Termination Upon Certain Events. (a) If an Event of Loss, Material Environmental Violation or a Force Majeure Event which, in Lessor’s opinion, will cause Substantial Completion to occur after the Outside Completion Date or for an amount in excess of the Aggregate Commitment Amount, in each case, occurs prior to the Base Term Commencement Date and Lessor has not required Construction Agent to complete Construction pursuant to Section 3.2(a) or Section 3.2(b), then Lessor may elect to terminate Construction Agent’s rights under this Agreement and the Lease by giving written notice (a “Termination Notice”) to Construction Agent that, as a consequence of such Event of Loss, or Material Environmental Violation or Force Majeure Event, Construction Agent’s rights under this Agreement and the Lease are to be terminated and Construction Agent shall be obligated to deliver the Leased Property to Lessor, in which case Section 3.4(b) shall apply; provided, however, that (i) if Construction Agent fails for any reason to comply with all of the requirements set forth in Section 3.4(b) in all material respects, or (ii) if the Event of Loss or Material Environmental Violation is a result of a Full Recourse Event or a Construction Agent Related Event, then a Construction Agency Agreement Event of Default shall be deemed to have occurred and Lessor shall be entitled to exercise its remedies at Section 5.3. Construction Agent shall provide Lessor an irrevocable written notice of its intention to deliver the Leased Property pursuant to the second sentence hereof within thirty (30) days after the date Construction Agent receives a Termination Notice. (b) If Construction Agent delivers the Leased Property as set forth at Section 3.4(a), then Construction Agent’s rights under this Agreement and the Operative Documents shall terminate after Construction Agent shall have completed each of the following; provided the costs of preparing the following documentation shall be deemed a Project Cost and funded with an Advance to the extent there are Available Commitments or shall be capitalized by Lessor, each of which shall be completed on or prior to the first Payment Date after the expiration of thirty (30) days following Construction Agent’s receipt of a Termination Notice: (i) Construction Agent shall execute and deliver to Lessor (or to Lessor’s designee) (A) a xxxx of sale with respect to its right, title and interest in the Leased Property containing representations and warranties of grantor to Lessor (or such other Person) regarding the absence of Liens (other than Permitted Liens of the type described in clauses (a) (but excluding any Liens relating to the rights or interests of Construction Agent), (b), (c) or (h) of the definition of “Permitted Liens”), (B) an assignment of Construction Agent’s entire right, title and interest in the Leased Property, the Project Agreements, and all contracts and agreements relating to the maintenance of warranties in respect of the Leased Property, as Construction Agent’s or Lessor’s designee reasonably deems necessary for the ownership or operation thereof (which shall include an assignment of all of Construction Agent’s right, title and interest in and to all awards, compensation and insurance proceeds payable in connection with the applicable Event of Loss, Material Environmental Violation or Force Majeure Event), (C) such consents to assignment and estoppel documents as reasonably requested by Lessor or the Administrative Agent to facilitate a transfer by Lessor of its interest in the Leased Property, including Lessor’s leasehold interest in the Site, and (D) all other transfer requirements described in Section 21.1(iv) of the Lease, in each case in recordable form and otherwise in conformity with local custom and free and clear of any Liens (other than Permitted Liens) attributable to Construction Agent or any other Construction Agent Person; (ii) Construction Agent shall pay over to the Administrative Agent all awards, compensation, insurance or condemnation proceeds previously received by Construction Agent or any other Construction Agent Person (and not previously used in the restoration of the Leased Property) in connection with the applicable Event of Loss, Material Environmental Violation or Force Majeure Event not previously applied in accordance with Section 3.2(b) and assign or cause to be assigned to Lessor any interest Construction Agent may have to any unpaid awards, compensation and insurance or condemnation proceeds in respect thereto; (iii) Construction Agent shall, unless such Event of Loss or Material Environmental Violation results solely from a Force Majeure Event or a Force Majeure Event occurs which, in Lessor’s opinion, will cause Substantial Completion to occur after the Outside Completion Date and/or for an amount in excess of the Commitment Amount and Lessor has not required Construction Agent to complete Construction of the Facility pursuant to Section 3.2 (a) and (b) above, pay to Lessor an amount equal to (A) the Lease Balance if such Event of Loss or Material Environmental Violation results from a Full Recourse Event and (B) in all other cases, the Recourse Amount; (iv) Construction Agent shall execute and deliver to Lessor a statement of termination of this Agreement and the other Operative Documents; (v) Construction Agent shall transfer possession of the Leased Property, including the Site (subject to the terms of the Ground Lease, Ground Sublease and Authority Lease), to Lessor or any Person designated by Lessor, in each case by surrendering the same into the possession of Lessor or such Person, as the case may be, in the condition required by Section 21.1(iv) of the Lease (except to the extent that the condition of the Facility was affected by such Event of Loss, Material Environmental Violation or Force Majeure Event) and in compliance in all material respects with all Applicable Laws and Insurance Requirements except to the extent that the compliance with same is not commercially practicable as a result of and to the extent of the impact of such Event of Loss, Material Environmental Violation or Force Majeure Event on the Facility and Construction Agent shall deliver to Lessor and the Administrative Agent reasonable evidence that all required governmental and regulatory consents and approvals have been obtained and that all filings as required by Applicable Laws in order to carry out and complete such transfer of the Leased Property have been made; and (vi) Construction Agent shall deliver to Lessor or any Person designated by Lessor copies of all books and records regarding the maintenance of, and Construction Agent’s interest in, the Leased Property, and an assignment of all assignable licenses and rights necessary for the construction, operation and maintenance of the Leased Property. Construction Agent shall, for a period of up to one year after the applicable date of transfer hereunder, cooperate reasonably with Lessor and/or any Person designated by Lessor to take possession of the Leased Property, including in connection with seeking or obtaining all necessary Governmental Actions and approvals from any manufacturer or Governmental Authority relating to the use of any portion of the Facility or any warranty relating thereto. The obligations of Construction Agent under this paragraph shall survive the expiration or termination of this Agreement.
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Samples: Construction Agency Agreement, Construction Agency Agreement (Norfolk Southern Corp)
Termination Upon Certain Events. (a) If any of the following occurs with respect to the Leased Property:
(i) a Significant Condemnation;
(ii) a Significant Casualty; or
(iii) an Event of Loss, Material Environmental Violation or a Force Majeure Event whichRelease, or the discovery of an Environmental Violation or Release, the cost of remediation of which in the reasonable judgment of Administrative Agent would exceed $100,000.00; then, in Lessor’s opinionany such event, will cause Substantial Completion to occur after the Outside Completion Date or for an amount in excess of the Aggregate Commitment Amount, in each case, occurs prior to the Base Term Commencement Date and Lessor has not required Construction Agent to complete Construction pursuant to Section 3.2(a) or Section 3.2(b), then Lessor may elect to terminate Construction Agent’s rights under this Agreement and the Lease and, if such event occurs during the Interim Term, the Construction Agency Agreement, by giving written notice (a “Termination Notice”"TERMINATION NOTICE") to Construction Agent Lessee that, as a consequence of such Event of Lossevent, or Material Environmental Violation or Force Majeure Event, Construction Agent’s rights under this Agreement and the Lease are and, if such event occurs during the Interim Term, the Construction Agency Agreement is to be terminated and Construction Agent following satisfaction of the conditions set forth herein.
(b) Following Xxxxxx's receipt of the Termination Notice, unless SECTION 15.1(c) is applicable, Lessee shall be obligated to purchase Lessor's interest in the Leased Property on or prior to the next occurring Payment Date by paying Lessor an amount equal to the Purchase Amount.
(c) If a Significant Condemnation or Significant Casualty occurs during the Interim Term for which the limitation on Lessee's recourse liability set forth in SECTION 14.1(e) applies, then, following Lessee's receipt of a Termination Notice and in lieu of the procedures set forth in SECTION 15.1(b) above, Lessee shall be obligated, on or prior to the next occurring Payment Date, either to (y) purchase Lessor's interest in the Leased Property and pay to Lessor the Purchase Amount (in which case Lessor shall, as set forth in SECTION 15.2(a), transfer to Lessee its interest in the Leased Property) or (z) deliver the Leased Property to Lessor, in which case Section 3.4(bSECTION 15.2(b) shall apply; provided, however, that (i) if Construction Agent Lessee fails for any reason to comply with all of the requirements set forth in Section 3.4(bSECTION 15.2(b) in all material respects, or (ii) if the Event of Loss or Material Environmental Violation is a result of a Full Recourse Event or a Construction Agent Related Event, then a Construction Agency Agreement Event of Default Lessee shall instead be deemed to have occurred elected to, and Lessor shall be entitled to exercise its remedies at Section 5.3. Construction Agent shall provide Lessor an irrevocable written notice of its intention to deliver shall, purchase the Leased Property pursuant to the second sentence hereof within thirty (30SECTION 15.1(c)(y) days after the date Construction Agent receives a Termination Notice.
(b) If Construction Agent delivers the Leased Property as set forth at Section 3.4(a), then Construction Agent’s rights under this Agreement and the Operative Documents shall terminate after Construction Agent shall have completed each of the following; provided the costs of preparing the following documentation shall be deemed a Project Cost and funded with above. Lessee acknowledges that an Advance to the extent there are Available Commitments or shall be capitalized by Lessor, each of which shall be completed on or prior to the first Payment Date after the expiration of thirty (30) days following Construction Agent’s receipt of a Termination Notice:
(i) Construction Agent shall execute and deliver to Lessor (or to Lessor’s designee) (A) a xxxx of sale with respect to its right, title and interest in the Leased Property containing representations and warranties of grantor to Lessor (or such other Person) regarding the absence of Liens (other than Permitted Liens of the type described in clauses (a) (but excluding any Liens relating to the rights or interests of Construction Agent), (b), (c) or (h) of the definition of “Permitted Liens”), (B) an assignment of Construction Agent’s entire right, title and interest in the Leased Property, the Project Agreements, and all contracts and agreements relating to the maintenance of warranties in respect of the Leased Property, as Construction Agent’s or Lessor’s designee reasonably deems necessary for the ownership or operation thereof (which shall include an assignment of all of Construction Agent’s right, title and interest in and to all awards, compensation and insurance proceeds payable in connection with the applicable Event of Loss, Material Environmental Violation or Force Majeure Event), (C) such consents to assignment and estoppel documents as reasonably requested by Lessor or the Administrative Agent to facilitate a transfer by Lessor of its interest Release in the Leased Property, including Lessor’s leasehold interest in the Site, and (D) all other transfer requirements described in Section 21.1(iv) of the Lease, in each case in recordable form and otherwise in conformity with local custom and free and clear of any Liens (other than Permitted Liens) attributable to Construction Agent or any other Construction Agent Person;
(ii) Construction Agent shall pay over to the Administrative Agent all awards, compensation, insurance or condemnation proceeds previously received by Construction Agent or any other Construction Agent Person (and not previously used in the restoration of the Leased Property) in connection with the applicable Event of Loss, Material Environmental Violation or Force Majeure Event not previously applied in accordance with Section 3.2(b) and assign or cause to be assigned to Lessor any interest Construction Agent may have to any unpaid awards, compensation and insurance or condemnation proceeds in respect thereto;
which CLAUSE (iii) Construction Agent shall, unless such Event of Loss or Material Environmental Violation results solely from a Force Majeure Event SECTION 15.1(a) applies or a Force Majeure Event occurs which, in Lessor’s opinion, will cause Substantial Completion Significant Condemnation or Significant Casualty to occur after the Outside Completion Date and/or for an amount in excess of the Commitment Amount and Lessor has which SECTION 14.1(e) is not required Construction Agent to complete Construction of the Facility pursuant to Section 3.2 (a) and (b) above, pay to Lessor an amount equal to (A) the Lease Balance if such Event of Loss or Material Environmental Violation results from a Full Recourse Event and (B) in all other cases, the Recourse Amount;
(iv) Construction Agent applicable shall execute and deliver to Lessor a statement of termination of this Agreement and the other Operative Documents;
(v) Construction Agent shall transfer possession of the Leased Property, including the Site (be subject to the terms of the Ground Lease, Ground Sublease and Authority LeaseSECTION 15.1(b) rather than this SECTION 15.1(c), to Lessor or any Person designated by Lessor, in each case by surrendering the same into the possession of Lessor or such Person, as the case may be, in the condition required by Section 21.1(iv) of the Lease (except to the extent that the condition of the Facility was affected by such Event of Loss, Material Environmental Violation or Force Majeure Event) and in compliance in all material respects with all Applicable Laws and Insurance Requirements except to the extent that the compliance with same is not commercially practicable as a result of and to the extent of the impact of such Event of Loss, Material Environmental Violation or Force Majeure Event on the Facility and Construction Agent shall deliver to Lessor and the Administrative Agent reasonable evidence that all required governmental and regulatory consents and approvals have been obtained and that all filings as required by Applicable Laws in order to carry out and complete such transfer of the Leased Property have been made; and
(vi) Construction Agent shall deliver to Lessor or any Person designated by Lessor copies of all books and records regarding the maintenance of, and Construction Agent’s interest in, the Leased Property, and an assignment of all assignable licenses and rights necessary for the construction, operation and maintenance of the Leased Property. Construction Agent shall, for a period of up to one year after the applicable date of transfer hereunder, cooperate reasonably with Lessor and/or any Person designated by Lessor to take possession of the Leased Property, including in connection with seeking or obtaining all necessary Governmental Actions and approvals from any manufacturer or Governmental Authority relating to the use of any portion of the Facility or any warranty relating thereto. The obligations of Construction Agent under this paragraph shall survive the expiration or termination of this Agreement.
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Termination Upon Certain Events. (a) If an Event of Loss, Material Environmental Violation or a Force Majeure Event which, in Lessor’s opinion, will cause Substantial Completion to occur after the Outside Completion Date or for an amount in excess of the Aggregate Commitment Amount, in each case, occurs prior to the Base Term Commencement Date and Lessor has not required Construction Agent to complete Construction pursuant to Section 3.2(a) or Section 3.2(b), then Lessor may elect to terminate Construction Agent’s rights under this Agreement and the Lease by giving written notice (a “Termination Notice”) to Construction Agent that, as a consequence of such Event of Loss, or Material Environmental Violation or Force Majeure Event, Construction Agent’s rights under this Agreement and the Lease are to be terminated and Construction Agent shall be obligated to deliver the Leased Property to Lessor, in which case Section 3.4(b) shall apply; provided, however, that either: (i) if Construction Agent fails for Lessor, any reason to comply with all Lessor or Lessee shall have received notice of the requirements set forth in Section 3.4(b) in all material respects, a Total Condemnation; or (ii) if the Event Lessee or Agent Lessor or any Lessor shall have received notice of Loss a Condemnation, and Xxxxxx shall have delivered to Agent Lessor and Agent an Officer's Certificate that such Condemnation is a Significant Condemnation; or Material (iii) a Casualty occurs, and Lessee shall have delivered to Agent Lessor and Agent an Officer's Certificate that such Casualty is a Significant Casualty; or (iv) an Environmental Violation occurs or is discovered and Lessee shall have delivered to Lessor an Officer's Certificate stating that, in the reasonable, good-faith judgment of Lessee, the cost to remediate the same will exceed $5,000,000; or (v) if during the Term a result Casualty occurs with respect to the Property or Lessee receives notice of a Full Recourse Event or a Construction Agent Related Event, then a Construction Agency Agreement Event of Default shall be deemed to have occurred and Lessor shall be entitled to exercise its remedies at Section 5.3. Construction Agent shall provide Lessor an irrevocable written notice of its intention to deliver the Leased Property pursuant Condemnation with respect to the second sentence hereof Property, and following such Casualty or Condemnation, the Property cannot reasonably be restored on or before the date which is twelve months prior to the Maturity Date to substantially the same condition as existed immediately prior to such Casualty or Condemnation or before such day the Property is not in fact so restored, and Lessee shall have delivered on Officer's Certificate to Agent Lessor and Agent to such effect; then, Lessee shall, within thirty (30) days after Xxxxxx receives notice of a Total Condemnation pursuant to the date Construction preceding clause (i) or simultaneously with the delivery of the Officer's Certificate pursuant to the preceding clause (ii), (iii) (iv) or (v) deliver a notice of termination of this Lease to Agent receives Lessor (a "Termination Notice."):
(ba) If Construction Agent delivers in the Leased Property as set forth at Section 3.4(acase of an event described in (i) clause (i), then (ii) (iii) or (v) above which occurs during the Term or the Construction Agent’s rights under this Agreement and Period due to fraud, misapplication of funds, illegal acts or willful misconduct or bankruptcy of Lessee or (ii) clause (iv) above, which occurs at any time during the Operative Documents shall terminate after Construction Agent shall have completed each of Period or the following; provided the costs of preparing the following documentation Term, Lessee shall be deemed a Project Cost and funded with an Advance obligated to purchase Agent Lessor's interest in the extent there are Available Commitments or shall be capitalized by Lessor, each of which shall be completed Property on or prior to the first Payment earlier of the Maturity Date and the date occurring one hundred eighty (180) days after the expiration date of thirty the Termination Notice by paying Agent Lessor, for the account of Lessors, an amount (30offsetting, at the option of Lessee, against such amount the aggregate amount of the Defeasance Deposit Collateral) days following Construction Agent’s receipt equal to (x) the Lease Balance on such termination date PLUS (y) all accrued and unpaid Capitalized Interest and Basic Rent due and owing on such date, PLUS (z) all Supplemental Rent due and owing on such date and Agent Lessor shall, as set forth in Section 16.2, transfer to Lessee on such date of a Termination Notice:payment all of Agent Lessor's interest in the Property;
(b) in the case of an event described in (i) clause (i), (ii) or (iii) above, which occurs during the Construction Period and which arises from the acts or omissions of Lessee (other than for any reasons set forth in CLAUSE (a) above), while located on, in the possession of, controlling, or acting or failing to act with respect to the Property, or (ii) clause (i), (ii), (iii) or (v) above which occurs during the Term and is not due to fraud, misapplication of funds, illegal acts or willful misconduct or bankruptcy of Lessee, Lessee shall be obligated to pay to Agent shall execute Lessor, for the account of Lessors, on or prior to the earlier of the Maturity Date and deliver the date occurring one hundred eighty (180) days after the date of the Termination Notice, an amount (offsetting, at the option of Lessee, against such amount the aggregate amount of the Defeasance Deposit Collateral) equal to (x) all accrued and unpaid Capitalized Interest and Basic Rent due and owing on such date plus (y) all Supplemental Rent due and owing on such date, PLUS (z) at the option of Lessee
(1) the Lease Balance on such date (in which case Agent Lessor shall, as set forth in Section 19.1, transfer to Lessee on such date all of Agent Lessor's interest in the Property) or (or to Lessor’s designee2) (A) a xxxx of sale with respect to its rightif during the Construction Period, title and interest in the Leased Property containing representations and warranties of grantor to Lessor (or such other Person) regarding the absence of Liens (other than Permitted Liens of the type described in clauses (a) (but excluding any Liens relating an amount equal to the rights Construction Period Maximum Recourse Amount on such date, or interests of Construction Agent), (b), (c) or (h) of the definition of “Permitted Liens”), (B) an assignment of Construction Agent’s entire right, title and interest in if during the Leased PropertyTerm, the Project AgreementsMaximum Residual Value Guarantee Amount plus all amounts due under Section 21.3 of this Lease for excessive wear and tear, and all contracts and agreements relating to which sum shall equal the maintenance Lease Balance on such date, in which event Lessee shall remarket the Property for Lessors, at the request of warranties Agent Lessor, in respect of the Leased Property, as Construction Agent’s or Lessor’s designee reasonably deems necessary for the ownership or operation thereof (which shall include an assignment of all of Construction Agent’s right, title and interest in and to all awards, compensation and insurance proceeds payable in connection accordance with the applicable Event of Loss, Material Environmental Violation or Force Majeure Event), (C) such consents to assignment and estoppel documents as reasonably requested by Lessor or the Administrative Agent to facilitate a transfer by Lessor of its interest in the Leased Property, including Lessor’s leasehold interest in the Site, and (D) all other transfer requirements described in Section 21.1(iv21.1(b) of the Lease, any proceeds received shall be applied in each case the manner set forth in recordable form and otherwise in conformity with local custom and free and clear Section 13.4 of any Liens (other than Permitted Liens) attributable to Construction Agent or any other Construction Agent Person;
(ii) Construction Agent the Participation Agreement, and, if Lessee shall pay over have paid an amount equal to the Administrative Lease Balance pursuant to this clause (B), Agent Lessor shall convey the Property to Lessee (or its designee), all awards, compensation, insurance or condemnation proceeds previously received by Construction Agent or any other Construction Agent Person (and not previously used in the restoration of the Leased Property) in connection with the applicable Event of Loss, Material Environmental Violation or Force Majeure Event not previously applied in accordance with Section 3.2(b) and assign or cause to be assigned to Lessor any interest Construction Agent may have to any unpaid awards, compensation and insurance or condemnation proceeds in respect thereto;
(iii) Construction Agent shall, unless such Event of Loss or Material Environmental Violation results solely from a Force Majeure Event or a Force Majeure Event occurs which, in Lessor’s opinion, will cause Substantial Completion to occur after the Outside Completion Date and/or for an amount in excess of the Commitment Amount and Lessor has not required Construction Agent to complete Construction of the Facility pursuant to Section 3.2 (a) and (b) above, pay to Lessor an amount equal to (A) the Lease Balance if such Event of Loss or Material Environmental Violation results from a Full Recourse Event and (B) in all other cases, the Recourse Amount;
(iv) Construction Agent shall execute and deliver to Lessor a statement of termination of this Agreement and the other Operative Documents;
(v) Construction Agent shall transfer possession of the Leased Property, including the Site (subject to the terms of the Ground Lease, Ground Sublease and Authority Lease), to Lessor or any Person designated by Lessor, in each case by surrendering the same into the possession of Lessor or such Person, as the case may be, in the condition required by Section 21.1(iv) of the Lease (except to the extent that the condition of the Facility was affected by such Event of Loss, Material Environmental Violation or Force Majeure Event) and in compliance in all material respects with all Applicable Laws and Insurance Requirements except to the extent that the compliance with same is not commercially practicable as a result of and to the extent of the impact of such Event of Loss, Material Environmental Violation or Force Majeure Event on the Facility and Construction Agent shall deliver to Lessor and the Administrative Agent reasonable evidence that all required governmental and regulatory consents and approvals have been obtained and that all filings as required by Applicable Laws in order to carry out and complete such transfer of the Leased Property have been made19.1; and
(vic) in the case of an event described in clause (i), (ii) or (iii) above which occurs during the Construction Agent shall deliver to Lessor Period and which does not arise from the acts or any Person designated by Lessor copies omissions of all books and records regarding the maintenance Lessee while located on, in possession of, controlling, or acting or failing to act with respect to the Property or from the fraud, misapplication of funds, illegal acts or willful misconduct of Lessee, Lessee shall make payments to Agent Lessor, for the account of Lessors, on or prior to the date occurring one hundred eighty (180) days after date of the Termination Notice, of an amount (offsetting, at the option of Lessee, against such amount the aggregate amount of the Defeasance Deposit Collateral) equal to the sum of (x) all Supplemental Rent otherwise due and Construction Agent’s owing on such date PLUS (y) at Lessee's option, if it wishes to purchase Agent Lessor's interest inin the Property, the Leased Lease Balance on such date (in which case Agent Lessor shall, as set forth in Section 16.2, transfer to Lessee on such date all of Agent Lessor's interest in the Property); PROVIDED that if Lessee elects not to purchase Agent Lessor's interest in the Property, Lessee shall return the Property to Agent Lessor (or to any other Person specified by Agent Lessor in compliance with Section 10.1(c)), and an assignment Agent Lessor shall be entitled to retain all insurance and condemnation proceeds with respect to such Significant Casualty or Significant Condemnation and Xxxxxx shall remarket the Property for Lessors, if requested by Agent Lessor, in accordance with Section 21.1(b) of all assignable licenses this Lease and rights necessary for any proceeds received shall be applied in the construction, operation and maintenance matter set forth in Section 13.4 of the Leased Property. Construction Agent shall, for a period of up to one year after the applicable date of transfer hereunder, cooperate reasonably with Lessor and/or any Person designated by Lessor to take possession of the Leased Property, including in connection with seeking or obtaining all necessary Governmental Actions and approvals from any manufacturer or Governmental Authority relating to the use of any portion of the Facility or any warranty relating thereto. The obligations of Construction Agent under this paragraph shall survive the expiration or termination of this Participation Agreement.
Appears in 1 contract
Samples: Lease (Wind River Systems Inc)
Termination Upon Certain Events. (a) If Without limiting any other Section herein, if an Event of Loss, Material Loss or Significant Environmental Violation or a Force Majeure Event which, in Lessor’s opinion, will cause Substantial Completion to occur after the Outside Completion Date or for an amount in excess of the Aggregate Commitment Amount, in each case, occurs prior to the Base Term Commencement Date and Lessor has not required Construction Agent to complete Construction pursuant to Section 3.2(a) or Section 3.2(b), then Lessor may elect to terminate Construction Agent’s rights under this Agreement and the Lease by giving written notice (a “Termination Notice”) to Construction Agent that, as a consequence of such Event of Loss, Loss or Material Significant Environmental Violation or Force Majeure Event, Construction Agent’s rights under this Agreement and the Lease are to be terminated and Construction Agent shall be obligated cease to deliver occupy the Leased Property to LessorProperty, in which case Section 3.4(b) shall apply; provided, however, that (i) if Construction Agent fails for any reason to comply with all of the requirements set forth in Section 3.4(b) in all material respects, or (ii) if the Event of Loss or Material Environmental Violation is a result of a Full Recourse Event or a Construction Agent Related Event, then a Construction Agency Agreement Event of Default shall be deemed to have occurred and Lessor shall be entitled to exercise its remedies at Section 5.3. Construction Agent shall provide Lessor an irrevocable written notice of its intention to deliver the Leased Property pursuant to the second sentence hereof within thirty (30) days after the date Construction Agent receives a Termination Notice.
(b) If Construction Agent delivers surrenders occupancy of the Leased Property as set forth at Section 3.4(a), then Construction Agent’s rights under this Agreement and the Operative Documents shall terminate after Construction Agent shall have completed each of the following; provided the costs of preparing the following documentation shall be deemed a Project Cost and funded with an Advance to the extent there are Available Commitments or shall be capitalized by Lessor, each of which shall be completed on or prior to the first Payment Date after the expiration of thirty (30) days following Construction Agent’s receipt of a Termination Notice:
(i) Construction Agent shall execute and deliver to Lessor (or to Lessor’s designee) (A) a xxxx quitclaim bill of sale and deed with respect to its any right, title and interest of Construction Agent in the Leased Property containing representations and warranties of grantor to Lessor (or such other Person) regarding the absence of Liens (other than Permitted Liens of the type described in clauses (a) (but excluding any Liens relating to the rights or interests of Construction Agent), (b), (c) or (hg) of the definition of “Permitted Liens”), (B) an assignment of Construction Agent’s entire right, title and interest in the Leased Property, the Project Agreements, and all contracts and agreements relating to the maintenance of warranties in respect of the Leased Property, as Construction Agent’s or Lessor’s designee reasonably deems necessary for the ownership or operation thereof (which shall include an assignment of all of Construction Agent’s right, title and interest in and to all awards, compensation and insurance proceeds payable in connection with the applicable Event of Loss, Material Loss or Significant Environmental Violation or Force Majeure Event), (C) such consents to assignment and estoppel documents as reasonably requested by Lessor or the Administrative Agent to facilitate a transfer by Lessor of its interest in the Leased Property, including Lessor’s leasehold interest in the Site, and (D) all other transfer requirements described in Section 21.1(iv) of the Lease, in each case in recordable form and otherwise in conformity with local custom and free and clear of any Liens (other than Permitted Liens) attributable to Construction Agent or any other Construction Agent Person;
(ii) Construction Agent shall pay over to the Administrative Agent all awards, compensation, insurance or condemnation proceeds previously received by Construction Agent or any other Construction Agent Person (and not previously used in the restoration of the Leased Property) in connection with the applicable Event of Loss, Material Loss or Significant Environmental Violation or Force Majeure Event not previously applied in accordance with Section 3.2(b) and assign or cause to be assigned to Lessor any interest Construction Agent may have to any unpaid awards, compensation and insurance or condemnation proceeds in respect thereto;
(iii) Construction Agent shall, unless such Event of Loss or Material Environmental Violation results solely from a Force Majeure Event or a Force Majeure Event occurs which, in Lessor’s opinion, will cause Substantial Completion to occur after the Outside Completion Date and/or for an amount in excess of the Commitment Amount and Lessor has not required Construction Agent to complete Construction of the Facility pursuant to Section 3.2 (a) and (b) above, shall pay to Lessor an amount equal to (A) the Lease Balance if such Event of Loss or Material Environmental Violation results from a Full Recourse Event and (B) in all other cases, the Recourse AmountBalance;
(iv) Construction Agent shall execute and deliver to Lessor a statement of termination of this Agreement and the other Operative Documents;
(v) Construction Agent shall transfer possession of the Leased Property, including the Site (subject to the terms of the Ground Lease, Ground Sublease and Authority Lease)Site, to Lessor or any Person designated by Lessor, in each case by surrendering the same into the possession of Lessor or such Person, as the case may be, in the condition required by Section 21.1(iv) of the Lease (except to the extent that the condition of the Facility was affected by such Event of Loss, Material Loss or Significant Environmental Violation or Force Majeure Event) and in compliance in all material respects with all Applicable Laws and Insurance Requirements except to the extent that the compliance with same is not commercially practicable as a result of and to the extent of the impact of such Event of Loss, Material Loss or Significant Environmental Violation or Force Majeure Event on the Facility Facility, and Construction Agent shall deliver to Lessor and the Administrative Agent reasonable evidence that all required governmental and regulatory consents and approvals have been obtained and that all filings as required by Applicable Laws in order to carry out and complete such transfer of the Leased Property have been made; and
(vi) Construction Agent shall deliver to Lessor or any Person designated by Lessor copies of all books and records regarding the maintenance of, and Construction Agent’s interest in, the Leased Property, and an assignment of all assignable licenses and rights necessary for the construction, operation and maintenance of the Leased Property. Construction Agent shall, for a period of up to one year after the applicable date of transfer hereunder, cooperate reasonably with Lessor and/or any Person designated by Lessor to take possession of the Leased Property, including in connection with seeking or obtaining all necessary Governmental Actions and approvals from any manufacturer or Governmental Authority relating to the use of any portion of the Facility or any warranty relating thereto. The obligations of Construction Agent under this paragraph shall survive the expiration or termination of this Agreement.
Appears in 1 contract
Termination Upon Certain Events. (a) If either: (i) Agent Lessor, Agent or Lessee shall have received notice of a Total Condemnation; or (ii) Lessee or Agent Lessor or any Lessor shall have received notice of a Condemnation, and Lessee shall have delivered to Agent Lessor and Agent or, if during the Construction Period, Agent Lessor shall have delivered to Lessee and Agent an Event of LossOfficer's Certificate that such Condemnation is a Significant Condemnation; or (iii) a Casualty occurs, Material and Lessee shall have delivered to Agent Lessor and Agent or, if during the Construction Period, Agent Lessor shall have delivered to Lessee and Agent, an Officer's Certificate that such Casualty is a Significant Casualty; or (iv) an Environmental Violation occurs or a Force Majeure Event whichis discovered and Lessee shall have delivered to Agent Lessor an Officer's Certificate stating that, in Lessor’s opinionthe reasonable, good-faith judgment of Lessee, the cost to remediate the same will cause Substantial Completion exceed $5,000,000; or (v) if during the Term a Casualty occurs with respect to occur after the Outside Completion Date Property or for an amount in excess Lessee or Agent Lessor receives notice of a Condemnation with respect to the Aggregate Commitment AmountProperty, in each caseand following such Casualty or Condemnation, occurs the Property cannot reasonably be restored on or before the date which is twelve months prior to the Base Term Commencement Maturity Date to substantially the same condition as existed immediately prior to such Casualty or Condemnation or before such day the Property is not in fact so restored, and Lessee shall have delivered an Officer's Certificate to Agent Lessor has not required Construction and Agent to complete Construction such effect; then,
(A) Lessee shall, within thirty (30) days after Lessee receives notice of a Total Condemnation pursuant to Section 3.2(athe preceding clause (i) or Section 3.2(bsimultaneously with the delivery of the Officer's Certificate by Lessee pursuant to the preceding clause (ii), then (iii), (iv) or (v) deliver a notice of termination of this Lease to Agent Lessor (a "Termination Notice") or (B) if during the Construction Period, Agent Lessor may elect deliver to terminate Construction Agent’s rights under this Agreement Lessee and the Lease by giving written notice (Agent a “Termination Notice”.
(b) In the case of an event described in (i) clause (i), (ii), (iii) or (v) of Section 16.1(a) which occurs during the Term following the Construction Period due to any cause or, if during the Construction Agent thatPeriod, as due to a consequence of such Full Recourse Construction Period Event of LossDefault or (ii) clause (iv) of Section 16.1(a), which occurs at any time during the Construction Period or Material Environmental Violation or Force Majeure Eventthe Term, Construction Agent’s rights under this Agreement and the Lease are to be terminated and Construction Agent Lessee shall be obligated to deliver the Leased Property to pay Agent Lessor, in which case Section 3.4(b) shall apply; provided, however, that (i) if Construction Agent fails for any reason to comply with all the account of the requirements set forth in Section 3.4(b) in all material respectsParticipants, on or (ii) if the Event of Loss or Material Environmental Violation is a result of a Full Recourse Event or a Construction Agent Related Event, then a Construction Agency Agreement Event of Default shall be deemed to have occurred and Lessor shall be entitled to exercise its remedies at Section 5.3. Construction Agent shall provide Lessor an irrevocable written notice of its intention to deliver the Leased Property pursuant prior to the second sentence hereof within earlier of the Maturity Date and the date occurring thirty (30) days after the date Construction Agent receives a of the Termination Notice, an amount (offsetting, at the option of Agent Lessor, against such amount the aggregate amount of the Defeasance Deposit Collateral) equal to (x) all accrued and unpaid Capitalized Interest and Basic Rent due and owing on such date, plus (y) all Supplemental Rent due and owing on such date, plus (z) at the option of Lessee
(1) the Lease Balance on such date (in which case Agent Lessor shall, as set forth in Section 16.2 and 19.1, transfer to Lessee all of Agent Lessor's interest in the Property, or (2) the Permitted Lease Investment Balance on such date, provided that (A) if such amount is less than the Lease Balance on such date, subsection (e) shall apply and (B) if such amount equals the Lease Balance, Agent Lessor shall, as set forth in Section 16.2 and 19.1, transfer to Lessee on such date of payment all of Agent Lessor's interest in the Property.
(c) In the case of an event described in clause (i), (ii) or (iii) of Section 16.1(a) which occurs during the Construction Period and which arises from the acts or omissions of Lessee or any Lessee Person (other than for any reasons set forth in clause (b) If Construction Agent delivers the Leased Property as set forth at Section 3.4(aabove), then Construction Agent’s rights under this Agreement and while located on, in the Operative Documents possession of, controlling, or acting or failing to act with respect to the Property, Lessee shall terminate after Construction be obligated to pay to Agent shall have completed each Lessor, for the account of the following; provided the costs of preparing the following documentation shall be deemed a Project Cost and funded with an Advance to the extent there are Available Commitments or shall be capitalized by LessorParticipants, each of which shall be completed on or prior to the first Payment Date after the expiration of date occurring thirty (30) days following Construction Agent’s receipt after the date of a the Termination Notice:, an amount (offsetting, at the option of Agent Lessor, against such amount the aggregate amount of the Defeasance Deposit Collateral) equal to (x) all accrued and unpaid Capitalized Interest and Basic Rent due and owing on such date plus (y) all Supplemental Rent due and owing on such date, plus (z) at the option of Lessee
(i1) Construction the Lease Balance on such date (in which case Agent shall execute Lessor shall, as set forth in Section 16.2 and deliver 19.1, transfer to Lessor (or to Lessee on such date all of Agent Lessor’s designee) (A) a xxxx of sale with respect to its right, title and 's interest in the Leased Property containing representations and warranties Property) or (2) an amount equal to the Construction Period Maximum Recourse Amount on such date, in which event subsection (e) shall apply.
(d) In the case of grantor to Lessor (or such other Person) regarding the absence of Liens (other than Permitted Liens of the type an event described in clauses clause (a) (but excluding any Liens relating to the rights or interests of Construction Agenti), (bii) or (iii) of Section 16.1(a) which occurs during the Construction Period and which is not covered by Section 16.1(b) or (c) above, Lessee shall make payments to Agent Lessor, for the account of the Participants, on or prior to the date occurring thirty (30) days after date of the Termination Notice, of an amount (offsetting, at the option of Agent Lessor, against such amount the aggregate amount of the Defeasance Deposit Collateral) equal to the sum of (x) all Supplemental Rent otherwise due and owing on such date plus (y) at Lessee's option, if it wishes to purchase Agent Lessor's interest in the Property, the Lease Balance on such date (in which case Agent Lessor shall, as set forth in Section 16.2 and 19.1, transfer to Lessee on such date all of Agent Lessor's interest in the Property); and if Lessee does not elect to purchase Agent Lessor's interest in the Property under clause (y), subsection (e) shall apply.
(e) If Lessee elects not to purchase Agent Lessor's interest in the Property pursuant to any of Sections 16.1(b), (c) or (h) of the definition of “Permitted Liens”d), Lessee shall return the Property to Agent Lessor (B) an assignment of Construction Agent’s entire right, title and interest in the Leased Property, the Project Agreements, and all contracts and agreements relating or to the maintenance of warranties in respect of the Leased Property, as Construction Agent’s or Lessor’s designee reasonably deems necessary for the ownership or operation thereof (which shall include an assignment of all of Construction Agent’s right, title and interest in and to all awards, compensation and insurance proceeds payable in connection with the applicable Event of Loss, Material Environmental Violation or Force Majeure Event), (C) such consents to assignment and estoppel documents as reasonably requested by Lessor or the Administrative Agent to facilitate a transfer by Lessor of its interest in the Leased Property, including Lessor’s leasehold interest in the Site, and (D) all other transfer requirements described in Section 21.1(iv) of the Lease, in each case in recordable form and otherwise in conformity with local custom and free and clear of any Liens (other than Permitted Liens) attributable to Construction Agent or any other Construction Person specified by Agent Person;
(ii) Construction Agent shall pay over to the Administrative Agent all awards, compensation, insurance or condemnation proceeds previously received by Construction Agent or any other Construction Agent Person (and not previously used Lessor in the restoration of the Leased Property) in connection with the applicable Event of Loss, Material Environmental Violation or Force Majeure Event not previously applied in accordance compliance with Section 3.2(b) and assign or cause to be assigned to Lessor any interest Construction Agent may have to any unpaid awards, compensation and insurance or condemnation proceeds in respect thereto;
(iii) Construction Agent shall, unless such Event of Loss or Material Environmental Violation results solely from a Force Majeure Event or a Force Majeure Event occurs which, in Lessor’s opinion, will cause Substantial Completion to occur after the Outside Completion Date and/or for an amount in excess of the Commitment Amount and Lessor has not required Construction Agent to complete Construction of the Facility pursuant to Section 3.2 (a) and (b) above, pay to Lessor an amount equal to (A) the Lease Balance if such Event of Loss or Material Environmental Violation results from a Full Recourse Event and (B) in all other cases, the Recourse Amount;
(iv) Construction Agent shall execute and deliver to Lessor a statement of termination of this Agreement and the other Operative Documents;
(v) Construction Agent shall transfer possession of the Leased Property, including the Site (subject to the terms of the Ground Lease, Ground Sublease and Authority Lease10.1(c), to Lessor or any Person designated by Lessor, in each case by surrendering the same into the possession of Lessor or such Person, as the case may be, in the condition required by Section 21.1(iv) of the Lease (except to the extent that the condition of the Facility was affected by such Event of Loss, Material Environmental Violation or Force Majeure Event) and in compliance in all material respects with all Applicable Laws and Insurance Requirements except to the extent that the compliance with same is not commercially practicable as a result of and to the extent of the impact of such Event of Loss, Material Environmental Violation or Force Majeure Event on the Facility and Construction Agent shall deliver to Lessor and the Administrative Agent reasonable evidence that all required governmental and regulatory consents and approvals have been obtained and that all filings as required by Applicable Laws in order to carry out and complete such transfer of the Leased Property have been made); and
(vi) Construction Agent shall deliver to Lessor or any Person designated by Lessor copies of all books and records regarding the maintenance of, and Construction Agent’s interest in, the Leased Property, and an assignment of all assignable licenses and rights necessary for the construction, operation and maintenance of the Leased Property. Construction Agent shall, for a period of up to one year after the applicable date of transfer hereunder, cooperate reasonably with Lessor and/or any Person designated by Lessor to take possession of the Leased Property, including in connection with seeking or obtaining all necessary Governmental Actions and approvals from any manufacturer or Governmental Authority relating to the use of any portion of the Facility or any warranty relating thereto. The obligations of Construction Agent under this paragraph shall survive the expiration or termination of this Agreement.
Appears in 1 contract
Samples: Lease (McData Corp)
Termination Upon Certain Events. (a) If an Event of Loss, Loss or Material Environmental Violation or a Force Majeure Event which, in Lessor’s opinion, will cause Substantial Completion to occur after the Outside Completion Date or for an amount in excess of the Aggregate Commitment Amount, in each case, occurs prior to the Base Term Commencement Date and Lessor has not required Construction Agent to complete Construction pursuant to Section 3.2(a) or Section 3.2(b), then Lessor may elect to terminate Construction Agent’s rights under this Agreement and the Lease by giving written notice (a “Termination Notice”) to Construction Agent that, as a consequence of such Event of Loss, Loss or Material Environmental Violation or Force Majeure EventViolation, Construction Agent’s rights under this Agreement and the Lease are to be terminated and Construction Agent shall be obligated to deliver pay to Lessor the Leased Property Lease Balance on or prior to Lessor, in which case Section 3.4(bthe next occurring Payment Date that is at least ten (10) shall applyBusiness Days after Construction Agent’s receipt of such Termination Notice from Lessor (but no later than thirty (30) days from the date of Construction Agent’s receipt of the applicable Termination Notice); provided, however, that (i) if Construction Agent fails for any reason to comply with all of pay the requirements set forth in Section 3.4(b) in all material respects, or (ii) if the Event of Loss or Material Environmental Violation is a result of a Full Recourse Event or a Construction Agent Related EventLease Balance as and when due, then a Construction Agency Agreement Event of Default shall be deemed to have occurred occurred, and Lessor shall be entitled to exercise its remedies at Section 5.3. Construction Agent shall provide Lessor an irrevocable written notice of its intention to deliver the Leased Property pursuant to the second sentence hereof within thirty (30) days after the date Construction Agent receives a Termination Notice.
(b) If On the date of, and concurrent with, the payment by Construction Agent delivers of the Leased Property as set forth at Lease Balance in accordance with Section 3.4(a), then Construction Agent’s rights under this Agreement Lessor and the Operative Documents shall terminate after Construction Agent shall have completed each comply with the provisions of Section 15.2 of the following; provided the costs of preparing the following documentation shall be deemed a Project Cost and funded with an Advance to the extent there are Available Commitments or shall be capitalized by Lessor, each of which shall be completed on or prior to the first Payment Date after the expiration of thirty Lease (30including Sections 21.1(i) days following Construction Agent’s receipt of a Termination Notice:
through (i) Construction Agent shall execute and deliver to Lessor (or to Lessor’s designee) (A) a xxxx of sale with respect to its right, title and interest in the Leased Property containing representations and warranties of grantor to Lessor (or such other Person) regarding the absence of Liens (other than Permitted Liens of the type described in clauses (a) (but excluding any Liens relating to the rights or interests of Construction Agent), (b), (c) or (h) of the definition of “Permitted Liens”), (B) an assignment of Construction Agent’s entire right, title and interest in the Leased Property, the Project Agreements, and all contracts and agreements relating to the maintenance of warranties in respect of the Leased Property, as Construction Agent’s or Lessor’s designee reasonably deems necessary for the ownership or operation thereof (which shall include an assignment of all of Construction Agent’s right, title and interest in and to all awards, compensation and insurance proceeds payable in connection with the applicable Event of Loss, Material Environmental Violation or Force Majeure Event), (C) such consents to assignment and estoppel documents as reasonably requested by Lessor or the Administrative Agent to facilitate a transfer by Lessor of its interest in the Leased Property, including Lessor’s leasehold interest in the Site, and (D) all other transfer requirements described in Section 21.1(iviii) of the Lease), in each case in recordable form and otherwise in conformity with local custom and free and clear of any Liens (other than Permitted Liens) attributable the Leased Property shall be conveyed to Construction Agent or any other as provided in such Sections and all net proceeds shall be conveyed to Construction Agent Person;
(ii) Construction Agent shall pay over to the Administrative Agent all awards, compensation, insurance or condemnation proceeds previously received by Construction Agent or any other Construction Agent Person (and not previously used as provided in the restoration of the Leased Property) in connection with the applicable Event of Loss, Material Environmental Violation or Force Majeure Event not previously applied in accordance with Section 3.2(b) and assign or cause to be assigned to Lessor any interest Construction Agent may have to any unpaid awards, compensation and insurance or condemnation proceeds in respect thereto;
(iii) Construction Agent shall, unless such Event of Loss or Material Environmental Violation results solely from a Force Majeure Event or a Force Majeure Event occurs which, in Lessor’s opinion, will cause Substantial Completion to occur after the Outside Completion Date and/or for an amount in excess of the Commitment Amount and Lessor has not required Construction Agent to complete Construction of the Facility pursuant to Section 3.2 (a) and (b) above, pay to Lessor an amount equal to (A) the Lease Balance if such Event of Loss or Material Environmental Violation results from a Full Recourse Event and (B) in all other cases, the Recourse Amount;
(iv) Construction Agent shall execute and deliver to Lessor a statement of termination of this Agreement and the other Operative Documents;
(v) Construction Agent shall transfer possession of the Leased Property, including the Site (subject to the terms of the Ground Lease, Ground Sublease and Authority Lease), to Lessor or any Person designated by Lessor, in each case by surrendering the same into the possession of Lessor or such Person, as the case may be, in the condition required by Section 21.1(iv15.2(ii) of the Lease Lease.
(except to the extent that the condition n) Section 5.1 of the Facility was affected Construction Agency Agreement is hereby amended by such Event of Lossdeleting the reference to “, Material Environmental Violation or Force Majeure Eventsubject to Section 5.4,” in the last paragraph. (o) The Construction Agency Agreement is hereby amended by deleting Section 5.3 in its entirety and in compliance in all material respects with all Applicable Laws and Insurance Requirements except to substituting the extent that the compliance with same is not commercially practicable as a result of and to the extent of the impact of such Event of Loss, Material Environmental Violation or Force Majeure Event on the Facility and Construction Agent shall deliver to Lessor and the Administrative Agent reasonable evidence that all required governmental and regulatory consents and approvals have been obtained and that all filings as required by Applicable Laws in order to carry out and complete such transfer of the Leased Property have been made; and
(vi) Construction Agent shall deliver to Lessor or any Person designated by Lessor copies of all books and records regarding the maintenance of, and Construction Agent’s interest in, the Leased Property, and an assignment of all assignable licenses and rights necessary for the construction, operation and maintenance of the Leased Property. Construction Agent shall, for a period of up to one year after the applicable date of transfer hereunder, cooperate reasonably with Lessor and/or any Person designated by Lessor to take possession of the Leased Property, including in connection with seeking or obtaining all necessary Governmental Actions and approvals from any manufacturer or Governmental Authority relating to the use of any portion of the Facility or any warranty relating thereto. The obligations of Construction Agent under this paragraph shall survive the expiration or termination of this Agreement.following therefor:
Appears in 1 contract
Samples: Consent and Second Omnibus Amendment Agreement (Norfolk Southern Corp)
Termination Upon Certain Events. (a) If If: (i) Lessor, Agent or Lessee shall have received notice of a Total Condemnation; or (ii) Lessee or Lessor or any other Participant shall have received notice of a Condemnation, and Lessee shall have delivered to Lessor and Agent or, if during the Construction Period, Lessor shall have delivered to Lessee and Agent an Officer's Certificate that such Condemnation is a Significant Condemnation; or (iii) a Casualty occurs, and Lessee shall have delivered to Lessor and Agent or, if during the Construction Period, Lessor shall have delivered to Lessee and Agent, an Officer's Certificate that such Casualty is a Significant
(A) Lessee shall, within thirty (30) days after Lessee receives notice of a Total Condemnation pursuant to the preceding clause (i) or simultaneously with the delivery of the Officer's Certificate by Lessee pursuant to the preceding clause (ii), (iii), (iv) or (v) deliver a notice of termination of this Lease to Lessor (a "TERMINATION NOTICE") or (B) if during the Construction Period, Lessor may deliver to Lessee and Agent a Termination Notice.
(b) In the case of an event described in (i) clause (i), (ii), (iii) or (v) of SECTION 16.1(A) which occurs during the Term following the Construction Period due to any cause or, if during the Construction Period, due to a Full Recourse Construction Period Event of Loss, Material Environmental Violation Default or a Force Majeure Event which, in Lessor’s opinion, will cause Substantial Completion to occur after the Outside Completion Date or for an amount in excess (ii) clause (iv) of the Aggregate Commitment Amount, in each case, occurs prior to the Base Term Commencement Date and Lessor has not required Construction Agent to complete Construction pursuant to Section 3.2(a) or Section 3.2(bSECTION 16.1(A), then Lessor may elect to terminate which occurs at any time during the Construction Agent’s rights under this Agreement and Period or the Lease by giving written notice (a “Termination Notice”) to Construction Agent thatTerm, as a consequence of such Event of Loss, or Material Environmental Violation or Force Majeure Event, Construction Agent’s rights under this Agreement and the Lease are to be terminated and Construction Agent Lessee shall be obligated to deliver the Leased Property to pay Lessor, in which case Section 3.4(b) shall apply; provided, however, that (i) if Construction Agent fails for any reason to comply with all the account of the requirements set forth in Section 3.4(b) in all material respectsParticipants, on or (ii) if the Event of Loss or Material Environmental Violation is a result of a Full Recourse Event or a Construction Agent Related Event, then a Construction Agency Agreement Event of Default shall be deemed to have occurred and Lessor shall be entitled to exercise its remedies at Section 5.3. Construction Agent shall provide Lessor an irrevocable written notice of its intention to deliver the Leased Property pursuant prior to the second sentence hereof within earlier of the Maturity Date and the date occurring thirty (30) days after the date Construction Agent receives a of the Termination Notice, an amount (offsetting, at the option of Lessor, against such amount the aggregate amount of the Pledged Collateral) equal to (x) all accrued and unpaid Capitalized Interest, Capitalized Holder Yield and Basic Rent due and owing on such date, plus (y) all Supplemental Rent due and owing on such date, plus (z) at the option of Lessee
(1) the Lease Balance on such date (in which case Lessor shall, as set forth in SECTIONS 16.2 AND 19.1, transfer to Lessee all of Lessor's interest in a Property), or (2) the Permitted Lease Investment Balance on such date, provided that (A) if such amount is less than the Lease Balance on such date, subsection (e) shall apply and (B) if such amount equals the Lease Balance, Lessor shall, as set forth in SECTIONS 16.2 and 19.1, transfer to Lessee on such date of payment all of Lessor's interest in such Property.
(c) In the case of an event described in clause (i), (ii) or (iii) of SECTION 16.1(A) which occurs during the Construction Period and which arises from the acts or omissions of Lessee or any Lessee Person (other than for any reasons set forth in clause (b) If Construction Agent delivers the Leased Property as set forth at Section 3.4(aabove), then Construction Agent’s rights under this Agreement and while located on, in the Operative Documents possession of, controlling, or acting or failing to act with respect to any Property, Lessee shall terminate after Construction Agent shall have completed each be obligated to pay to Lessor, for the account of the following; provided the costs of preparing the following documentation shall be deemed a Project Cost and funded with an Advance to the extent there are Available Commitments or shall be capitalized by LessorParticipants, each of which shall be completed on or prior to the first Payment Date after the expiration of date occurring thirty (30) days following Construction Agent’s receipt after the date of a the Termination Notice:, an amount (offsetting, at the option of Lessor, against such amount the aggregate amount of the Pledged Collateral) equal to (x) all accrued and unpaid Capitalized Interest, Capitalized Holder Yield and Basic Rent due and owing on such date plus (y) all Supplemental Rent due and owing on such date, plus (z) at the option of Lessee
(1) the Lease Balance on such date (in which case Lessor shall, as set forth in SECTION 16.2 and 19.1, transfer to Lessee on such date all of Lessor's interest in such Property) or (2) an amount equal to the Construction Period Maximum Recourse Amount on such date, in which event subsection (e) shall apply.
(d) In the case of an event described in clause (i), (ii) or (iii) of SECTION 16.1(A) which occurs during the Construction Agent Period and which is not covered by SECTION 16.1(B) or (C) above, Lessee shall execute make payments to Lessor, for the account of the Participants, on or prior to the date occurring thirty (30) days after the date of the Termination Notice, of an amount (offsetting, at the option of Lessor, against such amount the aggregate amount of the Pledged Collateral) equal to the sum of (x) all Supplemental Rent otherwise due and deliver owing on such date plus (y) at Lessee's option, if it wishes to purchase Lessor's interest in a Property, the Lease Balance on such date (in which case Lessor shall, as set forth in SECTIONS 16.2 and 19.1, transfer to Lessee on such date all of Lessor's interest in such Property); and if Lessee does not elect to purchase Lessor's interest in the Property under clause (y), subsection (e) shall apply.
(e) If Lessee elects not to purchase Lessor's interest in a Property pursuant to any of SECTIONS 16.1(B), (C) or (D), Lessee shall return such Property to Lessor (or to Lessor’s designee) (A) a xxxx of sale any other Person specified by Lessor in compliance with SECTION 10.1(C)); Lessor shall be entitled to retain all insurance and condemnation proceeds with respect to its rightsuch Significant Casualty, title Significant Condemnation or Environmental Violation; and interest in the Leased Lessor shall either require Lessee to remarket such Property containing representations and warranties of grantor to Lessor (or such other Person) regarding the absence of Liens (other than Permitted Liens of the type described in clauses (a) (but excluding any Liens relating to the rights or interests of Construction Agent), (b), (c) or (h) of the definition of “Permitted Liens”), (B) an assignment of Construction Agent’s entire right, title and interest in the Leased Property, the Project Agreements, and all contracts and agreements relating to the maintenance of warranties in respect of the Leased Property, as Construction Agent’s or Lessor’s designee reasonably deems necessary for the ownership Participants or operation thereof (which shall include an assignment of all of Construction Agent’s right, title and interest in and undertake to all awards, compensation and insurance proceeds payable in connection with the applicable Event of Loss, Material Environmental Violation or Force Majeure Event), (C) remarket such consents to assignment and estoppel documents as reasonably requested by Lessor or the Administrative Agent to facilitate a transfer by Lessor of its interest in the Leased Property, including Lessor’s leasehold interest in the Site, and (D) all other transfer requirements described in Section 21.1(iv) of the Lease, in each case in recordable form and otherwise in conformity with local custom and free and clear of any Liens (other than Permitted Liens) attributable to Construction Agent or any other Construction Agent Person;
(ii) Construction Agent shall pay over to the Administrative Agent all awards, compensation, insurance or condemnation proceeds previously received by Construction Agent or any other Construction Agent Person (and not previously used in the restoration of the Leased Property) in connection with the applicable Event of Loss, Material Environmental Violation or Force Majeure Event not previously applied Property itself in accordance with SECTION 21.1(B). Any proceeds, including insurance and condemnation proceeds, received shall be applied in the manner set forth in Section 3.2(b) and assign or cause to be assigned to Lessor any interest Construction Agent may have to any unpaid awards, compensation and insurance or condemnation proceeds in respect thereto;
(iii) Construction Agent shall, unless such Event of Loss or Material Environmental Violation results solely from a Force Majeure Event or a Force Majeure Event occurs which, in Lessor’s opinion, will cause Substantial Completion to occur after the Outside Completion Date and/or for an amount in excess 12.4 of the Commitment Amount and Lessor has not required Construction Agent to complete Construction of the Facility pursuant to Section 3.2 (a) and (b) above, pay to Lessor an amount equal to (A) the Lease Balance if such Event of Loss or Material Environmental Violation results from a Full Recourse Event and (B) in all other cases, the Recourse Amount;
(iv) Construction Agent shall execute and deliver to Lessor a statement of termination of this Agreement and the other Operative Documents;
(v) Construction Agent shall transfer possession of the Leased Property, including the Site (subject to the terms of the Ground Lease, Ground Sublease and Authority Lease), to Lessor or any Person designated by Lessor, in each case by surrendering the same into the possession of Lessor or such Person, as the case may be, in the condition required by Section 21.1(iv) of the Lease (except to the extent that the condition of the Facility was affected by such Event of Loss, Material Environmental Violation or Force Majeure Event) and in compliance in all material respects with all Applicable Laws and Insurance Requirements except to the extent that the compliance with same is not commercially practicable as a result of and to the extent of the impact of such Event of Loss, Material Environmental Violation or Force Majeure Event on the Facility and Construction Agent shall deliver to Lessor and the Administrative Agent reasonable evidence that all required governmental and regulatory consents and approvals have been obtained and that all filings as required by Applicable Laws in order to carry out and complete such transfer of the Leased Property have been made; and
(vi) Construction Agent shall deliver to Lessor or any Person designated by Lessor copies of all books and records regarding the maintenance of, and Construction Agent’s interest in, the Leased Property, and an assignment of all assignable licenses and rights necessary for the construction, operation and maintenance of the Leased Property. Construction Agent shall, for a period of up to one year after the applicable date of transfer hereunder, cooperate reasonably with Lessor and/or any Person designated by Lessor to take possession of the Leased Property, including in connection with seeking or obtaining all necessary Governmental Actions and approvals from any manufacturer or Governmental Authority relating to the use of any portion of the Facility or any warranty relating thereto. The obligations of Construction Agent under this paragraph shall survive the expiration or termination of this Participation Agreement.
Appears in 1 contract
Samples: Master Lease (Symantec Corp)
Termination Upon Certain Events. (a) If an Event Lessor or Lessee shall have received notice of Loss, Material Environmental Violation or a Force Majeure Event which, in Lessor’s opinion, will cause Substantial Completion to occur after the Outside Completion Date or for an amount in excess of the Aggregate Commitment Amount, in each case, occurs prior to the Base Term Commencement Date and Lessor has not required Construction Agent to complete Construction pursuant to Section 3.2(a) or Section 3.2(b)Total Condemnation, then Lessor may elect to terminate Construction Agent’s rights under this Agreement and the Lease by giving written notice (a “Termination Notice”) to Construction Agent that, as a consequence of such Event of Loss, or Material Environmental Violation or Force Majeure Event, Construction Agent’s rights under this Agreement and the Lease are to be terminated and Construction Agent Lessee shall be obligated to deliver the Leased Property to Lessorobligated, in which case Section 3.4(b) shall apply; provided, however, that (i) if Construction Agent fails for any reason to comply with all of the requirements set forth in Section 3.4(b) in all material respects, or (ii) if the Event of Loss or Material Environmental Violation is a result of a Full Recourse Event or a Construction Agent Related Event, then a Construction Agency Agreement Event of Default shall be deemed to have occurred and Lessor shall be entitled to exercise its remedies at Section 5.3. Construction Agent shall provide Lessor an irrevocable written notice of its intention to deliver the Leased Property pursuant to the second sentence hereof within thirty (30) days after Lessee, to Lessee's Knowledge, receives notice thereof, to deliver a written notice in the date Construction Agent receives form described in Section 16.2(a) (a "Termination Notice") of the termination of this Lease.
(b) In the event Lessee or Lessor shall have received notice of a Condemnation, Casualty or Environmental Violation, the Lessee shall be required to deliver an Officer's Certificate stating the following: (i) if a Condemnation occurs, the Officer's Certificate shall state whether or not such Condemnation is a Significant Condemnation; or (ii) if a Casualty occurs, the Officer's Certificate shall state whether or not such Casualty is a Significant Casualty; or (iii) if an Environmental Violation occurs or is discovered, the Officer's Certificate shall state whether or not, in the reasonable, good-faith judgment of Lessee, such Environmental Violation is a Significant Environmental Violation. If Lessee confirms the occurrence of a Significant Condemnation, Significant Casualty or Significant Environmental Violation, then, Lessee shall, subject to Section 16.1(c), simultaneously with the delivery of the Officer's Certificate pursuant to the preceding clause (i), (ii) or (iii), deliver a Termination Notice.
(bc) If Construction Agent delivers Notwithstanding the Leased Property as set forth at Section 3.4(a)foregoing, then Construction Agent’s rights under this Agreement and if the Operative Documents shall terminate after Construction Agent shall have completed each of the following; provided the costs of preparing the following documentation shall be deemed a Project Cost and funded with an Advance to the extent there are Available Commitments Significant Casualty or shall be capitalized by Lessor, each of which shall be completed on or prior to the first Payment Date after the expiration of thirty (30) days following Construction Agent’s receipt of a Termination Notice:
(i) Construction Agent shall execute and deliver to Lessor (or to Lessor’s designee) (A) a xxxx of sale with respect to its right, title and interest in the Leased Property containing representations and warranties of grantor to Lessor (or such other Person) regarding the absence of Liens (other than Permitted Liens of the type described in clauses (a) (but excluding any Liens relating to the rights or interests of Construction Agent), Significant Condemnation that Lessee states has occurred is based upon clause (b), (c) or (h) of the definition thereof and the Officer's Certificate states that restoration of “Permitted Liens”), (B) an assignment of Construction Agent’s entire right, title and interest the Improvements to their condition prior to such Condemnation or Casualty is not in the Leased Propertybest interests of Lessee, if (A) Lessee repairs the Project Agreements, and all contracts and agreements relating Improvements to the maintenance of warranties degree necessary to put such Improvements in respect a condition which is in compliance with all Legal Requirements together with such Modifications thereto as Lessee may elect to make in accordance with Section 11 of the Leased Property, as Construction Agent’s or Lessor’s designee reasonably deems necessary Lease (with the Gross Proceeds being made available to Lessee for such repair and Modifications on the ownership or operation terms applicable to the release thereof (which shall include an assignment of all of Construction Agent’s right, title and interest in and to all awards, compensation and insurance proceeds payable in connection with the applicable Event of Loss, Material Environmental Violation or Force Majeure Event), (C) such consents to assignment and estoppel documents restoration as reasonably requested by Lessor or the Administrative Agent to facilitate a transfer by Lessor of its interest more fully provided in the Leased Property, including Lessor’s leasehold interest in the Site, and (D) all other transfer requirements described in Section 21.1(iv) of the Lease, in each case in recordable form and otherwise in conformity with local custom any Net Proceeds remaining after such repair and free and clear of any Liens (other than Permitted Liens) attributable to Construction Agent or any other Construction Agent Person;
(ii) Construction Agent Modification shall pay over to the Administrative Agent all awards, compensation, insurance or condemnation proceeds previously received by Construction Agent or any other Construction Agent Person (and not previously used in the restoration of the Leased Property) in connection with the applicable Event of Loss, Material Environmental Violation or Force Majeure Event not previously be applied in accordance with Section 3.2(b) and assign or cause to be assigned to Lessor any interest Construction Agent may have to any unpaid awards, compensation and insurance or condemnation proceeds in respect thereto;
(iii) Construction Agent shall, unless such Event of Loss or Material Environmental Violation results solely from a Force Majeure Event or a Force Majeure Event occurs which, in Lessor’s opinion, will cause Substantial Completion to occur after the Outside Completion Date and/or for an amount in excess 13.5 of the Commitment Amount and Lessor has not required Construction Agent to complete Construction of the Facility pursuant to Section 3.2 (a) and (b) aboveParticipation Agreement), pay to Lessor an amount equal to (A) the Lease Balance if such Event of Loss or Material Environmental Violation results from a Full Recourse Event and (B) in all other cases, the Recourse Amount;
(iv) Construction Agent shall execute and deliver to Lessor a statement of termination of this Agreement and the other Operative Documents;
(v) Construction Agent shall transfer possession value of the Leased PropertyProperty Interest as security for the Obligations of Lessee, including the Site (subject to the terms after such repair, Modifications and application of the Ground LeaseNet Proceeds, Ground Sublease and Authority Lease), to Lessor or shall not have been impaired in any Person designated by Lessor, in each case by surrendering the same into the possession of Lessor or such Personmaterial respect, as determined by the case may beAgent Bank in its reasonable discretion, then the Termination Notice shall contain the agreement set forth in the condition required by Section 21.1(iv16.2(a)(iv) of the Lease (except to the extent that the condition of the Facility was affected by such Event of Loss, Material Environmental Violation or Force Majeure Event) and in compliance in all material respects with all Applicable Laws and Insurance Requirements except to the extent that the compliance with same is not commercially practicable as a result of and to the extent of the impact of such Event of Loss, Material Environmental Violation or Force Majeure Event on the Facility and Construction Agent shall deliver to Lessor and the Administrative Agent reasonable evidence that all required governmental and regulatory consents and approvals have been obtained and that all filings as required by Applicable Laws in order to carry out and complete such transfer of the Leased Property have been made; and
(vi) Construction Agent shall deliver to Lessor or any Person designated by Lessor copies of all books and records regarding the maintenance of, and Construction Agent’s interest in, the Leased Property, and an assignment of all assignable licenses and rights necessary for the construction, operation and maintenance of the Leased Property. Construction Agent shall, for a period of up to one year after the applicable date of transfer hereunder, cooperate reasonably with Lessor and/or any Person designated by Lessor to take possession of the Leased Property, including in connection with seeking or obtaining all necessary Governmental Actions and approvals from any manufacturer or Governmental Authority relating to the use of any portion of the Facility or any warranty relating thereto. The obligations of Construction Agent under this paragraph shall survive the expiration or termination of this Agreementbelow.
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Samples: Lease Agreement (Genentech Inc)
