lessee’s optionleast thirty (30) days prior to the Return Date, Lessor and Lessee shall enter into the Additional Easement; provided, however, that any return of the Leased Property under a Return Option shall be assigned by Lessor without recourse conditioned upon the absence of any Default or warranty by Lessor to a designee concurrent with Event of Default on the payment of such designated amount. The Return Date (in which case, this subsection will not apply and the Lessee shall be responsible for the Lease Balance (and, in the case where the Lease Balance is paid, the Lessor shall not convey to the Lessee or its designee the Leased Property in accordance with Section 23.11)). Neither the Administrative Agent nor any Participant shall have any responsibility for procuring any purchaser; provided, however, that the Lessor and its designees may may, at the direction of the Required Participants, engage in activities to market and sell the Leased Property and may terminate Lessee so long as its non-exclusive selling agent upon one (1) Business Daysuch activities do not conflict with Lessee’s noticeremarketing activities. Any such activities reasonably undertaken by the Lessor pursuant to this Section 22.1(b) 22.1 shall be at the LessorLessee’s sole cost and expense (which shall be deducted from the Sale Proceeds in accordance with the foregoing), ) and shall not reduce change the Lessee’s obligations, as non-exclusive selling agent, under this Section 22.1(b) 22.1 or during the Extended Remarketing PeriodPeriod (as defined in Section 22.4) to use commercially reasonable efforts, as non-exclusive selling agent, to sell the Leased Property in accordance with the requirements of this Section 22.1(bArticle XXII. (c) and Section 22.2. If the Sale Proceeds exceed the Break Even Price as of On the Return Date, the Lessee shall retain Lessor or be entitled to receive the portion any purchaser of the Sale Proceeds in excess thereof. If the Sale Proceeds are less than the aggregate outstanding Break Even PriceLeased Property, if sold, shall pay to the Lessee shall pay or shall cause to be paid the Fair Market Rental Value of the Site subject to the Lessor, as Supplemental Rent, on Ground Lease or Third Party Ground Lease for the date remainder of such sale (but not later than the Return Date), in addition to term of the Sale Proceeds, an additional amount as set forth in Ground Lease or the last sentence term of Section 22.3(a) hereof.the