Estimated Payments Commencing on the first day of the Term on which Additional Rent is due, and on the first day of each calendar month thereafter during the Term of this Lease, Tenant shall pay Landlord all Additional Rent for:
a) Real estate taxes pursuant to Section 2 above,
b) Insurance premiums pursuant to Section 3 above,
c) HVAC maintenance pursuant to Section 5 above,
d) Common Area Charges pursuant to Section 4 above and
e) Water and common utility use pursuant to Section 14 below. On an annual basis, Landlord shall provide Tenant with (a) a statement of all actual Common Area Charges and insurance premiums incurred in the preceding calendar year and (b) a statement of all charges of real estate taxes assessed against the Property in the preceding fiscal year. If Tenant has made estimated payments of Additional Rent during such calendar/fiscal year in excess of the actual amount due, Landlord shall credit Tenant with any overpayment against the next Rent otherwise due. If the actual Additional Rent due exceeds the estimated payments made by Tenant during the preceding year, Tenant shall pay such amount due as Additional Rent within 15 business days after notice from Landlord. Any failure by Landlord to deliver such statements shall not constitute a default by Landlord or operate as a waiver of Landlord’s right to collect all or any portion of Additional Rent due pursuant to the terms of this Lease. If Additional Rent for any calendar year increases by more than five percent (5%) over Additional Rent for the immediately preceding calendar year, Tenant, within ninety (90) days after receiving Landlord’s statement of actual Additional Rent (inclusive of those which vary with occupancy) for a particular calendar year, shall have the right to provide Landlord with written notice (the “Review Notice”) of its intent to review Landlord’s books and records relating to the Additional Rent for such calendar year. Within a reasonable time after receipt of a timely Review Notice, Landlord shall make such books and records available to Tenant or Tenant’s agent for its review at either Landlord’s home office or at the office of the Building, provided that if Tenant retains an agent to review Landlord’s books and records for any calendar year, such agent must (i) be a CPA firm or an in-house accountant or finance department employee of Tenant, (ii) not be compensated on a contingency basis and (iii) execute a copy of a confidentiality agreement with respect to such review. Tenant shall be solely responsible for any and all costs, expenses and fees incurred by Tenant or Xxxxxx’s agent in connection with such review. If Tenant elects to review Xxxxxxxx’s books and records, within thirty (30) days after such books and records are made available to Tenant, Tenant shall have the right to give Landlord written notice stating in reasonable detail any objection to Xxxxxxxx’s statement of actual Additional Rent for such calendar year. If Tenant fails to give Landlord written notice of objection within such thirty (30) day period or fails to provide Landlord with a Review Notice within the ninety (90) day period provided above, Tenant shall be deemed to have approved Xxxxxxxx’s statement of Additional Rent in all respects and shall thereafter be barred from raising any claims with respect thereto. Upon Xxxxxxxx’s receipt of a timely objection notice from Xxxxxx, Landlord and Tenant shall work together in good faith to resolve the discrepancy between Xxxxxxxx’s statement and Xxxxxx’s review. If Landlord and Tenant determine that Additional Rent for the calendar year in question are less than reported, Landlord shall provide Tenant with a credit against future Rent in the amount of any overpayment by Tenant. Likewise, if Landlord and Tenant determine that Additional Rent for the calendar year in question are greater than reported, Tenant shall forthwith pay to Landlord the amount of underpayment by Tenant with the understanding that there shall be no interest or late charge added thereto at the time same is billed to Tenant by reason of the failure of Tenant to previously have paid same when the excess was billed for such reviewed period. Any information obtained by Tenant pursuant to the provisions of this Section shall be treated as confidential. Notwithstanding anything herein to the contrary, Xxxxxx shall not be permitted to examine Xxxxxxxx’s books and records or to dispute any statement of Additional Rent unless Xxxxxx has paid to Landlord the amount due as shown on Landlord’s statement of actual Additional Rent, said payment being a condition precedent to Xxxxxx’s right to examine Xxxxxxxx’s books and records.
Delayed Payment Premium balances that remain unpaid for more than 30 days after the Remittance Date will incur interest from the end of the reporting period. The Remittance Date is defined as 30 days after the end of the reporting period. Interest will be calculated using the index specified in Article 13.5 -
Delayed Payments The Parties hereto agree that payments due from one Party to the other Party under the provisions of this Agreement shall be made within the period set forth therein, and if no such period is specified, within 30 (thirty) days of receiving a demand along with the necessary particulars. Unless otherwise specified in this Agreement, in the event of delay beyond such period, the defaulting Party shall pay interest for the period of delay calculated at a rate equal to 5% (five per cent) above the Bank Rate, and recovery thereof shall be without prejudice to the rights of the Parties under this Agreement including Termination thereof.
Permitted Payments Second Lien Liabilities
(a) prior to the Senior Discharge Date, directly or indirectly make any Payment directly or indirectly in respect of the Second Lien Liabilities at any time:
(i) if:
(A) the Payment is of: A44420063
(I) any of the principal amount of the Second Lien Liabilities which is either:
(1) not prohibited by the Senior Financing Agreements; or
(2) paid on or after the final maturity date of the relevant Second Lien Liabilities (provided that, unless the Senior Lender Discharge Date has occurred or as otherwise agreed by the Majority Senior Lenders and the Parent, such final maturity date does not breach any maturity restrictions applicable to such Second Lien Liabilities in the Senior Financing Agreements (as applicable) (or, in the case of any amendment which has the effect of shortening the maturity date applicable to such Second Lien Liabilities, would not breach any such maturity restrictions applicable to such Second Lien Liabilities in the Senior Financing Agreements (as applicable) were that Second Lien Liability to be incurred at the time of that amendment and with that amended maturity date)); or
(II) any other amount which is not an amount of principal (including any interest which has been capitalised to become an amount of principal);
(B) no Second Lien Payment Stop Notice is outstanding; and
(C) no Senior Payment Default has occurred and is continuing;
(ii) if the Required Senior Consent has been obtained;
(iii) if the Payment is of Permitted Second Lien Financing Agent Liabilities;
(iv) of any Notes Security Costs;
(v) of costs, commissions, taxes, fees and expenses incurred in respect of or in relation to (or reasonably incidental to) any Permitted Second Lien Financing Documents (including in relation to any reporting or listing requirements under the Permitted Second Lien Financing Documents);
(vi) if the Payment is funded directly or indirectly with Permitted Second Lien Financing Debt, Permitted Parent Financing Debt and/or the proceeds of any indebtedness incurred under or pursuant to any Permitted Second Lien Financing Document and/or Senior Parent Notes;
(vii) if the Payment is funded directly or indirectly with the proceeds of Qualified Equity Interests or Subordinated Shareholder Funding of the Parent or Available Restricted Payment Amounts; or
(viii) if the Payment is of any principal amount of the Second Lien Liabilities (together with any related accrued but unpaid interest) in accordance with a provision in any Permitted Second Lien Financing Agreement which is substantially equivalent to:
(A) clause 11.1 (Illegality) of the Senior Facilities Agreement; A44420063
(B) clause 11.8 (Right of cancellation and repayment in relation to a single Lender or Issuing Bank) of the Senior Facilities Agreement; or
(C) to the extent an equivalent payment has been made (to the extent required) pursuant to the terms of the Senior Financing Agreements (excluding, for this purpose, any Permitted Second Lien Financing Agreement), clause 12.1 (Change of Control) of the Senior Facilities Agreement; or
(ix) for so long as a Permitted Second Lien Financing Event of Default is continuing, if the Payment is of all or part of the Second Lien Liabilities as a result of those Second Lien Liabilities being released or otherwise discharged solely in consideration of the issue of shares in the Parent or in any Holding Company of the Parent (each a "Debt for Equity Swap") and provided that no cash or cash equivalent payment is made in respect of the Second Lien Liabilities and any Liabilities owed by a Group Company to another Group Company, the Investors or any other Holding Company of the Parent that arise as a result of any such Debt for Equity Swap are subordinated to the Senior Secured Liabilities pursuant to this Agreement and any Liabilities owed by a Group Company to another Group Company arising as a result of such Debt for Equity Swap are subject to Transaction Security; or
(x) of any other amount not exceeding USD5,000,000 (or its equivalent in other currencies) in aggregate in any financial year of the Parent; and
(b) on or after the Senior Discharge Date, make any Payment directly or indirectly in respect of the Second Lien Liabilities at any time. A reference in this Clause 5.2 to a Payment shall be construed to include any other direct or indirect step, matter, action or dealing in relation to any Second Lien Liabilities which are otherwise prohibited under Clause 5.1 (Restriction on Payment: Second Lien Liabilities).
Misdirected Payments (a) Notwithstanding the terms of the Instruction Letter and the Escrow Agreement, commencing on the Closing Date and at all times thereafter, if any portion of the Purchased Assets is paid to Seller or any Non-Seller Royalty Party, then (i) Seller shall, or shall use commercially reasonable efforts to cause such Non-Seller Royalty Party, as applicable, to hold such amount in trust for the benefit of Purchaser in a segregated account, (ii) neither Seller nor such Non-Seller Royalty Party shall have any right, title, or interest whatsoever in such amount and shall not create or suffer to exist any Lien thereon, and (iii) Seller shall, or shall use commercially reasonable efforts to cause such Non-Seller Royalty Party, as applicable, to promptly (and in any event no later than five (5) Business Days) following the receipt by Seller or such Non-Seller Royalty Party, as applicable, of such amount, remit such amount to the Purchaser Account. Seller shall, or shall use commercially reasonable effects to cause such Non-Seller Royalty Party to, notify Purchaser of such wire transfer and provide reasonable details regarding the Purchased Assets payment so received by Seller or such Non-Seller Royalty Party.
(b) Notwithstanding the terms of the Instruction Letter and the Escrow Agreement, commencing on the Closing Date and at all times thereafter, if any amount due under the License Agreement that does not constitute the Purchased Assets is paid to Purchaser, then (i) Purchaser shall hold such amount in trust for the benefit of Seller or any applicable Non-Seller Royalty Party in a segregated account, (ii) Purchaser shall have no right, title, or interest whatsoever in such amount and shall not create or suffer to exist any Lien thereon, and (iii) Purchaser shall promptly remit such amount to the Seller Account or account of such Non-Seller Royalty Party pursuant to wire instructions provided to Purchaser by such Non-Seller Royalty Party, as applicable. Purchaser shall notify Seller or any applicable Non-Seller Royalty Party, as applicable, of such wire transfer and provide reasonable details regarding the erroneous payment so received by Purchaser.
(c) If UT exercises any Non-Permitted Set-Off against any payment of the Purchased Assets, then Seller shall promptly (and in any event no later than thirty (30) calendar days following the payment of the Purchased Assets affected by such Non-Permitted Set-Off), make a true-up payment to Purchaser such that Purchaser receives the full amount of such Purchased Assets payment that would have been paid to Purchaser had such Non-Permitted Set-Off not occurred. Notwithstanding anything to the contrary herein, to the extent Seller shall have made a true-up payment to Purchaser pursuant to this Section 5.4(c) in respect of any Non-Permitted Set-Off, any subsequent payment received from UT in respect, and to the extent, of such Non-Permitted Set-Off shall not be included in the Purchased Assets, such that the subsequent payment is included in the Excluded Assets. For all purposes hereunder, any true-up payment made pursuant to this Section 5.4(c) will be treated as paid with respect to the Purchased Assets for U.S. federal income tax purposes to the fullest extent permitted by applicable Law. For the avoidance of doubt, withholding taxes (including any withholding taxes deducted by UT from payments under Section 6.3 of the License Agreement pursuant to Section 7.4(b) of the License Agreement) shall not be treated as a Non-Permitted Set-Off and shall be governed by the provisions of Section 5.11 of this Agreement.
(d) All remittances pursuant to this Section 5.4 shall be made (i) without set-off or deduction of any kind (except as required by applicable Law) and (ii) by wire transfer of immediately available funds to such account as the relevant payee has designated under this Agreement or, for Non-Seller Royalty Parties other than Purchaser, as they may otherwise designate in writing (such designation to be made at least three (3) Business Days prior to any such payment).
(e) A late fee at a rate per annum equal to the U.S. Prime Rate (as set forth in the Wall Street Journal, Eastern Edition, or similar reputable data source) as of the Payment Date (as defined below), shall accrue daily, calculated on the basis of a 365-day year, on all unpaid amounts with respect to (i) any sum payable under Section 5.4(a), Section 5.4(b), beginning ten (10) Business Days after a Party has actual knowledge of its receipt of such payment in error, or (ii) any sum payable to Seller under Section 2.1(b), Section 5.6(b), Section 5.6(c), Section 5.6(d), Section 5.8(b) or Section 5.8(c), beginning two (2) Business Days following the date such payment was due hereunder (each date in clause (i) and (ii), a “Payment Date”). Notwithstanding the foregoing, Seller shall not be responsible for any late fee under this Section 5.4(e) arising from the failure of a Non-Seller Royalty Party to timely pay any sum payable under Section 5.4(a).
Disputed Payments If a bona fide dispute arises with respect to any invoice, Purchaser shall not be deemed in default under the Agreement and the Parties shall not suspend the performance of their respective obligations hereunder, including payment of undisputed amounts owed hereunder. If an amount disputed by Purchaser is subsequently deemed to have been due pursuant to the applicable invoice, interest shall accrue at the Stated Rate on such amount from the date becoming past due under such invoice until the date paid.
Deferred Payment “Deferred Payment” means any severance pay or benefits to be paid or provided to Executive (or Executive’s estate or beneficiaries) pursuant to this Agreement and any other severance payments or separation benefits, that in each case, when considered together, are considered deferred compensation under Section 409A.
Restricted Payment In relation to CAI and its Subsidiaries, any Distribution to (i) CAI’s or any Subsidiary’s shareholders (or other equity holders), in each case, other than to a Borrower, or (ii) any Affiliate of a Borrower or any Subsidiary or any Affiliate of such Borrower’s or such Subsidiary’s shareholders (or other equity holders), in each case, other than to a Borrower.
Required Payments Unless otherwise provided in this Agreement, any payment of Tax required shall be due within 30 days of a Final Determination of the amount of such Tax.
Refused Payments We reserve the right to refuse to pay any Receiver. We will attempt to notify the Sender promptly if we decide to refuse to pay a Receiver designated by the Sender. This notification is not required if you attempt to make a prohibited payment under this Agreement.
