Common use of Cure Right Clause in Contracts

Cure Right. Notwithstanding anything to the contrary contained in the Lease, Tenant hereby agrees that in the event of any act, omission or default by Landlord or Landlord’s agents, employees, contractors, licensees or invitees which would give Tenant the right, either immediately or after the lapse of a period of time, to terminate the Lease, or to claim a partial or total eviction, or to reduce the rent payable thereunder or credit or offset any amounts against future rents payable thereunder, Tenant will not exercise any such right (a) until it has given written notice of such act, omission or default to Lender by delivering notice of such act, omission or default, in accordance with this Agreement; and (b) until a period of not less than thirty (30) days for remedying such act, omission or default shall have elapsed following the giving of such notice. Notwithstanding the foregoing, in the case of any default of Landlord which cannot be cured within such thirty (30) day period, if Bank shall within such period commence and diligently pursue the cure of the same (including such time as may be necessary to acquire possession of the Property if possession is necessary to effect such cure) and thereafter shall prosecute the curing of such default with diligence, then the time within which such default may be cured by Bank shall be extended for such period as may be reasonably necessary to complete the curing of the same with diligence. Bank’s cure of Landlord’s default shall not be considered an assumption by Bank of Landlord’s other obligations under the Lease. Unless Bank otherwise agrees in writing or becomes a New Landlord, Landlord shall remain solely liable to perform Landlord’s obligations under the Lease (but only to the extent required by and subject to the limitation included with the Lease), both before and after Bank’s exercise of any other right or remedy under this Agreement. If Bank or any successor or assign becomes obligated to perform as Landlord under the Lease, such person or entity will be released from those obligations arising or owed after the effective date on which such person or entity assigns, sells or otherwise transfers its interest in the Property.

Cure Right. Notwithstanding anything to the contrary contained in the Lease, Tenant hereby agrees that in the event of any act, omission or default by Landlord or Landlord’s agents, employees, contractors, licensees or invitees which would give Tenant Seller shall have the right, either immediately but not the obligation, upon delivering written notice to ▇▇▇▇▇, to attempt at its sole cost, to cure or remove any Title Defects asserted by Buyer on or before the expiration of ninety (90) days after the lapse Title Claim Date (the “Cure Period”), unless the Parties otherwise agree. If Seller has provided notice at least two (2) days prior to the Closing Date of Seller’s intent to attempt to cure a period Title Defect within the Cure Period, there shall be no reduction to the Base Purchase Price with respect to the Title Defect for purposes of timeClosing. If at the end of the Cure Period (i) the Title Defect is not cured as agreed by Seller and Buyer or (ii) if Seller and Buyer cannot agree, to terminate and it is determined by the LeaseTitle Arbitrator that such Title Defect is not cured at the end of the Cure Period, then in either case Seller shall elect one of the options set forth in Section 3.3(d)(1)(A) or 3.3(d)(1)(B) for such Title Defect, in which event the Base Purchase Price adjustment required in connection with the selected option under this Article III shall be made in the Final Settlement Statement. If Seller has elected the option under Section 3.3(d)(1)(A) and at the end of the Cure Period the Title Defect is cured as agreed by Seller and Buyer, or if Seller and Buyer cannot agree and it is determined by the Title Arbitrator that such Title Defect is cured as of the end of the Cure Period, then, within five (5) Business Days thereafter, Seller shall cause the Seller-designated Affiliate to claim reassign to Buyer the Title Defect Property with respect to which Title Defects were cured. No action of Seller in electing or attempting to cure a partial Title Defect shall constitute a waiver of Seller’s right to dispute the existence, nature or total evictionvalue of, or cost to reduce cure the rent payable thereunder or credit or offset any amounts against future rents payable thereunder, Tenant will not exercise any such right (a) until it has given written notice of such act, omission or default to Lender by delivering notice of such act, omission or default, in accordance with this Agreement; and (b) until a period of not less than thirty (30) days for remedying such act, omission or default shall have elapsed following the giving of such notice. Notwithstanding the foregoing, in the case of any default of Landlord which cannot be cured within such thirty (30) day period, if Bank shall within such period commence and diligently pursue the cure of the same (including such time as may be necessary to acquire possession of the Property if possession is necessary to effect such cure) and thereafter shall prosecute the curing of such default with diligence, then the time within which such default may be cured by Bank shall be extended for such period as may be reasonably necessary to complete the curing of the same with diligence. Bank’s cure of Landlord’s default shall not be considered an assumption by Bank of Landlord’s other obligations under the Lease. Unless Bank otherwise agrees in writing or becomes a New Landlord, Landlord shall remain solely liable to perform Landlord’s obligations under the Lease (but only to the extent required by and subject to the limitation included with the Lease), both before and after Bank’s exercise of any other right or remedy under this Agreement. If Bank or any successor or assign becomes obligated to perform as Landlord under the Lease, such person or entity will be released from those obligations arising or owed after the effective date on which such person or entity assigns, sells or otherwise transfers its interest in the PropertyTitle Defect.

Cure Right. Notwithstanding anything to the contrary contained in the Lease, Tenant hereby agrees that in In the event of any actEvent of Default resulting from the failure to comply with the Financial Covenant as of the last day of any Fiscal Month, omission or default any net cash proceeds received by Landlord or Landlord’s agentsthe Borrower from any issuance of Stock (not constituting Disqualified Equity Interests) by the Borrower (any such equity contribution, employeesa “Specified Cure Contribution”), contractors, licensees or invitees which would give Tenant the right, either immediately or in each case within 15 Business Days after the lapse date on which the Borrower is required to deliver the Compliance Certificate for such Fiscal Month, will, at the request of a the Borrower and upon application of such net cash proceeds to prepay the Advances in accordance with Section 2.2(b)(iv), be included in the calculation of Consolidated Adjusted EBITDA solely for the purposes of determining compliance with the Financial Covenant at the end of the applicable Fiscal Month and any subsequent period of timethat includes such Fiscal Month; provided, to terminate the Leasefurther, or to claim a partial or total eviction, or to reduce the rent payable thereunder or credit or offset any amounts against future rents payable thereunder, Tenant will not exercise any such right that (a) until it has given written notice all Specified Cure Contributions will be disregarded for all other purposes hereunder, basket levels, pricing, satisfaction of such actany conditions to the obligation of any Lender to make any Advances and any other conditions, omission tests and other items governed by reference to Consolidated Adjusted EBITDA or default to Lender by delivering notice of such actthat include Consolidated Adjusted EBITDA in the determination thereof in any respect or otherwise, omission or default, in accordance with this Agreement; and (b) until a there shall be no more than five Specified Cure Contributions made during the term of this Agreement and no Specified Cure Contributions may be made in more than twice during any period of 12 consecutive Fiscal Months, (c) the aggregate amount of the applicable Specified Cure Contribution shall not less than thirty (30) days for remedying such act, omission or default shall have elapsed following exceed the giving amount necessary to cure the Financial Covenant that is the subject of such notice. Notwithstanding Event of Default, (d) the foregoingproceeds of all Specified Cure Contributions are actually received by the Borrower in Cash, in and (e) the case of any default of Landlord which cannot be cured within such thirty (30) day period, if Bank shall within such period commence and diligently pursue the cure amount of the same (including Advances that are prepaid pursuant to any Specified Cure Contribution shall be excluded for purposes of calculating the Financial Covenant until such time as may that the Specified Cure Contribution ceases to be necessary included in Consolidated Adjusted EBITDA pursuant to acquire this Section 7.2. The Borrower shall provide written notice to the Agent of its intention to cause to be made a Specified Cure Contribution on or prior to the date the financial statements are required to be delivered pursuant to Section 8.1. Upon the Agent’s receipt of a written notice from the Borrower stating that it intends to exercise its cure right pursuant to the provisions of this Section 7.2 no later than the date on which the Compliance Certificate is required to be delivered for the applicable Fiscal Month, then, until the day that is 15 Business Days after such date, neither the Agent nor any Lender shall exercise the right to accelerate the Obligations or terminate the Revolving Loan Commitments and neither the Agent nor any Lender shall exercise any right to foreclose on or take possession of the Property if possession is necessary Collateral solely on the basis of an Event of Default having occurred and being continuing due to the failure to comply with the Financial Covenant. If, after giving effect such cure) and thereafter to the recalculations set forth in this Section 7.2, the Borrower shall prosecute then be in compliance with the curing of such default with diligenceFinancial Covenant, then the time within which such default may be cured by Bank Borrower shall be extended for such period as may be reasonably necessary deemed to complete have satisfied the curing requirements of the same with diligence. Bank’s cure Financial Covenant and the applicable breach or default of Landlord’s default the Financial Covenant that had occurred, and all other Defaults or Events of Default arising solely as a result thereof, shall not be considered an assumption by Bank deemed cured for the purposes of Landlord’s other obligations under the Lease. Unless Bank otherwise agrees in writing or becomes a New Landlord, Landlord shall remain solely liable to perform Landlord’s obligations under the Lease (but only to the extent required by and subject to the limitation included with the Lease), both before and after Bank’s exercise of any other right or remedy under this Agreement. If Bank or any successor or assign becomes obligated to perform as Landlord under the Lease, such person or entity will be released from those obligations arising or owed after the effective date on which such person or entity assigns, sells or otherwise transfers its interest in the Property.

Cure Right. Notwithstanding In the event that the Company fails to comply with the Fixed Charge Coverage Ratio contained in Section 11.13.2 with respect to any particular Computation Period (each, a “Fixed Charge Ratio Default”) and the EBITDA of ▇▇▇▇▇▇▇▇ EcoLogix for such Computation Period is negative (it being agreed by the parties hereto that for purposes of such determination each component of EBITDA shall be calculated on a stand-alone basis for ▇▇▇▇▇▇▇▇ EcoLogix in a manner acceptable to the Administrative Agent notwithstanding anything to the contrary contained in the LeaseCredit Agreement or any other Loan Document) (the negative EBITDA of ▇▇▇▇▇▇▇▇ EcoLogix with respect to any Computation Period, Tenant hereby agrees that in the “▇▇▇▇▇▇▇▇ EcoLogix Negative EBITDA Amount”), the Company shall have the right to cure such Event of Default so long as the following terms and conditions are satisfied (the “Cure Right”): A. The Cure Right shall only be available to the Company to cure a particular Fixed Charge Ratio Default to the extent such Fixed Charge Ratio Default would be cured by adding to EBITDA for the particular Computation Period an amount not exceeding the ▇▇▇▇▇▇▇▇ EcoLogix Negative EBITDA Amount. B. In the event of any actthe Company desires to cure a particular Fixed Charged Ratio Default, omission or default by Landlord or Landlord’s agents, employees, contractors, licensees or invitees which would give Tenant the right, either immediately or after Company shall deliver to the lapse of a period of time, to terminate the Lease, or to claim a partial or total eviction, or to reduce the rent payable thereunder or credit or offset any amounts against future rents payable thereunder, Tenant will not exercise any such right (a) until it has given Administrative Agent irrevocable written notice of such actthe Company’s intent to cure (a “Cure Notice”) no later than fifteen (15) days after the date on which financial statements and a Compliance Certificate as of and for the period ending on the last day of the particular Computation Period are required to be delivered; provided, omission or default however, the Cure Right may not be exercised after June 30, 2012. C. The Cure Notice shall set forth the calculation of the ▇▇▇▇▇▇▇▇ EcoLogix Negative EBITDA Amount and the related Fixed Charge Cure Amount referenced below. D. In the event the Company delivers a Cure Notice, an unsecured subordinated loan satisfying the requirements for “Subordinated Debt” under the Credit Agreement shall be made to Lender by delivering notice ▇▇▇▇▇▇▇▇ EcoLogix and the amount of such act, omission or default, in accordance with this Agreement; and (b) until a period of not less than thirty (30) days for remedying such act, omission or default shall have elapsed following the giving of such notice. Notwithstanding the foregoing, in the case of any default of Landlord which cannot be cured within such thirty (30) day period, if Bank shall within such period commence and diligently pursue the cure of the same (including such time as may be necessary to acquire possession of the Property if possession is necessary to effect such cure) and thereafter shall prosecute the curing of such default with diligence, then the time within which such default may be cured by Bank shall be extended for such period as may be reasonably necessary to complete the curing of the same with diligence. Bank’s cure of Landlord’s default subordinated loan shall not be considered less than the Fixed Charge Cure Amount referenced below, provided that such subordinated loan shall be made no later than three (3) days after receipt by Administrative Agent of the Cure Notice (the “Required Subordinated Loan Date”). The “Fixed Charge Cure Amount” shall equal an assumption by Bank of Landlord’s other obligations under amount which, when added to EBITDA for the Lease. Unless Bank otherwise agrees in writing or becomes a New Landlord, Landlord shall remain solely liable to perform Landlord’s obligations under the Lease (but only to the extent required by and subject to the limitation included with the Lease), both before and after Bank’s exercise of any other right or remedy under this Agreement. If Bank or any successor or assign becomes obligated to perform particular Computation Period as Landlord under the Lease, such person or entity will be released from those obligations arising or owed after the effective date on which such person or entity assigns, sells or otherwise transfers its interest provided in the Propertydefinition of Fixed Charge Coverage Ratio, would result in the Company being in pro forma compliance with such covenant for the particular Computation Period, provided that such amount shall in no event exceed the ▇▇▇▇▇▇▇▇ EcoLogix Negative EBITDA Amount with respect to such Computation Period. The ▇▇▇▇▇▇▇▇ EcoLogix Negative EBITDA Amount with respect to any particular Computation Period shall be reduced by any Fixed Charge Cure Amounts previously paid with respect to any period included in such Computation Period.

Cure Right. Notwithstanding anything Mortgagee has no duty to cure any defaults under this Agreement by ▇▇▇▇▇▇▇, but the contrary contained in City shall accept cure by Mortgagee and for such purpose the Lease, Tenant City and ▇▇▇▇▇▇▇ hereby agrees that in authorize such Mortgagee to enter upon the event Property and to exercise any of such Mortgagee’s rights and powers under this Agreement. The time for Mortgagee’s cure of any act, omission or default by Landlord or Landlord’s agents, employees, contractors, licensees or invitees which would give Tenant the right, either immediately or after the lapse ▇▇▇▇▇▇▇ Event of a period of time, to terminate the Lease, or to claim a partial or total eviction, or to reduce the rent payable thereunder or credit or offset any amounts against future rents payable thereunder, Tenant will not exercise any such right (a) until it has given written notice of such act, omission or default to Lender by delivering notice of such act, omission or default, in accordance with this Agreement; and (b) until a period of not less than thirty (30) days for remedying such act, omission or default shall have elapsed following the giving of such notice. Notwithstanding the foregoing, in the case of any default of Landlord which cannot be cured within such thirty (30) day period, if Bank shall within such period commence and diligently pursue the cure of the same (including such time as may be necessary to acquire possession of the Property if possession is necessary to effect such cure) and thereafter shall prosecute the curing of such default with diligence, then the time within which such default may be cured by Bank Default shall be extended for 60 days beyond the later to occur of (i) the period of cure granted to ▇▇▇▇▇▇▇ and (ii) the date notice of such period default is received by Mortgagee; provided however, if a ▇▇▇▇▇▇▇ Event of Default is not susceptible of cure within such 60 day period, Mortgagee shall have such additional time as may be reasonably is necessary to complete cure such ▇▇▇▇▇▇▇ Event of Default, but in no event longer than a total of 120 days. If a ▇▇▇▇▇▇▇ Event of Default exists, Mortgagee may, at its election, acquire title to ▇▇▇▇▇▇▇’▇ estate in the curing Property or ▇▇▇▇▇▇▇’▇ interest in this Agreement diligently and in good faith by appropriate proceedings, including foreclosure (or deed-in-lieu) of a Mortgage, and the time period for Mortgagee’s cure shall be tolled during the pendency of such title acquisition proceedings; provided, however, that if Mortgagee elects to foreclose or take a deed-in-lieu of foreclosure in order to obtain title and cure, Mortgagee shall first give revocable written notice thereof to the City of such intent. Additionally, if a default exists under the Mortgage at a time when no ▇▇▇▇▇▇▇ Event of Default exists and Mortgagee is exercising its rights under the Mortgage to acquire title to ▇▇▇▇▇▇▇’▇ estate in the Property or ▇▇▇▇▇▇▇’▇ interest in this Agreement diligently and in good faith by appropriate proceedings, including foreclosure (or deed-in-lieu) of its Mortgage, then Mortgagee shall have the same with diligencerights to cure any ▇▇▇▇▇▇▇ Event of Default as contained in this section. Bank’s cure of Landlord’s default Mortgagee shall not be considered required to cure or commence to cure any default that is personal to ▇▇▇▇▇▇▇ (e.g., bankruptcy). The City will not exercise its remedies for an assumption by Bank Event of Landlord’s other obligations Default under the Lease. Unless Bank otherwise agrees in writing Section 10.2 of this Agreement or becomes under a New Landlord, Landlord shall remain solely liable Deed so long as Mortgagee has a right to perform Landlord’s obligations under the Lease (but only to the extent required by and subject to the limitation included with the Lease), both before and after Bank’s exercise cure such Event of any other right or remedy Default under this Agreement. If Bank or any successor or assign becomes obligated to perform as Landlord under the Lease, such person or entity will be released from those obligations arising or owed after the effective date on which such person or entity assigns, sells or otherwise transfers its interest in the PropertySection.

Cure Right. Notwithstanding anything To the extent that any event, fact, claim, breach or other condition giving rise to a claim for indemnification under this Agreement against Seller is capable of cure, remedy or mitigation, Purchaser must, as a condition precedent to asserting such a claim, afford Seller a reasonable opportunity to cure, remedy or mitigate the contrary contained event, fact, claim, breach or other condition. In addition, prior to and in conjunction with seeking such a claim, Purchaser shall use its Best Efforts to mitigate and minimize the Lease, Tenant hereby agrees that in the event amount of any actIndemnity Losses for which it may be entitled to indemnification hereunder, omission and will use its Best Efforts to assist Seller to cure, remedy or default by Landlord mitigate the event, fact, claim, breach or Landlordother condition at Seller’s agentssole cost and expense. Without limiting the generality of the foregoing, employeesprior to seeking indemnification pursuant to Section 7.01(a) or (b), contractorsand, licensees or invitees which would give Tenant notwithstanding any other provision of this Agreement, before the rightrunning of any other applicable time period set forth in this Article VII commences, either immediately or after the lapse Purchaser shall notify Seller of any alleged breach of a period representation, warranty, covenant or agreement of time, to terminate the Lease, or to claim a partial or total eviction, or to reduce the rent payable thereunder or credit or offset any amounts against future rents payable thereunder, Tenant will not exercise any such right (a) until it has given written notice of such act, omission or default to Lender by delivering notice of such act, omission or default, in accordance with this Agreement; Seller and (b) until Seller shall have a period of not less than to cure such breach equal to thirty (30) days for remedying such act, omission or default shall have elapsed following the giving date of Purchaser’s written notice to Seller of such notice. Notwithstanding the foregoingbreach, in the case unless such breach is not susceptible of any default of Landlord which cure or cannot reasonably be expected to be cured within such thirty (30) day period. In the event that any such breach is of a nature that it cannot reasonably be expected to be cured within thirty (30) days of notice to Seller of such breach, if Bank shall and the Seller commences within such thirty (30) day period commence to cure such breach and thereafter diligently pursue pursues the cure of the same such breach to conclusion, Seller shall be granted up to two (including such time as may be necessary to acquire possession 2) automatic extensions of the Property if possession thirty (30) day cure period until such breach is necessary to effect such cure) and thereafter shall prosecute the curing fully cured. Notwithstanding any other provision of such default with diligencethis Agreement, then the time within which such default may be cured by Bank shall be extended for such period as may be reasonably necessary to complete the curing of the same with diligence. BankSeller’s cure of Landlord’s default shall not be considered an assumption by Bank of Landlord’s other obligations under the Lease. Unless Bank otherwise agrees in writing or becomes a New Landlord, Landlord shall remain solely liable to perform Landlord’s obligations under the Lease (but only to the extent required by and subject to the limitation included with the Lease), both before and after Bank’s exercise any breach of any other right representation, warranty, covenant or agreement in accordance with this Section 7.08 shall constitute Purchaser’s full, complete and exclusive remedy under this Agreement. If Bank or any successor or assign becomes obligated with respect to perform as Landlord under the Lease, such person or entity will be released from those obligations arising or owed after the effective date on which such person or entity assigns, sells or otherwise transfers its interest in the Propertybreach.