Sale Option Procedures. If Lessee elects the Sale Option, Lessee shall use its best commercial efforts to obtain the highest all cash purchase price for the Units. All costs related to such sale including, without limitation, the cost of sales agents, removal of the Units, delivery of documents to any location designated by a buyer within the continental United States, certification and testing of the Units in any reasonable location chosen by the buyer or prospective buyer, legal costs, costs of notices, any advertisement or other similar costs, or other information and of any parts, configurations or repairs, or modifications consistent with the Units being used to store and/or transport liquids and gases, in each case, required by a buyer or prospective buyer shall be borne entirely by Lessee, without regard to whether such costs were incurred by Lessor, Lessee or any potentially qualified buyer, and shall in no event be paid from any of the Proceeds. Neither Lessor, Agent nor any Participant shall have any responsibility for procuring any purchaser. If, nevertheless, Lessor, Agent or any Participant undertakes any sales efforts, Lessee shall promptly reimburse such Person for any charges, costs and expenses incurred in such effort, including any allocated time charges, costs and expenses of internal counsel or other attorneys' fees. Upon a sale pursuant to the Sale Option, the Units shall be in the condition required by Section 5.3 and shall be free and clear of all Liens other than Certificate Trustee Liens. Any purchaser or purchasers of the Units shall not in any way be affiliated with Lessee or have any understanding or arrangement with Lessee regarding the future use of the Units. On the Termination Date, so long as no Lease Event of Default or Lease Default exists: (i) Lessee shall transfer all of Lessee's right, title and interest in the Units or cause the Units to be so transferred to such purchaser or purchasers, if any, in accordance with all of the terms of this Lease; (ii) subject to the simultaneous payment by Lessee of all amounts due under clause (iii) of this sentence, Lessor shall, without recourse or warranty, except as to the absence of Certificate Trustee Liens, transfer by quitclaim or otherwise release, as appropriate, Lessor's right, title and interest in and to the Units to such purchaser or purchasers; and (iii) Lessee shall simultaneously pay to Agent all of the amounts contemplated in Section 9.1(b).
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Samples: Lease Intended as Security (Ferrellgas Partners Finance Corp), Lease Agreement (Ferrellgas Partners Finance Corp)
Sale Option Procedures. (a) If Lessee elects the Sale Option, Lessee shall use its best reasonable commercial efforts to obtain the highest all cash purchase price for the UnitsItems of Equipment. All costs related to such sale and delivery (including during the Extended Remarketing Period), including, without limitation, the cost of sales agents, removal of the UnitsItems of Equipment, delivery of documents and the Items of Equipment to any location designated by a buyer within the continental United States, certification and testing of the Units in any reasonable location chosen by the buyer or prospective buyer, legal costs, costs of notices, commissions, escrow fees, filing fees, appraisal fees, license fees, transfer taxes, any advertisement or other similar costs, or other information and of any parts, configurations or repairsconfigurations, repairs or modifications consistent with the Units being used to store and/or transport liquids and gases, in each case, required desired by a buyer or prospective buyer shall buyer, re-installation of the Items of Equipment in the manner and at the location or locations required by a buyer, the cost of storage and insurance during the Extended Remarketing Period as provided in Section 15.6(b) and the costs associated with the satisfaction of the conditions set forth in Section 15.4(b) below shall, except as provided in the following provisos, be borne entirely by Lessee, without regard to whether such costs were incurred by Agent, Lessor, Lessee or any potentially qualified buyer, and shall in no event be paid from the Sale Proceeds for the benefit of Lessee; provided, that Lessee shall in no event be liable for costs (other than de-installation costs, which shall in all cases be borne by Lessee) described in this clause (a) which, in aggregate, exceed $4,514,313; provided, further that in the event that Lessor pays any of the Proceedscosts described in this clause (a) (other than de-installation costs, which shall in all cases be borne by Lessee) as a result of such costs (other than de-installation costs, which shall in all cases be borne by Lessee) aggregating in excess of $4,514,313, Lessor shall be entitled to reimbursement of such payments from the Sale Proceeds prior to the Agent returning any excess Sale Proceeds to the Lessee pursuant to Section 15.1(b), but in no event shall Lessor be entitled to make any claim against Lessee under Article XI for reimbursement or indemnification of such payments made by Lessor. Neither Lessor, Agent nor any Participant Lessor shall have any responsibility for procuring any purchaser. If, nevertheless, Agent or Lessor, Agent or any Participant undertakes any sales efforts, Lessee shall shall, subject to the preceding sentence, promptly reimburse such Person Agent and/or Lessor for any charges, costs and expenses incurred in such effort, including any allocated time charges, costs and expenses of internal counsel or other attorneys' fees. Upon a sale pursuant to the Sale Option, the Units Items of Equipment shall be in at least the condition required by Section 5.3 and shall be free and clear of all Liens other than Certificate Trustee Liens12.2(b). Any purchaser or purchasers of the Units Items of Equipment shall not in any way be affiliated with an Affiliate of Lessee or have any understanding or arrangement with Lessee regarding the future use of the UnitsItems of Equipment. On the Termination Datelast day of the Lease Term, so long as no Lease Event of Default or Lease Default exists:
(i) Lessee shall transfer all of Lessee's right, title and interest in the Units Items of Equipment, or cause the Units Items of Equipment to be so transferred transferred, to such purchaser or purchasers, if any, in accordance with all of the terms of this Lease; (ii) subject to the simultaneous payment by Lessee of all amounts due under clause (iii) of this sentence, Lessor shall, without recourse or warranty, except as to the absence of Certificate Trustee LiensLessor Liens attributable to it, transfer by quitclaim or otherwise release, as appropriate, Lessor's right, title and interest in and to the Units Items of Equipment to such purchaser or purchasers; and (iii) Lessee shall simultaneously pay to Agent Lessor all of the amounts contemplated in Section 9.1(b15.1(b).
(b) The Lessee's effective exercise and consummation of the Sale Option with respect to the Items of Equipment shall be subject to the due and timely fulfillment of each of the following provisions as to the Items of Equipment as of the dates set forth below: LSI Logic Corporation Lease A
(i) Lessee shall furnish to Lessor and Agent, on the last day of the Lease Term, a certification from the manufacturer that the Items of Equipment have been calibrated as necessary to be eligible for manufacturer's maintenance program and have been maintained at or modified to meet the latest available version and/or revision levels (assuming the Equipment has been modified as each such prior modification was introduced) of all hardware and software requirements applicable to the specific model of Equipment as deemed necessary by the manufacturer;
(ii) Lessee shall have the Items of Equipment de-installed, packaged and crated by the manufacturer's technicians or service providers certified by the manufacturer, and Lessee shall furnish to Lessor and Agent, a certification from the manufacturer's technicians or service providers certified by the manufacturer that the Items of Equipment are in good condition prior to shipment;
(iii) Lessee shall furnish to Lessor and Agent all applicable and corresponding instruction and service manuals, service and repair records, and descriptive brochures;
(iv) Lessee shall cause the Items of Equipment to be delivered to any location as selected by the purchaser, in a suitable manner which is specifically designed for the transportation of electronic components and equipment and in a manner consistent with the manufacturer's recommendations for transporting and packaging the Items of Equipment;
(v) Lessee shall not enter into any additional Subleases or renew any Subleases with respect to the Items of Equipment following Lessee's election of the Sale Option, and following Lessee's election of the Sale Option, Lessee shall not remove any Permitted Modifications or commence any voluntary Permitted Modifications under Section 8.4 without the prior written consent of the Agent;
(vi) The Lessee shall submit all bids to the Agent, and the Agent will have the right to review the same and to submit any one or more bids. Agent shall have no obligation to accept a bid that is not on an all-cash basis. Provided that there are all-cash bids at such time, Lessee shall deliver to the Agent not less than ninety (90) days prior to the Lease Expiration Date a binding written unconditional (except as set forth below), irrevocable offer (the "High Bid") by such purchaser or purchasers offering the highest all-cash bid to purchase all, but not less than all, of the Items of Equipment (unless otherwise agreed to by the Agent). Subject to Agent's rights in the immediately succeeding sentence, Agent shall accept the High Bid in writing within 20 Business Days of receipt thereof by Agent. If Agent in the exercise of its reasonable judgment believes that the Sale Proceeds to be paid to the Agent from a High Bid which the Lessee desires to accept is less than the lesser of (A) the Fair Market Value of the Items of Equipment or (B) the Purchase Amount, then Agent may condition its obligation to accept the High Bid upon Agent's receipt of an appraisal demonstrating that the High Bid is for an amount at least equal to the lesser of (1) the Fair Market Value of the Items of Equipment or (2) the Purchase Amount, as established by such appraisal. In such case then Agent shall LSI Logic Corporation Lease A promptly following the receipt of such High Bid, engage an independent appraiser, reasonably satisfactory to the Agent and Lessee, at Lessee's expense, to determine (by appraisal methods reasonably satisfactory to the Agent) the Fair Market Value of the Items of Equipment as of the Lease Expiration Date. The selection of the independent appraiser shall be completed within ten (10) Business Days of the receipt by Agent of such High Bid. A copy of such appraisal shall be delivered to Agent not later than 20 Business Days after the selection of the independent appraiser. The appraiser will be instructed to assume that the Items of Equipment are in the condition required by and have been maintained in accordance with this Lease. Any such appraisal shall be at the sole cost and expense of Lessee.
(vii) In connection with any such sale of the Items of Equipment, the Lessee will provide to the purchaser all customary "seller's" indemnities, representations and warranties regarding title, absence of Liens (except Lessor Liens and Liens relating to the interest or rights of Lessee) and the condition of such Items of Equipment. The Lessee shall have obtained, at its cost and expense, all required governmental and regulatory consents and approvals and shall have made all filings as required by Applicable Laws and Regulations in order to carry out and complete the transfer of the Items of Equipment. Any agreement as to such sale shall be in form and substance reasonably satisfactory to the Agent. If the Lessee properly exercises the Sale Option, then the Lessee shall, upon a sale thereunder, and at its own cost, transfer or cause to be transferred possession of the Items of Equipment to the independent purchaser(s) thereof, in each case by surrendering the same into the possession of such purchaser(s), free and clear of all Liens, other than Lessor Liens, and in the condition required by this Lease, and the Lessee shall execute and deliver to such purchaser(s) at the Lessee's cost and expense a xxxx of sale with respect to the Items of Equipment, warranting that such Items of Equipment are free and clear of all Liens, other than Lessor Liens, together with an assignment, without warranty of any kind, of Lessee's rights, if any, under any purchase contracts. The Lessee shall, on and within a reasonable time before and up to two years after the Lease Expiration Date, cooperate reasonably with the Agent, Lessor and the purchaser(s) of the Items of Equipment in order to facilitate the purchase and use by such purchaser(s) of the Items of Equipment, which cooperation shall include the following, all of which the Lessee shall do on or before the Lease Expiration Date or as soon thereafter as is reasonably practicable: providing reasonable access to all books and records regarding the maintenance, use and ownership of the Items of Equipment and all know-how, data and technical information regarding the use and maintenance of the Equipment thereto, granting or assigning all licenses necessary for the operation and maintenance of the Items of Equipment, and cooperating reasonably in seeking and obtaining all necessary Governmental Action. The obligations of the Lessee under this paragraph shall survive the expiration or termination of this Lease.
Appears in 1 contract
Sale Option Procedures. (a) If Lessee elects the Sale Option, Lessee shall use its best reasonable commercial efforts to obtain the highest all cash purchase price for the UnitsItems of Equipment. All costs related to such sale and delivery (including during the Extended Remarketing Period), including, without limitation, the cost of sales agents, removal of the UnitsItems of Equipment, delivery of documents and the Items of Equipment to any location designated by a buyer within the continental United States, certification and testing of the Units in any reasonable location chosen by the buyer or prospective buyer, legal costs, costs of notices, commissions, escrow fees, filing fees, appraisal fees, license fees, transfer taxes, any advertisement or other similar costs, or other information and of any parts, configurations or repairsconfigurations, repairs or modifications consistent with the Units being used to store and/or transport liquids and gases, in each case, required desired by a buyer or prospective buyer shall buyer, re-installation of the Items of Equipment in the manner and at the location or locations required by a buyer, the cost of storage and insurance during the Extended Remarketing Period as provided in Section 15.6(b) and the costs associated with the satisfaction of the conditions set forth in Section 15.4(b) below shall, except as provided in the following provisos, be borne entirely by Lessee, without regard to whether such costs were incurred by Lessor, Lessee or any potentially qualified buyer, and shall in no event be paid from the Sale Proceeds for the benefit of Lessee; provided, that Lessee shall in no event be liable for costs (other than de-installation costs, which shall in all cases be borne by Lessee) described in this clause (a) which, in aggregate, exceed $5,366,000; provided, further that in the event that Lessor pays any of the Proceedscosts described in this clause (a) (other than de-installation costs, which shall in all cases be borne by Lessee) as a result of such costs (other than de-installation costs, which shall in all cases be borne by Lessee) aggregating in excess of $5,366,000, Lessor shall be entitled to reimbursement of such payments from the Sale Proceeds prior to the Agent returning any excess Sale Proceeds to the Lessee pursuant to Section 15.1(b), but in no event shall Lessor be entitled to make any claim against Lessee under Article XI for reimbursement or indemnification of such payments made by Lessor. Neither Lessor, Agent nor any Participant Lessor shall have any responsibility for procuring any purchaser. If, nevertheless, Lessor, Agent or any Participant Lessor undertakes any sales efforts, Lessee shall shall, subject to the preceding sentence, promptly reimburse such Person Agent and/or Lessor for any charges, costs and expenses incurred in such effort, including any allocated time charges, costs and expenses of internal counsel or other attorneys' ’ fees. Upon a sale pursuant to the Sale Option, the Units Items of Equipment shall be in at least the condition required by Section 5.3 and shall be free and clear of all Liens other than Certificate Trustee Liens12.2(b). Any purchaser or purchasers of the Units Items of Equipment shall not in any way be affiliated with an Affiliate of Lessee or have any understanding or arrangement with Lessee regarding the future use of the UnitsItems of Equipment. On the Termination Datelast day of the Lease Term, so long as no Lease Event of Default or Lease Default exists:
: (i) Lessee shall transfer all of Lessee's ’s right, title and interest in the Units Items of Equipment, or cause the Units Items of Equipment to be so transferred transferred, to such purchaser or purchasers, if any, in accordance with all of the terms of this Lease; (ii) subject to the simultaneous payment by Lessee of all amounts due under clause (iii) of this sentence, Lessor shall, without recourse or warranty, except as to the absence of Certificate Trustee LiensLessor Liens attributable to it, transfer by quitclaim or otherwise release, as appropriate, Lessor's ’s right, title and interest in and to the Units Items of Equipment to such purchaser or purchasers; and (iii) Lessee shall simultaneously pay to Agent Lessor all of the amounts contemplated in Section 9.1(b15.1(b).
(b) The Lessee’s effective exercise and consummation of the Sale Option with respect to the Items of Equipment shall be subject to the due and timely fulfillment of each of the following provisions as to the Items of Equipment as of the dates set forth below:
(i) Lessee shall furnish to Lessor and Agent, on the last day of the Lease Term, a certification from the manufacturer that the Items of Equipment have been calibrated as necessary to be eligible for manufacturer’s maintenance program and have been maintained at or modified to meet the latest available version and/or revision levels (assuming the Equipment has been modified as each such prior modification was introduced) of all hardware and software requirements applicable to the specific model of Equipment as deemed necessary by the manufacturer;
(ii) Lessee shall have the Items of Equipment de-installed, packaged and crated by the manufacturer’s technicians or service providers certified by the manufacturer, and Lessee shall furnish to Lessor and Agent, a certification from the manufacturer’s technicians or service providers certified by the manufacturer that the Items of Equipment are in good condition prior to shipment;
(iii) Lessee shall furnish to Lessor and Agent all applicable and corresponding instruction and service manuals, service and repair records, and descriptive brochures;
(iv) Lessee shall cause the Items of Equipment to be delivered to any location as selected by the purchaser, in a suitable manner which is specifically designed for the transportation of electronic components and equipment and in a manner consistent with the manufacturer’s recommendations for transporting and packaging the Items of Equipment;
(v) Lessee shall not enter into any additional Subleases or renew any Subleases with respect to the Items of Equipment following Lessee’s election of the Sale Option, and following Lessee’s election of the Sale Option, Lessee shall not remove any Permitted Modifications or commence any voluntary Permitted Modifications under Section 8.4 without the prior written consent of the Agent;
(vi) The Lessee shall submit all bids to the Agent, and the Agent will have the right to review the same and to submit any one or more bids. Agent shall have no obligation to accept a bid that is not on an all-cash basis. Provided that there are all-cash bids at such time, Lessee shall deliver to the Agent not less than ninety (90) days prior to the Lease Expiration Date a binding written unconditional (except as set forth below), irrevocable offer (the “High Bid”) by such purchaser or purchasers offering the highest all-cash bid to purchase all, but not less than all, of the Items of Equipment (unless otherwise agreed to by the Agent). Subject to Agent’s rights in the immediately succeeding sentence, Agent shall accept the High Bid in writing within 20 Business Days of receipt thereof by Agent. If Agent in the exercise of its reasonable judgment believes that the Sale Proceeds to be paid to the Agent from a High Bid which the Lessee desires to accept is less than the lesser of (A) the Fair Market Value of the Items of Equipment or (B) the Purchase Amount, then Agent may condition its obligation to accept the High Bid upon Agent’s receipt of an appraisal demonstrating that the High Bid is for an amount at least equal to the lesser of (1) the Fair Market Value of the Items of Equipment or (2) the Purchase Amount, as established by such appraisal. In such case then Agent shall promptly following the receipt of such High Bid, engage an independent appraiser, reasonably satisfactory to the Agent and Lessee, at Lessee’s expense, to determine (by appraisal methods reasonably satisfactory to the Agent) the Fair Market Value of the Items of Equipment as of the Lease Expiration Date. The selection of the independent appraiser shall be completed within ten (10) Business Days of the receipt by Agent of such High Bid. A copy of such appraisal shall be delivered to Agent not later than 20 Business Days after the selection of the independent appraiser. The appraiser will be instructed to assume that the Items of Equipment are in the condition required by and have been maintained in accordance with this Lease. Any such appraisal shall be at the sole cost and expense of Lessee.
(vii) In connection with any such sale of the Items of Equipment, the Lessee will provide to the purchaser all customary “seller’s” indemnities, representations and warranties regarding title, absence of Liens (except Lessor Liens and Liens relating to the interest or rights of Lessee) and the condition of such Items of Equipment. The Lessee shall have obtained, at its cost and expense, all required governmental and regulatory consents and approvals and shall have made all filings as required by Applicable Laws and Regulations in order to carry out and complete the transfer of the Items of Equipment. Any agreement as to such sale shall be in form and substance reasonably satisfactory to the Agent. If the Lessee properly exercises the Sale Option, then the Lessee shall, upon a sale thereunder, and at its own cost, transfer or cause to be transferred possession of the Items of Equipment to the independent purchaser(s) thereof, in each case by surrendering the same into the possession of such purchaser(s), free and clear of all Liens, other than Lessor Liens, and in the condition required by this Lease, and the Lessee shall execute and deliver to such purchaser(s) at the Lessee’s cost and expense a bxxx of sale with respect to the Items of Equipment, warranting that such Items of Equipment are free and clear of all Liens, other than Lessor Liens, together with an assignment, without warranty of any kind, of Lessee’s rights, if any, under any purchase contracts. The Lessee shall, on and within a reasonable time before and up to two years after the Lease Expiration Date, cooperate reasonably with the Agent, Lessor and the purchaser(s) of the Items of Equipment in order to facilitate the purchase and use by such purchaser(s) of the Items of Equipment, which cooperation shall include the following, all of which the Lessee shall do on or before the Lease Expiration Date or as soon thereafter as is reasonably practicable: providing reasonable access to all books and records regarding the maintenance, use and ownership of the Items of Equipment and all know-how, data and technical information regarding the use and maintenance of the Equipment thereto, granting or assigning all licenses necessary for the operation and maintenance of the Items of Equipment, and cooperating reasonably in seeking and obtaining all necessary Governmental Action. The obligations of the Lessee under this paragraph shall survive the expiration or termination of this Lease.
Appears in 1 contract
Sale Option Procedures. If Lessee elects the Sale Option, Lessee shall use its best commercial efforts as nonexclusive agent for Lessor to obtain the highest all cash purchase price for the Unitspurchase of all of the Leased Property then subject to the Lease, and in the event Lessee receives any bid, Lessee shall, within five (5) Business Days after receipt thereof, certify to Lessor in writing the amount and terms of such bid and the name and address of the party submitting such bid. Lessee shall bear all costs and expenses in connection with any such bidding and sale process pursuant to this Section 21.1 as well as all costs and expenses incurred by any party (including a buyer or potential buyer) to place the Leased Property in the condition required by Section 9.1. None of the foregoing costs or expenses shall be deducted from the Sale Proceeds or serve to reduce the purchase price to be paid for the Leased Property. With respect to any sale made pursuant to this Article XXI and so long as no Lease Event of Default shall have occurred and be continuing:
(i) Lessee shall transfer all of Lessee's right, title and interest in the Leased Property, or cause the Leased Property to be transferred, to the bidder, if any, which shall have submitted the highest all cash bid therefor in the same manner and in the same condition and otherwise in accordance with all of the terms of this Lease; (ii) subject to the prior or current payment by Lessee of all amounts due under clause (iii) of this sentence, Lessor shall comply with any conditions to transfer set forth in Section 21.2 and the transfer provisions of Section 22.15 in order to transfer Lessor's right, title and interest in and to the Leased Property for cash to such bidder, such transfer to be made on the Lease Expiration Date with respect to any bid accepted prior to such date or on the date provided for at Section 21.4; and (iii) Lessee shall pay to Lessor on the earlier of the Lease Expiration Date or immediately prior to such sale all of the amounts required pursuant to Section 21.3. All costs related to such a sale includingand delivery pursuant to this Section 21.1, without limitation, including the cost of sales agents, removal of the Unitsagents retained by Lessee, delivery of documents documents, filing and documentary transfer fees, Taxes relating to any location designated by or arising as a buyer within the continental United Statesresult of such transfer, title insurance, certification and testing of the Units in any reasonable location chosen by the buyer or prospective buyerLeased Property, environmental audits, legal costs, costs of notices, any advertisement or other similar costs, or other information and of any parts, configurations or repairs, or modifications consistent with the Units being used to store and/or transport liquids and gases, in each case, required by a buyer or prospective buyer costs shall be borne entirely by Lessee, without regard to whether such costs were incurred by Lessor, Lessee or any potentially qualified buyer, and shall in no event be paid from any of the Proceeds. Neither Lessor, Agent Lessor nor any Participant shall have any responsibility for procuring or financing any purchaser. If, nevertheless, Lessor, Agent or any Participant undertakes any sales efforts, Lessee shall promptly reimburse such Person for any charges, costs and expenses incurred in such effort, including any allocated time charges, costs and expenses of internal counsel or other attorneys' fees. Upon a sale pursuant to the Sale Option, the Units shall be in the condition required by Section 5.3 and shall be free and clear of all Liens other than Certificate Trustee Liens. Any purchaser or purchasers of the Units shall not in any way be affiliated with Lessee or have any understanding or arrangement with Lessee regarding the future use of the Units. On the Termination Date, so long as no Lease Event of Default or Lease Default exists:
(i) Lessee shall transfer all of Lessee's right, title and interest in the Units or cause the Units to be so transferred to such purchaser or purchasers, if any, in accordance with all of the terms of this Lease; (ii) subject to the simultaneous payment by Lessee of all amounts due under clause (iii) of this sentence, Lessor shall, without recourse or warranty, except as to the absence of Certificate Trustee Liens, transfer by quitclaim or otherwise release, as appropriate, Lessor's right, title and interest in and to the Units to such purchaser or purchasers; and (iii) Lessee shall simultaneously pay to Agent all of the amounts contemplated in Section 9.1(b).
Appears in 1 contract
Samples: Master Lease (Cisco Systems Inc)
Sale Option Procedures. (a) If the Lessee elects to exercise the Sale OptionOption in respect of one or more Categories of Leased Equipment in accordance with SECTION 12.4, the Lessee shall act as the Lessor's non-exclusive agent and shall use its best commercial commercially reasonable efforts to obtain the highest all available cash purchase price for any such Category of Leased Equipment and, in the Units. All costs related to event that the Lessee receives any bid for any such sale including, without limitationCategory of Leased Equipment, the cost of sales agentsLessee shall, removal within five (5) Business Days after receipt thereof and at least sixty (60) days before the Final Maturity Date, notify the Lessor in writing of the Unitsamount and terms of such bid or bids, delivery of documents to any location designated by a buyer within and the continental United States, certification name and testing address of the Units in any reasonable location chosen by bidding party or parties (who shall not be the buyer or prospective buyer, legal costs, costs of notices, any advertisement or other similar costs, or other information and of any parts, configurations or repairs, or modifications consistent with the Units being used to store and/or transport liquids and gases, in each case, required by a buyer or prospective buyer shall be borne entirely by Lessee, without regard to whether such costs were incurred by Lessor, Lessee or any potentially qualified buyer, and shall in no event be paid from any Affiliate of the ProceedsLessee or any Person with whom the Lessee has an understanding or arrangement regarding the future use of such Category of Leased Equipment by the Lessee or any Affiliate of the Lessee). The Lessor may reject any and all bids and may assume responsibility for obtaining bids by giving the Lessee written notice to that effect; PROVIDED, HOWEVER, that notwithstanding the foregoing, the Lessor may not reject a bid if (i) such bid, together with the Residual Deficiency Payment for such Category or Categories of Leased Equipment, is greater than or equal to the Lessee Purchase Fixed Price for such Category or Categories of Leased Equipment and (ii) such bid is a bona fide offer from a third party purchaser.
(b) Neither Lessor, Agent the Lessor nor any Participant shall have any responsibility for procuring any purchaser. If; if, neverthelesshowever, the Lessor, Agent at the direction of the Required Investors or any Participant Required Noteholders, undertakes any sales efforts, the Lessee shall promptly reimburse such Person the Lessor for any reasonable charges, costs and expenses incurred in such effort, including any reasonable allocated time charges, costs and expenses of internal counsel or other attorneys' fees. Upon a Further, all reasonable costs related to any sale and delivery pursuant to the exercise of the Sale Option, including the Units reasonable cost of sale agents, removal of any such Category of Leased Equipment, delivery of documents and such Category of Leased Equipment, certification and testing of such Category of Leased Equipment in any reasonable location chosen by the buyer or prospective buyer, all reasonable costs associated with any repairs, modifications or improvements desired by the purchaser or prospective purchaser, reasonable legal costs, costs of notices, any reasonable advertisement or other similar costs shall be borne entirely by the Lessee.
(c) Prior to the exercise of the Sale Option in respect of one or more Categories of Leased Equipment, and on the Final Maturity Date, the Lessee shall ensure that such Category or Categories of Leased Equipment (i) are in the condition required by Section 5.3 to satisfy the Return Acceptance Conditions and shall be (ii) are free and clear of all Liens other except Lessor Liens.
(d) Notwithstanding anything contained in this SECTION 12.5 to the contrary, if the Lessee elects to exercise its Sale Option in respect of one or more Categories of Leased Equipment, any Investor shall have the option (the "INVESTOR PURCHASE OPTION") to purchase one or more of such Categories of Leased Equipment for the aggregate purchase price applicable to each such Category of Leased Equipment as set forth on SCHEDULE 4 hereto (the "INVESTOR PURCHASE PRICE"), PROVIDED THAT such Investor shall, not less than Certificate Trustee Liens. Any purchaser or purchasers of 240 days prior to the Units shall not in any way be affiliated with Lessee or have any understanding or arrangement with Lessee regarding the future use of the Units. On the Termination Final Maturity Date, so long as no Lease Event have paid in immediately available funds to the Lessor an amount equal to the Investor Purchase Price.
(e) In the event that the Lessee has elected to exercise the Sale Option in respect of Default one or Lease Default exists:
more Categories of Leased Equipment and, at least five (5) days prior to the Final Maturity Date, the sale of any such Category of Leased Equipment has not been consummated, (i) Lessee at the sole option and discretion of the Lessor, either (y) the Lessor shall transfer retain all of Lessee's its right, title and interest in and to such Category of Leased Equipment or (z) such Category of Leased Equipment shall be deemed to have been sold to the Units Lessee for one (1) Dollar and (ii) the Lessee shall, in either case, on or cause prior to the Units Final Maturity Date, pay to the Lessor, in immediately available funds, the Maximum Deficiency Amount for such Category of Leased Equipment. If any Category of Leased Equipment is deemed to be so transferred sold to the Lessee and, upon payment of the Maximum Deficiency Amount for such purchaser or purchasers, if anyCategory of Leased Equipment by the Lessee, in accordance with all the provisions of the terms of this Lease; (ii) subject preceding sentence, the Lessor shall transfer to the simultaneous payment by Lessee of all amounts due under clause (iii) of this sentence, Lessor shall, without recourse or warranty, except as to the absence of Certificate Trustee Liens, transfer by quitclaim or otherwise release, as appropriate, Lessor's right, title and interest in and to such Category of Leased Equipment (without representations or warranties, except that such Category of Leased Equipment is free and clear of the Units Lessor Liens) and shall execute and deliver to the Lessee such documents as may be reasonably required to release such Category of Leased Equipment from the terms and scope of this Lease in such form as may be reasonably requested by the Lessee. If the Lessor elects to retain title to any Category of Leased Equipment, the Lessee shall, on the Final Maturity Date, (i) return such Category of Leased Equipment (together with all Required Improvements and each Improvement that is not a Severable Improvement made to such purchaser or purchasers; Category of Leased Equipment) to the Lessor free and clear of all Liens other than Lessor Liens and in the condition required to satisfy the Return Acceptance Conditions, as determined by an independent engineer retained by the Lessor and acceptable to the Required Participants and (iiiii) at the Lessor's request, sell to the Lessor each Severable Improvement made to such Category of Leased Equipment at the then Fair Market Value, determined, if necessary, by an independent appraiser. If the condition of such Category of Leased Equipment does not meet the Return Acceptance Conditions, the Lessee shall simultaneously pay have the option of making the repairs, performing such maintenance, or paying to Agent all the Lessor on the Final Maturity Date the amount required for a third party to make such repairs or perform such maintenance, as is required to cause the condition of such Category of Leased Equipment to satisfy the amounts contemplated in Section 9.1(b)Return Acceptance Conditions.
Appears in 1 contract
Sale Option Procedures. (a) If Lessee elects the Sale Option, Lessee shall use its best reasonable commercial efforts to obtain the highest all cash purchase price for the UnitsItems of Equipment. All costs related to such sale and delivery (including during the Extended Remarketing Period), including, without limitation, the cost of sales agents, removal of the UnitsItems of Equipment, delivery of documents and the Items of Equipment to any location designated by a buyer within the continental United States, certification and testing of the Units in any reasonable location chosen by the buyer or prospective buyer, legal costs, costs of notices, commissions, escrow fees, filing fees, appraisal fees, license fees, transfer taxes, any advertisement or other similar costs, or other information and of any parts, configurations or repairsconfigurations, repairs or modifications consistent with the Units being used to store and/or transport liquids and gases, in each case, required desired by a buyer or prospective buyer shall buyer, re-installation of the Items of Equipment in the manner and at the location or locations required by a buyer, the cost of storage and insurance during the Extended Remarketing Period as provided in Section 15.6(b) and the costs associated with the satisfaction of the conditions set forth in Section 15.4(b) below shall, except as provided in the following provisos, be borne entirely by Lessee, without regard to whether such costs were incurred by Lessor, Lessee or any potentially qualified buyer, and shall in no event be paid from the Sale Proceeds for the benefit of Lessee; provided, that Lessee shall in no event be liable for costs (other than de-installation costs, which shall in all cases be borne by Lessee) described in this clause (a) which, in aggregate, exceed $4,535,000; provided, further that in the event that Lessor pays any of the Proceedscosts described in this clause (a) (other than de-installation costs, which shall in all cases be borne by Lessee) as a result of such costs (other than de-installation costs, which shall in all cases be borne by Lessee) aggregating in excess of $4,535,000, Lessor shall be entitled to reimbursement of such payments from the Sale Proceeds prior to the Agent returning any excess Sale Proceeds to the Lessee pursuant to Section 15.1(b), but in no event shall Lessor be entitled to make any claim against Lessee under Article XI for reimbursement or indemnification of such payments made by Lessor. Neither Lessor, Agent nor any Participant Lessor shall have any responsibility for procuring any purchaser. If, nevertheless, Lessor, Agent or any Participant Lessor undertakes any sales efforts, Lessee shall shall, subject to the preceding sentence, promptly reimburse such Person Agent and/or Lessor for any charges, costs and expenses incurred in such effort, including any allocated time charges, costs and expenses of internal counsel or other attorneys' ’ fees. Upon a sale pursuant to the Sale Option, the Units Items of Equipment shall be in at least the condition required by Section 5.3 and shall be free and clear of all Liens other than Certificate Trustee Liens12.2(b). Any purchaser or purchasers of the Units Items of Equipment shall not in any way be affiliated with an Affiliate of Lessee or have any understanding or arrangement with Lessee regarding the future use of the UnitsItems of Equipment. On the Termination Datelast day of the Lease Term, so long as no Lease Event of Default or Lease Default exists:
: (i) Lessee shall transfer all of Lessee's ’s right, title and interest in the Units Items of Equipment, or cause the Units Items of Equipment to be so transferred transferred, to such purchaser or purchasers, if any, in accordance with all of the terms of this Lease; (ii) subject to the simultaneous payment by Lessee of all amounts due under clause (iii) of this sentence, Lessor shall, without recourse or warranty, except as to the absence of Certificate Trustee LiensLessor Liens attributable to it, transfer by quitclaim or otherwise release, as appropriate, Lessor's ’s right, title and interest in and to the Units Items of Equipment to such purchaser or purchasers; and (iii) Lessee shall simultaneously pay to Agent Lessor all of the amounts contemplated in Section 9.1(b15.1(b).
(b) The Lessee’s effective exercise and consummation of the Sale Option with respect to the Items of Equipment shall be subject to the due and timely fulfillment of each of the following provisions as to the Items of Equipment as of the dates set forth below:
(i) Lessee shall furnish to Lessor and Agent, on the last day of the Lease Term, a certification from the manufacturer that the Items of Equipment have been calibrated as necessary to be eligible for manufacturer’s maintenance program and have been maintained at or modified to meet the latest available version and/or revision levels (assuming the Equipment has been modified as each such prior modification was introduced) of all hardware and software requirements applicable to the specific model of Equipment as deemed necessary by the manufacturer;
(ii) Lessee shall have the Items of Equipment de-installed, packaged and crated by the manufacturer’s technicians or service providers certified by the manufacturer, and Lessee shall furnish to Lessor and Agent, a certification from the manufacturer’s technicians or service providers certified by the manufacturer that the Items of Equipment are in good condition prior to shipment;
(iii) Lessee shall furnish to Lessor and Agent all applicable and corresponding instruction and service manuals, service and repair records, and descriptive brochures;
(iv) Lessee shall cause the Items of Equipment to be delivered to any location as selected by the purchaser, in a suitable manner which is specifically designed for the transportation of electronic components and equipment and in a manner consistent with the manufacturer’s recommendations for transporting and packaging the Items of Equipment;
(v) Lessee shall not enter into any additional Subleases or renew any Subleases with respect to the Items of Equipment following Lessee’s election of the Sale Option, and following Lessee’s election of the Sale Option, Lessee shall not remove any Permitted Modifications or commence any voluntary Permitted Modifications under Section 8.4 without the prior written consent of the Agent;
(vi) The Lessee shall submit all bids to the Agent, and the Agent will have the right to review the same and to submit any one or more bids. Agent shall have no obligation to accept a bid that is not on an all-cash basis. Provided that there are all-cash bids at such time, Lessee shall deliver to the Agent not less than ninety (90) days prior to the Lease Expiration Date a binding written unconditional (except as set forth below), irrevocable offer (the “High Bid”) by such purchaser or purchasers offering the highest all-cash bid to purchase all, but not less than all, of the Items of Equipment (unless otherwise agreed to by the Agent). Subject to Agent’s rights in the immediately succeeding sentence, Agent shall accept the High Bid in writing within 20 Business Days of receipt thereof by Agent. If Agent in the exercise of its reasonable judgment believes that the Sale Proceeds to be paid to the Agent from a High Bid which the Lessee desires to accept is less than the lesser of (A) the Fair Market Value of the Items of Equipment or (B) the Purchase Amount, then Agent may condition its obligation to accept the High Bid upon Agent’s receipt of an appraisal demonstrating that the High Bid is for an amount at least equal to the lesser of (1) the Fair Market Value of the Items of Equipment or (2) the Purchase Amount, as established by such appraisal. In such case then Agent shall promptly following the receipt of such High Bid, engage an independent appraiser, reasonably satisfactory to the Agent and Lessee, at Lessee’s expense, to determine (by appraisal methods reasonably satisfactory to the Agent) the Fair Market Value of the Items of Equipment as of the Lease Expiration Date. The selection of the independent appraiser shall be completed within ten (10) Business Days of the receipt by Agent of such High Bid. A copy of such appraisal shall be delivered to Agent not later than 20 Business Days after the selection of the independent appraiser. The appraiser will be instructed to assume that the Items of Equipment are in the condition required by and have been maintained in accordance with this Lease. Any such appraisal shall be at the sole cost and expense of Lessee.
(vii) In connection with any such sale of the Items of Equipment, the Lessee will provide to the purchaser all customary “seller’s” indemnities, representations and warranties regarding title, absence of Liens (except Lessor Liens and Liens relating to the interest or rights of Lessee) and the condition of such Items of Equipment. The Lessee shall have obtained, at its cost and expense, all required governmental and regulatory consents and approvals and shall have made all filings as required by Applicable Laws and Regulations in order to carry out and complete the transfer of the Items of
Appears in 1 contract
Sale Option Procedures. If Lessee elects Lessees elect the Sale Option, Lessee Lessees shall use its their best commercial efforts to obtain the highest all cash purchase price for the Units. All costs reasonably related to such sale and delivery, including, without limitation, the cost of sales agents, removal of the Units, delivery of documents and Units to any location designated by a buyer within the continental United States, certification and testing of the Units in any reasonable location chosen by the buyer or prospective buyer, legal costs, costs of notices, any advertisement or other similar costs, or other information and of any parts, configurations or repairsconfigurations, repairs or modifications consistent with the Units being used to store and/or transport liquids and gases, in each case, required desired by a buyer or prospective buyer shall be borne entirely by LesseeLessees, without regard to whether such costs were incurred by Lessor, Lessee Lessees or any potentially qualified buyer, and shall in no event be paid from any of the Proceeds. Neither Lessor, Agent Lessor nor any Participant Certificate Purchaser shall have any responsibility for procuring any purchaser. If, nevertheless, LessorLessor at the direction of any Certificate Purchaser, Agent or any Participant undertakes any sales efforts, Lessee shall Lessees shall, on a joint and several basis, promptly reimburse Lessor and/or any such Person Certificate Purchaser for any charges, costs and expenses incurred in such effort, including any allocated time charges, costs and expenses of internal counsel or other attorneys' fees. Upon a sale pursuant to the Sale Option, the Units shall be (i) in the condition required by Section 5.3 and shall Article V (and, in any event, in condition to be placed in immediate revenue service), (ii) free and clear of all any Liens (other than Certificate Trustee Liens described in clauses (i) through (iv) of the definition of Permitted Liens) and (iii) accompanied by all then current plans, specifications and operating maintenance and repair manuals relating to such Units. Lessor shall determine whether to accept the highest all cash offer for the Units. Any purchaser or purchasers of the Units shall not in any way be affiliated with any Lessee or have any understanding or arrangement with any Lessee regarding the future use of the Units. On the Termination Date, so long as no Lease Event of Default or Lease Incipient Default exists:
(i) Lessee Lessees shall transfer all of Lessee's Lessees' right, title and interest in the Units Units, or cause the Units to be so transferred transferred, to such purchaser or purchasers, if any, in accordance with all of the terms of this Lease; (ii) subject to the simultaneous payment by Lessee Lessees of all amounts due under clause (iii) of this sentence, Lessor shall, without recourse or warranty, except as to the absence of Certificate Trustee Lessor Liens, transfer by quitclaim or otherwise release, as appropriate, Lessor's Lessors' right, title and interest in and to the Units to such purchaser or purchasers; and (iii) Lessee shall Lessees shall, on a joint and several basis, simultaneously pay to Agent Lessor all of the amounts contemplated in Section 9.1(b11.1(c).
Appears in 1 contract
Sale Option Procedures. (a) If Lessee elects the Sale Option, Lessee shall use its best reasonable commercial efforts to obtain the highest all cash purchase price for the UnitsItems of Equipment. All costs related to such sale and delivery, including, without limitation, the cost of sales agents, removal of the UnitsItems of Equipment, delivery of documents and the Items of Equipment to any location designated by a buyer within the continental United States, certification and testing of the Units in any reasonable location chosen by the buyer or prospective buyer, legal costs, costs of notices, commissions, escrow fees, filing fees, appraisal fees, license fees, transfer taxes, any advertisement or other similar costs, or other information and of any parts, configurations or repairsconfigurations, repairs or modifications consistent with the Units being used to store and/or transport liquids and gases, in each case, required desired by a buyer or prospective buyer and the costs associated with the satisfaction of the conditions set forth in Section 12.4(b) below shall be borne entirely by Lessee, without regard to whether such costs were incurred by Agent, Lessor, Lessee or any potentially qualified buyer, and shall in no event be paid from any of the Sale Proceeds. Neither Lessor, Agent nor any Participant Lessor shall have any responsibility for procuring any purchaser. If, nevertheless, Agent, at the direction of the Participants, or Lessor, Agent or any Participant undertakes any sales efforts, Lessee shall promptly reimburse such Person Agent and/or Lessor for any charges, costs and expenses incurred in such effort, including any allocated time charges, costs and expenses of internal counsel or other attorneys' fees. Upon a sale pursuant to the Sale Option, the Units Items of Equipment shall be in at least the condition required by Section 5.3 and 9.2(b). Lessor shall determine whether to accept the highest all cash offer for the Items of Equipment, which determination shall be free and clear of all Liens other than Certificate Trustee Liensmade by the Participants. Any purchaser or purchasers of the Units Items of Equipment shall not in any way be affiliated with an Affiliate of Lessee or have any understanding or arrangement with Lessee regarding the future use of the UnitsItems of Equipment. On the Termination Datelast day of the Base Term or Renewal Term, so long as no Lease Event of Default or Lease Default exists:
(i) Lessee shall transfer all of Lessee's right, title and interest in LSI Logic Trust No. 2001-A Lease Intended as Security the Units Items of Equipment, or cause the Units Items of Equipment to be so transferred transferred, to such purchaser or purchasers, if any, in accordance with all of the terms of this Lease; (ii) subject to the simultaneous payment by Lessee of all amounts due under clause (iii) of this sentence, Lessor shall, without recourse or warranty, except as to the absence of Certificate Trustee Lessor Liens, transfer by quitclaim or otherwise release, as appropriate, Lessor's right, title and interest in and to the Units Items of Equipment to such purchaser or purchasers; and (iii) Lessee shall simultaneously pay to Agent Lessor all of the amounts contemplated in Section 9.1(b12.1(c).
(b) The Lessee's effective exercise and consummation of the Sale Option with respect to the Items of Equipment shall be subject to the due and timely fulfillment of each of the following provisions as to the Items of Equipment as of the dates set forth below:
(i) Lessee shall furnish to Lessor and Agent, on the last day of the Base Term or Renewal Term, a certification from the manufacturer that the Items of Equipment have been calibrated as necessary to be eligible for manufacture's maintenance program and have been maintained at or modified to meet the latest available version and/or revision levels of all hardware and software requirements applicable to the specific model of Equipment as deemed necessary by the manufacturer;
(ii) Lessee shall have the Items of Equipment de-installed, packaged and crated by the manufacturer's technicians or service providers certified by the manufacturer, and Lessee shall furnish to Lessor, Agent and the purchaser, a certification from the manufacturer's technicians or service providers certified by the manufacturer that the Items of Equipment are in good condition prior to shipment;
(iii) Lessee shall furnish to Lessor and Agent all applicable and corresponding instruction and service manuals, service and repair records, and descriptive brochures;
(iv) Lessee shall cause the Items of Equipment to be delivered to any point in the United States as selected by the purchaser, in a suitable manner which is specifically designed for the transportation of electronic components and equipment and in a manner consistent with the manufacturer's recommendations for transporting and packaging the Items of Equipment;
(v) Lessee shall not enter into any additional Subleases or renew any Subleases with respect to the Items of Equipment following Lessee's election of the Sale Option, and following Lessee's election of the Sale Option, Lessee shall not remove any Permitted Modifications or commence any voluntary Permitted Modifications under Section 6.4 without the prior written consent of the Participants;
(vi) The Lessee shall submit all bids to the Lessor and the Participants, and the Lessor will have the right to review the same and to submit any one or more bids. All bids shall be on an all-cash basis unless the Participants shall otherwise agree in their sole discretion. The Lessee shall deliver to the Lessor and the Participants not less than ninety (90) days prior to the Lease Expiration Date a binding written unconditional (except as set forth below), irrevocable offer by such purchaser or purchasers offering the LSI Logic Trust No. 2001-A Lease Intended as Security highest all-cash bid to purchase all, but not less than all, of the Items of Equipment (unless otherwise agreed to by the Participants). Subject to Lessor's rights in the immediately succeeding sentence, Lessor shall accept or reject in writing such written unconditional offer within 20 Business Days of receipt thereof by Lessor. If Lessor in the exercise of its reasonable judgment believes that the Sale Proceeds to be paid to the Lessor pursuant to clause (xii) below from a proposed bid which the Lessee desires to accept is less than the Fair Market Value, then Lessor may condition its obligation to accept any such bid upon Lessor's receipt of an appraisal demonstrating that such proposed bid is for an amount at least equal to the Fair Market Value of the Items of Equipment as established by such appraisal. In such case then Lessor shall promptly following the receipt of such bid, engage an independent appraiser, reasonably satisfactory to the Participants and Lessee, at Lessee's expense, to determine (by appraisal methods reasonably satisfactory to the Participants) the Fair Market Value of the Items of Equipment as of the Lease Expiration Date. The selection of the independent appraiser shall be completed within ten (10) Business Days of the receipt by Lessor of the written unconditional offer. A copy of such appraisal shall be delivered to each of the Participants not later than 20 Business days after the selection of the independent appraiser. The appraiser will be instructed to assume that the Items of Equipment are in the condition required by and have been maintained in accordance with this Lease. Any such appraisal shall be at the sole cost and expense of Lessee.
(vii) In connection with any such sale of the Items of Equipment, the Lessee will provide to the purchaser all customary "seller's" indemnities, representations and warranties regarding title, absence of Liens (except Lessor Liens and Liens relating to the interest or rights of Lessee) and the condition of such Items of Equipment. The Lessee shall have obtained, at its cost and expense, all required governmental and regulatory consents and approvals and shall have made all filings as required by Applicable Laws in order to carry out and complete the transfer of the Items of Equipment. Any agreement as to such sale shall be in form and substance reasonably satisfactory to the Participants. If the Lessee properly exercises the Sale Option, then the Lessee shall, upon a sale thereunder, and at its own cost, transfer or cause to be transferred possession of the Items of Equipment to the independent purchaser(s) thereof, in each case by surrendering the same into the possession of such purchaser(s), free and clear of all Liens, other than Lessor Liens, and in the condition required by this Lease, and the Lessee shall execute and deliver to such purchaser(s) at the Lessee's cost and expense a xxxx of sale with respect to the Items of Equipment, warranting that such Items of Equipment are free and clear of all Liens, other than Lessor Liens, together with an assignment, without warranty of any kind, of Lessee's rights, if any, under any purchase contracts. The Lessee shall, on and within a reasonable time before and up to two years after the Lease Expiration Date, cooperate reasonably with the Lessor and the purchaser(s) of the Items of Equipment in order to facilitate the purchase and use by such purchaser(s) of the Items of Equipment, which cooperation shall include the following, all of which the Lessee shall do on or before the Lease Expiration Date or as soon thereafter as is reasonably practicable: providing reasonable access to all books and records regarding the maintenance, use and ownership of the Items of Equipment and all know-how, data and technical information regarding the use and maintenance of the Equipment thereto, granting or assigning all LSI Logic Trust No. 2001-A Lease Intended as Security licenses necessary for the operation and maintenance of the Items of Equipment, and cooperating reasonably in seeking and obtaining all necessary Governmental Action. The obligations of the Lessee under this paragraph shall survive the expiration or termination of this Lease.
Appears in 1 contract
Sale Option Procedures. If Lessee elects the Sale Option, Lessee shall use its best commercial efforts to obtain the highest all cash purchase price for the UnitsUnits covered by Schedules as to which such option is exercised. All costs related to such sale and delivery, including, without limitation, the cost of sales agents, removal of the Units, provision of the Support Rights, delivery of documents to any location designated by a buyer within the continental United Statesand Units, certification and testing of the Units in any reasonable location chosen by the buyer or prospective buyer, legal costs, costs of notices, any advertisement or other similar costs, or other information and of any parts, configurations or repairsconfigurations, repairs or modifications consistent with the Units being used to store and/or transport liquids and gases, in each case, required desired by a buyer or prospective buyer shall be borne entirely by Lessee, without regard to whether such costs were incurred by Lessor, Lessee or any potentially qualified buyer, and shall in no event be paid from any of the Proceeds. Neither Lessor, Agent nor any Participant Lessor shall have any no responsibility for procuring any purchaser. If, nevertheless, Lessor, Agent or any Participant Lessor undertakes any sales efforts, Lessee shall promptly reimburse such Person Lessor for any charges, costs and expenses incurred in such effort, including any allocated time charges, costs and expenses of internal counsel or other attorneys' fees. Upon a sale pursuant to the Sale Option, the Units shall be in the condition required by Section 5.3 the Lease and shall be free and clear of upgraded to the best available industry standards from time to time. Lessor shall determine whether to accept the highest all Liens other than Certificate Trustee Lienscash offer for the Units. Any purchaser or purchasers of the Units shall not in any way be affiliated with Lessee. If for any reason Lessee or have any understanding or arrangement with Lessee regarding fails to provide the future use Support Rights pursuant to Paragraph M of this Appendix, Lessee's exercise of the Units. On Sale Option will be revoked and Lessee will be deemed to have elected the Termination Date, so long as no Lease Event of Default or Lease Default exists:
(i) Lessee shall transfer all of Lessee's right, title and interest in the Units or cause the Units to be so transferred to such purchaser or purchasers, if any, in accordance with all of the terms of this Lease; (ii) subject to the simultaneous payment by Lessee of all amounts due under clause (iii) of this sentence, Lessor shall, without recourse or warranty, except as to the absence of Certificate Trustee Liens, transfer by quitclaim or otherwise release, as appropriate, Lessor's right, title and interest in and to the Units to such purchaser or purchasers; and (iii) Lessee shall simultaneously pay to Agent all of the amounts contemplated in Section 9.1(b)Fixed Price Purchase Option.
Appears in 1 contract
Samples: Lease Agreement (Todd Ao Corp)
Sale Option Procedures. If Lessee elects the Sale Option, Lessee shall use its best commercial efforts as nonexclusive agent for Lessor to obtain the highest all cash purchase price for the Units. All costs related to such sale including, without limitation, the cost of sales agents, removal purchase of the Units, delivery of documents to any location designated by a buyer within the continental United States, certification and testing of the Units in any reasonable location chosen by the buyer or prospective buyer, legal costs, costs of notices, any advertisement or other similar costs, or other information and of any parts, configurations or repairs, or modifications consistent with the Units being used to store and/or transport liquids and gases, in each case, required by a buyer or prospective buyer shall be borne entirely by Lessee, without regard to whether such costs were incurred by Lessor, Lessee or any potentially qualified buyerPremises, and shall in no the event be paid from Lessee receives any of the Proceeds. Neither Lessor, Agent nor any Participant shall have any responsibility for procuring any purchaser. If, nevertheless, Lessor, Agent or any Participant undertakes any sales effortsbid, Lessee shall promptly reimburse within five (5) Business Days after receipt thereof, and at least twenty (20) Business Days prior to the Lease Expiration Date, certify to Lessor in writing the amount and terms of such bid, the name and address of the party (who shall not be Lessee, Guarantor or any Affiliate of Lessee or Guarantor or any Person for with whom Lessee or Guarantor has an understanding or arrangement regarding their future use, possession or ownership of the Premises), but who may be Lessor or a Participant, any chargesAffiliate thereof, costs and expenses incurred or any Person contacted by any Participant (other than any Person referred to in the foregoing parenthetical) submitting such effort, including any allocated time charges, costs and expenses of internal counsel or other attorneys' feesbid. Upon a sale Unless pursuant to the Sale Option, the Units shall be in the condition required by Section 5.3 and shall be free and clear of all Liens other than Certificate Trustee Liens. Any purchaser or purchasers of the Units shall not in any way be affiliated with Lessee or have any understanding or arrangement with Lessee regarding the future use of the Units. On the Termination Date, so long as no Lease Event of Default or Lease Default exists:terms
(i) Lessee shall transfer all of Lessee's right, title and interest in the Units Premises, or cause the Units Premises to be so transferred transferred, to such purchaser or purchasersthe bidder, if any, which shall have submitted the highest bid therefor at least twenty (20) (or in the case of a Participant, any Affiliate thereof or Person contacted by a Participant, five (5)) Business Days) prior to such Lease Expiration Date, in the same manner and in the same condition and otherwise in accordance with all of the terms of this Lease; (ii) subject to the simultaneous prior or current payment by Lessee of all amounts due under clause (iii) of this sentence, Lessor shall, without recourse or warranty, except as shall comply with any conditions to transfer set forth in Section 22.2 and the absence transfer provisions of Certificate Trustee Liens, Section 23.16 in order to transfer by quitclaim or otherwise release, as appropriate, Lessor's right, title and interest in and to the Units Premises for cash to such purchaser or purchasersbidder; and (iii) Lessee shall simultaneously pay to Agent Lessor all of the amounts contemplated in required pursuant to Section 9.1(b)22.
Appears in 1 contract
Samples: Master Lease (Del Monte Foods Co)
Sale Option Procedures. If Lessee elects the Sale Option, Lessee shall use its best commercial efforts to obtain the highest all cash purchase price for the UnitsFunctional Units subject to the Sale Option. All costs related to such sale and delivery, including, without limitation, the cost of sales agents, removal of the Unitssuch Equipment, delivery of documents to any location designated by a buyer within the continental United Statesand Equipment, certification and testing of the Units such Equipment in any reasonable location chosen by the buyer or prospective buyer, legal costs, costs of notices, any advertisement or other similar costs, or other information and of any parts, configurations or repairsconfigurations, repairs or modifications consistent with the Units being used to store and/or transport liquids and gases, in each case, required desired by a buyer or prospective buyer shall be borne entirely by Lessee, without regard to whether such costs were incurred by LessorAgent, the Lessors, Lessee or any potentially qualified buyer, and shall in no event be paid from any of the Proceeds. Neither Lessor, Agent nor any Participant Lessors shall have any responsibility for procuring any purchaser. If, nevertheless, any Lessor, Agent or any Participant Agent, at the direction of the Required Lessors, undertakes any sales efforts, Lessee shall promptly reimburse Agent or such Person Lessor for any charges, costs and or expenses incurred in such effort, including any allocated time charges, costs and or expenses of internal counsel or other attorneys' fees. Upon a sale pursuant Equipment subject to the Sale Option, the Units Option shall be in the condition required by Section 5.3 and hereof at the time of the sale. Agent, at the direction of the Required Lessors, shall be free and clear of determine whether to accept the highest all Liens other than Certificate Trustee Lienscash offer for the Equipment subject to the Sale Option. Any purchaser or purchasers of the Units Equipment shall not in any way be affiliated with Lessee or have any understanding or arrangement with Lessee regarding Lessee. Pending the future use consummation of the Units. On the Termination DateSale Option, so long as no Lease Event of Default or Lease Default exists:
(i) Lessee shall transfer at all times maintain the Equipment in the condition required by Section 5.3, store the Equipment without cost to the Lessors and keep all of Lessee's right, title and interest in the Units or cause the Units to be so transferred to such purchaser or purchasers, if any, Equipment insured in accordance with all of the terms of this Lease; (ii) subject to the simultaneous payment by Lessee of all amounts due under clause (iii) of this sentence, Lessor shall, without recourse or warranty, except as to the absence of Certificate Trustee Liens, transfer by quitclaim or otherwise release, as appropriate, Lessor's right, title and interest in and to the Units to such purchaser or purchasers; and (iii) Lessee shall simultaneously pay to Agent all of the amounts contemplated in Section 9.1(b)Article VII hereof.
Appears in 1 contract
Sale Option Procedures. If Lessee elects Lessees elect the Sale Option, each Lessee shall use its best commercial efforts to obtain the highest all cash purchase price for the UnitsVehicles covered by Lease Supplements to which it is a party. All costs related to such sale and delivery, including, without limitation, the cost of sales agents, removal of the UnitsVehicles, delivery of documents to any location designated by a buyer within the continental United Statesand Vehicles, certification and testing of the Units Vehicles in any reasonable location chosen by the buyer or prospective buyer, legal costs, costs of notices, any advertisement or other similar costs, or other information and of any parts, configurations or repairsconfigurations, repairs or modifications consistent with the Units being used to store and/or transport liquids and gases, in each case, required desired by a buyer or prospective buyer shall be borne entirely by LesseeLessees, without regard to whether such costs were incurred by LessorAgent, Lessee Lessees or any potentially qualified buyer, and shall in no event be paid from any of the Proceeds. Neither Lessor, Agent nor any Participant Lessor shall have any responsibility for procuring any purchaser. If, nevertheless, Agent, at the direction of the Required Lessors, or any Lessor, Agent or any Participant undertakes any sales efforts, Lessee Lessees shall promptly reimburse Agent and/or any such Person Lessor for any charges, costs and expenses incurred in such effort, including any allocated time charges, costs and expenses of internal counsel or other attorneys' fees. Upon a sale pursuant to the Sale Option, the Units Vehicles shall be in the condition required by Section 5.3 and shall have been maintained in good appearance for comparable equipment of an equivalent period of service. Agent, at the direction of the Required Lessors, shall determine whether to accept the highest all cash offer for the Vehicles, which determination shall be free and clear of all Liens other than Certificate Trustee Liensmade by the Required Lessors. Any purchaser or purchasers of the Units Vehicles shall not in any way be affiliated with any Lessee or have any understanding or arrangement with Lessee regarding the future use of the Units. On the Termination Date, so long as no Lease Event of Default or Lease Default exists:
(i) Lessee shall transfer all of Lessee's right, title and interest in the Units or cause the Units to be so transferred to such purchaser or purchasers, if any, in accordance with all of the terms of this Lease; (ii) subject to the simultaneous payment by Lessee of all amounts due under clause (iii) of this sentence, Lessor shall, without recourse or warranty, except as to the absence of Certificate Trustee Liens, transfer by quitclaim or otherwise release, as appropriate, Lessor's right, title and interest in and to the Units to such purchaser or purchasers; and (iii) Lessee shall simultaneously pay to Agent all of the amounts contemplated in Section 9.1(b)Guarantor.
Appears in 1 contract
Samples: Participation Agreement (Consolidated Freightways Corp)
Sale Option Procedures. (a) If Lessee elects the Sale Option, Lessee shall use its best reasonable commercial efforts to obtain the highest all cash purchase price for the UnitsItems of Equipment. All costs related to such sale and delivery (including during the Extended Remarketing Period), including, without limitation, the cost of sales agents, removal of the UnitsItems of Equipment, delivery of documents and the Items of Equipment to any location designated by a buyer within the continental United States, certification and testing of the Units in any reasonable location chosen by the buyer or prospective buyer, legal costs, costs of notices, commissions, escrow fees, filing fees, appraisal fees, license fees, transfer taxes, any advertisement or other similar costs, or other information and of any parts, configurations or repairsconfigurations, repairs or modifications consistent with the Units being used to store and/or transport liquids and gases, in each case, required desired by a buyer or prospective buyer shall buyer, re-installation of the Items of Equipment in the manner and at the location or locations required by a buyer, the cost of storage and insurance during the Extended Remarketing Period as provided in Section 15.6(b) and the costs associated with the satisfaction of the conditions set forth in Section 15.4(b) below shall, except as provided in the following provisos, be borne entirely by Lessee, without regard to whether such costs were incurred by Agent, Lessor, Lessee or any potentially qualified buyer, and shall in no event be paid from the Sale Proceeds for the benefit of Lessee; provided, that Lessee shall in no event be liable for costs (other than de-installation costs, which shall in all cases be borne by Lessee) described in this clause (a) which, in aggregate, exceed $4,491,989; provided, further that in the event that Lessor pays any of the Proceedscosts described in this clause (a) (other than de-installation costs, which shall in all cases be borne by Lessee) as a result of such costs (other than de-installation costs, which shall in all cases be borne by Lessee) aggregating in excess of $4,491,989, Lessor shall be entitled to reimbursement of such payments from the Sale Proceeds prior to the Agent returning any excess Sale Proceeds to the Lessee pursuant to Section 15.1(b), but in no event shall Lessor be entitled to make any claim against Lessee under Article XI for reimbursement or indemnification of such payments made by Lessor. Neither Lessor, Agent nor any Participant Lessor shall have any responsibility for procuring any purchaser. If, nevertheless, Agent or Lessor, Agent or any Participant undertakes any sales efforts, Lessee shall shall, subject to the preceding sentence, promptly reimburse such Person Agent and/or Lessor for any charges, costs and expenses incurred in such effort, including any allocated time charges, costs and expenses of internal counsel or other attorneys' fees. Upon a sale pursuant to the Sale Option, the Units Items of Equipment shall be in at least the condition required by Section 5.3 and shall be free and clear of all Liens other than Certificate Trustee Liens12.2(b). Any purchaser or purchasers of the Units Items of Equipment shall not in any way be affiliated with an Affiliate of Lessee or have any understanding or arrangement with Lessee regarding the future use of the UnitsItems of Equipment. On the Termination Datelast day of the Lease Term, so long as no Lease Event of Default or Lease Default exists:
(i) Lessee shall transfer all of Lessee's right, title and interest in the Units Items of Equipment, or cause the Units Items of Equipment to be so transferred transferred, to such purchaser or purchasers, if any, in accordance with all of the terms of this Lease; (ii) subject to the simultaneous payment by Lessee of all amounts due under clause (iii) of this sentence, Lessor shall, without recourse or warranty, except as to the absence of Certificate Trustee LiensLessor Liens attributable to it, transfer by quitclaim or otherwise release, as appropriate, Lessor's right, title and interest in and to the Units Items of Equipment to such purchaser or purchasers; and (iii) Lessee shall simultaneously pay to Agent Lessor all of the amounts contemplated in Section 9.1(b15.1(b).
(b) The Lessee's effective exercise and consummation of the Sale Option with respect to the Items of Equipment shall be subject to the due and timely fulfillment of each of the following provisions as to the Items of Equipment as of the dates set forth below: LSI Logic Corporation Lease B
(i) Lessee shall furnish to Lessor and Agent, on the last day of the Lease Term, a certification from the manufacturer that the Items of Equipment have been calibrated as necessary to be eligible for manufacturer's maintenance program and have been maintained at or modified to meet the latest available version and/or revision levels (assuming the Equipment has been modified as each such prior modification was introduced) of all hardware and software requirements applicable to the specific model of Equipment as deemed necessary by the manufacturer;
(ii) Lessee shall have the Items of Equipment de-installed, packaged and crated by the manufacturer's technicians or service providers certified by the manufacturer, and Lessee shall furnish to Lessor and Agent, a certification from the manufacturer's technicians or service providers certified by the manufacturer that the Items of Equipment are in good condition prior to shipment;
(iii) Lessee shall furnish to Lessor and Agent all applicable and corresponding instruction and service manuals, service and repair records, and descriptive brochures;
(iv) Lessee shall cause the Items of Equipment to be delivered to any location as selected by the purchaser, in a suitable manner which is specifically designed for the transportation of electronic components and equipment and in a manner consistent with the manufacturer's recommendations for transporting and packaging the Items of Equipment;
(v) Lessee shall not enter into any additional Subleases or renew any Subleases with respect to the Items of Equipment following Lessee's election of the Sale Option, and following Lessee's election of the Sale Option, Lessee shall not remove any Permitted Modifications or commence any voluntary Permitted Modifications under Section 8.4 without the prior written consent of the Agent;
(vi) The Lessee shall submit all bids to the Agent, and the Agent will have the right to review the same and to submit any one or more bids. Agent shall have no obligation to accept a bid that is not on an all-cash basis. Provided that there are all-cash bids at such time, Lessee shall deliver to the Agent not less than ninety (90) days prior to the Lease Expiration Date a binding written unconditional (except as set forth below), irrevocable offer (the "High Bid") by such purchaser or purchasers offering the highest all-cash bid to purchase all, but not less than all, of the Items of Equipment (unless otherwise agreed to by the Agent). Subject to Agent's rights in the immediately succeeding sentence, Agent shall accept the High Bid in writing within 20 Business Days of receipt thereof by Agent. If Agent in the exercise of its reasonable judgment believes that the Sale Proceeds to be paid to the Agent from a High Bid which the Lessee desires to accept is less than the lesser of (A) the Fair Market Value of the Items of Equipment or (B) the Purchase Amount, then Agent may condition its obligation to accept the High Bid upon Agent's receipt of an appraisal demonstrating that the High Bid is for an amount at least equal to the lesser of (1) the Fair Market Value of the Items of Equipment or (2) the Purchase Amount, as established by such appraisal. In such case then Agent shall LSI Logic Corporation Lease B promptly following the receipt of such High Bid, engage an independent appraiser, reasonably satisfactory to the Agent and Lessee, at Lessee's expense, to determine (by appraisal methods reasonably satisfactory to the Agent) the Fair Market Value of the Items of Equipment as of the Lease Expiration Date. The selection of the independent appraiser shall be completed within ten (10) Business Days of the receipt by Agent of such High Bid. A copy of such appraisal shall be delivered to Agent not later than 20 Business Days after the selection of the independent appraiser. The appraiser will be instructed to assume that the Items of Equipment are in the condition required by and have been maintained in accordance with this Lease. Any such appraisal shall be at the sole cost and expense of Lessee.
(vii) In connection with any such sale of the Items of Equipment, the Lessee will provide to the purchaser all customary "seller's" indemnities, representations and warranties regarding title, absence of Liens (except Lessor Liens and Liens relating to the interest or rights of Lessee) and the condition of such Items of Equipment. The Lessee shall have obtained, at its cost and expense, all required governmental and regulatory consents and approvals and shall have made all filings as required by Applicable Laws and Regulations in order to carry out and complete the transfer of the Items of Equipment. Any agreement as to such sale shall be in form and substance reasonably satisfactory to the Agent. If the Lessee properly exercises the Sale Option, then the Lessee shall, upon a sale thereunder, and at its own cost, transfer or cause to be transferred possession of the Items of Equipment to the independent purchaser(s) thereof, in each case by surrendering the same into the possession of such purchaser(s), free and clear of all Liens, other than Lessor Liens, and in the condition required by this Lease, and the Lessee shall execute and deliver to such purchaser(s) at the Lessee's cost and expense a xxxx of sale with respect to the Items of Equipment, warranting that such Items of Equipment are free and clear of all Liens, other than Lessor Liens, together with an assignment, without warranty of any kind, of Lessee's rights, if any, under any purchase contracts. The Lessee shall, on and within a reasonable time before and up to two years after the Lease Expiration Date, cooperate reasonably with the Agent, Lessor and the purchaser(s) of the Items of Equipment in order to facilitate the purchase and use by such purchaser(s) of the Items of Equipment, which cooperation shall include the following, all of which the Lessee shall do on or before the Lease Expiration Date or as soon thereafter as is reasonably practicable: providing reasonable access to all books and records regarding the maintenance, use and ownership of the Items of Equipment and all know-how, data and technical information regarding the use and maintenance of the Equipment thereto, granting or assigning all licenses necessary for the operation and maintenance of the Items of Equipment, and cooperating reasonably in seeking and obtaining all necessary Governmental Action. The obligations of the Lessee under this paragraph shall survive the expiration or termination of this Lease.
Appears in 1 contract
Sale Option Procedures. If Lessee elects the Sale Option, ---------------------- Lessee shall use its best commercial efforts as nonexclusive
(i) Lessee shall transfer all of Lessee's right, title and interest in the Leased Property, or cause the Leased Property to obtain be so transferred, to the bidder(s), if any, which shall have submitted the highest bid therefor at least twenty (20) (or in the case of a Certificate Purchaser, any Affiliate thereof or Person contacted by a Certificate Purchaser, five (5)) Business Days prior to such Lease Termination Date, in the condition required and otherwise in accordance with all of the terms of this Lease; (ii) subject to the prior or current payment by Lessee of all amounts due under clause (iii) of this sentence, Lessor ------------ shall transfer by special warranty deed (without recourse or warranty, except as to the absence of Lessor Liens and such other matters contained in the special warranty deed) Lessor's right, title and interest in and to the Leased Property for cash purchase price for to such bidders; and (iii) Lessee shall simultaneously pay to Lessor all of the Unitsamounts contemplated in Section 9.1(c). All costs related to such -------------- sale includingand delivery, without limitation, including the cost of sales agents, removal of the Unitsimprovements, delivery of documents to any location designated by a buyer within the continental United Statesdocuments, filing and documentary transfer fees, title insurance, certification and testing of the Units in any reasonable location chosen by the buyer or prospective buyerLeased Property, legal costs, costs of notices, any advertisement or other similar costs, or other information and of any parts, configurations or repairsconfigurations, repairs or modifications consistent with the Units being used to store and/or transport liquids and gases, in each case, required desired by a buyer or prospective buyer shall be borne entirely by Lessee, without regard to whether such costs were incurred by Lessor, Lessee or any potentially qualified buyer, and shall in no event be paid from any of the Proceeds. Neither Lessor, Agent Lessor nor any Participant Certificate Purchaser shall have any responsibility for procuring any purchaser. If, nevertheless, Lessor, Agent or any Participant undertakes any sales efforts, Lessee shall promptly reimburse such Person for any charges, costs and expenses incurred in such effort, including any allocated time charges, costs and expenses of internal counsel or other attorneys' fees. Upon a sale pursuant to the Sale Option, the Units shall be in the condition required by Section 5.3 and shall be free and clear of all Liens other than Certificate Trustee Liens. Any purchaser or purchasers of the Units shall not in any way be affiliated with Lessee or have any understanding or arrangement with Lessee regarding the future use of the Units. On the Termination Date, so long as no Lease Event of Default or Lease Default exists:
(i) Lessee shall transfer all of Lessee's right, title and interest in the Units or cause the Units to be so transferred to such purchaser or purchasers, if any, in accordance with all of the terms of this Lease; (ii) subject to the simultaneous payment by Lessee of all amounts due under clause (iii) of this sentence, Lessor shall, without recourse or warranty, except as to the absence of Certificate Trustee Liens, transfer by quitclaim or otherwise release, as appropriate, Lessor's right, title and interest in and to the Units to such purchaser or purchasers; and (iii) Lessee shall simultaneously pay to Agent all of the amounts contemplated in Section 9.1(b).
Appears in 1 contract
Samples: Lease Agreement (Alco Standard Corp)
