Common use of Remedies; Remedies Cumulative Clause in Contracts

Remedies; Remedies Cumulative. (A) If a Construction Agency Event of Default shall have occurred and be continuing under Section 5.1(b), 5.1(c), 5.1(d) (other than a Lease Event of Default under paragraph (f) of Article XII of the Lease, unless such event would constitute a Limited Event of Default pursuant to clause (ii) of the definition thereof) or 5.1(e) other than as a result of Construction Agent’s fraudulent or illegal acts, misapplication of funds or willful misconduct, then, in each case, the Lessor shall have all rights and remedies available under the Operative Documents or available at law, equity or otherwise (subject to the limitations set forth herein), including the right to terminate this Agreement by giving Construction Agent written notice of such termination. Upon the giving of such notice, all rights and all obligations of the Construction Agent under this Agreement shall cease, except for such rights and obligations as by their terms are to continue beyond such termination, including Section 5.6(f) hereof and Lessor shall have the right to require Construction Agent to pay immediately upon receipt of notice from Lessor the Construction Failure Payment for all of the Construction Land Interests; provided that the Construction Agent has the option to purchase the Leased Property in accordance with Section 5.5 hereof, which shall constitute a cure of such Construction Agency Event of Default as provided therein. In the event Construction Agent does not purchase the Leased Property pursuant to the terms hereof, the related Lessee(s) shall return the Leased Property to Lessor within ten (10) Business Days of the declaration of the Construction Agency Event of Default in accordance with Section 5.6 hereof and Lessor shall have the right to sell the Leased Property to an unaffiliated third party and to require Construction Agent to pay to Lessor, immediately upon receipt of the termination notice, cash in an amount equal to the Construction Failure Payment for all of the Construction Land Interests. The Net Selling Price for such Leased Property shall be distributed in accordance with Section 3.4 of the Loan Agreement.

Remedies; Remedies Cumulative. (A) If a Construction Agency Event of Default shall have occurred and be continuing under Section 5.1(b), 5.1(c), 5.1(d) (other than a Lease an Event of Default under paragraph (fi), (j) or (k) of Article XII of the Lease, unless such event would constitute a Limited Event of Default pursuant to clause (ii) of the definition thereof) or 5.1(e) other than as a result of the Construction Agent’s 's fraudulent or illegal acts, misapplication of funds or willful misconduct, then, in each case, the Lessor shall have all rights and remedies available under the Operative Documents or available at law, equity or otherwise (subject to otherwise. In the limitations set forth herein), including the right to terminate this Agreement by giving Construction Agent written notice of such termination. Upon the giving of such notice, all rights and all obligations of event that the Construction Agent does not exercise its option to purchase such Leased Property or Properties under this Agreement shall ceaseSection 5.3(c), except for such rights and obligations as by their terms are to continue beyond such termination, including Section 5.6(f) hereof and Lessor shall have the right to require Construction Agent shall pay to pay immediately upon receipt of notice from the Lessor the Construction Failure Payment for all of the Construction Land Interests; provided that the Construction Agent has the option to purchase the Leased Property in accordance with Section 5.5 hereof, which shall constitute a cure of such Construction Agency Event of Default as provided therein. In the event Construction Agent does not purchase the Leased Property pursuant to the terms hereof, the related Lessee(sPayment(s) shall return the Leased Property to Lessor therefor within ten five (105) Business Days of the declaration of demand therefor by the Construction Agency Event of Default Lessor, and shall surrender and return such Leased Property or Properties to the Lessor or its designee in accordance with the terms of Section 5.6 hereof and Lessor shall have 14.8 of the right Lease (provided that the obligation to sell surrender the Leased Property to an unaffiliated third party in as good condition as it was on the Completion Date, ordinary wear and to require tear excepted, shall not apply). In the event that the Construction Agent to pay to Lessor, immediately upon receipt of the termination notice, cash in an amount equal returns any Leased Property to the Lessor pursuant to the previous or the next sentence, the Construction Failure Payment for Agent shall take such action as the Lessor may reasonably request in order to transfer to the Lessor (or its designee) all of the Construction Land InterestsAgent's rights and claims in, to and under the related Construction Contract(s), Architect's Agreement(s), Engineer's Agreement(s), all other Construction Documents, all agreements, security deposits, guaranties and surety bonds related thereto and all licenses and governmental permits related to such Construction, and the Construction Agent shall provide to the Lessor copies of all books, records and documentation with respect to the foregoing. The Net Selling Price for In addition, the Construction Agent shall provide such assistance as the Lessor may request in order to remarket the Leased Property shall be distributed in accordance with Section 3.4 of the Loan AgreementProperty.

Remedies; Remedies Cumulative. (Aa) If a Construction an Agency Agreement Event of Default shall have occurred and be continuing under Section 5.1(b), 5.1(c), 5.1(d) (other than a Lease Event of Default under paragraph (f) of Article XII of the Lease, unless such event would constitute a Limited Event of Default pursuant to clause (ii) of the definition thereof) or 5.1(e) other than as a result of Construction Agent’s fraudulent or illegal acts, misapplication of funds or willful misconduct, then, in each casecontinuing, the Lessor shall have all rights and remedies available to the Lessor under the Lease and the other Operative Documents or Agreements and all other rights otherwise available at law, equity or otherwise (otherwise. No failure to exercise and no delay in exercising, on the part of Lessor, any right, remedy, power or privilege under this Agreement or under any other Operative Agreement shall operate as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power of privilege under this Agreement or under any other Operative Agreement preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege. The remedies described in Sections 5.3(a) through 5.3(g) with respect to Agency Agreement Events of Default are subject to the limitations set forth herein)provisions of Section 5.4; provided, including the right to terminate this Agreement by giving Construction Agent written notice as described in Section 5.4, regarding any Full Recourse Event of such termination. Upon the giving of such notice, all rights and all obligations of Default or if the Construction Agent under elects to cure any Agency Agreement Event of Default pursuant to Section 5.3(f) or in any other manner pursuant to which the Construction Agent (or its designee) shall purchase the Property, then in any such case the limitations contained in Section 5.4 shall not apply and the Construction Agent shall be liable for Termination Value. Notwithstanding the foregoing or the other provisions of this Agreement Section 5.3, the Lessor shall cease, except not exercise remedies for such rights and obligations as by their terms are to continue beyond such termination, including Section 5.6(fa period of five (5) hereof and Business Days after the Lessor shall have the right provided notice to require Construction Agent to pay immediately upon receipt of notice from Lessor the Construction Failure Payment for all of the Construction Land Interests; provided that the Construction Agent has of the option to purchase the Leased Property in accordance with Section 5.5 hereof, which shall constitute a cure occurrence of such Construction any Agency Agreement Event of Default as provided therein. In Default, in order to allow the event Construction Agent does not time to exercise its purchase right regarding the Leased Property pursuant to Section 5.3(f), subject to the terms hereofConstruction Agent effecting its purchase of the Property, the related Lessee(s) shall return the Leased Property to Lessor within ten a period of fifteen (1015) Business Days of after the declaration of the Construction Agency Event of Default in accordance with Section 5.6 hereof and Lessor shall have the right to sell the Leased Property to an unaffiliated third party and to require Construction Agent to pay to Lessor, immediately upon receipt of the termination provided such notice, cash in an amount equal to the Construction Failure Payment for all of the Construction Land Interests. The Net Selling Price for such Leased Property shall be distributed in accordance with Section 3.4 of the Loan Agreement.

Remedies; Remedies Cumulative. (Aa) If a Construction Agency Event of Default shall have occurred and be continuing under Section 5.1(b), 5.1(c), 5.1(d) (other than a Lease an Event of Default under paragraph (f) or (g) of Article XII of the Lease, unless such event would constitute a Limited Lease or an Event of Default pursuant to clause under paragraph (iil) of Article XII of the definition thereofLease if such event occurs as a result of a hostile takeover) or 5.1(e) (other than as a result of Construction Agent’s 's fraudulent or illegal acts, misapplication of funds or willful misconduct), then, in each case, the Lessor shall have all rights and remedies available under the Operative Documents or available at law, equity or otherwise (subject to the limitations set forth herein), including otherwise. Lessor shall have the right to terminate this Agreement by giving Construction Agent written notice of such termination. Upon , and upon the giving of such notice, all rights and all obligations of the Construction Agent under this Agreement shall cease, except for such rights and obligations as by their terms are to continue beyond such termination, including Section 5.6(f) hereof and Lessor shall have the right to require Construction Agent to pay immediately upon receipt of notice from Lessor the Construction Failure Payment for all of the Construction Land Interests; provided that the Construction Agent has the option to purchase the Leased Property in accordance with Section 5.5 hereof and the Construction Agent shall have the option to cause the Leased Property to be remarketed in accordance with Section 5.7 hereof, which shall constitute a cure of such Construction Agency Event of Default as provided therein. In the event Construction Agent does not purchase the Leased Property pursuant to the terms hereof or the Construction Agent does not cause the Leased Property to be remarketed in accordance with Section 5.7 hereof, the related Lessee(s) shall return the Leased Property to Lessor within ten (10) Business Days of the declaration of the Construction Agency Event of Default in accordance with Section 5.6 hereof and and, subject to the last sentence of Section 3.2, Lessor shall have the right to sell the Leased Property to an unaffiliated third party and to require Construction Agent to pay to Lessor, immediately upon receipt of the termination notice, cash in an amount equal to the Construction Failure Payment for all of the Construction Land Interests. The Net Selling Price for proceeds derived from any such sale, net of all sale costs, closing costs and carrying costs (including, without limitation, amounts expended by the Agent or any Funding Party to insure, protect, maintain or operate the Leased Property Property, sales, transfer and real property taxes, brokers' fees, legal fees, the insurance costs, interest and Yield, and survey costs), shall be distributed first, to Lessor in accordance with Section 3.4 the amount of the Loan Agreementdifference between the Permitted Lease Balance and the Construction Failure Payment, if any, received by the Lessor, second, to the extent the Construction Agent has paid to the Lessor the Construction Failure Payment, to the Construction Agent to reimburse it to the extent of its payment of the Construction Failure Payment, and third, to the Lessor.

Remedies; Remedies Cumulative. (Aa) If a Construction Agency Event of Default shall have occurred and be continuing under Section 5.1(b), 5.1(c), 5.1(d) (other than a Lease an Event of Default under paragraph (fi), (j) or (k) of Article XII of the Lease, unless such event would constitute a Limited Event of Default pursuant to clause (ii) of the definition thereof) or 5.1(e) (other than as a result of Construction Agent’s fraudulent or illegal acts, misapplication of funds or willful misconduct), then, in each case, the Lessor shall have all rights and remedies available under the Operative Documents or available at law, equity or otherwise (subject to the limitations on the Construction Agent’s payment obligations with respect to the Funded Amounts set forth hereinin this Section 5.3), including . Lessor shall have the right to terminate this Agreement by giving Construction Agent written notice of such termination. Upon , and upon the giving of such notice, all rights and all obligations of the Construction Agent under this Agreement shall cease, except for such rights and obligations as by their terms are to continue beyond such termination, including Section 5.6(f) hereof and Lessor shall have the right to require Construction Agent to pay immediately upon receipt of notice from Lessor the Construction Failure Payment for all of the Construction Land Interests; provided that the Construction Agent has the option to purchase the Leased Property in accordance with Section 5.5 hereof and the Construction Agent shall have the option to cause the Leased Property to be remarketed in accordance with Section 5.7 hereof, which shall constitute a cure of such Construction Agency Event of Default as provided therein. In the event Construction Agent does not purchase the Leased Property pursuant to the terms hereof or the Construction Agent does not cause the Leased Property to be remarketed in accordance with Section 5.7 hereof, the related Lessee(s) Lessee shall return the Leased Property to Lessor within ten (10) Business Days of the declaration of the Construction Agency Event of Default in accordance with Section 5.6 hereof and and, subject to the last sentence of Section 3.2, Lessor shall have the right to sell the Leased Property to an unaffiliated third party and to require Construction Agent to pay to Lessor, immediately upon receipt of the termination notice, cash in an amount equal to the Construction Failure Payment for all of the Construction Land Interests. The Net Selling Price for proceeds derived from any such Leased Property sale shall be distributed as set forth in accordance with Section 3.4 6.6 of the Loan Master Agreement.

Remedies; Remedies Cumulative. (Aa) If a Construction Agency Event ----------------------------- of Default shall have occurred and be continuing under Section 5.1(b), 5.1(c), -------------- ------ 5.1(d) (other than a Lease Event of Default under paragraph (fg) of Article XII ------ of the Lease, unless such event would constitute a Limited Event of Default pursuant to clause (ii) of the definition thereof) or 5.1(e) other than as a result of Construction Agent’s 's ------ fraudulent or illegal acts, misapplication of funds or willful misconduct, then, in each case, the Lessor shall have all rights and remedies available under the Operative Documents or available at law, equity or otherwise (subject to the limitations set forth herein)otherwise, including Lessor shall have the right to terminate this Agreement by giving Construction Agent written notice of such termination. Upon , and upon the giving of such notice, all rights and all obligations of the Construction Agent under this Agreement shall cease, except for such rights and obligations as by their terms are to continue beyond such termination, including Section 5.6(f) hereof and Lessor shall have the -------------- right to require Construction Agent to pay immediately upon receipt of notice from Lessor the Construction Failure Payment for all of the Construction Land Interests; provided that the Construction Agent has the option to purchase the -------- Leased Property in accordance with Section 5.5 hereof and the ----------- Construction Agent shall have the option to cause the Leased Property to be remarketed in accordance with Section 5.7 hereof, which shall constitute a cure of such Construction Agency Event of Default as provided therein. ----------- In the event Construction Agent does not purchase the Leased Property pursuant to the terms hereof or the Construction Agent does not cause the Leased Property to be remarketed in accordance with Section 5.7 hereof, the related ----------- Lessee(s) shall return the Leased Property to Lessor within ten (10) Business Days of the declaration of the Construction Agency Event of Default in accordance with Section 5.6 hereof and Lessor shall have the right to ----------- sell the Leased Property to an unaffiliated third party and to require Construction Agent to pay to Lessor, immediately upon receipt of the termination notice, cash in an amount equal to the Construction Failure Payment for all of the Construction Land Interests. The Net Selling Price for Agent shall distribute the Land Proceeds derived from any such sale first, to the Lessor in an amount of the difference between (i) the Land Acquisition Cost and (ii) the Land Construction Failure Payment received by the Agent pursuant to the preceding sentence of this Section ------- 5.3(a), second, to the extent the Construction Agent has paid the Land ------ Construction Failure Payment due to the Agent pursuant to the preceding sentence of this Section 5.3(a), to the Construction Agent to reimburse it to the extent -------------- of its payment of such amount, third, to the Lessor in an amount equal to the ----- remaining unpaid portion of the related Land Acquisition Cost and fourth, to the ------ Construction Agent, or to the Person or Persons otherwise lawfully entitled thereto, in an amount equal to the remaining proceeds, if any. The Agent shall distribute the Building Proceeds derived from any such sale first, to the Lessor in an amount of the difference between (i) the Permitted Lease Balance minus the Land Acquisition Cost and (ii) the Building Construction Failure Payment, if any, received by the Agent pursuant to the preceding sentence of this Section ------- 5.3(a), second, to the extent the Construction Agent has paid the Building ------ Construction Failure Payment due to the Agent pursuant to the preceding sentence of this Section 5.3(a), to the Construction Agent to reimburse it to the extent -------------- of its payment of such amount, third, to the Lessor in an amount equal to the ----- remaining unpaid portion of the related Leased Property shall be distributed Balance minus the Land ----- Acquisition Cost, and fourth, to the Construction Agent, or to the Person or ------ Persons otherwise lawfully entitled thereto, in accordance with Section 3.4 of an amount equal to the Loan Agreementremaining proceeds, if any.