Event of Default. (a) Each of the following events shall constitute an event of default hereunder (an “Event of Default”): (i) if (A) any portion of the Debt is not paid in full on the Maturity Date, (B) the Debt Service is not paid in full on or before the related Payment Date, or (C) any other portion of the Debt is not paid within five (5) days of when due; (ii) if any of the Taxes or Other Charges are not paid (with respect to each or any Individual Property) prior to Delinquency; (iii) if the Policies (with respect to each or any Individual Property) are not kept in full force and effect, or if certified copies of the Policies (for each Individual Property) are not delivered to Lender upon request (or certificates thereof, if a Policy shall be renewed and certified copies of the Policy are not immediately available upon such renewal (each Borrower agreeing in such instance to provide copies of the Policies to Lender promptly thereafter)); (iv) if any Borrower Transfers or otherwise encumbers any portion of the Properties, the Collateral or the Senior Mezzanine Collateral, or there shall otherwise occur a Transfer without Lender’s prior consent in violation of the provisions of this Agreement, the Pledge Agreement or any other Loan Document; (v) if any representation or warranty made by any Borrower or any other Loan Party herein or in any other Loan Document, or in any report, certificate, financial statement or other instrument, agreement or document or other material or written information furnished to Lender shall have been false or misleading in any material respect as of the date the representation or warranty was made (and, with respect to any such breach which is not the subject of any other subsection of this Section 8.1 and which is capable of being cured, such Borrower fails to remedy such condition within ten (10) days following notice to Borrower from Lender, in the case of any such breach which can be cured by the payment of a sum of money, or within thirty (30) days following notice from Lender in the case of any other such breach); (vi) if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower shall make an assignment for the benefit of creditors; or if a receiver, liquidator or trustee shall be appointed for any Borrower, Senior Mezzanine Borrower or Mortgage Borrower, or if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower shall be adjudicated a bankrupt or insolvent, or if any petition for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by or against, consented to, or acquiesced in by, Borrower or Senior Mezzanine Borrower, or if any proceeding for the dissolution or liquidation of any Borrower, Senior Mezzanine Borrower or Mortgage Borrower shall be instituted; provided, however, if such appointment, adjudication, petition or proceeding was involuntary and not consented to by any Borrower, Senior Mezzanine Borrower or Mortgage Borrower, upon the same not being discharged, stayed or dismissed within ninety (90) days; (vii) if any Operating Company, any Manager, Principal, Holdings or any Guarantor shall make an assignment for the benefit of creditors; or if a receiver, liquidator or trustee shall be appointed for any such Operating Company, any such Manager, Principal, Holdings or any such Guarantor, or if any Operating Company, any Manager, Principal, Holdings or any Guarantor shall be adjudicated a bankrupt or insolvent, or if any petition for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by or against, consented to, or acquiesced in by, any Operating Company, any Manager, Principal, Holdings or any Guarantor, or if any proceeding for the dissolution or liquidation of any Operating Company, any Manager, Principal, Holdings or any Guarantor shall be instituted; provided, however, if such appointment, adjudication, petition or proceeding was involuntary and not consented to by any such Operating Company, any such Manager, Principal, Holdings or any such Guarantor, upon the same not being discharged, stayed or dismissed within ninety (90) days; (viii) if any Borrower attempts to assign its rights under this Agreement or any of the other Loan Documents or any interest herein or therein in contravention of the Loan Documents; (ix) if any Borrower breaches any of its respective negative covenants contained in Section 5.2 or any covenant contained in Section 4.1.30 or Section 5.1.11 hereof (and, with respect to any such breach of any covenant set forth in Section 5.1.11 which is not the subject of any other subsection of this Section 8.1, such Borrower fails to remedy such condition within ten (10) days after notice to Borrower from Lender, in the case of any such Default under Section 5.1.11 which can be cured by the payment of a sum of money, or for thirty (30) days after notice from Lender in the case of any other such Default under Section 5.1.11); (x) with respect to any term, covenant or provision set forth herein which specifically contains a notice requirement or grace period, if any Borrower shall be in default under such term, covenant or condition after the giving of such notice or the expiration of such grace period; (xi) if any of the assumptions contained in the Insolvency Opinion delivered in connection with the Loan, or in the Additional Insolvency Opinion delivered subsequent to the closing of the Loan, is or shall become untrue in any material respect; or if any of the assumptions contained in the True Lease Opinion in connection with the Loan, or in the Additional True Lease Opinion delivered subsequent to the closing of the Loan, is or shall become untrue in any material respect; (xii) if any Mortgage Borrower, any Operating Company or any Guarantor (Operating Lease) is in default of any of its material obligations under any Operating Lease (or under another lease and/or management agreement in substitution for such Operating Lease in accordance herewith) or under any such Operating Lease Guaranty (or under another operating lease guaranty in substitution for such Operating Lease Guaranty in accordance herewith) beyond any applicable notice and cure periods contained therein; or if any Operating Lease (or such other lease and/or management agreement) or any Operating Lease Guaranty (or such other operating lease guaranty) shall be surrendered or any Operating Lease or any Operating Lease Guaranty shall be terminated or canceled for any reason or under any circumstances whatsoever, except with the consent of Lender; or if any of the terms, covenants or conditions of any Operating Lease (or such other lease and/or management agreement) or any Operating Lease Guaranty (or such other operating lease guaranty) shall in any manner be modified, changed, supplemented, altered, restated or amended without the consent of Lender except as may otherwise expressly permitted in this Agreement; (xiii) intentionally omitted; (xiv) if any Affiliate of any Borrower that is or becomes a party to the Windstorm Insurance Intercreditor Agreement is in default of any of its material obligations under the Windstorm Insurance Intercreditor Agreement beyond any applicable notice and cure periods contained therein; or if the Windstorm Insurance Intercreditor Agreement shall be surrendered, terminated or canceled for any reason or under any circumstances whatsoever, except with the consent of Lender; or if any of the terms, covenants or conditions of the Windstorm Insurance Intercreditor Agreement shall in any manner be modified, changed, supplemented, altered, restated or amended without the consent of Lender; (xv) if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower fails to comply with the covenants as to Prescribed Laws set forth in Section 5.1.1 hereof; (xvi) if a material default has occurred and continues beyond any applicable cure period under any Management Agreement and if such default permits the Manager, the Operating Company or the Mortgage Borrower party thereto to terminate or cancel the Management Agreement in question; (xvii) any Gaming License shall be refused, suspended, revoked, modified in a materially adverse manner or canceled or allowed to lapse or any proceeding is commenced by any Governmental Authority for the purpose of suspending, revoking or canceling any Gaming License in any materially adverse respect, or any Governmental Authority shall have appointed a conservator, supervisor or trustee to or for any of the Casino Components and, in each case of the foregoing, such action could reasonably be expected to (A) have an Individual Material Adverse Effect, (B) materially and adversely affect the continued operation of the Casino Components in the usual course of business and in substantially the same manner and to at least the same standard as was maintained prior to such action, or (C) result in any material decrease in the then expected cash flow and revenues to be derived from the Casino Components; (xviii) if any Borrower shall continue to be in Default under any of the other terms, covenants or conditions of this Agreement not specified in subsections (i) to (xvii) above, for ten (10) days after notice to Borrower from Lender, in the case of any Default which can be cured by the payment of a sum of money, or for thirty (30) days after notice from Lender in the case of any other Default; provided, however, that if such non-monetary Default is susceptible of cure but cannot reasonably be cured within such thirty (30) day period and provided further that such Borrower shall have commenced to cure such Default within such thirty (30) day period and thereafter diligently and expeditiously proceeds to cure the same, such thirty (30) day period shall be extended for such time as is reasonably necessary for such Borrower in the exercise of due diligence to cure such Default, such additional period not to exceed one hundred twenty (120) days; (xix) if there shall be a default under any of the other Loan Documents beyond any applicable cure periods contained in such documents, whether as to any Borrower, Mortgage Borrower, Senior Mezzanine Borrower, the Collateral, the Senior Mezzanine Collateral or any Individual Property, or if any other such event shall occur or condition shall exist, if the effect of such event or condition is to accelerate the maturity of any portion of the Debt or to permit Lender to accelerate the maturity of all or any portion of the Debt; (xx) if the Liens created pursuant to any Loan Document shall cease to be a fully protected enforceable first priority security interest in the Collateral, or any portion of the Collateral is Transferred without Lender’s prior written consent except as permitted hereunder; or (xxi) if a Mortgage Loan Event of Default or Senior Mezzanine Loan Event of Default shall occur. (b) Upon the occurrence of an Event of Default (other than an Event of Default described in clauses (vi) or (vii) above) and at any time thereafter, in addition to any other rights or remedies available to it pursuant to this Agreement and the other Loan Documents or at law or in equity, Lender may take such action, without notice or demand, that Lender deems advisable to protect and enforce its rights against Borrower and in and to all or any of the Collateral, including, without limitation, declaring the Debt to be immediately due and payable, and Lender may enforce or avail itself of any or all rights or remedies provided in the Loan Documents and may exercise all the rights and remedies of a secured party under the Uniform Commercial Code, as adopted and enacted by the State or States where any of the Collateral is located, against Borrower and any or all of the Collateral, including, without limitation, all rights or remedies available at law or in equity; and upon any Event of Default described in clauses (vi) or (vii) above, the Debt and all other obligations of Borrower hereunder and under the other Loan Documents shall immediately and automatically become due and payable, without notice or demand, and Borrower hereby expressly waives any such notice or demand, anything contained herein or in any other Loan Document to the contrary notwithstanding.
Appears in 8 contracts
Samples: Mezzanine Loan Agreement (Harrahs Entertainment Inc), Ninth Mezzanine Loan Agreement (Harrahs Entertainment Inc), Third Mezzanine Loan Agreement (Harrahs Entertainment Inc)
Event of Default. (a) Each of the following events shall constitute an event of default hereunder (an “Event of Default”):
(i) if (A) any portion of the Debt is not paid in full on the Maturity Date, (B) the Debt Service is not paid in full on or before the related Payment Date, or (C) any other portion of the Debt is not paid within five (5) days of when dueapplicable due date;
(ii) if any of the Taxes or Other Charges are not paid (with respect to each or any Individual Property) prior to Delinquencythe date when the same become delinquent, except to the extent that Borrower is contesting same in accordance with the terms of Section 5.1.2 hereof, or there are sufficient funds in the Tax and Insurance Escrow Fund to pay such Taxes or Other Charges and Lender fails to or refuses to release the same from the Tax and Insurance Escrow Fund;
(iii) if the Policies (with respect to each or any Individual Property) are not kept in full force and effect, or if certified copies of the Policies (for each Individual Property) are not delivered to Lender upon request within ten (or certificates thereof, if a Policy shall be renewed and certified copies 10) days of the Policy are not immediately available upon such renewal (each Borrower agreeing in such instance to provide copies of the Policies to Lender promptly thereafter))request;
(iv) if any Borrower Transfers transfers or otherwise encumbers any portion of the Properties, the Collateral or the Senior Mezzanine Collateral, or there shall otherwise occur a Transfer Property without Lender’s prior written consent in violation of (to extent such consent is required) or otherwise violates the provisions of Section 5.2.13 of this Loan Agreement, the Pledge Agreement or any other Loan Document;
(v) if any material representation or warranty made by any Borrower or any other Loan Party herein or in any other Loan Document, or in any report, certificate, financial statement or other instrument, agreement or document or other material or written information furnished to Lender shall have been false or misleading in any material respect as of the date the representation or warranty was made (and, with respect to any such breach which is not the subject of any other subsection of this Section 8.1 and which is capable of being cured, such Borrower fails to remedy such condition within ten (10) days following notice to Borrower from Lender, in the case of any such breach which can be cured by the payment of a sum of money, or within thirty (30) days following notice from Lender in the case of any other such breach)made;
(vi) if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower indemnitor or any guarantor under any guaranty or indemnity issued in connection with the Loan shall make an assignment for the benefit of creditors; or ;
(vii) if a receiver, liquidator or trustee shall be appointed for any Borrower, Senior Mezzanine Borrower or Mortgage Borrower, any guarantor or indemnitor under any guarantee or indemnity issued in connection with the Loan or if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower such guarantor or indemnitor shall be adjudicated a bankrupt or insolvent, or if any petition for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by or against, consented to, or acquiesced in by, Borrower or Senior Mezzanine Borrowersuch guarantor or indemnitor, or if any proceeding for the dissolution or liquidation of any Borrower, Senior Mezzanine Borrower or Mortgage Borrower such guarantor or indemnitor shall be instituted; provided, however, if such appointment, adjudication, petition or proceeding was involuntary and not consented to by any Borrower, Senior Mezzanine Borrower or Mortgage Borrowersuch guarantor or indemnitor, upon the same not being discharged, stayed or dismissed within ninety one hundred eighty (90) days;
(vii) if any Operating Company, any Manager, Principal, Holdings or any Guarantor shall make an assignment for the benefit of creditors; or if a receiver, liquidator or trustee shall be appointed for any such Operating Company, any such Manager, Principal, Holdings or any such Guarantor, or if any Operating Company, any Manager, Principal, Holdings or any Guarantor shall be adjudicated a bankrupt or insolvent, or if any petition for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by or against, consented to, or acquiesced in by, any Operating Company, any Manager, Principal, Holdings or any Guarantor, or if any proceeding for the dissolution or liquidation of any Operating Company, any Manager, Principal, Holdings or any Guarantor shall be instituted; provided, however, if such appointment, adjudication, petition or proceeding was involuntary and not consented to by any such Operating Company, any such Manager, Principal, Holdings or any such Guarantor, upon the same not being discharged, stayed or dismissed within ninety (90180) days;
(viii) if any Borrower attempts to assign its rights under this Agreement or any of the other Loan Documents or any interest herein or therein in contravention of the Loan Documents;
(ix) if any Borrower breaches any of its respective negative covenants contained in Section 5.2 or any covenant contained in Section 4.1.30 or Section 5.1.11 hereof (and, with respect to any such breach of any covenant set forth in Section 5.1.11 which is not the subject of any other subsection of this Section 8.1, such Borrower fails to remedy such condition within ten (10) days after notice to Borrower from Lender, in the case of any such Default under Section 5.1.11 which can be cured by the payment of a sum of money, or for thirty (30) days after notice from Lender in the case of any other such Default under Section 5.1.11)hereof;
(x) with respect to any term, covenant or provision set forth herein which specifically contains a notice requirement or grace period, if any Borrower shall be in default under such term, covenant or condition after the giving of such notice or the expiration of such grace period;
(xi) if any of the assumptions contained in the Insolvency Opinion any substantive non-consolidation opinion required to be delivered in connection with the Loan, or in the Additional Insolvency Opinion delivered subsequent to the closing of the Loan, is or shall become untrue in any material respect; or if any of the assumptions contained in the True Lease Opinion in connection with the Loan, or in the Additional True Lease Opinion delivered subsequent to the closing of the Loan, is herewith are or shall become untrue in any material respect;
(xii) if any Mortgage Borrower, any Operating Company or any Guarantor (Operating Lease) is in default of any of its material obligations under any Operating Lease (or under another lease and/or management agreement in substitution for such Operating Lease in accordance herewith) or under any such Operating Lease Guaranty (or under another operating lease guaranty in substitution for such Operating Lease Guaranty in accordance herewith) beyond any applicable notice and cure periods contained therein; or if any Operating Lease (or such other lease and/or management agreement) or any Operating Lease Guaranty (or such other operating lease guaranty) shall be surrendered or any Operating Lease or any Operating Lease Guaranty shall be terminated or canceled for any reason or under any circumstances whatsoever, except with the consent of Lender; or if any of the terms, covenants or conditions of any Operating Lease (or such other lease and/or management agreement) or any Operating Lease Guaranty (or such other operating lease guaranty) shall in any manner be modified, changed, supplemented, altered, restated or amended without the consent of Lender except as may otherwise expressly permitted in this Agreement;
(xiii) intentionally omitted;
(xiv) if any Affiliate of any Borrower that is or becomes a party to the Windstorm Insurance Intercreditor Agreement is in default of any of its material obligations under the Windstorm Insurance Intercreditor Agreement beyond any applicable notice and cure periods contained therein; or if the Windstorm Insurance Intercreditor Agreement shall be surrendered, terminated or canceled for any reason or under any circumstances whatsoever, except with the consent of Lender; or if any of the terms, covenants or conditions of the Windstorm Insurance Intercreditor Agreement shall in any manner be modified, changed, supplemented, altered, restated or amended without the consent of Lender;
(xv) if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower fails to comply with the covenants as to Prescribed Laws set forth in Section 5.1.1 hereof;
(xvi) if a material default has occurred and continues beyond any applicable cure period under any Management Agreement and if such default permits the Manager, the Operating Company or the Mortgage Borrower party thereto to terminate or cancel the Management Agreement in question;
(xvii) any Gaming License shall be refused, suspended, revoked, modified in a materially adverse manner or canceled or allowed to lapse or any proceeding is commenced by any Governmental Authority for the purpose of suspending, revoking or canceling any Gaming License in any materially adverse respect, or any Governmental Authority shall have appointed a conservator, supervisor or trustee to or for any of the Casino Components and, in each case of the foregoing, such action could reasonably be expected to (A) have an Individual Material Adverse Effect, (B) materially and adversely affect the continued operation of the Casino Components in the usual course of business and in substantially the same manner and to at least the same standard as was maintained prior to such action, or (C) result in any material decrease in the then expected cash flow and revenues to be derived from the Casino Components;
(xviii) if any Borrower shall continue to be in Default under any of the other terms, covenants or conditions of this Agreement not specified in subsections (i) to (xviixi) above, for ten (10) days after notice to Borrower from Lender, in the case of any Default which can be cured by the payment of a sum of money, or for thirty (30) days after notice from Lender in the case of any other Default; provided, however, that if such non-monetary Default is susceptible of cure but cannot reasonably be cured within such thirty (30) -day period and provided further that such Borrower shall have commenced to cure such Default within such thirty (30) -day period and thereafter diligently and expeditiously proceeds to cure the same, such thirty (30) -day period shall be extended for such time as is reasonably necessary for such Borrower in the exercise of due diligence to cure such Default, such additional period not to exceed one hundred twenty eighty (120180) days;; or
(xixxiii) if there shall be a default under any of the other Loan Documents beyond any applicable cure periods contained in such documents, whether as to any Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Borrower or the Collateral, the Senior Mezzanine Collateral or any Individual Property, or if any other such event shall occur or condition shall exist, if the effect of such event or condition is to accelerate the maturity of any portion of the Debt or to permit Lender to accelerate the maturity of all or any portion of the Debt;
(xx) if the Liens created pursuant to any Loan Document shall cease to be a fully protected enforceable first priority security interest in the Collateral, or any portion of the Collateral is Transferred without Lender’s prior written consent except as permitted hereunder; or
(xxi) if a Mortgage Loan Event of Default or Senior Mezzanine Loan Event of Default shall occur.
(b) Upon the occurrence of an Event of Default (other than an Event of Default described in clauses (vi), (vii) or (viiviii) above) and at any time thereafterthereafter Lender may, in addition to any other rights or remedies available to it pursuant to this Agreement and the other Loan Documents or at law or in equity, Lender may take such action, without notice or demand, that Lender deems advisable to protect and enforce its rights against Borrower and in and to all or any of the CollateralProperty, including, without limitation, declaring the Debt to be immediately due and payable, and Lender may enforce or avail itself of any or all rights or remedies provided in the Loan Documents and may exercise all the rights and remedies of a secured party under the Uniform Commercial Code, as adopted and enacted by the State or States where any of the Collateral is located, against Borrower and any or all of the CollateralProperty, including, without limitation, all rights or remedies available at law or in equity; and upon any Event of Default described in clauses (vi), (vii) or (viiviii) above, the Debt and all other obligations of Borrower hereunder and under the other Loan Documents shall immediately and automatically become due and payable, without notice or demand, and Borrower hereby expressly waives any such notice or demand, anything contained herein or in any other Loan Document to the contrary notwithstanding.
Appears in 7 contracts
Samples: Loan Agreement (Inland American Real Estate Trust, Inc.), Loan Agreement (Inland American Real Estate Trust, Inc.), Loan Agreement (Inland American Real Estate Trust, Inc.)
Event of Default. (a) Each If any of the following events shall constitute an event of default hereunder (an “Event "Events of Default”):") shall occur and be continuing:
(ia) if (A) Any Borrower shall fail to pay any portion installment of the Debt is not paid in full on the Maturity Date, (B) the Debt Service is not paid in full on principal of any of its Advances or before the related Payment DateNotes when due, or (C) any other portion of the Debt is not paid within five (5) days of when due;
(ii) if interest on any of the Taxes its Advances or Other Charges are not paid (with respect to each or any Individual Property) prior to Delinquency;
(iii) if the Policies (with respect to each or any Individual Property) are not kept in full force and effect, or if certified copies of the Policies (for each Individual Property) are not delivered to Lender upon request (or certificates thereof, if a Policy shall be renewed and certified copies of the Policy are not immediately available upon such renewal (each Borrower agreeing in such instance to provide copies of the Policies to Lender promptly thereafter));
(iv) if any Borrower Transfers or otherwise encumbers any portion of the Properties, the Collateral or the Senior Mezzanine Collateral, or there shall otherwise occur a Transfer without Lender’s prior consent in violation of the provisions of this Agreement, the Pledge Agreement Notes or any other Loan Document;amount payable by it hereunder within five Business Days after the same shall be due; or
(vb) if any Any representation or warranty made or deemed made by any Borrower herein or by any Borrower (or any other Loan Party herein or of its officers) in any other Loan Document, or in any report, certificate, financial statement or other instrument, agreement or document or other material or written information furnished connection with this Agreement shall prove to Lender shall have been false or misleading incorrect in any material respect as when made or deemed made; or
(c) Any Borrower shall fail to perform or observe any other term, covenant or agreement contained in this Agreement on its part to be performed or observed and any such failure shall remain unremedied for 30 days after written notice thereof shall have been given to such Borrower by the Administrative Agent or by any Lender with a copy to the Administrative Agent; or
(d) The Company, any Principal Subsidiary or any Restricted Affiliate shall fail to pay any Debt or Guaranty (excluding Debt incurred pursuant hereto) of the date Company, such Principal Subsidiary or such Restricted Affiliate (as the representation case may be) in an aggregate principal amount of $100,000,000 or warranty was made more, or any installment of principal thereof or interest or premium thereon, when due (andwhether by scheduled maturity, with respect required prepayment, acceleration, demand or otherwise) and such failure shall continue after the applicable grace period, if any, specified in the agreement or instrument relating to such Debt or Guaranty; or any other default under any agreement or instrument relating to any such breach which Debt, or any other event, shall occur and shall continue after the applicable grace period, if any, specified in such agreement or instrument, if the effect of such default or event is not to accelerate, or to permit the subject acceleration of, the maturity of such Debt; or any such Debt shall be required to be prepaid (other than by a regularly scheduled required prepayment), prior to the stated maturity thereof, as a result of either (i) any default under any agreement or instrument relating to any such Debt or (ii) the occurrence of any other event (other than an issuance, sale or other disposition of stock or other assets, or an incurrence or issuance of Indebtedness or other obligations, giving rise to a repayment or prepayment obligation in respect of such Debt) the effect of which would otherwise be to accelerate or to permit the acceleration of the maturity of such Debt; provided that, notwithstanding any provision contained in this subsection (d) to the contrary, to the extent that pursuant to the terms of any agreement or instrument relating to any Debt or Guaranty referred to in this Section 8.1 and which is capable of being cured, such Borrower fails to remedy such condition within ten subsection (10d) days following notice to Borrower from Lender, (or in the case of any such Guaranty, relating to any obligations Guaranteed thereby), any sale, pledge or disposal of Margin Stock, or utilization of the proceeds of such sale, pledge or disposal, would result in a breach which can of any covenant contained therein or otherwise give rise to a default or event of default thereunder and/or acceleration of the maturity of the Debt or obligations extended pursuant thereto, or payment pursuant to any Guaranty, and as a result of such terms or of such sale, pledge, disposal, utilization, breach, default, event of default or acceleration or nonpayment under such Guaranty, or the provisions thereof relating thereto, this Agreement or any Advance hereunder would otherwise be cured subject to the margin requirements or any other restriction under Regulation U issued by the payment Board of a sum Governors of moneythe Federal Reserve System, then such breach, default, event of default or acceleration, or within thirty nonpayment under any Guaranty, shall not constitute a default or Event of Default under this subsection (30) days following notice from Lender in the case of any other such breachd);; or
(vii) if The Company, any Borrower, Senior Mezzanine Borrower Principal Subsidiary or Mortgage Borrower any Restricted Affiliate shall (A) generally not pay its debts as such debts become due; or (B) admit in writing its inability to pay its debts generally; or (C) make an a general assignment for the benefit of creditors; or if a receiver, liquidator or trustee (ii) any proceeding shall be appointed for instituted or consented to by the Company, any Borrower, Senior Mezzanine Borrower Principal Subsidiary or Mortgage Borrower, or if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower shall be adjudicated Restricted Affiliate seeking to adjudicate it a bankrupt or insolvent, or if seeking liquidation, winding up, reorganization, arrangement, adjustment, protection, relief, or composition of it or its debts under any petition for law relating to bankruptcy, insolvency or reorganization or arrangement pursuant to federal bankruptcy lawrelief of debtors, or any similar federal seeking the entry of an order for relief or state lawthe appointment of a receiver, shall be filed by or against, consented totrustee, or acquiesced in byother similar official for it or for any substantial part of its property; or (iii) any such proceeding shall have been instituted against the Company, Borrower any Principal Subsidiary or Senior Mezzanine Borrower, or if any Restricted Affiliate and either such proceeding for the dissolution or liquidation of any Borrower, Senior Mezzanine Borrower or Mortgage Borrower shall not be instituted; provided, however, if such appointment, adjudication, petition or proceeding was involuntary and not consented to by any Borrower, Senior Mezzanine Borrower or Mortgage Borrower, upon the same not being discharged, stayed or dismissed within ninety (90) days;
(vii) if any Operating Company, any Manager, Principal, Holdings or any Guarantor shall make an assignment for the benefit of creditors; or if a receiver, liquidator or trustee shall be appointed for any such Operating Company, any such Manager, Principal, Holdings or any such Guarantor, or if any Operating Company, any Manager, Principal, Holdings or any Guarantor shall be adjudicated a bankrupt or insolvent, or if any petition for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by or against, consented to, or acquiesced in by, any Operating Company, any Manager, Principal, Holdings or any Guarantor, or if any proceeding for the dissolution or liquidation of any Operating Company, any Manager, Principal, Holdings or any Guarantor shall be instituted; provided, however, if such appointment, adjudication, petition or proceeding was involuntary and not consented to by any such Operating Company, any such Manager, Principal, Holdings or any such Guarantor, upon the same not being discharged, stayed or dismissed within ninety (90) days;
(viii) if any Borrower attempts to assign its rights under this Agreement 60 consecutive days or any of the other Loan Documents or any interest herein or therein in contravention of the Loan Documents;
(ix) if any Borrower breaches any of its respective negative covenants contained in Section 5.2 or any covenant contained in Section 4.1.30 or Section 5.1.11 hereof (and, with respect to any such breach of any covenant set forth in Section 5.1.11 which is not the subject of any other subsection of this Section 8.1, such Borrower fails to remedy such condition within ten (10) days after notice to Borrower from Lender, in the case of any such Default under Section 5.1.11 which can be cured by the payment of a sum of money, or for thirty (30) days after notice from Lender in the case of any other such Default under Section 5.1.11);
(x) with respect to any term, covenant or provision set forth herein which specifically contains a notice requirement or grace period, if any Borrower shall be in default under such term, covenant or condition after the giving of such notice or the expiration of such grace period;
(xi) if any of the assumptions contained in the Insolvency Opinion delivered in connection with the Loan, or in the Additional Insolvency Opinion delivered subsequent to the closing of the Loan, is or shall become untrue in any material respect; or if any of the assumptions contained in the True Lease Opinion in connection with the Loan, or in the Additional True Lease Opinion delivered subsequent to the closing of the Loan, is or shall become untrue in any material respect;
(xii) if any Mortgage Borrower, any Operating Company or any Guarantor (Operating Lease) is in default of any of its material obligations under any Operating Lease (or under another lease and/or management agreement in substitution for such Operating Lease in accordance herewith) or under any such Operating Lease Guaranty (or under another operating lease guaranty in substitution for such Operating Lease Guaranty in accordance herewith) beyond any applicable notice and cure periods contained therein; or if any Operating Lease (or such other lease and/or management agreement) or any Operating Lease Guaranty (or such other operating lease guaranty) shall be surrendered or any Operating Lease or any Operating Lease Guaranty shall be terminated or canceled for any reason or under any circumstances whatsoever, except with the consent of Lender; or if any of the terms, covenants or conditions of any Operating Lease (or such other lease and/or management agreement) or any Operating Lease Guaranty (or such other operating lease guaranty) shall in any manner be modified, changed, supplemented, altered, restated or amended without the consent of Lender except as may otherwise expressly permitted in this Agreement;
(xiii) intentionally omitted;
(xiv) if any Affiliate of any Borrower that is or becomes a party to the Windstorm Insurance Intercreditor Agreement is in default of any of its material obligations under the Windstorm Insurance Intercreditor Agreement beyond any applicable notice and cure periods contained therein; or if the Windstorm Insurance Intercreditor Agreement shall be surrendered, terminated or canceled for any reason or under any circumstances whatsoever, except with the consent of Lender; or if any of the terms, covenants or conditions of the Windstorm Insurance Intercreditor Agreement shall in any manner be modified, changed, supplemented, altered, restated or amended without the consent of Lender;
(xv) if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower fails to comply with the covenants as to Prescribed Laws set forth in Section 5.1.1 hereof;
(xvi) if a material default has occurred and continues beyond any applicable cure period under any Management Agreement and if such default permits the Manager, the Operating Company or the Mortgage Borrower party thereto to terminate or cancel the Management Agreement in question;
(xvii) any Gaming License shall be refused, suspended, revoked, modified in a materially adverse manner or canceled or allowed to lapse or any proceeding is commenced by any Governmental Authority for the purpose of suspending, revoking or canceling any Gaming License in any materially adverse respect, or any Governmental Authority shall have appointed a conservator, supervisor or trustee to or for any of the Casino Components and, in each case of the foregoing, such action could reasonably be expected to (A) have an Individual Material Adverse Effect, (B) materially and adversely affect the continued operation of the Casino Components in the usual course of business and in substantially the same manner and to at least the same standard as was maintained prior to such action, or (C) result in any material decrease in the then expected cash flow and revenues to be derived from the Casino Components;
(xviii) if any Borrower shall continue to be in Default under any of the other terms, covenants or conditions of this Agreement not specified in subsections (i) to (xvii) above, for ten (10) days after notice to Borrower from Lender, in the case of any Default which can be cured by the payment of a sum of money, or for thirty (30) days after notice from Lender in the case of any other Default; provided, however, that if such non-monetary Default is susceptible of cure but cannot reasonably be cured within such thirty (30) day period and provided further that such Borrower shall have commenced to cure such Default within such thirty (30) day period and thereafter diligently and expeditiously proceeds to cure the same, such thirty (30) day period shall be extended for such time as is reasonably necessary for such Borrower in the exercise of due diligence to cure such Default, such additional period not to exceed one hundred twenty (120) days;
(xix) if there shall be a default under any of the other Loan Documents beyond any applicable cure periods contained actions sought in such documents, whether as to any Borrower, Mortgage Borrower, Senior Mezzanine Borrower, the Collateral, the Senior Mezzanine Collateral or any Individual Property, or if any other such event shall occur or condition shall exist, if the effect of such event or condition is to accelerate the maturity of any portion of the Debt or to permit Lender to accelerate the maturity of all or any portion of the Debt;
proceeding (xx) if the Liens created pursuant to any Loan Document shall cease to be a fully protected enforceable first priority security interest in the Collateral, or any portion of the Collateral is Transferred without Lender’s prior written consent except as permitted hereunder; or
(xxi) if a Mortgage Loan Event of Default or Senior Mezzanine Loan Event of Default shall occur.
(b) Upon the occurrence of an Event of Default (other than an Event of Default described in clauses (vi) or (vii) above) and at any time thereafter, in addition to any other rights or remedies available to it pursuant to this Agreement and the other Loan Documents or at law or in equity, Lender may take such action, without notice or demand, that Lender deems advisable to protect and enforce its rights against Borrower and in and to all or any of the Collateral, including, without limitation, declaring the Debt to be immediately due and payable, and Lender may enforce entry of an order for relief against it or avail itself of any or all rights or remedies provided in the Loan Documents and may exercise all the rights and remedies appointment of a secured party under receiver, trustee, custodian or other similar official for it or any substantial part of its property) shall occur; or (iv) the Uniform Commercial CodeCompany, as adopted and enacted by the State any Principal Subsidiary or States where any Restricted Affiliate shall take any corporate action to authorize any of the Collateral is locatedactions set forth above in this subsection (e); or
(f) Any judgment or order of any court for the payment of money in excess of $50,000,000 shall be rendered against the Company, against Borrower any Principal Subsidiary or any Restricted Affiliate and either (i) enforcement proceedings shall have been commenced by any creditor upon such judgment or all of the Collateral, including, without limitation, all rights or remedies available at law or in equity; and upon any Event of Default described in clauses (vi) or (vii) above, the Debt and all other obligations of Borrower hereunder and under the other Loan Documents shall immediately and automatically become due and payable, without notice or demand, and Borrower hereby expressly waives any such notice or demand, anything contained herein or in any other Loan Document to the contrary notwithstanding.order
Appears in 7 contracts
Samples: Revolving Credit and Competitive Advance Facility Agreement (El Paso Tennessee Pipeline Co), Revolving Credit and Competitive Advance Facility Agreement (Tennessee Gas Pipeline Co), Revolving Credit and Competitive Advance Facility Agreement (El Paso Tennessee Pipeline Co)
Event of Default. (a) Each of the following events shall constitute an event of default hereunder (an An “Event of Default”):” under this Agreement shall occur upon the happening of any of the following events:
(ia) if (A) An “Event of Default” under any portion of the Debt is not paid in full on the Maturity Date, (B) the Debt Service is not paid in full on Document or before the any agreement or note related Payment Date, or (C) to any other portion of the Debt is not paid within five (5) days of when dueDocument shall have occurred and be continuing beyond any applicable cure period;
(iib) if Any Pledgor shall default in the performance of any of its obligations under any Document, including, without limitation, this Agreement, and such default shall not be cured during the Taxes or Other Charges are not paid (with respect to each or any Individual Property) prior to Delinquencycure period applicable thereto;
(iiic) if the Policies (with respect to each or any Individual Property) are not kept in full force and effect, or if certified copies of the Policies (for each Individual Property) are not delivered to Lender upon request (or certificates thereof, if a Policy shall be renewed and certified copies of the Policy are not immediately available upon such renewal (each Borrower agreeing in such instance to provide copies of the Policies to Lender promptly thereafter));
(iv) if any Borrower Transfers or otherwise encumbers any portion of the Properties, the Collateral or the Senior Mezzanine Collateral, or there shall otherwise occur a Transfer without Lender’s prior consent in violation of the provisions of this Agreement, the Pledge Agreement or any other Loan Document;
(v) if any Any representation or warranty of any Pledgor made by herein, in any Borrower or any other Loan Party herein Document or in any other Loan Documentagreement, statement or certificate given in writing pursuant hereto or thereto or in any report, certificate, financial statement connection herewith or other instrument, agreement or document or other material or written information furnished to Lender therewith shall have been be false or misleading in any material respect as respect;
(d) Any portion of the date Collateral is subjected to a levy of execution, attachment, distraint or other judicial process or any portion of the representation or warranty was made (and, with respect to any such breach which Collateral is not the subject of any a claim (other subsection than by the Pledgee) of this Section 8.1 a Lien or other right or interest in or to the Collateral and which is capable of being such levy or claim shall not be cured, such Borrower fails to remedy such condition disputed or stayed within ten a period of fifteen (1015) business days following notice to Borrower from Lenderafter the occurrence thereof; or
(e) Any Pledgor shall (i) apply for, in the case of any such breach which can be cured by the payment of a sum of moneyconsent to, or within thirty suffer to exist the appointment of, or the taking of possession by, a receiver, custodian, trustee, liquidator or other fiduciary of itself or of all or a substantial part of its property, (30ii) days following notice from Lender in the case of any other such breach);
(vi) if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower shall make an a general assignment for the benefit of creditors; , (iii) commence a voluntary case under any state or if a receiverfederal bankruptcy laws (as now or hereafter in effect), liquidator or trustee shall be appointed for any Borrower, Senior Mezzanine Borrower or Mortgage Borrower, or if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower shall (iv) be adjudicated a bankrupt or insolvent, or if (v) file a petition seeking to take advantage of any petition other law providing for bankruptcythe relief of debtors, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by or against, consented (vi) acquiesce to, or acquiesced in byfail to have dismissed, Borrower or Senior Mezzanine Borrower, or if any proceeding for the dissolution or liquidation of any Borrower, Senior Mezzanine Borrower or Mortgage Borrower shall be instituted; provided, however, if such appointment, adjudication, petition or proceeding was involuntary and not consented to by any Borrower, Senior Mezzanine Borrower or Mortgage Borrower, upon the same not being discharged, stayed or dismissed within ninety (90) days;
(vii) if any Operating Company, any Manager, Principal, Holdings or any Guarantor shall make an assignment for the benefit of creditors; or if a receiver, liquidator or trustee shall be appointed for any such Operating Company, any such Manager, Principal, Holdings or any such Guarantor, or if any Operating Company, any Manager, Principal, Holdings or any Guarantor shall be adjudicated a bankrupt or insolvent, or if any petition for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by or against, consented to, or acquiesced in by, any Operating Company, any Manager, Principal, Holdings or any Guarantor, or if any proceeding for the dissolution or liquidation of any Operating Company, any Manager, Principal, Holdings or any Guarantor shall be instituted; provided, however, if such appointment, adjudication, petition or proceeding was involuntary and not consented to by any such Operating Company, any such Manager, Principal, Holdings or any such Guarantor, upon the same not being discharged, stayed or dismissed within ninety (90) days;
(viii) if any Borrower attempts to assign its rights under this Agreement or any of the other Loan Documents or any interest herein or therein in contravention of the Loan Documents;
(ix) if any Borrower breaches any of its respective negative covenants contained in Section 5.2 or any covenant contained in Section 4.1.30 or Section 5.1.11 hereof (and, with respect to any such breach of any covenant set forth in Section 5.1.11 which is not the subject of any other subsection of this Section 8.1, such Borrower fails to remedy such condition within ten (10) days after notice to Borrower from Lender, in the case of any such Default under Section 5.1.11 which can be cured by the payment of a sum of money, or for thirty (30) days after notice from Lender days, any petition filed against it in the any involuntary case of any other such Default under Section 5.1.11);
(x) with respect to any term, covenant or provision set forth herein which specifically contains a notice requirement or grace period, if any Borrower shall be in default under such term, covenant or condition after the giving of such notice or the expiration of such grace period;
(xi) if any of the assumptions contained in the Insolvency Opinion delivered in connection with the Loanbankruptcy laws, or in the Additional Insolvency Opinion delivered subsequent to the closing of the Loan, is or shall become untrue in (vii) take any material respect; or if any of the assumptions contained in the True Lease Opinion in connection with the Loan, or in the Additional True Lease Opinion delivered subsequent to the closing of the Loan, is or shall become untrue in any material respect;
(xii) if any Mortgage Borrower, any Operating Company or any Guarantor (Operating Lease) is in default of any of its material obligations under any Operating Lease (or under another lease and/or management agreement in substitution for such Operating Lease in accordance herewith) or under any such Operating Lease Guaranty (or under another operating lease guaranty in substitution for such Operating Lease Guaranty in accordance herewith) beyond any applicable notice and cure periods contained therein; or if any Operating Lease (or such other lease and/or management agreement) or any Operating Lease Guaranty (or such other operating lease guaranty) shall be surrendered or any Operating Lease or any Operating Lease Guaranty shall be terminated or canceled for any reason or under any circumstances whatsoever, except with the consent of Lender; or if any of the terms, covenants or conditions of any Operating Lease (or such other lease and/or management agreement) or any Operating Lease Guaranty (or such other operating lease guaranty) shall in any manner be modified, changed, supplemented, altered, restated or amended without the consent of Lender except as may otherwise expressly permitted in this Agreement;
(xiii) intentionally omitted;
(xiv) if any Affiliate of any Borrower that is or becomes a party to the Windstorm Insurance Intercreditor Agreement is in default of any of its material obligations under the Windstorm Insurance Intercreditor Agreement beyond any applicable notice and cure periods contained therein; or if the Windstorm Insurance Intercreditor Agreement shall be surrendered, terminated or canceled for any reason or under any circumstances whatsoever, except with the consent of Lender; or if any of the terms, covenants or conditions of the Windstorm Insurance Intercreditor Agreement shall in any manner be modified, changed, supplemented, altered, restated or amended without the consent of Lender;
(xv) if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower fails to comply with the covenants as to Prescribed Laws set forth in Section 5.1.1 hereof;
(xvi) if a material default has occurred and continues beyond any applicable cure period under any Management Agreement and if such default permits the Manager, the Operating Company or the Mortgage Borrower party thereto to terminate or cancel the Management Agreement in question;
(xvii) any Gaming License shall be refused, suspended, revoked, modified in a materially adverse manner or canceled or allowed to lapse or any proceeding is commenced by any Governmental Authority action for the purpose of suspending, revoking or canceling any Gaming License in any materially adverse respect, or any Governmental Authority shall have appointed a conservator, supervisor or trustee to or for effecting any of the Casino Components and, in each case of the foregoing, such action could reasonably be expected to (A) have an Individual Material Adverse Effect, (B) materially and adversely affect the continued operation of the Casino Components in the usual course of business and in substantially the same manner and to at least the same standard as was maintained prior to such action, or (C) result in any material decrease in the then expected cash flow and revenues to be derived from the Casino Components;
(xviii) if any Borrower shall continue to be in Default under any of the other terms, covenants or conditions of this Agreement not specified in subsections (i) to (xvii) above, for ten (10) days after notice to Borrower from Lender, in the case of any Default which can be cured by the payment of a sum of money, or for thirty (30) days after notice from Lender in the case of any other Default; provided, however, that if such non-monetary Default is susceptible of cure but cannot reasonably be cured within such thirty (30) day period and provided further that such Borrower shall have commenced to cure such Default within such thirty (30) day period and thereafter diligently and expeditiously proceeds to cure the same, such thirty (30) day period shall be extended for such time as is reasonably necessary for such Borrower in the exercise of due diligence to cure such Default, such additional period not to exceed one hundred twenty (120) days;
(xix) if there shall be a default under any of the other Loan Documents beyond any applicable cure periods contained in such documents, whether as to any Borrower, Mortgage Borrower, Senior Mezzanine Borrower, the Collateral, the Senior Mezzanine Collateral or any Individual Property, or if any other such event shall occur or condition shall exist, if the effect of such event or condition is to accelerate the maturity of any portion of the Debt or to permit Lender to accelerate the maturity of all or any portion of the Debt;
(xx) if the Liens created pursuant to any Loan Document shall cease to be a fully protected enforceable first priority security interest in the Collateral, or any portion of the Collateral is Transferred without Lender’s prior written consent except as permitted hereunder; or
(xxi) if a Mortgage Loan Event of Default or Senior Mezzanine Loan Event of Default shall occur.
(b) Upon the occurrence of an Event of Default (other than an Event of Default described in clauses (vi) or (vii) above) and at any time thereafter, in addition to any other rights or remedies available to it pursuant to this Agreement and the other Loan Documents or at law or in equity, Lender may take such action, without notice or demand, that Lender deems advisable to protect and enforce its rights against Borrower and in and to all or any of the Collateral, including, without limitation, declaring the Debt to be immediately due and payable, and Lender may enforce or avail itself of any or all rights or remedies provided in the Loan Documents and may exercise all the rights and remedies of a secured party under the Uniform Commercial Code, as adopted and enacted by the State or States where any of the Collateral is located, against Borrower and any or all of the Collateral, including, without limitation, all rights or remedies available at law or in equity; and upon any Event of Default described in clauses (vi) or (vii) above, the Debt and all other obligations of Borrower hereunder and under the other Loan Documents shall immediately and automatically become due and payable, without notice or demand, and Borrower hereby expressly waives any such notice or demand, anything contained herein or in any other Loan Document to the contrary notwithstanding.
Appears in 6 contracts
Samples: Stock Pledge Agreement (360 Global Wine Co), Stock Pledge Agreement (Electric City Corp), Stock Pledge Agreement (Impart Media Group Inc)
Event of Default. (a) Each For purposes of the following events shall constitute an event of default hereunder (this Security Agreement, an “Event of Default”):” shall occur and be continuing if:
(i) if (A) Debtor shall fail to pay any portion of the Debt is not paid in full principal or interest on the Maturity DateNote when the same shall become due and payable, (B) whether at the Debt Service is not paid in full on stated date of maturity or before the related Payment Date, or (C) any other portion of the Debt is not paid within five (5) days of when duedate fixed for payment;
(ii) if Debtor shall fail to observe or perform any covenant or agreement contained in the Note or this Security Agreement in any material respect and such failure remains unremedied for twenty (20) days after notice of such failure is given by the Taxes or Other Charges are not paid (with respect Secured Party to each or any Individual Property) prior to DelinquencyDebtor;
(iii) if the Policies (with respect to each or any Individual Property) are not kept in full force and effect, or if certified copies The fair market value of the Policies (for each Individual Property) are not delivered to Lender upon request (or certificates thereof, if a Policy Collateral shall be renewed and certified copies less than one hundred percent (100%) of the Policy are not immediately available upon such renewal (each Borrower agreeing in such instance to provide copies unpaid principal balance of the Policies Note and Debtor has failed to Lender promptly thereafter))prepay a sufficient portion of the Note or to deposit additional Collateral to remedy this default within twenty (20) days after notice of such default is given by Secured Party to Debtor;
(iv) if any Borrower Transfers or otherwise encumbers any portion of the Properties, the Collateral or the Senior Mezzanine CollateralDebtor shall (A) commence, or there shall otherwise occur a Transfer without Lender’s prior consent in violation be the subject of the provisions of this Agreement, the Pledge Agreement or any other Loan Document;
an involuntary petition (v) if any representation or warranty made by any Borrower or any other Loan Party herein or in any other Loan Document, or in any report, certificate, financial statement or other instrument, agreement or document or other material or written information furnished to Lender shall have been false or misleading in any material respect as of the date the representation or warranty was made (and, with respect to any such breach which is not dismissed within forty-five (45) days of filing) commencing, a case under the Bankruptcy Code of 1978, as amended, or under any existing or future law of any jurisdiction relating to bankruptcy, insolvency, reorganization or relief of debtors; (B) be the subject of an order by a Court of competent jurisdiction (x) finding Debtor to be bankrupt or insolvent or (y) ordering or approving any other subsection modification or alteration of this Section 8.1 and which is capable the rights of being cured, such Borrower fails to remedy such condition within ten Debtor’s creditors or appointing a receiver or custodian; or (10C) days following notice to Borrower from Lender, in the case of any such breach which can be cured by the payment of a sum of money, or within thirty (30) days following notice from Lender in the case of any other such breach);
(vi) if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower shall make an assignment for the benefit of creditors; or if a receiver, liquidator or trustee shall be appointed for any Borrower, Senior Mezzanine Borrower or Mortgage Borrowerof, or if any Borrowerenter into a composition with, Senior Mezzanine Borrower or Mortgage Borrower shall be adjudicated a bankrupt or insolventits creditors, or if any petition appoint or consent to the appointment of a receiver or other custodian for bankruptcy, reorganization all or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by or against, consented to, or acquiesced in by, Borrower or Senior Mezzanine Borrower, or if any proceeding for the dissolution or liquidation of any Borrower, Senior Mezzanine Borrower or Mortgage Borrower shall be instituted; provided, however, if such appointment, adjudication, petition or proceeding was involuntary and not consented to by any Borrower, Senior Mezzanine Borrower or Mortgage Borrower, upon the same not being discharged, stayed or dismissed within ninety (90) days;
(vii) if any Operating Company, any Manager, Principal, Holdings or any Guarantor shall make an assignment for the benefit of creditors; or if a receiver, liquidator or trustee shall be appointed for any such Operating Company, any such Manager, Principal, Holdings or any such Guarantor, or if any Operating Company, any Manager, Principal, Holdings or any Guarantor shall be adjudicated a bankrupt or insolvent, or if any petition for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by or against, consented to, or acquiesced in by, any Operating Company, any Manager, Principal, Holdings or any Guarantor, or if any proceeding for the dissolution or liquidation of any Operating Company, any Manager, Principal, Holdings or any Guarantor shall be instituted; provided, however, if such appointment, adjudication, petition or proceeding was involuntary and not consented to by any such Operating Company, any such Manager, Principal, Holdings or any such Guarantor, upon the same not being discharged, stayed or dismissed within ninety (90) days;
(viii) if any Borrower attempts to assign its rights under this Agreement or any of the other Loan Documents or any interest herein or therein in contravention of the Loan Documents;
(ix) if any Borrower breaches any substantial part of its respective negative covenants contained in Section 5.2 or any covenant contained in Section 4.1.30 or Section 5.1.11 hereof (and, with respect to any such breach of any covenant set forth in Section 5.1.11 which is not the subject of any other subsection of this Section 8.1, such Borrower fails to remedy such condition within ten (10) days after notice to Borrower from Lender, in the case of any such Default under Section 5.1.11 which can be cured by the payment of a sum of money, or for thirty (30) days after notice from Lender in the case of any other such Default under Section 5.1.11);
(x) with respect to any term, covenant or provision set forth herein which specifically contains a notice requirement or grace period, if any Borrower shall be in default under such term, covenant or condition after the giving of such notice or the expiration of such grace period;
(xi) if any of the assumptions contained in the Insolvency Opinion delivered in connection with the Loan, or in the Additional Insolvency Opinion delivered subsequent to the closing of the Loan, is or shall become untrue in any material respect; or if any of the assumptions contained in the True Lease Opinion in connection with the Loan, or in the Additional True Lease Opinion delivered subsequent to the closing of the Loan, is or shall become untrue in any material respect;
(xii) if any Mortgage Borrower, any Operating Company or any Guarantor (Operating Lease) is in default of any of its material obligations under any Operating Lease (or under another lease and/or management agreement in substitution for such Operating Lease in accordance herewith) or under any such Operating Lease Guaranty (or under another operating lease guaranty in substitution for such Operating Lease Guaranty in accordance herewith) beyond any applicable notice and cure periods contained therein; or if any Operating Lease (or such other lease and/or management agreement) or any Operating Lease Guaranty (or such other operating lease guaranty) shall be surrendered or any Operating Lease or any Operating Lease Guaranty shall be terminated or canceled for any reason or under any circumstances whatsoever, except with the consent of Lender; or if any of the terms, covenants or conditions of any Operating Lease (or such other lease and/or management agreement) or any Operating Lease Guaranty (or such other operating lease guaranty) shall in any manner be modified, changed, supplemented, altered, restated or amended without the consent of Lender except as may otherwise expressly permitted in this Agreement;
(xiii) intentionally omitted;
(xiv) if any Affiliate of any Borrower that is or becomes a party to the Windstorm Insurance Intercreditor Agreement is in default of any of its material obligations under the Windstorm Insurance Intercreditor Agreement beyond any applicable notice and cure periods contained therein; or if the Windstorm Insurance Intercreditor Agreement shall be surrendered, terminated or canceled for any reason or under any circumstances whatsoever, except with the consent of Lender; or if any of the terms, covenants or conditions of the Windstorm Insurance Intercreditor Agreement shall in any manner be modified, changed, supplemented, altered, restated or amended without the consent of Lender;
(xv) if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower fails to comply with the covenants as to Prescribed Laws set forth in Section 5.1.1 hereof;
(xvi) if a material default has occurred and continues beyond any applicable cure period under any Management Agreement and if such default permits the Manager, the Operating Company or the Mortgage Borrower party thereto to terminate or cancel the Management Agreement in question;
(xvii) any Gaming License shall be refused, suspended, revoked, modified in a materially adverse manner or canceled or allowed to lapse or any proceeding is commenced by any Governmental Authority for the purpose of suspending, revoking or canceling any Gaming License in any materially adverse respect, or any Governmental Authority shall have appointed a conservator, supervisor or trustee to or for any of the Casino Components and, in each case of the foregoing, such action could reasonably be expected to (A) have an Individual Material Adverse Effect, (B) materially and adversely affect the continued operation of the Casino Components in the usual course of business and in substantially the same manner and to at least the same standard as was maintained prior to such action, or (C) result in any material decrease in the then expected cash flow and revenues to be derived from the Casino Components;
(xviii) if any Borrower shall continue to be in Default under any of the other terms, covenants or conditions of this Agreement not specified in subsections (i) to (xvii) above, for ten (10) days after notice to Borrower from Lender, in the case of any Default which can be cured by the payment of a sum of money, or for thirty (30) days after notice from Lender in the case of any other Default; provided, however, that if such non-monetary Default is susceptible of cure but cannot reasonably be cured within such thirty (30) day period and provided further that such Borrower shall have commenced to cure such Default within such thirty (30) day period and thereafter diligently and expeditiously proceeds to cure the same, such thirty (30) day period shall be extended for such time as is reasonably necessary for such Borrower in the exercise of due diligence to cure such Default, such additional period not to exceed one hundred twenty (120) days;
(xix) if there shall be a default under any of the other Loan Documents beyond any applicable cure periods contained in such documents, whether as to any Borrower, Mortgage Borrower, Senior Mezzanine Borrower, the Collateral, the Senior Mezzanine Collateral or any Individual Property, or if any other such event shall occur or condition shall exist, if the effect of such event or condition is to accelerate the maturity of any portion of the Debt or to permit Lender to accelerate the maturity of all or any portion of the Debt;
(xx) if the Liens created pursuant to any Loan Document shall cease to be a fully protected enforceable first priority security interest in the Collateral, or any portion of the Collateral is Transferred without Lender’s prior written consent except as permitted hereunderproperty; or
(xxiv) if a Mortgage Loan Event of Default or Senior Mezzanine Loan Event of Default Any final judgment from which no further appeal may be taken against Debtor shall occur.
remain in force, undischarged, unsatisfied and unstayed for more than sixty (b60) Upon the occurrence of an Event of Default (other than an Event of Default described in clauses (vi) or (vii) above) and at any time thereafter, in addition to any other rights or remedies available to it pursuant to this Agreement days and the other Loan Documents existence of such judgment shall prevent Debtor from paying, or at law or in equity, Lender may take such action, without notice or demand, that Lender deems advisable to protect and enforce its rights against Borrower and in and to all or any of the Collateral, including, without limitation, declaring the Debt cause it to be immediately due and payableunable to pay, and Lender may enforce or avail itself of any or all rights or remedies provided in the Loan Documents and may exercise all the rights and remedies of a secured party its obligations under the Uniform Commercial Code, as adopted and enacted by the State or States where any of the Collateral is located, against Borrower and any or all of the Collateral, including, without limitation, all rights or remedies available at law or in equity; and upon any Event of Default described in clauses (vi) or (vii) above, the Debt and all other obligations of Borrower hereunder and under the other Loan Documents shall immediately and automatically become due and payable, without notice or demand, and Borrower hereby expressly waives any such notice or demand, anything contained herein or in any other Loan Document to the contrary notwithstandingNote.
Appears in 5 contracts
Samples: Stock Purchase Agreement (Hamann John Francis), Stock Purchase Agreement (Hamann John Francis), Stock Purchase Agreement (Hamann John Francis)
Event of Default. (a) Each of Bxxxxxxx understands and agrees that the following events shall constitute an event of default hereunder (hereunder, and each shall be referred to as an “Event of Default.”):
(ia) if (A) any portion The failure of Borrower to repay Trade Credits by the Debt is not paid in full on the Maturity Date, (B) the Debt Service is not paid in full on or before the related Payment Date, or (C) any other portion of the Debt is not paid within five (5) days of when dueapplicable Settlement Deadline;
(iib) if any The failure of Borrower to maintain the Minimum Collateral Amount as provided under Section 4(e) of the Taxes or Other Charges are not paid (with respect to each or PTFA, provided that the Borrower may withdraw any Individual Property) prior to Delinquencyexcess amount; ;
(iiic) if Other than as contemplated by 8(a) and 8(b) herein, a default by Borrower in the Policies (with respect to each payment or performance of any Individual Property) are not kept in full force of obligations, conditions, covenants, representations, provisions or stipulations between Borrower and effectLender, Agent, Coinbase Custody, or if certified copies of the Policies (for each Individual Property) are not delivered to Lender upon request (or certificates thereof, if a Policy shall be renewed and certified copies of the Policy are not immediately available upon such renewal (each Borrower agreeing other Coinbase Entities in such instance to provide copies of the Policies to Lender promptly thereafter));
(iv) if any Borrower Transfers or otherwise encumbers any portion of the Properties, the Collateral or the Senior Mezzanine Collateral, or there shall otherwise occur a Transfer without Lender’s prior consent in violation of the provisions of this Agreement, the Pledge Agreement PTFA or any other Loan Document;
(v) if any representation or warranty made by any agreement provided that, the Borrower or any other Loan Party herein or in any other Loan Document, or in any report, certificate, financial statement or other instrument, agreement or document or other material or written information furnished to Lender shall have been false or misleading in any material respect as of the date the representation or warranty was made twenty four (and, with respect to any such breach which is not the subject of any other subsection of this Section 8.1 and which is capable of being cured, such Borrower fails to remedy such condition within ten (1024) days following notice to Borrower from Lender, in the case of any such breach which can be cured by the payment of a sum of money, or within thirty (30) days following notice from Lender in the case of any other such breach);
(vi) if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower shall make an assignment for the benefit of creditors; or if a receiver, liquidator or trustee shall be appointed for any Borrower, Senior Mezzanine Borrower or Mortgage Borrower, or if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower shall be adjudicated a bankrupt or insolvent, or if any petition for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by or against, consented to, or acquiesced in by, Borrower or Senior Mezzanine Borrower, or if any proceeding for the dissolution or liquidation of any Borrower, Senior Mezzanine Borrower or Mortgage Borrower shall be instituted; provided, however, if such appointment, adjudication, petition or proceeding was involuntary and not consented to by any Borrower, Senior Mezzanine Borrower or Mortgage Borrower, upon the same not being discharged, stayed or dismissed within ninety (90) days;
(vii) if any Operating Company, any Manager, Principal, Holdings or any Guarantor shall make an assignment for the benefit of creditors; or if a receiver, liquidator or trustee shall be appointed for any such Operating Company, any such Manager, Principal, Holdings or any such Guarantor, or if any Operating Company, any Manager, Principal, Holdings or any Guarantor shall be adjudicated a bankrupt or insolvent, or if any petition for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by or against, consented to, or acquiesced in by, any Operating Company, any Manager, Principal, Holdings or any Guarantor, or if any proceeding for the dissolution or liquidation of any Operating Company, any Manager, Principal, Holdings or any Guarantor shall be instituted; provided, however, if such appointment, adjudication, petition or proceeding was involuntary and not consented to by any such Operating Company, any such Manager, Principal, Holdings or any such Guarantor, upon the same not being discharged, stayed or dismissed within ninety (90) days;
(viii) if any Borrower attempts to assign its rights under this Agreement or any of the other Loan Documents or any interest herein or therein in contravention of the Loan Documents;
(ix) if any Borrower breaches any of its respective negative covenants contained in Section 5.2 or any covenant contained in Section 4.1.30 or Section 5.1.11 hereof (and, with respect to any such breach of any covenant set forth in Section 5.1.11 which is not the subject of any other subsection of this Section 8.1, such Borrower fails to remedy such condition within ten (10) days after notice to Borrower from Lender, in the case of any such Default under Section 5.1.11 which can be cured by the payment of a sum of money, or for thirty (30) days hours after notice from Lender in the case of any other or Agent to cure such Default under Section 5.1.11)default;
(xd) with respect Any event or circumstance occurs or exists that has a material adverse effect on the business, operations, prospects, property, assets, liabilities or financial condition of Borrower, taken as a whole, or has a material adverse effect on the ability of Borrower to perform its obligations under this PTFA or any termother agreement, covenant or provision set forth herein which specifically contains a notice requirement or grace period, if including the ability to repay any Borrower shall be in default under such term, covenant or condition after the giving of such notice or the expiration of such grace periodand all outstanding Trade Credits;
(xie) if any Any bankruptcy, insolvency, reorganization or liquidation proceedings or other proceedings for the relief of debtors or dissolution proceedings are instituted by or against the assumptions contained in the Insolvency Opinion delivered in connection with the Loan, or in the Additional Insolvency Opinion delivered subsequent to the closing of the Loan, is or shall become untrue in any material respect; or if any of the assumptions contained in the True Lease Opinion in connection with the Loan, or in the Additional True Lease Opinion delivered subsequent to the closing of the Loan, is or shall become untrue in any material respectBorrower;
(xiif) if any Mortgage Borrower, any Operating Company If Borrower notifies Lender of its inability to or its intention not to perform its obligations under this PTFA or any Guarantor (Operating Lease) is in default of other agreement, or otherwise disaffirms, rejects, or repudiates any of its material obligations under any Operating Lease (or under another lease and/or management agreement in substitution for such Operating Lease in accordance herewith) or under any such Operating Lease Guaranty (or under another operating lease guaranty in substitution for such Operating Lease Guaranty in accordance herewith) beyond any applicable notice and cure periods contained therein; or if any Operating Lease (or such other lease and/or management agreement) this PTFA or any Operating Lease Guaranty (or such other operating lease guaranty) shall be surrendered or any Operating Lease or any Operating Lease Guaranty shall be terminated or canceled for any reason or under any circumstances whatsoever, except with the consent of Lender; or if any of the terms, covenants or conditions of any Operating Lease (or such other lease and/or management agreement) or any Operating Lease Guaranty (or such other operating lease guaranty) shall in any manner be modified, changed, supplemented, altered, restated or amended without the consent of Lender except as may otherwise expressly permitted in this Agreement;
(xiii) intentionally omitted;
(xiv) if any Affiliate of any Borrower that is or becomes a party to the Windstorm Insurance Intercreditor Agreement is in default of any of its material obligations under the Windstorm Insurance Intercreditor Agreement beyond any applicable notice and cure periods contained therein; or if the Windstorm Insurance Intercreditor Agreement shall be surrendered, terminated or canceled for any reason or under any circumstances whatsoever, except with the consent of Lender; or if any of the terms, covenants or conditions of the Windstorm Insurance Intercreditor Agreement shall in any manner be modified, changed, supplemented, altered, restated or amended without the consent of Lender;
(xv) if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower fails to comply with the covenants as to Prescribed Laws set forth in Section 5.1.1 hereof;
(xvi) if a material default has occurred and continues beyond any applicable cure period under any Management Agreement and if such default permits the Manager, the Operating Company or the Mortgage Borrower party thereto to terminate or cancel the Management Agreement in question;
(xvii) any Gaming License shall be refused, suspended, revoked, modified in a materially adverse manner or canceled or allowed to lapse or any proceeding is commenced by any Governmental Authority for the purpose of suspending, revoking or canceling any Gaming License in any materially adverse respect, or any Governmental Authority shall have appointed a conservator, supervisor or trustee to or for any of the Casino Components and, in each case of the foregoing, such action could reasonably be expected to (A) have an Individual Material Adverse Effect, (B) materially and adversely affect the continued operation of the Casino Components in the usual course of business and in substantially the same manner and to at least the same standard as was maintained prior to such action, or (C) result in any material decrease in the then expected cash flow and revenues to be derived from the Casino Components;
(xviii) if any Borrower shall continue to be in Default under any of the other terms, covenants or conditions of this Agreement not specified in subsections (i) to (xvii) above, for ten (10) days after notice to Borrower from Lender, in the case of any Default which can be cured by the payment of a sum of money, or for thirty (30) days after notice from Lender in the case of any other Default; provided, however, that if such non-monetary Default is susceptible of cure but cannot reasonably be cured within such thirty (30) day period and provided further that such Borrower shall have commenced to cure such Default within such thirty (30) day period and thereafter diligently and expeditiously proceeds to cure the same, such thirty (30) day period shall be extended for such time as is reasonably necessary for such Borrower in the exercise of due diligence to cure such Default, such additional period not to exceed one hundred twenty (120) days;
(xix) if there shall be a default under any of the other Loan Documents beyond any applicable cure periods contained in such documents, whether as to any Borrower, Mortgage Borrower, Senior Mezzanine Borrower, the Collateral, the Senior Mezzanine Collateral or any Individual Property, or if any other such event shall occur or condition shall exist, if the effect of such event or condition is to accelerate the maturity of any portion of the Debt or to permit Lender to accelerate the maturity of all or any portion of the Debt;
(xx) if the Liens created pursuant to any Loan Document shall cease to be a fully protected enforceable first priority security interest in the Collateral, or any portion of the Collateral is Transferred without Lender’s prior written consent except as permitted hereunder; or
(xxi) if a Mortgage Loan Event of Default or Senior Mezzanine Loan Event of Default shall occur.
(b) Upon the occurrence of an Event of Default (other than an Event of Default described in clauses (vi) or (vii) above) and at any time thereafter, in addition to any other rights or remedies available to it pursuant to this Agreement and the other Loan Documents or at law or in equity, Lender may take such action, without notice or demand, that Lender deems advisable to protect and enforce its rights against Borrower and in and to all or any of the Collateral, including, without limitation, declaring the Debt to be immediately due and payable, and Lender may enforce or avail itself of any or all rights or remedies provided in the Loan Documents and may exercise all the rights and remedies of a secured party under the Uniform Commercial Code, as adopted and enacted by the State or States where any of the Collateral is located, against Borrower and any or all of the Collateral, including, without limitation, all rights or remedies available at law or in equity; and upon any Event of Default described in clauses (vi) or (vii) above, the Debt and all other obligations of Borrower hereunder and under the other Loan Documents shall immediately and automatically become due and payable, without notice or demand, and Borrower hereby expressly waives any such notice or demand, anything contained herein or in any other Loan Document to the contrary notwithstanding.
Appears in 5 contracts
Samples: Coinbase Prime Broker Agreement (Bitwise Bitcoin ETF), Coinbase Prime Broker Agreement (Bitwise Ethereum ETF), Coinbase Prime Broker Agreement (Valkyrie Bitcoin Fund)
Event of Default. (a) Each of the following events shall constitute an event of default hereunder (an “Event of Default”):
(i) if (A) any portion of the Debt is not paid in full on the Maturity Date, (B) the Debt Service is not paid in full on or before the related Payment Date, or (C) any other portion of the Debt is not paid within five (5) days of when due;
(ii) if any of the Taxes or Other Charges are not paid (with respect to each or any Individual Property) prior to Delinquency;
(iii) if the Policies (with respect to each or any Individual Property) are not kept in full force and effect, or if certified copies of the Policies (for each Individual Property) are not delivered to Lender upon request (or certificates thereof, if a Policy shall be renewed and certified copies of the Policy are not immediately available upon such renewal (each Borrower agreeing in such instance to provide copies of the Policies to Lender promptly thereafter));
(iv) if any Borrower Transfers or otherwise encumbers any portion of the Properties, Properties or the Collateral or the Senior Mezzanine Collateral, or there shall otherwise occur a Transfer Transfer, without Lender’s prior consent in violation of the provisions of this Agreement, the Pledge Agreement or any other Loan DocumentDocument or any Transfer is made in violation of the provisions of Section 5.2.10;
(v) if any representation or warranty made by any Borrower or any other Loan Party herein or in any other Loan Document, or in any report, certificate, financial statement or other instrument, agreement or document or other material or written information furnished to Lender shall have been false or misleading in any material respect as of the date the representation or warranty was made (and, with respect to any such breach which is not the subject of any other subsection of this Section 8.1 and which is capable of being cured, such Borrower fails to remedy such condition within ten (10) days following notice to Borrower from Lender, in the case of any such breach which can be cured by the payment of a sum of money, or within thirty (30) days following notice from Lender in the case of any other such breach);
(vi) if any Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Mortgage Borrower shall make an assignment for the benefit of creditors; or if a receiver, liquidator or trustee shall be appointed for any Borrower, Senior Mezzanine Borrower or Mortgage Borrower, or if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower shall be adjudicated a bankrupt or insolvent, or if any petition for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by or against, consented to, or acquiesced in by, Borrower or Senior Mezzanine Borrower, or if any proceeding for the dissolution or liquidation of any Borrower, Senior Mezzanine Borrower or Mortgage Borrower shall be instituted; provided, however, if such appointment, adjudication, petition or proceeding was involuntary and not consented to by any Borrower, Senior Mezzanine Borrower or Mortgage Borrower, upon the same not being discharged, stayed or dismissed within ninety (90) days;
(vii) if any Operating Company, any Manager, Principal, Holdings Holdings, Operating Company or any Guarantor shall make an assignment for the benefit of creditors; or ;
(vii) if a receiver, liquidator or trustee shall be appointed for any such Operating CompanyBorrower, any such ManagerMortgage Borrower, Senior Mezzanine Borrower, Principal, Holdings Holdings, Operating Company or any such Guarantor, or if any Operating CompanyBorrower, any ManagerMortgage Borrower, Senior Mezzanine Borrower, Principal, Holdings Holdings, Operating Company or any Guarantor shall be adjudicated a bankrupt or insolvent, or if any petition for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by or against, consented to, or acquiesced in by, any Operating CompanyBorrower, any ManagerMortgage Borrower, Senior Mezzanine Borrower, Principal, Holdings Holdings, Operating Company or any Guarantor, or if any proceeding for the dissolution or liquidation of any Operating CompanyBorrower, any ManagerMortgage Borrower, Senior Mezzanine Borrower, Principal, Holdings Holdings, Operating Company or any Guarantor shall be instituted; provided, however, if such appointment, adjudication, petition or proceeding was involuntary and not consented to by any such Operating CompanyBorrower, any such ManagerMortgage Borrower, Senior Mezzanine Borrower, Principal, Holdings Holdings, Operating Company or any such Guarantor, upon the same not being discharged, stayed or dismissed within ninety (90) days;
(viii) if any Borrower attempts to assign its rights under this Agreement or any of the other Loan Documents or any interest herein or therein in contravention of the Loan Documents;
(ix) if any Borrower breaches any of its respective negative covenants contained in Section 5.2 or any covenant contained in Section 4.1.30 or Section 5.1.11 hereof (and, with respect to any such breach of any covenant set forth in Section 5.1.11 which is not the subject of any other subsection of this Section 8.1, such Borrower fails to remedy such condition within ten (10) days after notice to Borrower from Lender, in the case of any such Default under Section 5.1.11 which can be cured by the payment of a sum of money, or for thirty (30) days after notice from Lender in the case of any other such Default under Section 5.1.11);
(x) with respect to any term, covenant or provision set forth herein which specifically contains a notice requirement or grace period, if any Borrower shall be in default under such term, covenant or condition after the giving of such notice or the expiration of such grace period;
(xi) if any of the assumptions contained in the Insolvency Opinion delivered to Lender in connection with the Loan, or in the Additional Insolvency Opinion delivered subsequent to the closing of the Loan, is or shall become untrue in any material respect; or if any of the assumptions contained in the True Lease Opinion delivered to Lender in connection with the Loan, or in the Additional True Lease Opinion delivered subsequent to the closing of the Loan, is or shall become untrue in any material respect;
(xii) if any Mortgage Borrower, any Operating Company or any Guarantor (Operating Lease) is in default of any of its material obligations under any the Operating Lease (or under another lease and/or management agreement in substitution for such the Operating Lease in accordance herewith) or under any such the Operating Lease Guaranty (or under another operating lease guaranty in substitution for such the Operating Lease Guaranty in accordance herewith) beyond any applicable notice and cure periods contained therein; or if any Operating Lease (or such other lease and/or management agreement) or any Operating Lease Guaranty (or such other operating lease guaranty) shall be surrendered or any Operating Lease or any Operating Lease Guaranty shall be terminated or canceled for any reason or under any circumstances whatsoever, except with the consent of Lender; or if any of the terms, covenants or conditions of any the Operating Lease (or such other lease and/or management agreement) or any the Operating Lease Guaranty (or such other operating lease guaranty) shall in any manner be modified, changed, supplemented, altered, restated or amended without the consent of Lender except as may otherwise expressly permitted in this Agreement;
(xiii) intentionally omitted;
(xiv) if any Affiliate of any Borrower that is or becomes a party to the Windstorm Insurance Intercreditor Agreement is in default of any of its material obligations under the Windstorm Insurance Intercreditor Agreement beyond any applicable notice and cure periods contained therein; or if the Windstorm Insurance Intercreditor Agreement shall be surrendered, terminated or canceled for any reason or under any circumstances whatsoever, except with the consent of Lender; or if any of the terms, covenants or conditions of the Windstorm Insurance Intercreditor Agreement shall in any manner be modified, changed, supplemented, altered, restated or amended without the consent of Lender;
(xvxiv) if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower fails to comply with the covenants as to Prescribed Laws set forth in Section 5.1.1 hereof;
(xvixv) if a material default has occurred and continues beyond any applicable cure period under any Management Agreement and if such default permits the Manager, the Operating Company or the Mortgage Borrower party thereto to terminate or cancel the Management Agreement in questionintentionally omitted;
(xviixvi) any Gaming License shall be refused, suspended, revoked, modified in a materially adverse manner or canceled or allowed to lapse or any proceeding is commenced by any Governmental Authority for the purpose of suspending, revoking or canceling any Gaming License in any materially adverse respect, or any Governmental Authority shall have appointed a conservator, supervisor or trustee to or for any of the Casino Components and, in each case of the foregoing, such action could reasonably be expected to (A) have an Individual Material Adverse Effect, (B) materially and adversely affect effect the continued operation of the Casino Components in the usual course of business and in substantially the same manner and to at least the same standard as was maintained prior to such action, or (C) result in any material decrease in the then expected cash flow and revenues to be derived from the Casino Components;
(xviiixvii) if any Borrower shall continue to be in Default under any of the other terms, covenants or conditions of this Agreement not specified in subsections (i) to (xviixv) above, for ten (10) days after notice to Borrower from Lender, in the case of any Default which can be cured by the payment of a sum of money, or for thirty (30) days after notice from Lender in the case of any other Default; provided, however, that if such non-monetary Default is susceptible of cure but cannot reasonably be cured within such thirty (30) day period and provided further that such Borrower shall have commenced to cure such Default within such thirty (30) day period and thereafter diligently and expeditiously proceeds to cure the same, such thirty (30) day period shall be extended for such time as is reasonably necessary for such Borrower in the exercise of due diligence to cure such Default, such additional period not to exceed one hundred twenty (120) days;
(xixxviii) if there shall be a default under any of the other Loan Documents beyond any applicable cure periods contained in such documents, whether as to any Borrower, Mortgage Borrower, Senior Mezzanine Borrower, the Collateral, the Senior Mezzanine Collateral or any Individual Property, or if any other such event shall occur or condition shall exist, if the effect of such event or condition is to accelerate the maturity of any portion of the Debt or to permit Lender to accelerate the maturity of all or any portion of the Debt;
(xxxix) if the Liens created pursuant to any Loan Document shall cease to be a fully protected enforceable first priority security interest in the Collateral, or any portion of the Collateral is Transferred without Lender’s prior written consent except as permitted hereunder; or
(xxixx) if a Mortgage Loan Event of Default or Senior Mezzanine Loan Event of Default shall occur.
(b) Upon the occurrence of an Event of Default (other than an Event of Default described in clauses (vi) or (vii) above) and at any time thereafter, in addition to any other rights or remedies available to it pursuant to this Agreement and the other Loan Documents or at law or in equity, Lender may take such action, without notice or demand, that Lender deems advisable to protect and enforce its rights against Borrower and in and to all or any of the Collateral, including, without limitation, declaring the Debt to be immediately due and payable, and Lender may enforce or avail itself of any or all rights or remedies provided in the Loan Documents and may exercise all the rights and remedies of a secured party under the Uniform Commercial Code, as adopted and enacted by the State or States where any of the Collateral is located, located against Borrower and any or all of the Collateral, including, without limitation, all rights or remedies available at law or in equity; and upon any Event of Default described in clauses (vi) or (vii) above, the Debt and all other obligations of Borrower hereunder and under the other Loan Documents shall immediately and automatically become due and payable, without notice or demand, and Borrower hereby expressly waives any such notice or demand, anything contained herein or in any other Loan Document to the contrary notwithstanding.
Appears in 5 contracts
Samples: Mezzanine Loan Agreement (Harrahs Entertainment Inc), Mezzanine Loan Agreement (Harrahs Entertainment Inc), Ninth Mezzanine Loan Agreement (Harrahs Entertainment Inc)
Event of Default. (a) Each of the following events shall will constitute an event of default hereunder (an “Event of Default”):) under this Note and under the Mortgage and each other document evidencing or securing or executed in connection with the Loan (collectively, the “Loan Documents”), and any Event of Default under any Loan Document shall constitute an Event of Default hereunder and under each of the other Loan Documents:
(i) if (Aa) any portion of the Debt is not paid failure to pay when due any interest, principal or other amount in full on the Maturity Date, (B) the Debt Service is not paid in full on a sum certain under this Note or before the related Payment Date, or (C) any other portion of the Debt is not paid within five (5) days of when due;
(ii) if under any of the Taxes other Loan Documents for which sum there is a scheduled date for payment or Other Charges are not paid (with respect to each or any Individual Property) prior to Delinquency;for which there is a date certain for payment.
(iiib) if the Policies (with respect any failure to each or any Individual Property) are not kept in full force and effect, or if certified copies of the Policies (for each Individual Property) are not delivered to Lender upon request (or certificates thereof, if a Policy shall be renewed and certified copies of the Policy are not immediately available upon such renewal (each Borrower agreeing in such instance to provide copies of the Policies to Lender promptly thereafter));
(iv) if any Borrower Transfers or otherwise encumbers any portion of the Properties, the Collateral or the Senior Mezzanine Collateral, or there shall otherwise occur a Transfer without Lender’s prior consent in violation of the provisions of this Agreement, the Pledge Agreement or any other Loan Document;
(v) if any representation or warranty made by any Borrower or any other Loan Party herein or in any other Loan Document, or in any report, certificate, financial statement or other instrument, agreement or document or other material or written information furnished to Lender shall have been false or misleading in any material respect as of the date the representation or warranty was made (and, with respect to any such breach which is not the subject of any other subsection of this Section 8.1 and which is capable of being cured, such Borrower fails to remedy such condition pay within ten (10) days following notice demand by Holder for any amount other than any amount described in Section 13(a) above; or
(c) any failure of Maker to Borrower from Lender, properly perform any obligation contained herein or in any of the case other Loan Documents (other than the obligation to make payments under this Note or the other Loan Documents) and the continuance of any such breach which can be cured by the payment failure for a period of a sum of money, or within thirty (30) days following written notice thereof from Lender in the case of any other such breach);
(vi) if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower shall make an assignment for the benefit of creditors; or if a receiver, liquidator or trustee shall be appointed for any Borrower, Senior Mezzanine Borrower or Mortgage Borrower, or if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower shall be adjudicated a bankrupt or insolvent, or if any petition for bankruptcy, reorganization or arrangement pursuant Holder to federal bankruptcy law, or any similar federal or state law, shall be filed by or against, consented to, or acquiesced in by, Borrower or Senior Mezzanine Borrower, or if any proceeding for the dissolution or liquidation of any Borrower, Senior Mezzanine Borrower or Mortgage Borrower shall be instituted; provided, however, if such appointment, adjudication, petition or proceeding was involuntary and not consented to by any Borrower, Senior Mezzanine Borrower or Mortgage Borrower, upon the same not being discharged, stayed or dismissed within ninety (90) days;
(vii) if any Operating Company, any Manager, Principal, Holdings or any Guarantor shall make an assignment for the benefit of creditors; or if a receiver, liquidator or trustee shall be appointed for any such Operating Company, any such Manager, Principal, Holdings or any such Guarantor, or if any Operating Company, any Manager, Principal, Holdings or any Guarantor shall be adjudicated a bankrupt or insolvent, or if any petition for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by or against, consented to, or acquiesced in by, any Operating Company, any Manager, Principal, Holdings or any Guarantor, or if any proceeding for the dissolution or liquidation of any Operating Company, any Manager, Principal, Holdings or any Guarantor shall be instituted; provided, however, if such appointment, adjudication, petition or proceeding was involuntary and not consented to by any such Operating Company, any such Manager, Principal, Holdings or any such Guarantor, upon the same not being discharged, stayed or dismissed within ninety (90) days;
(viii) if any Borrower attempts to assign its rights under this Agreement or any of the other Loan Documents or any interest herein or therein in contravention of the Loan Documents;
(ix) if any Borrower breaches any of its respective negative covenants contained in Section 5.2 or any covenant contained in Section 4.1.30 or Section 5.1.11 hereof (and, with respect to any such breach of any covenant set forth in Section 5.1.11 which is not the subject of any other subsection of this Section 8.1, such Borrower fails to remedy such condition within ten (10) days after notice to Borrower from Lender, in the case of any such Default under Section 5.1.11 which can be cured by the payment of a sum of money, or for thirty (30) days after notice from Lender in the case of any other such Default under Section 5.1.11);
(x) with respect to any term, covenant or provision set forth herein which specifically contains a notice requirement or grace period, if any Borrower shall be in default under such term, covenant or condition after the giving of such notice or the expiration of such grace period;
(xi) if any of the assumptions contained in the Insolvency Opinion delivered in connection with the Loan, or in the Additional Insolvency Opinion delivered subsequent to the closing of the Loan, is or shall become untrue in any material respect; or if any of the assumptions contained in the True Lease Opinion in connection with the Loan, or in the Additional True Lease Opinion delivered subsequent to the closing of the Loan, is or shall become untrue in any material respect;
(xii) if any Mortgage Borrower, any Operating Company or any Guarantor (Operating Lease) is in default of any of its material obligations under any Operating Lease (or under another lease and/or management agreement in substitution for such Operating Lease in accordance herewith) or under any such Operating Lease Guaranty (or under another operating lease guaranty in substitution for such Operating Lease Guaranty in accordance herewith) beyond any applicable notice and cure periods contained therein; or if any Operating Lease (or such other lease and/or management agreement) or any Operating Lease Guaranty (or such other operating lease guaranty) shall be surrendered or any Operating Lease or any Operating Lease Guaranty shall be terminated or canceled for any reason or under any circumstances whatsoever, except with the consent of Lender; or if any of the terms, covenants or conditions of any Operating Lease (or such other lease and/or management agreement) or any Operating Lease Guaranty (or such other operating lease guaranty) shall in any manner be modified, changed, supplemented, altered, restated or amended without the consent of Lender except as may otherwise expressly permitted in this Agreement;
(xiii) intentionally omitted;
(xiv) if any Affiliate of any Borrower that is or becomes a party to the Windstorm Insurance Intercreditor Agreement is in default of any of its material obligations under the Windstorm Insurance Intercreditor Agreement beyond any applicable notice and cure periods contained therein; or if the Windstorm Insurance Intercreditor Agreement shall be surrendered, terminated or canceled for any reason or under any circumstances whatsoever, except with the consent of Lender; or if any of the terms, covenants or conditions of the Windstorm Insurance Intercreditor Agreement shall in any manner be modified, changed, supplemented, altered, restated or amended without the consent of Lender;
(xv) if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower fails to comply with the covenants as to Prescribed Laws set forth in Section 5.1.1 hereof;
(xvi) if a material default has occurred and continues beyond any applicable cure period under any Management Agreement and if such default permits the Manager, the Operating Company or the Mortgage Borrower party thereto to terminate or cancel the Management Agreement in question;
(xvii) any Gaming License shall be refused, suspended, revoked, modified in a materially adverse manner or canceled or allowed to lapse or any proceeding is commenced by any Governmental Authority for the purpose of suspending, revoking or canceling any Gaming License in any materially adverse respect, or any Governmental Authority shall have appointed a conservator, supervisor or trustee to or for any of the Casino Components and, in each case of the foregoing, such action could reasonably be expected to (A) have an Individual Material Adverse Effect, (B) materially and adversely affect the continued operation of the Casino Components in the usual course of business and in substantially the same manner and to at least the same standard as was maintained prior to such action, or (C) result in any material decrease in the then expected cash flow and revenues to be derived from the Casino Components;
(xviii) if any Borrower shall continue to be in Default under any of the other terms, covenants or conditions of this Agreement not specified in subsections (i) to (xvii) above, for ten (10) days after notice to Borrower from Lender, in the case of any Default which can be cured by the payment of a sum of money, or for thirty (30) days after notice from Lender in the case of any other DefaultMaker; provided, however, that if such non-monetary Default failure is susceptible of not curable within such thirty (30) day period, then, so long as Maker commences to cure but cannot reasonably be cured such failure within such thirty (30) day period and provided further that such Borrower shall have commenced is continually and diligently attempting to cure such Default within such thirty (30) day period and thereafter diligently and expeditiously proceeds to cure the samecompletion, such thirty (30) day period failure shall not be extended an Event of Default unless such failure remains uncured for such time as is reasonably necessary for such Borrower in the exercise of due diligence to cure such Default, such additional period not to exceed one hundred twenty (120) days;
(xix) if there shall be a default under any of the other Loan Documents beyond any applicable cure periods contained in days after such documents, whether as written notice to any Borrower, Mortgage Borrower, Senior Mezzanine Borrower, the Collateral, the Senior Mezzanine Collateral or any Individual Property, or if any other such event shall occur or condition shall exist, if the effect of such event or condition is to accelerate the maturity of any portion of the Debt or to permit Lender to accelerate the maturity of all or any portion of the Debt;
(xx) if the Liens created pursuant to any Loan Document shall cease to be a fully protected enforceable first priority security interest in the Collateral, or any portion of the Collateral is Transferred without Lender’s prior written consent except as permitted hereunderMaker; or
(xxid) if a Mortgage Loan Event if, at any time during the Extension Term, Gross Revenue for any calendar month shall be less than ninety-three percent (93%) of Default or Senior Mezzanine Loan Event the amount of Default shall occur.projected Gross Revenue for such month set forth in the applicable Budget; or
(be) Upon the occurrence of any event that is deemed to be an “Event of Default (other than an Event Default” under any provision of Default described in clauses (vi) or (vii) above) and at any time thereafter, in addition to any other rights or remedies available to it pursuant to this Agreement and the other Loan Documents or at law or in equity, Lender may take such action, without notice or demand, that Lender deems advisable to protect and enforce its rights against Borrower and in and to all or any of the Collateral, including, without limitation, declaring the Debt to be immediately due and payable, and Lender may enforce or avail itself of any or all rights or remedies provided in the Loan Documents and may exercise all the rights and remedies of a secured party under the Uniform Commercial Code, as adopted and enacted by the State or States where any of the Collateral is located, against Borrower and any or all of the Collateral, including, without limitation, all rights or remedies available at law or in equity; and upon any Event of Default described in clauses (vi) or (vii) aboveNote, the Debt and all other obligations of Borrower hereunder and under Mortgage, the other Loan Documents shall immediately and automatically become due and payable, without notice or demand, and Borrower hereby expressly waives any such notice or demand, anything contained herein or in Affiliate Guaranty any other Loan Document to the contrary notwithstandingor any Additional Loan Document.
Appears in 5 contracts
Samples: Open End Mortgage, Assignment of Leases and Rents, Security Agreement and Fixture Filing (GTJ REIT, Inc.), Open End Mortgage, Assignment of Leases and Rents, Security Agreement and Fixture Filing (GTJ REIT, Inc.), Open End Mortgage, Assignment of Leases and Rents, Security Agreement and Fixture Filing (GTJ REIT, Inc.)
Event of Default. (a) Each of the following events shall constitute an event of default hereunder (an “Event of Default”"EVENT OF DEFAULT"):
(i) if (A) any portion of the Debt is not paid in full on the Maturity Date, (B) the Debt Service is not paid in full on or before the related Payment Date, or (C) any other portion of the Debt is not paid within five (5) days of when duethe applicable due date;
(ii) if any of the Taxes or Other Charges are not paid (with respect to each or any Individual Property) prior to Delinquencythe date when the same become delinquent, except to the extent that Borrower is contesting same in accordance with the terms of Section 5.1.2 hereof, or there are sufficient funds in the Tax and Insurance Escrow Fund to pay such Taxes or Other Charges and Lender fails to or refuses to release the same from the Tax and Insurance Escrow Fund;
(iii) if the Policies (with respect to each or any Individual Property) are not kept in full force and effect, or if certified copies of the Policies (for each Individual Property) are not delivered to Lender upon request within ten (or certificates thereof, if a Policy shall be renewed and certified copies 10) days of the Policy are not immediately available upon such renewal (each Borrower agreeing in such instance to provide copies of the Policies to Lender promptly thereafter))request;
(iv) if any Borrower Transfers transfers or otherwise encumbers any portion of the Properties, the Collateral or the Senior Mezzanine Collateral, or there shall otherwise occur a Transfer Property without Lender’s 's prior written consent in violation of (to extent such consent is required) or otherwise violates the provisions of Section 5.2.13 of this Loan Agreement, the Pledge Agreement or any other Loan Document;
(v) if any material representation or warranty made by any Borrower or any other Loan Party herein or in any other Loan Document, or in any report, certificate, financial statement or other instrument, agreement or document or other material or written information furnished to Lender shall have been false or misleading in any material respect as of the date the representation or warranty was made (and, with respect to any such breach which is not the subject of any other subsection of this Section 8.1 and which is capable of being cured, such Borrower fails to remedy such condition within ten (10) days following notice to Borrower from Lender, in the case of any such breach which can be cured by the payment of a sum of money, or within thirty (30) days following notice from Lender in the case of any other such breach)made;
(vi) if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower indemnitor or any guarantor under any guaranty or indemnity issued in connection with the Loan shall make an assignment for the benefit of creditors; or ;
(vii) if a receiver, liquidator or trustee shall be appointed for any Borrower, Senior Mezzanine Borrower or Mortgage Borrower, any guarantor or indemnitor under any guarantee or indemnity issued in connection with the Loan or if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower such guarantor or indemnitor shall be adjudicated a bankrupt or insolvent, or if any petition for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by or against, consented to, or acquiesced in by, Borrower or Senior Mezzanine Borrowersuch guarantor or indemnitor, or if any proceeding for the dissolution or liquidation of any Borrower, Senior Mezzanine Borrower or Mortgage Borrower such guarantor or indemnitor shall be instituted; providedPROVIDED, howeverHOWEVER, if such appointment, adjudication, petition or proceeding was involuntary and not consented to by any Borrower, Senior Mezzanine Borrower or Mortgage Borrowersuch guarantor or indemnitor, upon the same not being discharged, stayed or dismissed within ninety one hundred eighty (90) days;
(vii) if any Operating Company, any Manager, Principal, Holdings or any Guarantor shall make an assignment for the benefit of creditors; or if a receiver, liquidator or trustee shall be appointed for any such Operating Company, any such Manager, Principal, Holdings or any such Guarantor, or if any Operating Company, any Manager, Principal, Holdings or any Guarantor shall be adjudicated a bankrupt or insolvent, or if any petition for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by or against, consented to, or acquiesced in by, any Operating Company, any Manager, Principal, Holdings or any Guarantor, or if any proceeding for the dissolution or liquidation of any Operating Company, any Manager, Principal, Holdings or any Guarantor shall be instituted; provided, however, if such appointment, adjudication, petition or proceeding was involuntary and not consented to by any such Operating Company, any such Manager, Principal, Holdings or any such Guarantor, upon the same not being discharged, stayed or dismissed within ninety (90180) days;
(viii) if any Borrower attempts to assign its rights under this Agreement or any of the other Loan Documents or any interest herein or therein in contravention of the Loan Documents;
(ix) if any Borrower breaches any of its respective negative covenants contained in Section 5.2 or any covenant contained in Section 4.1.30 or Section 5.1.11 hereof (and, with respect to any such breach of any covenant set forth in Section 5.1.11 which is not the subject of any other subsection of this Section 8.1, such Borrower fails to remedy such condition within ten (10) days after notice to Borrower from Lender, in the case of any such Default under Section 5.1.11 which can be cured by the payment of a sum of money, or for thirty (30) days after notice from Lender in the case of any other such Default under Section 5.1.11)hereof;
(x) with respect to any term, covenant or provision set forth herein which specifically contains a notice requirement or grace period, if any Borrower shall be in default under such term, covenant or condition after the giving of such notice or the expiration of such grace period;
(xi) if any of the assumptions contained in the Insolvency Opinion any substantive non-consolidation opinion delivered in connection with the Loan, or in the Additional Insolvency Opinion delivered subsequent to the closing of the Loan, is or shall become untrue in any material respect; or if any of the assumptions contained in the True Lease Opinion in connection with the Loan, or in the Additional True Lease Opinion delivered subsequent to the closing of the Loan, is herewith are or shall become untrue in any material respect;
(xii) if any Mortgage Borrower, any Operating Company or any Guarantor (Operating Lease) is in default of any of its material obligations under any Operating Lease (or under another lease and/or management agreement in substitution for such Operating Lease in accordance herewith) or under any such Operating Lease Guaranty (or under another operating lease guaranty in substitution for such Operating Lease Guaranty in accordance herewith) beyond any applicable notice and cure periods contained therein; or if any Operating Lease (or such other lease and/or management agreement) or any Operating Lease Guaranty (or such other operating lease guaranty) shall be surrendered or any Operating Lease or any Operating Lease Guaranty shall be terminated or canceled for any reason or under any circumstances whatsoever, except with the consent of Lender; or if any of the terms, covenants or conditions of any Operating Lease (or such other lease and/or management agreement) or any Operating Lease Guaranty (or such other operating lease guaranty) shall in any manner be modified, changed, supplemented, altered, restated or amended without the consent of Lender except as may otherwise expressly permitted in this Agreement;
(xiii) intentionally omitted;
(xiv) if any Affiliate of any Borrower that is or becomes a party to the Windstorm Insurance Intercreditor Agreement is in default of any of its material obligations under the Windstorm Insurance Intercreditor Agreement beyond any applicable notice and cure periods contained therein; or if the Windstorm Insurance Intercreditor Agreement shall be surrendered, terminated or canceled for any reason or under any circumstances whatsoever, except with the consent of Lender; or if any of the terms, covenants or conditions of the Windstorm Insurance Intercreditor Agreement shall in any manner be modified, changed, supplemented, altered, restated or amended without the consent of Lender;
(xv) if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower fails to comply with the covenants as to Prescribed Laws set forth in Section 5.1.1 hereof;
(xvi) if a material default has occurred and continues beyond any applicable cure period under any Management Agreement and if such default permits the Manager, the Operating Company or the Mortgage Borrower party thereto to terminate or cancel the Management Agreement in question;
(xvii) any Gaming License shall be refused, suspended, revoked, modified in a materially adverse manner or canceled or allowed to lapse or any proceeding is commenced by any Governmental Authority for the purpose of suspending, revoking or canceling any Gaming License in any materially adverse respect, or any Governmental Authority shall have appointed a conservator, supervisor or trustee to or for any of the Casino Components and, in each case of the foregoing, such action could reasonably be expected to (A) have an Individual Material Adverse Effect, (B) materially and adversely affect the continued operation of the Casino Components in the usual course of business and in substantially the same manner and to at least the same standard as was maintained prior to such action, or (C) result in any material decrease in the then expected cash flow and revenues to be derived from the Casino Components;
(xviii) if any Borrower shall continue to be in Default under any of the other terms, covenants or conditions of this Agreement not specified in subsections (i) to (xviixi) above, for ten (10) days after notice to Borrower from Lender, in the case of any Default which can be cured by the payment of a sum of money, or for thirty (30) days after notice from Lender in the case of any other Default; providedPROVIDED, howeverHOWEVER, that if such non-monetary Default is susceptible of cure but cannot reasonably be cured within such thirty (30) -day period and provided further that such Borrower shall have commenced to cure such Default within such thirty (30) -day period and thereafter diligently and expeditiously proceeds to cure the same, such thirty (30) -day period shall be extended for such time as is reasonably necessary for such Borrower in the exercise of due diligence to cure such Default, such additional period not to exceed one hundred twenty eighty (120180) days;; or
(xixxiii) if there shall be a default under any of the other Loan Documents beyond any applicable cure periods contained in such documents, whether as to any Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Borrower or the Collateral, the Senior Mezzanine Collateral or any Individual Property, or if any other such event shall occur or condition shall exist, if the effect of such event or condition is to accelerate the maturity of any portion of the Debt or to permit Lender to accelerate the maturity of all or any portion of the Debt;
(xx) if the Liens created pursuant to any Loan Document shall cease to be a fully protected enforceable first priority security interest in the Collateral, or any portion of the Collateral is Transferred without Lender’s prior written consent except as permitted hereunder; or
(xxi) if a Mortgage Loan Event of Default or Senior Mezzanine Loan Event of Default shall occur.
(b) Upon the occurrence of an Event of Default (other than an Event of Default described in clauses (vi), (vii) or (viiviii) above) and at any time thereafterthereafter Lender may, in addition to any other rights or remedies available to it pursuant to this Agreement and the other Loan Documents or at law or in equity, Lender may take such action, without notice or demand, that Lender deems advisable to protect and enforce its rights against Borrower and in and to all or any of the CollateralProperty, including, without limitation, declaring the Debt to be immediately due and payable, and Lender may enforce or avail itself of any or all rights or remedies provided in the Loan Documents and may exercise all the rights and remedies of a secured party under the Uniform Commercial Code, as adopted and enacted by the State or States where any of the Collateral is located, against Borrower and any or all of the CollateralProperty, including, without limitation, all rights or remedies available at law or in equity; and upon any Event of Default described in clauses (vi), (vii) or (viiviii) above, the Debt and all other obligations of Borrower hereunder and under the other Loan Documents shall immediately and automatically become due and payable, without notice or demand, and Borrower hereby expressly waives any such notice or demand, anything contained herein or in any other Loan Document to the contrary notwithstanding.
Appears in 4 contracts
Samples: Loan Agreement (Inland Western Retail Real Estate Trust Inc), Loan Agreement (Inland Western Retail Real Estate Trust Inc), Loan Agreement (Inland Western Retail Real Estate Trust Inc)
Event of Default. (a) Each The occurrence of any one or more of the following events shall constitute an event of default hereunder (an “Event of Default”)::
(ia) if (A) any portion of the Debt is not paid in full on or prior to the Maturity Date, (B) date the same is due or if the entire Debt Service is not paid in full on or before the related Payment Maturity Date; provided, however, (i) Borrower shall not be in default so long as there is sufficient money in the Lockbox Account for payment of all amounts then due and payable (including any deposits into Reserve Accounts) and Lender’s access to such money has not been constrained or constricted in any manner and (Cii) any other portion with respect to payments that are not regularly scheduled pursuant to the terms of the Debt is not paid within Loan Documents, Borrower shall have a five (5) days of when dueday grace period;
(iib) except as otherwise expressly provided in the Loan Documents, if any of the Taxes or Other Charges are not paid (with respect to each or any Individual Property) prior to Delinquencythe time that such Taxes or Other Charges would be delinquent, unless there is sufficient money in the Tax and Insurance Reserve Account for payment of amounts then due and payable and Lender’s access to such money has not been constrained or restricted in any manner;
(iiic) if the Policies (with respect to each or any Individual Property) are not kept in full force and effect, or if certified copies of the Policies (for each Individual Property) are not delivered to Lender upon request (or certificates thereof, if a Policy shall be renewed and certified copies of the Policy are not immediately available upon such renewal (each Borrower agreeing as provided in such instance to provide copies of the Policies to Lender promptly thereafter))Section 8.1;
(ivd) if Borrower breaches any Borrower Transfers or otherwise encumbers any portion of the Properties, the Collateral or the Senior Mezzanine Collateral, or there shall otherwise occur a Transfer without Lender’s prior consent covenant with respect to itself contained in violation of the provisions of this Agreement, the Pledge Agreement Article 6 or any other Loan Documentcovenant contained in Article 7 hereof;
(ve) if any representation or warranty made by any of, or with respect to, Borrower, Borrower Principal or any other Loan Party herein member, general partner, principal or beneficial owner of any of the foregoing, made herein, in any other Loan Document, or in any certificate, report, certificate, financial statement or other instrument, agreement instrument or document or other material or written information furnished to Lender in connection with the Loan and made at the time of the closing of the Loan or during the term of the Loan shall have been false or misleading in any material respect as of the date the representation or warranty was when made (anda “Rep & Warranty Breach”), with respect to any unless (i) Borrower notifies Lender of such breach which Rep & Warranty Breach promptly upon becoming aware of it and (ii) such Rep & Warranty Breach (A) was unintentional, (B) is not the subject of any other subsection of this Section 8.1 immaterial and which is (iii) if capable of being cured, is cured within thirty (30) days following notice from Lender;
(f) if (i) Borrower shall commence any case, proceeding or other action (A) under any Creditors Rights Laws, seeking to have an order for relief entered with respect to it, or seeking to adjudicate it a bankrupt or insolvent, or seeking reorganization, or (B) seeking appointment of a receiver, trustee, custodian, conservator or other similar official for it or for all or any substantial part of its assets, or Borrower shall make a general assignment for the benefit of its creditors; or (ii) there shall be commenced against Borrower any case, proceeding or other action of a nature referred to in clause (i) above which (A) results in the entry of an order for relief or any such adjudication or appointment or (B) remains undismissed, undischarged or unbonded for a period of sixty (60) days; or (iii) there shall be commenced against Borrower, any managing member or general partner of Borrower fails any case, proceeding or other action seeking issuance of a warrant of attachment, execution, distraint or similar process against all or any substantial part of its assets which results in the entry of any order for any such relief which shall not have been vacated, discharged, or stayed or bonded pending appeal within sixty (60) days from the entry thereof; or (iv) Borrower shall take any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the acts set forth in clause (i), (ii), or (iii) above; or (v) Borrower shall generally not, or shall admit in writing its inability to, pay its debts as they become due;
(g) if Borrower shall be in default beyond applicable notice and grace periods under any other mortgage, deed of trust, deed to remedy secure debt or other security agreement covering any material part of the Property, whether it be superior or junior in lien to the Mortgage;
(h) except as otherwise expressly permitted by the Loan Documents, if the Property becomes subject to any mechanic’s, materialman’s or other Lien other than a Lien for any Taxes or Other Charges not then delinquent and the Lien shall remain undischarged of record (by payment, bonding or otherwise) for a period of thirty (30) days, unless, within such condition thirty (30) day period, Borrower delivers to Lender an endorsement to the Title Insurance Policy insuring that any such Lien shall not affect the priority of the Mortgage;
(i) if any federal tax lien is filed against Borrower, any member or general partner of Borrower or the Property and same is not discharged of record within thirty (30) days after same is filed;
(j) if a judgment is filed against the Borrower in excess of $50,000 which is not fully covered by insurance or which is not vacated or discharged within 90 days;
(k) if any default occurs under any guaranty or indemnity executed in connection herewith and such default continues after the expiration of applicable grace periods, if any;
(l) if Borrower shall permit any event within its control to occur that would cause any material reciprocal easement agreement to terminate without notice or action by any party thereto or would entitle any party to terminate any material reciprocal easement agreement and the term thereof by giving notice to Borrower; or any material reciprocal easement agreement shall be surrendered, terminated or canceled for any reason or under any circumstance whatsoever except as provided for in such material reciprocal easement agreement; or any term of any material reciprocal easement agreement shall be modified or supplemented in any material respect without Lender’s prior written consent; or Borrower shall fail, within ten (10) days following notice to Borrower from Business Days after demand by Lender, to exercise its option to renew or extend the term of any material reciprocal easement agreement or shall fail or neglect to pursue diligently all actions necessary to exercise such renewal rights pursuant to such material reciprocal easement agreement except as provided for in such material reciprocal easement agreement; or
(m) if Borrower shall continue to be in default under any other term, covenant or condition of this Agreement or any of the Loan Documents for more than ten (10) days after notice from Lender in the case of any such breach default which can be cured by the payment of a sum of money, or within thirty (30) days following notice from Lender in the case of any other such breach);
(vi) if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower shall make an assignment for the benefit of creditors; or if a receiver, liquidator or trustee shall be appointed for any Borrower, Senior Mezzanine Borrower or Mortgage Borrower, or if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower shall be adjudicated a bankrupt or insolvent, or if any petition for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by or against, consented to, or acquiesced in by, Borrower or Senior Mezzanine Borrower, or if any proceeding for the dissolution or liquidation of any Borrower, Senior Mezzanine Borrower or Mortgage Borrower shall be instituted; provided, however, if such appointment, adjudication, petition or proceeding was involuntary and not consented to by any Borrower, Senior Mezzanine Borrower or Mortgage Borrower, upon the same not being discharged, stayed or dismissed within ninety (90) days;
(vii) if any Operating Company, any Manager, Principal, Holdings or any Guarantor shall make an assignment for the benefit of creditors; or if a receiver, liquidator or trustee shall be appointed for any such Operating Company, any such Manager, Principal, Holdings or any such Guarantor, or if any Operating Company, any Manager, Principal, Holdings or any Guarantor shall be adjudicated a bankrupt or insolvent, or if any petition for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by or against, consented to, or acquiesced in by, any Operating Company, any Manager, Principal, Holdings or any Guarantor, or if any proceeding for the dissolution or liquidation of any Operating Company, any Manager, Principal, Holdings or any Guarantor shall be instituted; provided, however, if such appointment, adjudication, petition or proceeding was involuntary and not consented to by any such Operating Company, any such Manager, Principal, Holdings or any such Guarantor, upon the same not being discharged, stayed or dismissed within ninety (90) days;
(viii) if any Borrower attempts to assign its rights under this Agreement or any of the other Loan Documents or any interest herein or therein in contravention of the Loan Documents;
(ix) if any Borrower breaches any of its respective negative covenants contained in Section 5.2 or any covenant contained in Section 4.1.30 or Section 5.1.11 hereof (and, with respect to any such breach of any covenant set forth in Section 5.1.11 which is not the subject of any other subsection of this Section 8.1, such Borrower fails to remedy such condition within ten (10) days after notice to Borrower from Lender, in the case of any such Default under Section 5.1.11 which can be cured by the payment of a sum of money, money or for thirty (30) days after notice from Lender in the case of any other such Default under Section 5.1.11);
(x) with respect to any termdefault, covenant or provision set forth herein which specifically contains a notice requirement or grace period, if any Borrower shall be in default under such term, covenant or condition after the giving of such notice or the expiration of such grace period;
(xi) if any of the assumptions contained in the Insolvency Opinion delivered in connection with the Loan, or in the Additional Insolvency Opinion delivered subsequent to the closing of the Loan, is or shall become untrue in any material respect; or if any of the assumptions contained in the True Lease Opinion in connection with the Loan, or in the Additional True Lease Opinion delivered subsequent to the closing of the Loan, is or shall become untrue in any material respect;
(xii) if any Mortgage Borrower, any Operating Company or any Guarantor (Operating Lease) is in default of any of its material obligations under any Operating Lease (or under another lease and/or management agreement in substitution for such Operating Lease in accordance herewith) or under any such Operating Lease Guaranty (or under another operating lease guaranty in substitution for such Operating Lease Guaranty in accordance herewith) beyond any applicable notice and cure periods contained therein; or if any Operating Lease (or such other lease and/or management agreement) or any Operating Lease Guaranty (or such other operating lease guaranty) shall be surrendered or any Operating Lease or any Operating Lease Guaranty shall be terminated or canceled for any reason or under any circumstances whatsoever, except with the consent of Lender; or if any of the terms, covenants or conditions of any Operating Lease (or such other lease and/or management agreement) or any Operating Lease Guaranty (or such other operating lease guaranty) shall in any manner be modified, changed, supplemented, altered, restated or amended without the consent of Lender except as may otherwise expressly permitted in this Agreement;
(xiii) intentionally omitted;
(xiv) if any Affiliate of any Borrower provided that is or becomes a party to the Windstorm Insurance Intercreditor Agreement is in default of any of its material obligations under the Windstorm Insurance Intercreditor Agreement beyond any applicable notice and cure periods contained therein; or if the Windstorm Insurance Intercreditor Agreement shall be surrendered, terminated or canceled for any reason or under any circumstances whatsoever, except with the consent of Lender; or if any of the terms, covenants or conditions of the Windstorm Insurance Intercreditor Agreement shall in any manner be modified, changed, supplemented, altered, restated or amended without the consent of Lender;
(xv) if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower fails to comply with the covenants as to Prescribed Laws set forth in Section 5.1.1 hereof;
(xvi) if a material default has occurred and continues beyond any applicable cure period under any Management Agreement and if such default permits the Manager, the Operating Company or the Mortgage Borrower party thereto to terminate or cancel the Management Agreement in question;
(xvii) any Gaming License shall be refused, suspended, revoked, modified in a materially adverse manner or canceled or allowed to lapse or any proceeding is commenced by any Governmental Authority for the purpose of suspending, revoking or canceling any Gaming License in any materially adverse respect, or any Governmental Authority shall have appointed a conservator, supervisor or trustee to or for any of the Casino Components and, in each case of the foregoing, such action could reasonably be expected to (A) have an Individual Material Adverse Effect, (B) materially and adversely affect the continued operation of the Casino Components in the usual course of business and in substantially the same manner and to at least the same standard as was maintained prior to such action, or (C) result in any material decrease in the then expected cash flow and revenues to be derived from the Casino Components;
(xviii) if any Borrower shall continue to be in Default under any of the other terms, covenants or conditions of this Agreement not specified in subsections (i) to (xvii) above, for ten (10) days after notice to Borrower from Lender, in the case of any Default which can be cured by the payment of a sum of money, or for thirty (30) days after notice from Lender in the case of any other Default; provided, however, that if such non-monetary Default is susceptible of cure but cannot reasonably be cured within such thirty (30) day period and provided further that such Borrower shall have commenced to cure such Default default within such thirty (30) day period and thereafter diligently and expeditiously proceeds to cure the same, such thirty (30) day period shall be extended for such time so long as is reasonably necessary for such it shall require Borrower in the exercise of due diligence to cure such Defaultdefault, it being agreed that no such additional extension shall be for a period not to exceed one hundred twenty in excess of sixty (12060) days;
(xix) if there shall be a default under any of the other Loan Documents beyond any applicable cure periods contained in such documents, whether as to any Borrower, Mortgage Borrower, Senior Mezzanine Borrower, the Collateral, the Senior Mezzanine Collateral or any Individual Property, or if any other such event shall occur or condition shall exist, if the effect of such event or condition is to accelerate the maturity of any portion of the Debt or to permit Lender to accelerate the maturity of all or any portion of the Debt;
(xx) if the Liens created pursuant to any Loan Document shall cease to be a fully protected enforceable first priority security interest in the Collateral, or any portion of the Collateral is Transferred without Lender’s prior written consent except as permitted hereunder; or
(xxi) if a Mortgage Loan Event of Default or Senior Mezzanine Loan Event of Default shall occur.
(b) Upon the occurrence of an Event of Default (other than an Event of Default described in clauses (vi) or (vii) above) and at any time thereafter, in addition to any other rights or remedies available to it pursuant to this Agreement and the other Loan Documents or at law or in equity, Lender may take such action, without notice or demand, that Lender deems advisable to protect and enforce its rights against Borrower and in and to all or any of the Collateral, including, without limitation, declaring the Debt to be immediately due and payable, and Lender may enforce or avail itself of any or all rights or remedies provided in the Loan Documents and may exercise all the rights and remedies of a secured party under the Uniform Commercial Code, as adopted and enacted by the State or States where any of the Collateral is located, against Borrower and any or all of the Collateral, including, without limitation, all rights or remedies available at law or in equity; and upon any Event of Default described in clauses (vi) or (vii) above, the Debt and all other obligations of Borrower hereunder and under the other Loan Documents shall immediately and automatically become due and payable, without notice or demand, and Borrower hereby expressly waives any such notice or demand, anything contained herein or in any other Loan Document to the contrary notwithstanding.
Appears in 4 contracts
Samples: Loan Agreement (Maguire Properties Inc), Loan Agreement (Maguire Properties Inc), Loan Agreement (Maguire Properties Inc)
Event of Default. (a) Each of Xxxxxxxx understands and agrees that the following events shall constitute an event of default hereunder (hereunder, and each shall be referred to as an “Event of Default.”):
(ia) if (A) any portion The failure of Borrower to repay Trade Credits by the Debt is not paid in full on the Maturity Date, (B) the Debt Service is not paid in full on or before the related Payment Date, or (C) any other portion of the Debt is not paid within five (5) days of when dueapplicable Settlement Deadline;
(iib) if any The failure of Borrower to maintain the Minimum Collateral Amount as provided under Section 4(e) of the Taxes or Other Charges are not paid (with respect to each or PTFA, provided that the Borrower may withdraw any Individual Property) prior to Delinquencyexcess amount;
(iiic) if Other than as contemplated by 8(a) and 8(b) herein, a default by Borrower in the Policies (with respect to each payment or performance of any Individual Property) are not kept in full force of obligations, conditions, covenants, representations, provisions or stipulations between Borrower and effectLender, Agent, Coinbase Custody, or if certified copies of the Policies (for each Individual Property) are not delivered to Lender upon request (or certificates thereof, if a Policy shall be renewed and certified copies of the Policy are not immediately available upon such renewal (each Borrower agreeing other Coinbase Entities in such instance to provide copies of the Policies to Lender promptly thereafter));
(iv) if any Borrower Transfers or otherwise encumbers any portion of the Properties, the Collateral or the Senior Mezzanine Collateral, or there shall otherwise occur a Transfer without Lender’s prior consent in violation of the provisions of this Agreement, the Pledge Agreement PTFA or any other Loan Document;
(v) if any representation or warranty made by any agreement provided that, the Borrower or any other Loan Party herein or in any other Loan Document, or in any report, certificate, financial statement or other instrument, agreement or document or other material or written information furnished to Lender shall have been false or misleading in any material respect as of the date the representation or warranty was made twenty four (and, with respect to any such breach which is not the subject of any other subsection of this Section 8.1 and which is capable of being cured, such Borrower fails to remedy such condition within ten (1024) days following notice to Borrower from Lender, in the case of any such breach which can be cured by the payment of a sum of money, or within thirty (30) days following notice from Lender in the case of any other such breach);
(vi) if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower shall make an assignment for the benefit of creditors; or if a receiver, liquidator or trustee shall be appointed for any Borrower, Senior Mezzanine Borrower or Mortgage Borrower, or if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower shall be adjudicated a bankrupt or insolvent, or if any petition for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by or against, consented to, or acquiesced in by, Borrower or Senior Mezzanine Borrower, or if any proceeding for the dissolution or liquidation of any Borrower, Senior Mezzanine Borrower or Mortgage Borrower shall be instituted; provided, however, if such appointment, adjudication, petition or proceeding was involuntary and not consented to by any Borrower, Senior Mezzanine Borrower or Mortgage Borrower, upon the same not being discharged, stayed or dismissed within ninety (90) days;
(vii) if any Operating Company, any Manager, Principal, Holdings or any Guarantor shall make an assignment for the benefit of creditors; or if a receiver, liquidator or trustee shall be appointed for any such Operating Company, any such Manager, Principal, Holdings or any such Guarantor, or if any Operating Company, any Manager, Principal, Holdings or any Guarantor shall be adjudicated a bankrupt or insolvent, or if any petition for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by or against, consented to, or acquiesced in by, any Operating Company, any Manager, Principal, Holdings or any Guarantor, or if any proceeding for the dissolution or liquidation of any Operating Company, any Manager, Principal, Holdings or any Guarantor shall be instituted; provided, however, if such appointment, adjudication, petition or proceeding was involuntary and not consented to by any such Operating Company, any such Manager, Principal, Holdings or any such Guarantor, upon the same not being discharged, stayed or dismissed within ninety (90) days;
(viii) if any Borrower attempts to assign its rights under this Agreement or any of the other Loan Documents or any interest herein or therein in contravention of the Loan Documents;
(ix) if any Borrower breaches any of its respective negative covenants contained in Section 5.2 or any covenant contained in Section 4.1.30 or Section 5.1.11 hereof (and, with respect to any such breach of any covenant set forth in Section 5.1.11 which is not the subject of any other subsection of this Section 8.1, such Borrower fails to remedy such condition within ten (10) days after notice to Borrower from Lender, in the case of any such Default under Section 5.1.11 which can be cured by the payment of a sum of money, or for thirty (30) days hours after notice from Lender in the case of any other or Agent to cure such Default under Section 5.1.11)default;
(xd) with respect Any event or circumstance occurs or exists that has a material adverse effect on the business, operations, prospects, property, assets, liabilities or financial condition of Borrower, taken as a whole, or has a material adverse effect on the ability of Borrower to perform its obligations under this PTFA or any termother agreement, covenant or provision set forth herein which specifically contains a notice requirement or grace period, if including the ability to repay any Borrower shall be in default under such term, covenant or condition after the giving of such notice or the expiration of such grace periodand all outstanding Trade Credits;
(xie) if any Any bankruptcy, insolvency, reorganization or liquidation proceedings or other proceedings for the relief of debtors or dissolution proceedings are instituted by or against the assumptions contained in the Insolvency Opinion delivered in connection with the Loan, or in the Additional Insolvency Opinion delivered subsequent to the closing of the Loan, is or shall become untrue in any material respect; or if any of the assumptions contained in the True Lease Opinion in connection with the Loan, or in the Additional True Lease Opinion delivered subsequent to the closing of the Loan, is or shall become untrue in any material respectBorrower;
(xiif) if any Mortgage Borrower, any Operating Company If Borrower notifies Lender of its inability to or its intention not to perform its obligations under this PTFA or any Guarantor (Operating Lease) is in default of other agreement, or otherwise disaffirms, rejects, or repudiates any of its material obligations under any Operating Lease (or under another lease and/or management agreement in substitution for such Operating Lease in accordance herewith) or under any such Operating Lease Guaranty (or under another operating lease guaranty in substitution for such Operating Lease Guaranty in accordance herewith) beyond any applicable notice and cure periods contained therein; or if any Operating Lease (or such other lease and/or management agreement) this PTFA or any Operating Lease Guaranty (or such other operating lease guaranty) shall be surrendered or any Operating Lease or any Operating Lease Guaranty shall be terminated or canceled for any reason or under any circumstances whatsoever, except with the consent of Lender; or if any of the terms, covenants or conditions of any Operating Lease (or such other lease and/or management agreement) or any Operating Lease Guaranty (or such other operating lease guaranty) shall in any manner be modified, changed, supplemented, altered, restated or amended without the consent of Lender except as may otherwise expressly permitted in this Agreement;
(xiii) intentionally omitted;
(xiv) if any Affiliate of any Borrower that is or becomes a party to the Windstorm Insurance Intercreditor Agreement is in default of any of its material obligations under the Windstorm Insurance Intercreditor Agreement beyond any applicable notice and cure periods contained therein; or if the Windstorm Insurance Intercreditor Agreement shall be surrendered, terminated or canceled for any reason or under any circumstances whatsoever, except with the consent of Lender; or if any of the terms, covenants or conditions of the Windstorm Insurance Intercreditor Agreement shall in any manner be modified, changed, supplemented, altered, restated or amended without the consent of Lender;
(xv) if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower fails to comply with the covenants as to Prescribed Laws set forth in Section 5.1.1 hereof;
(xvi) if a material default has occurred and continues beyond any applicable cure period under any Management Agreement and if such default permits the Manager, the Operating Company or the Mortgage Borrower party thereto to terminate or cancel the Management Agreement in question;
(xvii) any Gaming License shall be refused, suspended, revoked, modified in a materially adverse manner or canceled or allowed to lapse or any proceeding is commenced by any Governmental Authority for the purpose of suspending, revoking or canceling any Gaming License in any materially adverse respect, or any Governmental Authority shall have appointed a conservator, supervisor or trustee to or for any of the Casino Components and, in each case of the foregoing, such action could reasonably be expected to (A) have an Individual Material Adverse Effect, (B) materially and adversely affect the continued operation of the Casino Components in the usual course of business and in substantially the same manner and to at least the same standard as was maintained prior to such action, or (C) result in any material decrease in the then expected cash flow and revenues to be derived from the Casino Components;
(xviii) if any Borrower shall continue to be in Default under any of the other terms, covenants or conditions of this Agreement not specified in subsections (i) to (xvii) above, for ten (10) days after notice to Borrower from Lender, in the case of any Default which can be cured by the payment of a sum of money, or for thirty (30) days after notice from Lender in the case of any other Default; provided, however, that if such non-monetary Default is susceptible of cure but cannot reasonably be cured within such thirty (30) day period and provided further that such Borrower shall have commenced to cure such Default within such thirty (30) day period and thereafter diligently and expeditiously proceeds to cure the same, such thirty (30) day period shall be extended for such time as is reasonably necessary for such Borrower in the exercise of due diligence to cure such Default, such additional period not to exceed one hundred twenty (120) days;
(xix) if there shall be a default under any of the other Loan Documents beyond any applicable cure periods contained in such documents, whether as to any Borrower, Mortgage Borrower, Senior Mezzanine Borrower, the Collateral, the Senior Mezzanine Collateral or any Individual Property, or if any other such event shall occur or condition shall exist, if the effect of such event or condition is to accelerate the maturity of any portion of the Debt or to permit Lender to accelerate the maturity of all or any portion of the Debt;
(xx) if the Liens created pursuant to any Loan Document shall cease to be a fully protected enforceable first priority security interest in the Collateral, or any portion of the Collateral is Transferred without Lender’s prior written consent except as permitted hereunder; or
(xxi) if a Mortgage Loan Event of Default or Senior Mezzanine Loan Event of Default shall occur.
(b) Upon the occurrence of an Event of Default (other than an Event of Default described in clauses (vi) or (vii) above) and at any time thereafter, in addition to any other rights or remedies available to it pursuant to this Agreement and the other Loan Documents or at law or in equity, Lender may take such action, without notice or demand, that Lender deems advisable to protect and enforce its rights against Borrower and in and to all or any of the Collateral, including, without limitation, declaring the Debt to be immediately due and payable, and Lender may enforce or avail itself of any or all rights or remedies provided in the Loan Documents and may exercise all the rights and remedies of a secured party under the Uniform Commercial Code, as adopted and enacted by the State or States where any of the Collateral is located, against Borrower and any or all of the Collateral, including, without limitation, all rights or remedies available at law or in equity; and upon any Event of Default described in clauses (vi) or (vii) above, the Debt and all other obligations of Borrower hereunder and under the other Loan Documents shall immediately and automatically become due and payable, without notice or demand, and Borrower hereby expressly waives any such notice or demand, anything contained herein or in any other Loan Document to the contrary notwithstanding.
Appears in 4 contracts
Samples: Coinbase Prime Broker Agreement (Franklin Templeton Digital Holdings Trust), Coinbase Prime Broker Agreement (21Shares Core Ethereum ETF), Prime Broker Agreement (Ark 21Shares Bitcoin ETF)
Event of Default. (a) Each of the following events shall constitute an event of default hereunder (an “Event of Default”):
(i) if (A) any portion of the Debt is not paid in full on the Maturity Date, (B) the Debt Service is not paid in full on or before the related Payment Date, or (C) any other portion of the Debt is not paid within five (5) days of when due;
(ii) if any of the Taxes or Other Charges are not paid (with respect to each or any Individual Property) prior to Delinquency;
(iii) if the Policies (with respect to each or any Individual Property) are not kept in full force and effect, or if certified copies of the Policies (for each Individual Property) are not delivered to Lender upon request (or certificates thereof, if a Policy shall be renewed and certified copies of the Policy are not immediately available upon such renewal (each Borrower agreeing in such instance to provide copies of the Policies to Lender promptly thereafter));
(iv) if any Borrower Transfers or otherwise encumbers any portion of the Properties, Properties or the Collateral or the Senior Mezzanine Collateral, or there shall otherwise occur a Transfer Transfer, without Lender’s prior consent in violation of the provisions of this Agreement, the Pledge Agreement or any other Loan DocumentDocument or any Transfer is made in violation of the provisions of Section 5.2.10;
(v) if any representation or warranty made by any Borrower or any other Loan Party herein or in any other Loan Document, or in any report, certificate, financial statement or other instrument, agreement or document or other material or written information furnished to Lender shall have been false or misleading in any material respect as of the date the representation or warranty was made (and, with respect to any such breach which is not the subject of any other subsection of this Section 8.1 and which is capable of being cured, such Borrower fails to remedy such condition within ten (10) days following notice to Borrower from Lender, in the case of any such breach which can be cured by the payment of a sum of money, or within thirty (30) days following notice from Lender in the case of any other such breach);
(vi) if any Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Mortgage Borrower shall make an assignment for the benefit of creditors; or if a receiver, liquidator or trustee shall be appointed for any Borrower, Senior Mezzanine Borrower or Mortgage Borrower, or if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower shall be adjudicated a bankrupt or insolvent, or if any petition for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by or against, consented to, or acquiesced in by, Borrower or Senior Mezzanine Borrower, or if any proceeding for the dissolution or liquidation of any Borrower, Senior Mezzanine Borrower or Mortgage Borrower shall be instituted; provided, however, if such appointment, adjudication, petition or proceeding was involuntary and not consented to by any Borrower, Senior Mezzanine Borrower or Mortgage Borrower, upon the same not being discharged, stayed or dismissed within ninety (90) days;
(vii) if any Operating Company, any Manager, Principal, Holdings Holdings, Operating Company or any Guarantor shall make an assignment for the benefit of creditors; or ;
(vii) if a receiver, liquidator or trustee shall be appointed for any such Operating CompanyBorrower, any such ManagerMortgage Borrower, Senior Mezzanine Borrower, Principal, Holdings Holdings, Operating Company or any such Guarantor, or if any Operating CompanyBorrower, any ManagerMortgage Borrower, Senior Mezzanine Borrower, Principal, Holdings Holdings, Operating Company or any Guarantor shall be adjudicated a bankrupt or insolvent, or if any petition for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by or against, consented to, or acquiesced in by, any Operating CompanyBorrower, any ManagerMortgage Borrower, Senior Mezzanine Borrower, Principal, Holdings Holdings, Operating Company or any Guarantor, or if any proceeding for the dissolution or liquidation of any Operating CompanyBorrower, any ManagerMortgage Borrower, Senior Mezzanine Borrower, Principal, Holdings Holdings, Operating Company or any Guarantor shall be instituted; provided, however, if such appointment, adjudication, petition or proceeding was involuntary and not consented to by any such Operating CompanyBorrower, any such ManagerMortgage Borrower, Senior Mezzanine Borrower, Principal, Holdings Holdings, Operating Company or any such Guarantor, upon the same not being discharged, stayed or dismissed within ninety (90) days;
(viii) if any Borrower attempts to assign its rights under this Agreement or any of the other Loan Documents or any interest herein or therein in contravention of the Loan Documents;
(ix) if any Borrower breaches any of its respective negative covenants contained in Section 5.2 or any covenant contained in Section 4.1.30 or Section 5.1.11 hereof (and, with respect to any such breach of any covenant set forth in Section 5.1.11 which is not the subject of any other subsection of this Section 8.1, such Borrower fails to remedy such condition within ten (10) days after notice to Borrower from Lender, in the case of any such Default under Section 5.1.11 which can be cured by the payment of a sum of money, or for thirty (30) days after notice from Lender in the case of any other such Default under Section 5.1.11);
(x) with respect to any term, covenant or provision set forth herein which specifically contains a notice requirement or grace period, if any Borrower shall be in default under such term, covenant or condition after the giving of such notice or the expiration of such grace period;
(xi) if any of the assumptions contained in the Insolvency Opinion delivered to Lender in connection with the Loan, or in the Additional Insolvency Opinion delivered subsequent to the closing of the Loan, is or shall become untrue in any material respect; or if any of the assumptions contained in the True Lease Opinion delivered to Lender in connection with the Loan, or in the Additional True Lease Opinion delivered subsequent to the closing of the Loan, is or shall become untrue in any material respect;
(xii) if any Mortgage Borrower, any Operating Company or any Guarantor (Operating Lease) is in default of any of its material obligations under any the Operating Lease (or under another lease and/or management agreement in substitution for such the Operating Lease in accordance herewith) or under any such the Operating Lease Guaranty (or under another operating lease guaranty in substitution for such the Operating Lease Guaranty in accordance herewith) beyond any applicable notice and cure periods contained therein; or if any Operating Lease (or such other lease and/or management agreement) or any Operating Lease Guaranty (or such other operating lease guaranty) shall be surrendered or any Operating Lease or any Operating Lease Guaranty shall be terminated or canceled for any reason or under any circumstances whatsoever, except with the consent of Lender; or if any of the terms, covenants or conditions of any the Operating Lease (or such other lease and/or management agreement) or any the Operating Lease Guaranty (or such other operating lease guaranty) shall in any manner be modified, changed, supplemented, altered, restated or amended without the consent of Lender except as may otherwise expressly permitted in this Agreement;
(xiii) intentionally omitted;
(xiv) if any Affiliate of any Borrower that is or becomes a party to the Windstorm Insurance Intercreditor Agreement is in default of any of its material obligations under the Windstorm Insurance Intercreditor Agreement beyond any applicable notice and cure periods contained therein; or if the Windstorm Insurance Intercreditor Agreement shall be surrendered, terminated or canceled for any reason or under any circumstances whatsoever, except with the consent of Lender; or if any of the terms, covenants or conditions of the Windstorm Insurance Intercreditor Agreement shall in any manner be modified, changed, supplemented, altered, restated or amended without the consent of Lender;
(xvxiv) if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower fails to comply with the covenants as to Prescribed Laws set forth in Section 5.1.1 hereof;
(xvixv) if a material (A) subject to any notice and cure periods contained in the applicable Ground Lease, Mortgage Borrower or Ground Lease Subsidiary, as applicable, shall fail in the payment of any rent, additional rent or other charge mentioned in or made payable by such Ground Lease as and when such rent or other charge is payable (unless waived by the landlord under such Ground Lease), (B) subject to any notice and cure periods contained in the applicable Ground Lease, there shall occur any default by Mortgage Borrower or Ground Lease Subsidiary, as applicable, as tenant under such Ground Lease, in the observance or performance of any term, covenant or condition of the Ground Lease on the part of Mortgage Borrower or Ground Lease Subsidiary, as applicable, to be observed or performed (unless waived by the landlord under the Ground Lease) (other than any such default being contested by Borrower in good faith by appropriate proceedings, provided that (i) no Event of Default has occurred and continues beyond remains uncured, (ii) such proceeding shall be conducted in accordance with all applicable statutes, laws and ordinances, (iii) in Lender’s reasonable determination, the Ground Lease is not in imminent danger of being forfeited, terminated, cancelled or lost and the Operating Company’s use and operation of the ground leased premises in connection with the operation of Xxxxxx’x Lake Tahoe”, “Xxxxxx’x Lake Tahoe” or “Bill’s Lake Tahoe” is not in imminent danger of being denied, forfeited, terminated, cancelled or lost and (iv) Borrower shall furnish such security as may be reasonably requested by Lender), (C) any applicable cure period one or more of the events referred to in any Ground Lease shall occur which would cause the Ground Lease to terminate without notice or action by the landlord under the Ground Lease or which would entitle the landlord to terminate the Ground Lease and the term thereof by giving notice to Mortgage Borrower or Ground Lease Subsidiary, as applicable, as tenant thereunder (unless waived by the landlord under the Ground Lease), (D) the leasehold estate created by any Ground Lease shall be surrendered or the Ground Lease shall be terminated or canceled for any reason or under any Management Agreement and if such default permits the Manager, the Operating Company or the circumstances whatsoever unless Mortgage Borrower party thereto or Ground Lease Subsidiary, as applicable, acquires the fee interest and mortgages same to terminate Lender (unless Mortgage Borrower or cancel Ground Lease Subsidiary, as applicable, acquires the Management Agreement fee interest, with Lender’s prior reasonable approval, and mortgages same to Mortgage Lender) or (E) if any of the terms, covenants or conditions of any Ground Lease shall in questionany manner be modified, changed, supplemented, altered, or amended without the consent of Lender except as otherwise permitted by this Agreement;
(xviixvi) any Gaming License shall be refused, suspended, revoked, modified in a materially adverse manner or canceled or allowed to lapse or any proceeding is commenced by any Governmental Authority for the purpose of suspending, revoking or canceling any Gaming License in any materially adverse respect, or any Governmental Authority shall have appointed a conservator, supervisor or trustee to or for any of the Casino Components and, in each case of the foregoing, such action could reasonably be expected to (A) have an Individual Material Adverse Effect, (B) materially and adversely affect effect the continued operation of the Casino Components in the usual course of business and in substantially the same manner and to at least the same standard as was maintained prior to such action, or (C) result in any material decrease in the then expected cash flow and revenues to be derived from the Casino Components;
(xviiixvii) if any Borrower shall continue to be in Default under any of the other terms, covenants or conditions of this Agreement not specified in subsections (i) to (xviixv) above, for ten (10) days after notice to Borrower from Lender, in the case of any Default which can be cured by the payment of a sum of money, or for thirty (30) days after notice from Lender in the case of any other Default; provided, however, that if such non-monetary Default is susceptible of cure but cannot reasonably be cured within such thirty (30) day period and provided further that such Borrower shall have commenced to cure such Default within such thirty (30) day period and thereafter diligently and expeditiously proceeds to cure the same, such thirty (30) day period shall be extended for such time as is reasonably necessary for such Borrower in the exercise of due diligence to cure such Default, such additional period not to exceed one hundred twenty (120) days;
(xixxviii) if there shall be a default under any of the other Loan Documents beyond any applicable cure periods contained in such documents, whether as to any Borrower, Mortgage Borrower, Senior Mezzanine Borrower, the Collateral, the Senior Mezzanine Collateral or any Individual Property, or if any other such event shall occur or condition shall exist, if the effect of such event or condition is to accelerate the maturity of any portion of the Debt or to permit Lender to accelerate the maturity of all or any portion of the Debt;
(xxxix) if the Liens created pursuant to any Loan Document shall cease to be a fully protected enforceable first priority security interest in the Collateral, or any portion of the Collateral is Transferred without Lender’s prior written consent except as permitted hereunder; or
(xxixx) if a Mortgage Loan Event of Default or Senior Mezzanine Loan Event of Default shall occur.
(b) Upon the occurrence of an Event of Default (other than an Event of Default described in clauses (vi) or (vii) above) and at any time thereafter, in addition to any other rights or remedies available to it pursuant to this Agreement and the other Loan Documents or at law or in equity, Lender may take such action, without notice or demand, that Lender deems advisable to protect and enforce its rights against Borrower and in and to all or any of the Collateral, including, without limitation, declaring the Debt to be immediately due and payable, and Lender may enforce or avail itself of any or all rights or remedies provided in the Loan Documents and may exercise all the rights and remedies of a secured party under the Uniform Commercial Code, as adopted and enacted by the State or States where any of the Collateral is located, located against Borrower and any or all of the Collateral, including, without limitation, all rights or remedies available at law or in equity; and upon any Event of Default described in clauses (vi) or (vii) above, the Debt and all other obligations of Borrower hereunder and under the other Loan Documents shall immediately and automatically become due and payable, without notice or demand, and Borrower hereby expressly waives any such notice or demand, anything contained herein or in any other Loan Document to the contrary notwithstanding.
Appears in 4 contracts
Samples: Mezzanine Loan Agreement (Harrahs Entertainment Inc), Mezzanine Loan Agreement (Harrahs Entertainment Inc), Mezzanine Loan Agreement (Harrahs Entertainment Inc)
Event of Default. (a) Each The occurrence of any one or more of the following events shall constitute an event of default hereunder (an “Event of Default”):” hereunder:
(ia) if (A) Choom or any portion of the Debt Choom OpCos is in breach of any payment obligation of this Agreement, any of the Transaction Documents or any other agreement, document or instrument executed and delivered in connection herewith or therewith, and such breach is not paid cured within two (2) weeks of written Notice from Aurora to the defaulting Party;
(b) Choom or any of the Choom OpCos is in full on material breach of any provision not relating to a payment obligation of this Agreement, any of the Maturity DateTransaction Documents or any other agreement, (B) the Debt Service document or instrument executed and delivered in connection herewith or therewith, and if curable, such breach is not paid in full on or before the related Payment Date, or cured within twenty (C) any other portion of the Debt is not paid within five (520) days of when duewritten Notice from Aurora to the defaulting Party;
(iic) if Choom or any of the Taxes Choom OpCos assigns or Other Charges are not paid (attempts to assign its rights and/or obligations under this Agreement, other than in accordance with respect to each or any Individual Property) prior to Delinquency;
(iii) if the Policies (with respect to each or any Individual Property) are not kept in full force and effect, or if certified copies of the Policies (for each Individual Property) are not delivered to Lender upon request (or certificates thereof, if a Policy shall be renewed and certified copies of the Policy are not immediately available upon such renewal (each Borrower agreeing in such instance to provide copies of the Policies to Lender promptly thereafter));
(iv) if any Borrower Transfers or otherwise encumbers any portion of the Properties, the Collateral or the Senior Mezzanine Collateral, or there shall otherwise occur a Transfer without Lender’s prior consent in violation of the provisions of this Agreement, the Pledge Agreement or any other Loan Document;
(vd) if any representation or warranty made by any Borrower Choom or any other Loan of the Choom OpCos fails to satisfy any obligation of such Party herein under Applicable Law (i) to withhold, pay, collect and/or remit any Taxes, whether assessed or in any other Loan Documentnot, or in (ii) to complete any report, certificate, financial statement or other instrument, agreement or document or other material or written information furnished to Lender shall have been false or misleading in any material respect as of the date the representation or warranty was made (and, filing with respect to any such breach which is Taxes; except as would not reasonably be expected to have a material adverse effect on the subject of any other subsection of this Section 8.1 and which is capable of being cured, such Borrower fails Party’s ability to remedy such condition within ten (10) days following notice to Borrower from Lender, in the case of any such breach which can be cured by the payment of a sum of money, or within thirty (30) days following notice from Lender in the case of any other such breach);
(vi) if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower shall make an assignment for the benefit of creditors; or if a receiver, liquidator or trustee shall be appointed for any Borrower, Senior Mezzanine Borrower or Mortgage Borrower, or if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower shall be adjudicated a bankrupt or insolvent, or if any petition for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by or against, consented to, or acquiesced in by, Borrower or Senior Mezzanine Borrower, or if any proceeding for the dissolution or liquidation of any Borrower, Senior Mezzanine Borrower or Mortgage Borrower shall be instituted; provided, however, if such appointment, adjudication, petition or proceeding was involuntary and not consented to by any Borrower, Senior Mezzanine Borrower or Mortgage Borrower, upon the same not being discharged, stayed or dismissed within ninety (90) days;
(vii) if any Operating Company, any Manager, Principal, Holdings or any Guarantor shall make an assignment for the benefit of creditors; or if a receiver, liquidator or trustee shall be appointed for any such Operating Company, any such Manager, Principal, Holdings or any such Guarantor, or if any Operating Company, any Manager, Principal, Holdings or any Guarantor shall be adjudicated a bankrupt or insolvent, or if any petition for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by or against, consented to, or acquiesced in by, any Operating Company, any Manager, Principal, Holdings or any Guarantor, or if any proceeding for the dissolution or liquidation of any Operating Company, any Manager, Principal, Holdings or any Guarantor shall be instituted; provided, however, if such appointment, adjudication, petition or proceeding was involuntary and not consented to by any such Operating Company, any such Manager, Principal, Holdings or any such Guarantor, upon the same not being discharged, stayed or dismissed within ninety (90) days;
(viii) if any Borrower attempts to assign perform its rights under this Agreement or any of the other Loan Documents or any interest herein or therein in contravention of the Loan Documents;
(ix) if any Borrower breaches any of its respective negative covenants contained in Section 5.2 or any covenant contained in Section 4.1.30 or Section 5.1.11 hereof (and, with respect to any such breach of any covenant set forth in Section 5.1.11 which is not the subject of any other subsection of this Section 8.1, such Borrower fails to remedy such condition within ten (10) days after notice to Borrower from Lender, in the case of any such Default under Section 5.1.11 which can be cured by the payment of a sum of money, or for thirty (30) days after notice from Lender in the case of any other such Default under Section 5.1.11);
(x) with respect to any term, covenant or provision set forth herein which specifically contains a notice requirement or grace period, if any Borrower shall be in default under such term, covenant or condition after the giving of such notice or the expiration of such grace period;
(xi) if any of the assumptions contained in the Insolvency Opinion delivered in connection with the Loan, or in the Additional Insolvency Opinion delivered subsequent to the closing of the Loan, is or shall become untrue in any material respect; or if any of the assumptions contained in the True Lease Opinion in connection with the Loan, or in the Additional True Lease Opinion delivered subsequent to the closing of the Loan, is or shall become untrue in any material respect;
(xii) if any Mortgage Borrower, any Operating Company or any Guarantor (Operating Lease) is in default of any of its material obligations under any Operating Lease (or under another lease and/or management agreement in substitution for such Operating Lease in accordance herewith) or under any such Operating Lease Guaranty (or under another operating lease guaranty in substitution for such Operating Lease Guaranty in accordance herewith) beyond any applicable notice and cure periods contained therein; or if any Operating Lease (or such other lease and/or management agreement) or any Operating Lease Guaranty (or such other operating lease guaranty) shall be surrendered or any Operating Lease or any Operating Lease Guaranty shall be terminated or canceled for any reason or under any circumstances whatsoever, except with the consent of Lender; or if any of the terms, covenants or conditions of any Operating Lease (or such other lease and/or management agreement) or any Operating Lease Guaranty (or such other operating lease guaranty) shall in any manner be modified, changed, supplemented, altered, restated or amended without the consent of Lender except as may otherwise expressly permitted in this Agreement;
(xiiie) intentionally omitted;
(xiv) if any Affiliate of any Borrower that is or becomes a party to the Windstorm Insurance Intercreditor Agreement is in default of any of its material obligations under the Windstorm Insurance Intercreditor Agreement beyond any applicable notice and cure periods contained therein; or if the Windstorm Insurance Intercreditor Agreement shall be surrendered, terminated or canceled for any reason or under any circumstances whatsoever, except with the consent of Lender; or if any of the terms, covenants or conditions of the Windstorm Insurance Intercreditor Agreement shall in any manner be modified, changed, supplemented, altered, restated or amended without the consent of Lender;
(xv) if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower fails to comply with the covenants as to Prescribed Laws set forth in Section 5.1.1 hereof;
(xvi) if a material default has occurred and continues beyond any applicable cure period under any Management Agreement and if such default permits the Manager, the Operating Company or the Mortgage Borrower party thereto to terminate or cancel the Management Agreement in question;
(xvii) any Gaming License shall be refused, suspended, revoked, modified in a materially adverse manner or canceled or allowed to lapse or any proceeding is commenced by any Governmental Authority for the purpose of suspending, revoking or canceling any Gaming License in any materially adverse respect, or any Governmental Authority shall have appointed a conservator, supervisor or trustee to or for any of the Casino Components and, in each case of the foregoing, such action could reasonably be expected to (A) have an Individual Material Adverse Effect, (B) materially and adversely affect the continued operation of the Casino Components in the usual course of business and in substantially the same manner and to at least the same standard as was maintained prior to such action, or (C) result in any material decrease in the then expected cash flow and revenues to be derived from the Casino Components;
(xviii) if any Borrower shall continue to be in Default under any of the other terms, covenants or conditions of this Agreement not specified in subsections (i) to (xvii) above, for ten (10) days after notice to Borrower from Lender, in the case of any Default which can be cured by the payment of a sum of money, or for thirty (30) days after notice from Lender in the case of any other Default; provided, however, that if such non-monetary Default is susceptible of cure but cannot reasonably be cured within such thirty (30) day period and provided further that such Borrower shall have commenced to cure such Default within such thirty (30) day period and thereafter diligently and expeditiously proceeds to cure the same, such thirty (30) day period shall be extended for such time as is reasonably necessary for such Borrower in the exercise of due diligence to cure such Default, such additional period not to exceed one hundred twenty (120) days;
(xix) if there shall be a default under any of the other Loan Documents beyond any applicable cure periods contained in such documents, whether as to any Borrower, Mortgage Borrower, Senior Mezzanine Borrower, the Collateral, the Senior Mezzanine Collateral or any Individual Property, or if any other such event shall occur or condition shall exist, if the effect of such event or condition is to accelerate the maturity of any portion of the Debt or to permit Lender to accelerate the maturity of all or any portion of the Debt;
(xx) if the Liens created pursuant to any Loan Document shall cease to be a fully protected enforceable first priority security interest in the Collateral, or any portion of the Collateral is Transferred without Lender’s prior written consent except as permitted hereunder; or
(xxi) if a Mortgage Loan Event of Default or Senior Mezzanine Loan Event of Default shall occur.
(b) Upon the occurrence of an Event of Default (other than an Event of Default described in clauses (vi) or (vii) above) and at any time thereafter, in addition to any other rights or remedies available to it pursuant to this Agreement and the other Loan Documents or at law or in equity, Lender may take such action, without notice or demand, that Lender deems advisable to protect and enforce its rights against Borrower and in and to all Choom or any of the Collateral, including, without limitation, declaring the Debt to be immediately due and payable, and Lender may enforce or avail itself Choom OpCos (a) commits an act of any or all rights or remedies provided in the Loan Documents and may exercise all the rights and remedies of a secured party under the Uniform Commercial Codefraud, as adopted and enacted determined by the State a court of competent jurisdiction in a non-appealable decision, or States where (b) is convicted by a court of competent jurisdiction in a non-appealable decision of committing a criminal offense;
(f) Choom or any of the Collateral is located, against Borrower Choom OpCos becomes the subject of Bankruptcy Proceedings and such Bankruptcy Proceedings are not abandoned within twenty (20) Business Days of written Notice from Aurora; and
(g) Choom or any or all of the CollateralChoom OpCos commences dissolution, including, without limitation, all rights liquidation or remedies available at law or in equity; winding-up proceedings and upon any Event such proceedings are not abandoned within twenty (20) Business Days of Default described in clauses (vi) or (vii) above, the Debt and all other obligations of Borrower hereunder and under the other Loan Documents shall immediately and automatically become due and payable, without notice or demand, and Borrower hereby expressly waives any such notice or demand, anything contained herein or in any other Loan Document to the contrary notwithstandingwritten Notice from Aurora.
Appears in 4 contracts
Samples: Omnibus Debt Restructuring Agreement, Debt Restructuring Agreement, Debt Restructuring Agreement
Event of Default. (a) Each If one or more of the following events shall constitute an event of default hereunder (an “Event Events of Default”):) shall have occurred and be continuing:
(a) the Borrower shall fail to pay any principal of any Loan or any Reimbursement Obligation when due or any Reimbursement Obligation Default shall occur;
(b) the Borrower shall fail to pay within 5 days of the due date thereof (i) if any facility fee, (Aii) interest on any Loan or (iii) any portion letter of the Debt is not paid in full on the Maturity Date, (B) the Debt Service is not paid in full on or before the related Payment Date, or (C) any other portion of the Debt is not paid within five (5) days of when duecredit fee;
(iic) if the Borrower shall fail to pay within 30 days after a request for payment by any Lender or Issuing Lender acting through the Administrative Agent any other amount that becomes due and payable under the terms of the Taxes or Other Charges are not paid (with respect to each or any Individual Property) prior to Delinquencythis Agreement;
(iiid) if the Policies (with respect Borrower shall fail to each observe or perform any Individual Propertyagreement contained in Section 5.01(e), Section 5.01(f) are not kept in full force and effect, or if certified copies of the Policies (for each Individual Property) are not delivered to Lender upon request (or certificates thereof, if a Policy shall be renewed and certified copies of the Policy are not immediately available upon such renewal (each Borrower agreeing in such instance to provide copies of the Policies to Lender promptly thereafter));
(iv) if any Borrower Transfers or otherwise encumbers any portion of the Properties, the Collateral or the Senior Mezzanine Collateral, or there shall otherwise occur a Transfer without Lender’s prior consent in violation of the provisions of this Agreement, the Pledge Agreement or any other Loan Document;
(v) if any representation or warranty made by any Borrower or any other Loan Party herein or in any other Loan Document, or in any report, certificate, financial statement or other instrument, agreement or document or other material or written information furnished to Lender shall have been false or misleading in any material respect as of the date the representation or warranty was made Section 5.07 through 5.10 (and, with respect to any such breach which is not the subject of any other subsection of this Section 8.1 and which is capable of being cured5.01(e), such failure shall have continued for 5 days after a Responsible Officer of the Borrower fails to remedy such condition within ten (10) days following notice to Borrower from Lender, in obtains knowledge of the case of any such breach which can be cured by the payment of a sum of money, or within thirty (30) days following notice from Lender in the case of any other such breachunderlying Default);
(vie) if the Borrower shall fail to observe or perform any Borrowercovenant or agreement contained in this Agreement (other than those covered by clauses (a) through (d) above) for 30 days after notice thereof has been given to the Borrower by the Administrative Agent at the request of the Required Lenders;
(f) any representation, Senior Mezzanine warranty or certification made by the Borrower in this Agreement or in any certificate or notice delivered pursuant to the terms of this Agreement shall prove to have been incorrect in any material respect when made and such deficiency shall remain unremedied for five days after notice thereof shall have been given to the Borrower by the Administrative Agent at the request of the Required Lenders;
(g) any Material Financial Obligations shall become due before stated maturity by the acceleration of the maturity thereof by reason of default, or any Material Financial Obligations shall become due by its terms and shall not be paid (after giving effect to any grace period with respect thereto) and, in any case aforesaid in this clause (g), corrective action satisfactory to the Required Lenders shall not have been taken within 5 days after written notice of the situation shall have been given to the Borrower by the Administrative Agent at the request of the Required Lenders;
(h) the Borrower or Mortgage Borrower any Restricted Subsidiary shall commence a voluntary case or other proceeding seeking liquidation, reorganization or other relief with respect to itself or its debts under any bankruptcy, insolvency or other similar law now or hereafter in effect or seeking the appointment of a trustee, receiver, liquidator, custodian or other similar official of it or any substantial part of its property, or shall consent to any such relief or to the appointment of or taking possession by any such official in an involuntary case or other proceeding commenced against it, or shall make an a general assignment for the benefit of creditors; , or if a receivershall fail generally to pay its debts as they become due, liquidator or trustee shall take any corporate action to authorize any of the foregoing;
(i) an involuntary case or other proceeding shall be appointed for any Borrower, Senior Mezzanine commenced against the Borrower or Mortgage Borrower, or if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower shall be adjudicated a bankrupt or insolvent, or if any petition for bankruptcyRestricted Subsidiary seeking liquidation, reorganization or arrangement pursuant other relief with respect to it or its debts under any bankruptcy, insolvency or other similar law now or hereafter in effect or seeking the appointment of a trustee, receiver, liquidator, custodian or other similar official of it or any substantial part of its property, and such involuntary case or other proceeding shall remain undismissed and unstayed for a period of 90 days; or an order for relief shall be entered against the Borrower or any Restricted Subsidiary under the federal bankruptcy law, laws as now or any similar federal or state law, shall be filed by or against, consented to, or acquiesced hereafter in by, Borrower or Senior Mezzanine Borrower, or if any proceeding for the dissolution or liquidation of any Borrower, Senior Mezzanine Borrower or Mortgage Borrower shall be instituted; provided, however, if such appointment, adjudication, petition or proceeding was involuntary and not consented to by any Borrower, Senior Mezzanine Borrower or Mortgage Borrower, upon the same not being discharged, stayed or dismissed within ninety (90) dayseffect;
(viij) if any Operating Company, any Manager, Principal, Holdings a final judgment for the payment of money in excess of $250,000,000 shall have been entered against the Borrower or any Guarantor Restricted Subsidiary, and the Borrower or such Subsidiary shall make an assignment for not have satisfied the benefit of creditors; or if a receiver, liquidator or trustee shall be appointed for any such Operating Company, any such Manager, Principal, Holdings or any such Guarantorsame within 60 days, or if any Operating Companycaused execution thereon to be stayed within 60 days, any Manager, Principal, Holdings and such failure to satisfy or any Guarantor stay such judgment shall be adjudicated a bankrupt or insolvent, or if any petition remain unremedied for bankruptcy, reorganization or arrangement pursuant 5 days after notice thereof shall have been given to federal bankruptcy law, or any similar federal or state law, shall be filed the Borrower by or against, consented to, or acquiesced in by, any Operating Company, any Manager, Principal, Holdings or any Guarantor, or if any proceeding for the dissolution or liquidation Administrative Agent at the request of any Operating Company, any Manager, Principal, Holdings or any Guarantor shall be instituted; provided, however, if such appointment, adjudication, petition or proceeding was involuntary and not consented to by any such Operating Company, any such Manager, Principal, Holdings or any such Guarantor, upon the same not being discharged, stayed or dismissed within ninety (90) daysRequired Lenders;
(viiik) if a final judgment either (1) requiring termination or imposing liability (other than for premiums under Section 4007 of ERISA) under Title IV of ERISA in respect of, or requiring a trustee to be appointed under Title IV of ERISA to administer, any Plan or Plans having aggregate Unfunded Liabilities in excess of $250,000,000 or (2) in an action relating to a Multiemployer Plan involving a current payment obligation in excess of $250,000,000, which judgment, in either case, has not been satisfied or stayed within 60 days and such failure to satisfy or stay is unremedied for 5 days after notice thereof shall have been given to the Borrower attempts to assign its rights under this Agreement or any by the Administrative Agent at the request of the other Loan Documents Required Lenders; or
(l) any person or any interest herein group of persons (within the meaning of Section 13 or therein in contravention 14 of the Loan Documents;
Securities Exchange Act of 1934, as amended) shall have acquired beneficial ownership (ixwithin the meaning of Rule 13d-3 promulgated by the Securities and Exchange Commission under said Act) of 35% or more of the outstanding shares of common stock of the Borrower; or during any two-year period, individuals who at the beginning of such period constituted the Borrower’s Board of Directors (together with any new director whose election by the Board of Directors or whose nomination for election by the shareholders of the Borrower was approved by a vote of at least two-thirds of the directors then in office who either were directors as the beginning of such period or whose election or nomination for election was previously so approved) cease for any reason to constitute a majority of the directors then in office; then, and in every such event, the Administrative Agent shall, if requested by the Required Lenders, (i) by notice to the Borrower terminate the Commitments and they shall thereupon terminate, and (ii) by notice to the Borrower declare the Loans, interest accrued thereon and all other amounts payable hereunder to be, and the same shall thereupon become, immediately due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby waived by the Borrower; provided that in the event of (A) the filing by the Borrower breaches any of its respective negative covenants contained in Section 5.2 a petition, or any covenant contained in Section 4.1.30 (B) an actual or Section 5.1.11 hereof (and, deemed entry of an order for relief with respect to any such breach of any covenant set forth in Section 5.1.11 which is not the subject of any other subsection of this Section 8.1, such Borrower fails to remedy such condition within ten (10) days after notice to Borrower from Lender, in the case of any such Default under Section 5.1.11 which can be cured by the payment of a sum of money, or for thirty (30) days after notice from Lender in the case of any other such Default under Section 5.1.11);
(x) with respect to any term, covenant or provision set forth herein which specifically contains a notice requirement or grace period, if any Borrower shall be in default under such term, covenant or condition after the giving of such notice or the expiration of such grace period;
(xi) if any of the assumptions contained in the Insolvency Opinion delivered in connection with the Loan, or in the Additional Insolvency Opinion delivered subsequent to the closing of the Loan, is or shall become untrue in any material respect; or if any of the assumptions contained in the True Lease Opinion in connection with the Loan, or in the Additional True Lease Opinion delivered subsequent to the closing of the Loan, is or shall become untrue in any material respect;
(xii) if any Mortgage Borrower, any Operating Company or any Guarantor (Operating Lease) is in default of any of its material obligations under any Operating Lease (or under another lease and/or management agreement in substitution for such Operating Lease in accordance herewith) or under any such Operating Lease Guaranty (or under another operating lease guaranty in substitution for such Operating Lease Guaranty in accordance herewith) beyond any applicable notice and cure periods contained therein; or if any Operating Lease (or such other lease and/or management agreement) or any Operating Lease Guaranty (or such other operating lease guaranty) shall be surrendered or any Operating Lease or any Operating Lease Guaranty shall be terminated or canceled for any reason or under any circumstances whatsoever, except with the consent of Lender; or if any of the terms, covenants or conditions of any Operating Lease (or such other lease and/or management agreement) or any Operating Lease Guaranty (or such other operating lease guaranty) shall in any manner be modified, changed, supplemented, altered, restated or amended without the consent of Lender except as may otherwise expressly permitted in this Agreement;
(xiii) intentionally omitted;
(xiv) if any Affiliate of any Borrower that is or becomes a party to the Windstorm Insurance Intercreditor Agreement is in default of any of its material obligations under the Windstorm Insurance Intercreditor Agreement beyond any applicable notice and cure periods contained therein; or if the Windstorm Insurance Intercreditor Agreement shall be surrendered, terminated or canceled for any reason or under any circumstances whatsoever, except with the consent of Lender; or if any of the terms, covenants or conditions of the Windstorm Insurance Intercreditor Agreement shall in any manner be modified, changed, supplemented, altered, restated or amended without the consent of Lender;
(xv) if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower fails to comply with the covenants as to Prescribed Laws set forth in Section 5.1.1 hereof;
(xvi) if a material default has occurred and continues beyond any applicable cure period under any Management Agreement and if such default permits the Manager, the Operating Company or the Mortgage Borrower party thereto to terminate or cancel the Management Agreement in question;
(xvii) any Gaming License shall be refused, suspended, revoked, modified in a materially adverse manner or canceled or allowed to lapse or any proceeding is commenced by any Governmental Authority for the purpose of suspending, revoking or canceling any Gaming License in any materially adverse respect, or any Governmental Authority shall have appointed a conservator, supervisor or trustee to or for any of the Casino Components and, in each case of under the foregoingfederal bankruptcy laws as now or hereafter in effect, such action could reasonably be expected to (A) have an Individual Material Adverse Effect, (B) materially and adversely affect the continued operation of the Casino Components in the usual course of business and in substantially the same manner and to at least the same standard as was maintained prior to such action, or (C) result in without any material decrease in the then expected cash flow and revenues to be derived from the Casino Components;
(xviii) if any Borrower shall continue to be in Default under any of the other terms, covenants or conditions of this Agreement not specified in subsections (i) to (xvii) above, for ten (10) days after notice to the Borrower from Lender, in the case of or any Default which can be cured other act by the payment of a sum of money, Administrative Agent or for thirty (30) days after notice from Lender in the case of any other Default; provided, however, that if such non-monetary Default is susceptible of cure but cannot reasonably be cured within such thirty (30) day period and provided further that such Borrower shall have commenced to cure such Default within such thirty (30) day period and thereafter diligently and expeditiously proceeds to cure the same, such thirty (30) day period shall be extended for such time as is reasonably necessary for such Borrower in the exercise of due diligence to cure such Default, such additional period not to exceed one hundred twenty (120) days;
(xix) if there shall be a default under any of the other Loan Documents beyond any applicable cure periods contained in such documents, whether as to any Borrower, Mortgage Borrower, Senior Mezzanine BorrowerLenders, the Collateral, the Senior Mezzanine Collateral or any Individual Property, or if any other such event Commitments shall occur or condition shall exist, if the effect of such event or condition is to accelerate the maturity of any portion of the Debt or to permit Lender to accelerate the maturity of all or any portion of the Debt;
(xx) if the Liens created pursuant to any Loan Document shall cease to be a fully protected enforceable first priority security interest in the Collateral, or any portion of the Collateral is Transferred without Lender’s prior written consent except as permitted hereunder; or
(xxi) if a Mortgage Loan Event of Default or Senior Mezzanine Loan Event of Default shall occur.
(b) Upon the occurrence of an Event of Default (other than an Event of Default described in clauses (vi) or (vii) above) and at any time thereafter, in addition to any other rights or remedies available to it pursuant to this Agreement thereupon terminate and the Loans, interest accrued thereon and all other Loan Documents or at law or in equity, Lender may take such action, without notice or demand, that Lender deems advisable to protect and enforce its rights against Borrower and in and to all or any of the Collateral, including, without limitation, declaring the Debt to be amounts payable hereunder shall become immediately due and payablepayable without presentment, and Lender may enforce demand, protest or avail itself other notice of any or kind, all rights or remedies provided in the Loan Documents and may exercise all the rights and remedies of a secured party under the Uniform Commercial Code, as adopted and enacted which are hereby waived by the State or States where any of the Collateral is located, against Borrower and any or all of the Collateral, including, without limitation, all rights or remedies available at law or in equity; and upon any Event of Default described in clauses (vi) or (vii) above, the Debt and all other obligations of Borrower hereunder and under the other Loan Documents shall immediately and automatically become due and payable, without notice or demand, and Borrower hereby expressly waives any such notice or demand, anything contained herein or in any other Loan Document to the contrary notwithstandingBorrower.
Appears in 4 contracts
Samples: Loan Modification and Extension Agreement (Martin Marietta Materials Inc), Loan Modification and Extension Agreement (Martin Marietta Materials Inc), Loan Modification and Extension Agreement (Martin Marietta Materials Inc)
Event of Default. (a) Each of the following events shall constitute an event of default hereunder (an “Event of Default”):” by the respective Party:
(ia) if failure of RCP (Aor of a third party, whether Bliss Sports, Bliss Sports II or otherwise, which has agreed in writing to fulfill RCP’s obligations) any portion of to obtain and maintain or to cause a third party to obtain or maintain the Debt is not paid in full on the Maturity Date, (B) the Debt Service is not paid in full on or before the related Payment Date, or (C) any other portion of the Debt is not paid within five (5) days of when dueinsurance required by Article XIII hereof;
(iib) if any of the Taxes or Other Charges are not paid (with respect to each or any Individual Property) prior to Delinquency;
(iii) if the Policies (with respect to each or any Individual Property) are not kept in full force and effect, or if certified copies of the Policies (for each Individual Property) are not delivered to Lender upon request (or certificates thereof, if a Policy shall be renewed and certified copies of the Policy are not immediately available upon such renewal (each Borrower agreeing in such instance to provide copies of the Policies to Lender promptly thereafter));
(iv) if any Borrower Transfers or otherwise encumbers any portion of the Properties, the Collateral or the Senior Mezzanine Collateral, or there shall otherwise occur a Transfer without Lender’s prior consent in violation of the provisions of this Agreement, the Pledge Agreement or any other Loan Document;
(v) if any representation or warranty made by any Borrower Bliss Sports or any other Loan Party Bliss Sports II herein or in any other Loan Document, or in any report, certificate, financial written statement or other instrument, agreement or document or other material or written information certificate furnished to Lender shall have been false or misleading a Party by another Party with respect to the performance of this Agreement, proves untrue in any material respect as of the date of the representation issuance or warranty was made (and, with respect to any such breach making thereof which is not the subject of any other subsection of this Section 8.1 and which is capable of being cured, such Borrower fails to remedy such condition within ten (10) days following notice to Borrower from Lender, in the case of any such breach which can be cured by the payment of a sum of money, corrected or brought into compliance within thirty (30) days following after the recipient Party gives the Party which gave the untrue written statement or certificate a written notice from Lender specifying such untruth and requiring it to be remedied; provided, that if such untruth cannot be fully remedied within such thirty (30) day period, but can reasonably be expected to be fully remedied and the defaulting Party is diligently attempting to remedy such untruth, such untruth shall not constitute an event of default if the defaulting Party shall immediately upon receipt of such notice diligently attempting to remedy such untruth and shall thereafter prosecute and complete the same with due diligence and dispatch; or
(c) any judgment which is final, writ or warrant of attachment or any similar process shall be entered or filed against a Party which remains unvacated, unpaid, unbonded, unstayed or uncontested in good faith for a period of ninety (90) days; provided, however, that none of the foregoing shall constitute an event of default unless the amount of such judgment, writ, warrant of attachment or similar process, together with the amount of all other such judgments, writs, warrants or similar processes so unvacated, unpaid, unbonded, unstayed or uncontested, exceeds $2,000,000; or
(d) the entry of a decree or order by a court having jurisdiction in the case premises for relief in respect of a Party, or adjudging a Party a bankrupt or insolvent, or approving as properly filed a petition seeking reorganization, adjustment or composition of or in respect of a Party under the United States Bankruptcy Code or any other applicable federal or state law, or appointing a custodian, receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of or for a Party or any substantial part of its property, or ordering the winding up or liquidation of its affairs, and the continuance of any other such breach);decree or order unstayed and in effect for a period of one hundred twenty (120) consecutive days; or
(vie) if any Borrowerthe commencement by a Party of a voluntary case, Senior Mezzanine Borrower or Mortgage Borrower shall make an assignment for the benefit by it of creditors; or if a receiver, liquidator or trustee shall be appointed for any Borrower, Senior Mezzanine Borrower or Mortgage Borrower, or if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower shall proceedings to be adjudicated a bankrupt or insolvent, or if any petition for bankruptcy, reorganization the consent by it to a Party of bankruptcy or arrangement pursuant to federal bankruptcy lawinsolvency proceedings against it, or the filing by it of a petition or answer or consent seeking reorganization, arrangement or relief under the United States Bankruptcy Code or any similar other applicable federal or state law, shall be filed or the consent or acquiescence by it to the filing of any such petition or againstthe appointment of or taking possession by a custodian, consented toreceiver, liquidator, assignee, trustee, sequestrator (or other similar official) of a Party or any substantial part of its property, or acquiesced in by, Borrower or Senior Mezzanine Borrower, or if any proceeding for the dissolution or liquidation making by it of any Borrower, Senior Mezzanine Borrower or Mortgage Borrower shall be instituted; provided, however, if such appointment, adjudication, petition or proceeding was involuntary and not consented to by any Borrower, Senior Mezzanine Borrower or Mortgage Borrower, upon the same not being discharged, stayed or dismissed within ninety (90) days;
(vii) if any Operating Company, any Manager, Principal, Holdings or any Guarantor shall make an assignment for the benefit of creditors; , or if the admission by it in writing of its inability or its failure to pay its debts generally as they become due, or the taking of corporate action by a receiver, liquidator or trustee shall be appointed for Party in furtherance of any such Operating Company, action; or
(f) any such Manager, Principal, Holdings or any such Guarantordefault by a Party in the performance, or if any Operating Companybreach, any Manager, Principal, Holdings or any Guarantor shall be adjudicated a bankrupt or insolvent, or if any petition for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by or against, consented to, or acquiesced in by, any Operating Company, any Manager, Principal, Holdings or any Guarantor, or if any proceeding for the dissolution or liquidation of any Operating Company, any Manager, Principal, Holdings or any Guarantor shall be instituted; provided, however, if such appointment, adjudication, petition or proceeding was involuntary and not consented to by any such Operating Company, any such Manager, Principal, Holdings or any such Guarantor, upon the same not being discharged, stayed or dismissed within ninety (90) days;
(viii) if any Borrower attempts to assign its rights under this Agreement or any of the other Loan Documents or any interest herein or therein in contravention of the Loan Documents;
(ix) if any Borrower breaches any of its respective negative covenants contained in Section 5.2 or any covenant contained in Section 4.1.30 or Section 5.1.11 hereof (and, with respect to any such breach of any covenant set forth or agreement of such Party in Section 5.1.11 which is not the subject this Agreement, and continuance of any other subsection such default or breach for a period of this Section 8.1, such Borrower fails to remedy such condition within ten (10) days after notice to Borrower from Lender, in the case of any such Default under Section 5.1.11 which can be cured by the payment of a sum of money, or for thirty (30) days after notice from Lender in the case other Party entitled to performance of any other such Default under Section 5.1.11);
(x) with respect to any term, covenant or provision set forth herein which specifically contains agreement has been delivered to defaulting Party a written notice requirement or grace period, if any Borrower shall be in default under such term, covenant or condition after the giving of such notice or the expiration of such grace period;
(xi) if any of the assumptions contained in the Insolvency Opinion delivered in connection with the Loan, or in the Additional Insolvency Opinion delivered subsequent to the closing of the Loan, is or shall become untrue in any material respect; or if any of the assumptions contained in the True Lease Opinion in connection with the Loan, or in the Additional True Lease Opinion delivered subsequent to the closing of the Loan, is or shall become untrue in any material respect;
(xii) if any Mortgage Borrower, any Operating Company or any Guarantor (Operating Lease) is in default of any of its material obligations under any Operating Lease (or under another lease and/or management agreement in substitution for such Operating Lease in accordance herewith) or under any such Operating Lease Guaranty (or under another operating lease guaranty in substitution for such Operating Lease Guaranty in accordance herewith) beyond any applicable notice and cure periods contained therein; or if any Operating Lease (or such other lease and/or management agreement) or any Operating Lease Guaranty (or such other operating lease guaranty) shall be surrendered or any Operating Lease or any Operating Lease Guaranty shall be terminated or canceled for any reason or under any circumstances whatsoever, except with the consent of Lender; or if any of the terms, covenants or conditions of any Operating Lease (or such other lease and/or management agreement) or any Operating Lease Guaranty (or such other operating lease guaranty) shall in any manner be modified, changed, supplemented, altered, restated or amended without the consent of Lender except as may otherwise expressly permitted in this Agreement;
(xiii) intentionally omitted;
(xiv) if any Affiliate of any Borrower that is or becomes a party to the Windstorm Insurance Intercreditor Agreement is in default of any of its material obligations under the Windstorm Insurance Intercreditor Agreement beyond any applicable notice and cure periods contained therein; or if the Windstorm Insurance Intercreditor Agreement shall be surrendered, terminated or canceled for any reason or under any circumstances whatsoever, except with the consent of Lender; or if any of the terms, covenants or conditions of the Windstorm Insurance Intercreditor Agreement shall in any manner be modified, changed, supplemented, altered, restated or amended without the consent of Lender;
(xv) if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower fails to comply with the covenants as to Prescribed Laws set forth in Section 5.1.1 hereof;
(xvi) if a material default has occurred and continues beyond any applicable cure period under any Management Agreement and if specifying such default permits the Manager, the Operating Company or the Mortgage Borrower party thereto to terminate or cancel the Management Agreement in question;
(xvii) any Gaming License shall be refused, suspended, revoked, modified in a materially adverse manner or canceled or allowed to lapse or any proceeding is commenced by any Governmental Authority for the purpose of suspending, revoking or canceling any Gaming License in any materially adverse respect, or any Governmental Authority shall have appointed a conservator, supervisor or trustee to or for any of the Casino Components and, in each case of the foregoing, such action could reasonably be expected to (A) have an Individual Material Adverse Effect, (B) materially breach and adversely affect the continued operation of the Casino Components in the usual course of business and in substantially the same manner and to at least the same standard as was maintained prior to such action, or (C) result in any material decrease in the then expected cash flow and revenues requiring it to be derived from the Casino Components;
(xviii) if any Borrower shall continue to be in Default under any of the other terms, covenants or conditions of this Agreement not specified in subsections (i) to (xvii) above, for ten (10) days after notice to Borrower from Lender, in the case of any Default which can be cured by the payment of a sum of money, or for thirty (30) days after notice from Lender in the case of any other Defaultremedied; provided, however, that if such non-monetary Default is susceptible of cure but default or breach cannot reasonably be cured fully remedied within such thirty (30) day period period, but can reasonably be expected to be fully remedied and provided further that the defaulting Party is diligently attempting to remedy such Borrower shall have commenced to cure such Default within such thirty (30) day period and thereafter diligently and expeditiously proceeds to cure the samedefault or breach, such thirty (30) day period default or breach shall be extended for not constitute an event of default if defaulting Party shall, immediately upon receipt of such time as is reasonably necessary for notice, diligently attempt to remedy such Borrower in default or breach and shall thereafter prosecute and complete the exercise of same with due diligence to cure such Default, such additional period not to exceed one hundred twenty (120) days;
(xix) if there shall be a default under any of the other Loan Documents beyond any applicable cure periods contained in such documents, whether as to any Borrower, Mortgage Borrower, Senior Mezzanine Borrower, the Collateral, the Senior Mezzanine Collateral or any Individual Property, or if any other such event shall occur or condition shall exist, if the effect of such event or condition is to accelerate the maturity of any portion of the Debt or to permit Lender to accelerate the maturity of all or any portion of the Debt;
(xx) if the Liens created pursuant to any Loan Document shall cease to be a fully protected enforceable first priority security interest in the Collateral, or any portion of the Collateral is Transferred without Lender’s prior written consent except as permitted hereunder; or
(xxi) if a Mortgage Loan Event of Default or Senior Mezzanine Loan Event of Default shall occurand dispatch.
(b) Upon the occurrence of an Event of Default (other than an Event of Default described in clauses (vi) or (vii) above) and at any time thereafter, in addition to any other rights or remedies available to it pursuant to this Agreement and the other Loan Documents or at law or in equity, Lender may take such action, without notice or demand, that Lender deems advisable to protect and enforce its rights against Borrower and in and to all or any of the Collateral, including, without limitation, declaring the Debt to be immediately due and payable, and Lender may enforce or avail itself of any or all rights or remedies provided in the Loan Documents and may exercise all the rights and remedies of a secured party under the Uniform Commercial Code, as adopted and enacted by the State or States where any of the Collateral is located, against Borrower and any or all of the Collateral, including, without limitation, all rights or remedies available at law or in equity; and upon any Event of Default described in clauses (vi) or (vii) above, the Debt and all other obligations of Borrower hereunder and under the other Loan Documents shall immediately and automatically become due and payable, without notice or demand, and Borrower hereby expressly waives any such notice or demand, anything contained herein or in any other Loan Document to the contrary notwithstanding.
Appears in 4 contracts
Samples: Development Agreement, Development Agreement, Development Agreement
Event of Default. An Event of Default shall be deemed to have occurred and may be declared by the Pledgee upon the happening of any of the following events:
(a) Each of the following events shall constitute an event of default hereunder (an An “Event of Default”):
(i) if (A) ” under any portion of the Debt is not paid in full on the Maturity Date, (B) the Debt Service is not paid in full on Document or before the any agreement or note related Payment Date, or (C) to any other portion of the Debt is not paid within five (5) days of when dueDocument shall have occurred and be continuing beyond any applicable cure period;
(iib) if Any Pledgor shall default in the performance of any of the Taxes or Other Charges are its obligations under any agreement between any Pledgor and Pledgee, including, without limitation, this Agreement, and such default shall not paid (with respect to each or be cured during any Individual Property) prior to Delinquencyapplicable cure period;
(iiic) if the Policies (with respect to each or any Individual Property) are not kept in full force and effect, or if certified copies of the Policies (for each Individual Property) are not delivered to Lender upon request (or certificates thereof, if a Policy shall be renewed and certified copies of the Policy are not immediately available upon such renewal (each Borrower agreeing in such instance to provide copies of the Policies to Lender promptly thereafter));
(iv) if any Borrower Transfers or otherwise encumbers any portion of the Properties, the Collateral or the Senior Mezzanine Collateral, or there shall otherwise occur a Transfer without Lender’s prior consent in violation of the provisions of this Agreement, the Pledge Agreement or any other Loan Document;
(v) if any Any representation or warranty of any Pledgor made by herein, in any Borrower or any other Loan Party herein Document or in any other Loan Documentagreement, statement or certificate given in writing pursuant hereto or thereto or in any report, certificate, financial statement connection herewith or other instrument, agreement or document or other material or written information furnished to Lender therewith shall have been be false or misleading in any material respect as respect;
(d) Any portion of the date Collateral is subjected to a levy of execution, attachment, distraint or other judicial process or any portion of the representation or warranty was made (and, with respect to any such breach which Collateral is not the subject of any a claim (other subsection than by the Pledgee) of this Section 8.1 a Lien or other right or interest in or to the Collateral and which is capable of being such levy or claim shall not be cured, such Borrower fails to remedy such condition disputed or stayed within ten a period of fifteen (1015) business days following notice to Borrower from Lenderafter the occurrence thereof; or
(e) Any Pledgor shall (i) apply for, in the case of any such breach which can be cured by the payment of a sum of moneyconsent to, or within thirty suffer to exist the appointment of, or the taking of possession by, a receiver, custodian, trustee, liquidator or other fiduciary of itself or of all or a substantial part of its property, (30ii) days following notice from Lender in the case of any other such breach);
(vi) if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower shall make an a general assignment for the benefit of creditors; , (iii) commence a voluntary case under any state or if a receiverfederal bankruptcy laws (as now or hereafter in effect), liquidator or trustee shall be appointed for any Borrower, Senior Mezzanine Borrower or Mortgage Borrower, or if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower shall (iv) be adjudicated a bankrupt or insolvent, or if (v) file a petition seeking to take advantage of any petition other law providing for bankruptcythe relief of debtors, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by or against, consented (vi) acquiesce to, or acquiesced fail to have dismissed, within sixty (60) days, any petition filed against it in by, Borrower or Senior Mezzanine Borrowerany involuntary case under such bankruptcy laws, or if any proceeding for the dissolution or liquidation of any Borrower, Senior Mezzanine Borrower or Mortgage Borrower shall be instituted; provided, however, if such appointment, adjudication, petition or proceeding was involuntary and not consented to by any Borrower, Senior Mezzanine Borrower or Mortgage Borrower, upon the same not being discharged, stayed or dismissed within ninety (90) days;
(vii) if take any Operating Company, any Manager, Principal, Holdings or any Guarantor shall make an assignment for the benefit of creditors; or if a receiver, liquidator or trustee shall be appointed for any such Operating Company, any such Manager, Principal, Holdings or any such Guarantor, or if any Operating Company, any Manager, Principal, Holdings or any Guarantor shall be adjudicated a bankrupt or insolvent, or if any petition for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by or against, consented to, or acquiesced in by, any Operating Company, any Manager, Principal, Holdings or any Guarantor, or if any proceeding for the dissolution or liquidation of any Operating Company, any Manager, Principal, Holdings or any Guarantor shall be instituted; provided, however, if such appointment, adjudication, petition or proceeding was involuntary and not consented to by any such Operating Company, any such Manager, Principal, Holdings or any such Guarantor, upon the same not being discharged, stayed or dismissed within ninety (90) days;
(viii) if any Borrower attempts to assign its rights under this Agreement or any of the other Loan Documents or any interest herein or therein in contravention of the Loan Documents;
(ix) if any Borrower breaches any of its respective negative covenants contained in Section 5.2 or any covenant contained in Section 4.1.30 or Section 5.1.11 hereof (and, with respect to any such breach of any covenant set forth in Section 5.1.11 which is not the subject of any other subsection of this Section 8.1, such Borrower fails to remedy such condition within ten (10) days after notice to Borrower from Lender, in the case of any such Default under Section 5.1.11 which can be cured by the payment of a sum of money, or for thirty (30) days after notice from Lender in the case of any other such Default under Section 5.1.11);
(x) with respect to any term, covenant or provision set forth herein which specifically contains a notice requirement or grace period, if any Borrower shall be in default under such term, covenant or condition after the giving of such notice or the expiration of such grace period;
(xi) if any of the assumptions contained in the Insolvency Opinion delivered in connection with the Loan, or in the Additional Insolvency Opinion delivered subsequent to the closing of the Loan, is or shall become untrue in any material respect; or if any of the assumptions contained in the True Lease Opinion in connection with the Loan, or in the Additional True Lease Opinion delivered subsequent to the closing of the Loan, is or shall become untrue in any material respect;
(xii) if any Mortgage Borrower, any Operating Company or any Guarantor (Operating Lease) is in default of any of its material obligations under any Operating Lease (or under another lease and/or management agreement in substitution for such Operating Lease in accordance herewith) or under any such Operating Lease Guaranty (or under another operating lease guaranty in substitution for such Operating Lease Guaranty in accordance herewith) beyond any applicable notice and cure periods contained therein; or if any Operating Lease (or such other lease and/or management agreement) or any Operating Lease Guaranty (or such other operating lease guaranty) shall be surrendered or any Operating Lease or any Operating Lease Guaranty shall be terminated or canceled for any reason or under any circumstances whatsoever, except with the consent of Lender; or if any of the terms, covenants or conditions of any Operating Lease (or such other lease and/or management agreement) or any Operating Lease Guaranty (or such other operating lease guaranty) shall in any manner be modified, changed, supplemented, altered, restated or amended without the consent of Lender except as may otherwise expressly permitted in this Agreement;
(xiii) intentionally omitted;
(xiv) if any Affiliate of any Borrower that is or becomes a party to the Windstorm Insurance Intercreditor Agreement is in default of any of its material obligations under the Windstorm Insurance Intercreditor Agreement beyond any applicable notice and cure periods contained therein; or if the Windstorm Insurance Intercreditor Agreement shall be surrendered, terminated or canceled for any reason or under any circumstances whatsoever, except with the consent of Lender; or if any of the terms, covenants or conditions of the Windstorm Insurance Intercreditor Agreement shall in any manner be modified, changed, supplemented, altered, restated or amended without the consent of Lender;
(xv) if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower fails to comply with the covenants as to Prescribed Laws set forth in Section 5.1.1 hereof;
(xvi) if a material default has occurred and continues beyond any applicable cure period under any Management Agreement and if such default permits the Manager, the Operating Company or the Mortgage Borrower party thereto to terminate or cancel the Management Agreement in question;
(xvii) any Gaming License shall be refused, suspended, revoked, modified in a materially adverse manner or canceled or allowed to lapse or any proceeding is commenced by any Governmental Authority action for the purpose of suspending, revoking or canceling any Gaming License in any materially adverse respect, or any Governmental Authority shall have appointed a conservator, supervisor or trustee to or for effecting any of the Casino Components and, in each case of the foregoing, such action could reasonably be expected to (A) have an Individual Material Adverse Effect, (B) materially and adversely affect the continued operation of the Casino Components in the usual course of business and in substantially the same manner and to at least the same standard as was maintained prior to such action, or (C) result in any material decrease in the then expected cash flow and revenues to be derived from the Casino Components;
(xviii) if any Borrower shall continue to be in Default under any of the other terms, covenants or conditions of this Agreement not specified in subsections (i) to (xvii) above, for ten (10) days after notice to Borrower from Lender, in the case of any Default which can be cured by the payment of a sum of money, or for thirty (30) days after notice from Lender in the case of any other Default; provided, however, that if such non-monetary Default is susceptible of cure but cannot reasonably be cured within such thirty (30) day period and provided further that such Borrower shall have commenced to cure such Default within such thirty (30) day period and thereafter diligently and expeditiously proceeds to cure the same, such thirty (30) day period shall be extended for such time as is reasonably necessary for such Borrower in the exercise of due diligence to cure such Default, such additional period not to exceed one hundred twenty (120) days;
(xix) if there shall be a default under any of the other Loan Documents beyond any applicable cure periods contained in such documents, whether as to any Borrower, Mortgage Borrower, Senior Mezzanine Borrower, the Collateral, the Senior Mezzanine Collateral or any Individual Property, or if any other such event shall occur or condition shall exist, if the effect of such event or condition is to accelerate the maturity of any portion of the Debt or to permit Lender to accelerate the maturity of all or any portion of the Debt;
(xx) if the Liens created pursuant to any Loan Document shall cease to be a fully protected enforceable first priority security interest in the Collateral, or any portion of the Collateral is Transferred without Lender’s prior written consent except as permitted hereunder; or
(xxi) if a Mortgage Loan Event of Default or Senior Mezzanine Loan Event of Default shall occur.
(b) Upon the occurrence of an Event of Default (other than an Event of Default described in clauses (vi) or (vii) above) and at any time thereafter, in addition to any other rights or remedies available to it pursuant to this Agreement and the other Loan Documents or at law or in equity, Lender may take such action, without notice or demand, that Lender deems advisable to protect and enforce its rights against Borrower and in and to all or any of the Collateral, including, without limitation, declaring the Debt to be immediately due and payable, and Lender may enforce or avail itself of any or all rights or remedies provided in the Loan Documents and may exercise all the rights and remedies of a secured party under the Uniform Commercial Code, as adopted and enacted by the State or States where any of the Collateral is located, against Borrower and any or all of the Collateral, including, without limitation, all rights or remedies available at law or in equity; and upon any Event of Default described in clauses (vi) or (vii) above, the Debt and all other obligations of Borrower hereunder and under the other Loan Documents shall immediately and automatically become due and payable, without notice or demand, and Borrower hereby expressly waives any such notice or demand, anything contained herein or in any other Loan Document to the contrary notwithstanding.
Appears in 4 contracts
Samples: Stock Pledge Agreement (Biodelivery Sciences International Inc), Stock Pledge Agreement (Electric City Corp), Stock Pledge Agreement (Earthfirst Technologies Inc)
Event of Default. (a) Each of the following events shall constitute an event of default hereunder (an “Event of Default”):” by Subtenant under this Sublease:
(i) if (A) If Subtenant fails to pay any portion of the Debt is not paid in full on the Maturity Date, (B) the Debt Service is not paid in full on or before the related Payment Daterent when due, or (C) any other portion of charge required to be paid by Subtenant hereunder within six (6) business days after Sublessor delivers notice that the Debt same is not paid within five (5) days of when duepast due and payable;
(ii) if If Subtenant fails to maintain insurance required hereunder or fails to timely deliver any of the Taxes or Other Charges are not paid (with respect to each or any Individual Property) prior to Delinquencyestoppel certificate required hereunder;
(iii) if the Policies (with respect If Subtenant fails to each perform or observe any Individual Property) are not kept in full force and effectother term, provision, covenant, condition, representation, warranty or if certified copies of the Policies (for each Individual Property) are not delivered to Lender upon request (or certificates thereof, if a Policy shall be renewed and certified copies of the Policy are not immediately available upon such renewal (each Borrower agreeing in such instance to provide copies of the Policies to Lender promptly thereafter));
(iv) if any Borrower Transfers or otherwise encumbers any portion of the Properties, the Collateral or the Senior Mezzanine Collateral, or there shall otherwise occur a Transfer without Lender’s prior consent in violation of the provisions requirement of this Agreement, the Pledge Agreement or any other Loan Document;
(v) if any representation or warranty made by any Borrower or any other Loan Party herein or in any other Loan Document, or in any report, certificate, financial statement or other instrument, agreement or document or other material or written information furnished to Lender shall have been false or misleading in any material respect as of the date the representation or warranty was made (and, with respect to any such breach which is not the subject of any other subsection of this Section 8.1 and which is capable of being cured, such Borrower fails to remedy such condition within ten (10) days following notice to Borrower from Lender, in the case of any such breach which can be cured by the payment of a sum of money, or within thirty (30) days following notice from Lender in the case of any other such breach);
(vi) if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower shall make an assignment for the benefit of creditors; or if a receiver, liquidator or trustee shall be appointed for any Borrower, Senior Mezzanine Borrower or Mortgage Borrower, or if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower shall be adjudicated a bankrupt or insolvent, or if any petition for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy lawSublease, or any similar federal term provision, covenant, condition, representation, warranty or state law, shall be filed by or against, consented to, or acquiesced in by, Borrower or Senior Mezzanine Borrower, or if any proceeding for the dissolution or liquidation of any Borrower, Senior Mezzanine Borrower or Mortgage Borrower shall be instituted; provided, however, if such appointment, adjudication, petition or proceeding was involuntary and not consented to by any Borrower, Senior Mezzanine Borrower or Mortgage Borrower, upon the same not being discharged, stayed or dismissed within ninety (90) days;
(vii) if any Operating Company, any Manager, Principal, Holdings or any Guarantor shall make an assignment for the benefit of creditors; or if a receiver, liquidator or trustee shall be appointed for any such Operating Company, any such Manager, Principal, Holdings or any such Guarantor, or if any Operating Company, any Manager, Principal, Holdings or any Guarantor shall be adjudicated a bankrupt or insolvent, or if any petition for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by or against, consented to, or acquiesced in by, any Operating Company, any Manager, Principal, Holdings or any Guarantor, or if any proceeding for the dissolution or liquidation of any Operating Company, any Manager, Principal, Holdings or any Guarantor shall be instituted; provided, however, if such appointment, adjudication, petition or proceeding was involuntary and not consented to by any such Operating Company, any such Manager, Principal, Holdings or any such Guarantor, upon the same not being discharged, stayed or dismissed within ninety (90) days;
(viii) if any Borrower attempts to assign its rights under this Agreement or any requirement of the other Loan Documents Prime Lease incorporated in this Sublease and binding on Subtenant, on the part of Subtenant to be performed or any interest herein or therein in contravention of the Loan Documents;
observed, and such failure continues for twelve (ix) if any Borrower breaches any of its respective negative covenants contained in Section 5.2 or any covenant contained in Section 4.1.30 or Section 5.1.11 hereof (and, with respect to any such breach of any covenant set forth in Section 5.1.11 which is not the subject of any other subsection of this Section 8.1, such Borrower fails to remedy such condition within ten (1012) days after notice to Borrower from Lender, in the case of any such Default under Section 5.1.11 which can be cured by the payment of a sum of money, or for thirty (30) days after written notice from Lender in the case of any other such Default under Section 5.1.11);
Sublessor (x) with respect to any term, covenant or provision set forth herein which specifically contains a notice requirement or grace period, if any Borrower shall be in default under such term, covenant or condition after the giving of such notice or the expiration of such grace period;
(xi) if any of the assumptions contained in the Insolvency Opinion delivered in connection with the Loan, or in the Additional Insolvency Opinion delivered subsequent to the closing of the Loan, is or shall become untrue in any material respect; or if any of the assumptions contained in the True Lease Opinion in connection with the Loan, or in the Additional True Lease Opinion delivered subsequent to the closing of the Loan, is or shall become untrue in any material respect;
(xii) if any Mortgage Borrower, any Operating Company or any Guarantor (Operating Lease) is in default of any of its material obligations under any Operating Lease (or under another lease and/or management agreement in substitution for such Operating Lease in accordance herewith) or under any such Operating Lease Guaranty (or under another operating lease guaranty in substitution for such Operating Lease Guaranty in accordance herewith) beyond any applicable notice and cure periods contained therein; or if any Operating Lease (or such other lease and/or management agreement) or any Operating Lease Guaranty (or such other operating lease guaranty) shall be surrendered or any Operating Lease or any Operating Lease Guaranty shall be terminated or canceled for any reason or under any circumstances whatsoever, except with the consent of Lender; or if any of the terms, covenants or conditions of any Operating Lease (or such other lease and/or management agreement) or any Operating Lease Guaranty (or such other operating lease guaranty) shall in any manner be modified, changed, supplemented, altered, restated or amended without the consent of Lender except as may otherwise expressly permitted in this Agreement;
(xiii) intentionally omitted;
(xiv) if any Affiliate of any Borrower that is or becomes a party to the Windstorm Insurance Intercreditor Agreement is in default of any of its material obligations under the Windstorm Insurance Intercreditor Agreement beyond any applicable notice and cure periods contained therein; or if the Windstorm Insurance Intercreditor Agreement shall be surrendered, terminated or canceled for any reason or under any circumstances whatsoever, except with the consent of Lender; or if any of the terms, covenants or conditions of the Windstorm Insurance Intercreditor Agreement shall in any manner be modified, changed, supplemented, altered, restated or amended without the consent of Lender;
(xv) if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower fails to comply with the covenants as to Prescribed Laws set forth in Section 5.1.1 hereof;
(xvi) if a material default has occurred and continues beyond any applicable cure period under any Management Agreement and if such default permits the Manager, the Operating Company or the Mortgage Borrower party thereto to terminate or cancel the Management Agreement in question;
(xvii) any Gaming License shall be refused, suspended, revoked, modified in a materially adverse manner or canceled or allowed to lapse or any proceeding is commenced by any Governmental Authority for the purpose of suspending, revoking or canceling any Gaming License in any materially adverse respect, or any Governmental Authority shall have appointed a conservator, supervisor or trustee to or for any of the Casino Components and, in each case of the foregoing, such action could reasonably be expected to (A) have an Individual Material Adverse Effect, (B) materially and adversely affect the continued operation of the Casino Components in the usual course of business and in substantially the same manner and to at least the same standard as was maintained prior to such action, or (C) result in any material decrease in the then expected cash flow and revenues to be derived from the Casino Components;
(xviii) if any Borrower shall continue to be in Default under any of the other terms, covenants or conditions of this Agreement not specified in subsections (i) to (xvii) above, for ten (10) days after notice to Borrower from Lender, in the case of any Default which can be cured by the payment of a sum of money, or for thirty (30) days after notice from Lender in the case of any other Default; provided, however, that if such non-monetary Default is susceptible of cure but cannot reasonably be cured within such thirty (30) day period and provided further that such Borrower shall have commenced to cure such Default within such thirty twelve (30) day period and thereafter diligently and expeditiously proceeds to cure the same, such thirty (3012) day period shall be extended for such additional period of time as is may reasonably be necessary for such Borrower in the exercise of due diligence to cure such Event of Default, if such additional Event of Default, by its nature, cannot be cured within such twelve (12) day period, provided that Subtenant commences to cure such Event of Default (and so notifies Sublessor in writing) within such twelve (12) day period not to exceed one hundred twenty (120) daysand is, at all times thereafter, in the process of diligently curing the same;
(xixiv) if there shall be a default under any The assignment, transfer, mortgaging or encumbering of this Sublease or the subletting of the other Loan Documents beyond any applicable cure periods contained Leased Premises in such documents, whether as to any Borrower, Mortgage Borrower, Senior Mezzanine Borrower, a manner not permitted in accordance with the Collateral, the Senior Mezzanine Collateral or any Individual Property, or if any other such event shall occur or condition shall exist, if the effect of such event or condition is to accelerate the maturity of any portion of the Debt or to permit Lender to accelerate the maturity of all or any portion of the Debt;
(xx) if the Liens created pursuant to any Loan Document shall cease to be a fully protected enforceable first priority security interest in the Collateral, or any portion of the Collateral is Transferred without Lender’s prior written consent except as permitted hereunderPrime Lease; or
(xxiv) if a Mortgage Loan Event The taking of Default this Sublease or Senior Mezzanine Loan Event the Leased Premises, or any part thereof, upon execution or by other process of Default law directed against Subtenant, or upon or subject to any attachment at the insistence of any creditor of or claimant against Subtenant, which execution or attachment shall occur.
not be discharged or disposed of within thirty (b30) Upon days after the levy thereof, or the occurrence of an Event of Default (other than an Event of Default described in clauses (vi) or (vii) above) and at any time thereafter, in addition to any other rights or remedies available to it pursuant to this Agreement and the other Loan Documents or at law or in equity, Lender may take such action, without notice or demand, that Lender deems advisable to protect and enforce its rights against Borrower and in and to all or any of the Collateral, including, without limitation, declaring the Debt to be immediately due and payable, and Lender may enforce or avail itself of any or all rights or remedies provided events listed in the Loan Documents and may exercise all the rights and remedies of a secured party under the Uniform Commercial Code, as adopted and enacted by the State or States where any Section 12 of the Collateral is located, against Borrower and any or all of the Collateral, including, without limitation, all rights or remedies available at law or in equity; and upon any Event of Default described in clauses (vi) or (vii) above, the Debt and all other obligations of Borrower hereunder and under the other Loan Documents shall immediately and automatically become due and payable, without notice or demand, and Borrower hereby expressly waives any such notice or demand, anything contained herein or in any other Loan Document to the contrary notwithstandingPrime Lease.
Appears in 4 contracts
Samples: Agreement to Assign and Sublease Common Space Lease (MHI Hospitality CORP), Agreement to Assign and Sublease Commercial Space Lease (MHI Hospitality CORP), Agreement to Assign and Sublease Common Space Lease (MHI Hospitality CORP)
Event of Default. (a) Each of the following events shall constitute an event of default hereunder (an “Event of Default”):
(i) if (A) any portion of the Debt Indebtedness is not paid in full on the Maturity DateDate (subject to the last sentence of Section 3.1.5(b)), (B) the any Debt Service is not paid in full on or before the related applicable Payment DateDate (subject to the last sentence of Section 3.1.5(b)), or (C) any other portion prepayment of principal due under this Agreement or the Debt Note is not paid within five (5) days of when due, (D) the Prepayment Fee is not paid when due, (E) any deposit to the Collection Account or any of the other Collateral Accounts is not made on the required deposit date therefor; or (F) except as to any amount included in (A), (B), (C), (D), and/or (E) of this clause (i), any other amount payable pursuant to this Agreement, the Note or any other Loan Document is not paid in full when due and payable in accordance with the provisions of the applicable Loan Document continuing for ten (10) Business Days after Lender delivers written notice thereof to Borrower;
(ii) subject to Borrower’s right to contest as set forth in Section 7.3, if any of the Taxes Impositions or Other Charges are not paid (with respect to each or any Individual Property) prior to Delinquencythe imposition of any interest, penalty, charge or expense for the non-payment thereof;
(iii) if the Policies (with respect to each or any Individual Property) insurance policies required by Section 6.1 are not kept in full force and effect, or if certified copies certificates of the Policies (for each Individual Property) any of such insurance policies are not delivered to Lender upon within ten (10) Business Days following Lender’s request (or certificates thereof, if a Policy shall be renewed and certified copies of the Policy are not immediately available upon such renewal (each Borrower agreeing in such instance to provide copies of the Policies to Lender promptly thereafter))therefor;
(iv) if if, except as permitted pursuant to Article VIII, (a) any Borrower Transfers Transfer of any direct or otherwise encumbers indirect legal, beneficial or equitable interest in all or any portion of the PropertiesProperty, (b) any Transfer of any direct or indirect interest in Borrower or other Person restricted by the Collateral terms of Article VIII, (c) any Lien or the Senior Mezzanine Collateral, encumbrance on all or there shall otherwise occur a Transfer without Lender’s prior consent in violation any portion of the provisions Property, (d) any pledge, hypothecation, creation of this Agreement, a security interest in or other encumbrance of any direct or indirect interests in Borrower or other Person restricted by the Pledge Agreement terms of Article VIII or any (e) the filing of a declaration of condominium with respect to the Property other Loan Documentthan as allowed hereunder;
(v) if (i) any representation or warranty made by Borrower in Section 4.1.23 shall have been false or misleading in any material respect as of the date the representation or warranty was made which incorrect, false or misleading statement is not cured within thirty (30) days after receipt by Borrower of notice from Lender in writing of such breach or (ii) if any other representation or warranty made by Borrower herein by Borrower, Guarantor, or any other Loan Party herein or Affiliate of Borrower in any other Loan Document, or in any report, certificatecertificate (including, but not limited to, any certificate by Borrower delivered in connection with the issuance of the Non-Consolidation Opinion), financial statement or other instrument, agreement or document or other material or written information furnished to Lender shall have been false or misleading in any material respect as of the date the representation or warranty was made (andmade; provided, with however, that if such representation or warranty which was false or misleading in any material respect to any such breach which is, by its nature, curable and is not reasonably likely to have a Material Adverse Effect, and such representation or warranty was not, to the subject Best of Borrower’s Knowledge, false or misleading in any other subsection material respect which made, then same shall not constitute an Event of this Section 8.1 and which is capable Default unless Borrower has not cured same within five (5) Business Days after receipt by Borrower of being cured, such Borrower fails to remedy such condition within ten (10) days following notice to Borrower from Lender, in the case of any such breach which can be cured by the payment of a sum of money, or within thirty (30) days following notice from Lender in the case writing of any other such breach);
(vi) if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower Guarantor shall make an assignment for the benefit of creditors; or creditors provided, however, if such assignment was with respect to Guarantor such Event of Default may be cured by the delivery to Lender by any other Guarantor that is not subject to such assignment, of an executed counterpart to the Recourse Guaranty assuming the several liability of the Guarantor with respect to which such assignment within five (5) days after such assignment;
(vii) if a receiver, liquidator or trustee shall be appointed for any Borrower, Senior Mezzanine Borrower Operating Lessee, or Mortgage Guarantor or if Borrower, Operating Lessee or if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower shall be adjudicated a bankrupt or insolvent, or if any petition for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by or against, consented to, or acquiesced in by, Borrower or Senior Mezzanine Borrower, or if any proceeding for the dissolution or liquidation of any Borrower, Senior Mezzanine Borrower or Mortgage Borrower shall be instituted; provided, however, if such appointment, adjudication, petition or proceeding was involuntary and not consented to by any Borrower, Senior Mezzanine Borrower or Mortgage Borrower, upon the same not being discharged, stayed or dismissed within ninety (90) days;
(vii) if any Operating Company, any Manager, Principal, Holdings or any Guarantor shall make an assignment for the benefit of creditors; or if a receiver, liquidator or trustee shall be appointed for any such Operating Company, any such Manager, Principal, Holdings or any such Guarantor, or if any Operating Company, any Manager, Principal, Holdings or any Guarantor shall be adjudicated a bankrupt or insolvent, or if any petition for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by or against, consented to, or acquiesced in by, any Borrower, Operating Company, any Manager, Principal, Holdings Lessee or any Guarantor, or if any proceeding for the dissolution or liquidation of any Borrower, Operating CompanyLessee, any Manager, Principal, Holdings or any Guarantor shall be instituted; provided, however, if such appointment, adjudication, petition or proceeding was involuntary and not consented to by any such Borrower, Operating CompanyLessee, any such Manager, Principal, Holdings or any such Guarantor, Guarantor upon the same not being discharged, stayed or dismissed within ninety (90) days; provided, further, if such appointment, adjudication, petition or proceeding was with respect to Guarantor such Event of Default may be cured by the delivery to Lender by Guarantor that, not subject to such appointment, adjudication, petition or proceeding, of an executed counterpart to the Recourse Guaranty assuming the several liability of the Guarantor with respect to which such appointment, adjudication, petition or proceeding occurred within five (5) days after such occurrence;
(viii) if any Borrower attempts to assign Borrower, Operating Lessee or Guarantor, as applicable, Transfers its rights under this Agreement or any of the other Loan Documents or any interest herein or therein in contravention of the Loan Documents;
(ix) if any Borrower breaches any of its respective negative covenants contained in Section 5.2 or any covenant contained in Section 4.1.30 or Section 5.1.11 hereof (and, with respect to any such breach of any covenant set forth in Section 5.1.11 which is not the subject of any other subsection of this Section 8.1, such Borrower fails to remedy such condition within ten (10) days after notice to Borrower from Lender, in the case of any such Default under Section 5.1.11 which can be cured by the payment of a sum of money, or for thirty (30) days after notice from Lender in the case of any other such Default under Section 5.1.11);
(x) with respect to any term, covenant or provision set forth herein (other than the other subsections of this Section 17.l) which specifically contains a notice requirement or grace period, if any Borrower Borrower, Operating Lessee or Guarantor shall be in default under such term, covenant or condition after the giving of such notice or the expiration of such grace period;
(x) if Borrower, having notified Lender of its election to extend the Maturity Date as set forth in Section 5 of the Note, fails to deliver the Replacement Interest Rate Cap Agreement to Lender prior to the first day of the extended term of the Loan and Borrower has not prepaid the Loan pursuant to the terms of the Note prior to such first day of the extended term;
(xi) if Borrower or Operating Lessee shall fail to comply with any of the assumptions contained covenants set forth in the Insolvency Opinion delivered in connection Article V or Section XI with the Loan, or in the Additional Insolvency Opinion delivered subsequent such failure continuing for ten (10) Business Days after Lender delivers written notice thereof to the closing of the Loan, is or shall become untrue in any material respect; or if any of the assumptions contained in the True Lease Opinion in connection with the Loan, or in the Additional True Lease Opinion delivered subsequent to the closing of the Loan, is or shall become untrue in any material respectBorrower;
(xii) if Borrower shall fail to comply with any Mortgage Borrower, any Operating Company covenants set forth in Section 4 or any Guarantor (Operating Lease) is in default of any of its material obligations under any Operating Lease (or under another lease and/or management agreement in substitution for such Operating Lease in accordance herewithSection 3(d) or under any such Operating Lease Guaranty (or under another operating lease guaranty in substitution for such Operating Lease Guaranty in accordance herewith) beyond any applicable notice and cure periods contained therein; or if any Operating Lease (or such other lease and/or management agreement) or any Operating Lease Guaranty (or such other operating lease guaranty) shall be surrendered or any Operating Lease or any Operating Lease Guaranty shall be terminated or canceled for any reason or under any circumstances whatsoever, except with the consent of Lender; or if any Section 8 of the terms, covenants or conditions of any Operating Lease Security Instrument with such failure continuing for ten (or such other lease and/or management agreement10) or any Operating Lease Guaranty (or such other operating lease guaranty) shall in any manner be modified, changed, supplemented, altered, restated or amended without the consent of Business Days after Lender except as may otherwise expressly permitted in this Agreementdelivers written notice thereof to Borrower;
(xiii) intentionally omittedBorrower, Operating Lessee or any Affiliate of any such Person shall fail to deposit any sums required to be deposited in the Holding Account or any Sub-Accounts thereof are not made pursuant to the requirements herein when due;
(xiv) if this Agreement or any Affiliate other Loan Document or any Lien granted hereunder or thereunder, in whole or in part, shall terminate or shall cease to be effective or shall cease to be a legally valid, binding and enforceable obligation of Borrower or Guarantor, or any Borrower that is Lien securing the Loan shall, in whole or becomes in part, cease to be a party perfected first priority Lien, subject to the Windstorm Insurance Intercreditor Agreement is Permitted Encumbrances (except in default of any of its material obligations under the Windstorm Insurance Intercreditor Agreement beyond any applicable notice and cure periods contained therein; or if foregoing cases in accordance with the Windstorm Insurance Intercreditor Agreement shall be surrendered, terminated or canceled for any reason terms hereof or under any circumstances whatsoever, except with the consent other Loan Document or by reason of any affirmative act of Lender; or if any of the terms, covenants or conditions of the Windstorm Insurance Intercreditor Agreement shall in any manner be modified, changed, supplemented, altered, restated or amended without the consent of Lender);
(xv) if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower fails the Management Agreement is terminated and an Acceptable Manager is not appointed as a replacement manager pursuant to comply with the covenants as to Prescribed Laws set forth in provisions of Section 5.1.1 hereof5.2.14 within sixty (60) days after such termination;
(xvi) if a material Borrower shall default has occurred and continues beyond the expiration of any applicable cure period under any Management Agreement and if such default permits existing easement, covenant or restriction which affects the ManagerProperty, the Operating Company or the Mortgage Borrower party thereto to terminate or cancel the Management Agreement in questiondefault of which shall have a Material Adverse Effect;
(xvii) There exists any Gaming License shall be refused, suspended, revoked, modified in a materially adverse manner fact or canceled or allowed to lapse or any proceeding is commenced by any Governmental Authority for the purpose of suspending, revoking or canceling any Gaming License in any materially adverse respect, or any Governmental Authority shall have appointed a conservator, supervisor or trustee to or for any of the Casino Components and, in each case of the foregoing, such action circumstance that reasonably could reasonably be expected to result in the (Aa) have imposition of a Lien or security interest under Section 412(n) of the Code or under ERISA or (b) the complete or partial withdrawal by Borrower or any ERISA Affiliate from any “multiemployer plan” that is reasonably expected to result in any material liability to Borrower; provided, however that the existence of such fact or circumstance under clause (xvii)(b) shall not constitute an Individual Event of Default if such material withdrawal liability (x) in the case of a withdrawal by an ERISA Affiliate that is reasonably expected to cause a Material Adverse Effect or any withdrawal by Borrower, is paid within thirty (30) days after the date incurred or is contested in accordance with Section 7.3 hereof or (y) in the case of a withdrawal by an ERISA Affiliate that is not reasonably expected to cause a Material Adverse Effect, (B) materially and adversely affect is paid within the continued operation of the Casino Components period required under applicable ERISA statutes or is contested in the usual course of business and in substantially the same manner and to at least the same standard as was maintained prior to such action, or (C) result in any material decrease in the then expected cash flow and revenues to be derived from the Casino Components;accordance with Section 7.3 hereof; or
(xviii) if any Borrower shall continue to be in Default under any of the other terms, covenants or conditions of this Agreement or of any Loan Document not specified in subsections (i) to (xvii) above, for ten (10) days after notice to Borrower from Lender, in the case of any Default which can be cured by the payment of a sum of money, or for thirty (30) days after notice from Lender in the case of any other DefaultLender; provided, however, that if such non-monetary Default is susceptible of cure but cannot reasonably be cured within such thirty (30) day period and provided further provided, further, that such Borrower shall have commenced to cure such Default within such thirty (30) day period and thereafter diligently and expeditiously proceeds to cure the same, such thirty (30) day period shall be extended for such time as is reasonably necessary for such Borrower in the exercise of due diligence to cure such Default, such additional period not to exceed one hundred twenty ninety (12090) days;
(xix) if there shall be a default under any of the other Loan Documents beyond any applicable cure periods contained in such documents, whether as to any Borrower, Mortgage Borrower, Senior Mezzanine Borrower, the Collateral, the Senior Mezzanine Collateral or any Individual Property, or if any other such event shall occur or condition shall exist, if the effect of such event or condition is to accelerate the maturity of any portion of the Debt or to permit Lender to accelerate the maturity of all or any portion of the Debt;
(xx) if the Liens created pursuant to any Loan Document shall cease to be a fully protected enforceable first priority security interest in the Collateral, or any portion of the Collateral is Transferred without Lender’s prior written consent except as permitted hereunder; or
(xxi) if a Mortgage Loan Event of Default or Senior Mezzanine Loan Event of Default shall occur.
(b) Upon Unless waived in writing by Lender, upon the occurrence and during the continuance of an Event of Default (other than an Event of Default described in clauses (via)(vi), (vii) or (viiviii) above) and at any time thereafterLender may, without notice or demand, in addition to any other rights or remedies available to it pursuant to this Agreement and the other Loan Documents or at law or in equity, Lender may take such action, without notice or demand, action that Lender deems advisable to protect and enforce its rights against Borrower and in and to all or any of the CollateralProperty, including, without limitation, (i) declaring the Debt to be immediately due and payablepayable the entire Principal Amount together with interest thereon and all other sums due by Borrower under the Loan Documents, (ii) collecting interest on the Principal Amount at the Default Rate whether or not Lender elects to accelerate the Note and Lender may enforce (iii) enforcing or avail availing itself of any or all rights or remedies provided set forth in the Loan Documents and may exercise all the rights and remedies of a secured party under the Uniform Commercial Code, as adopted and enacted by the State or States where any of the Collateral is located, against Borrower and any or all of the CollateralProperty, including, without limitation, all rights or remedies available at law or in equity; and upon any Event of Default described in clauses subsections (via)(vi) or (viia)(vii) above, the Debt Indebtedness and all other obligations of Borrower hereunder and under the other Loan Documents shall immediately and automatically become due and payable, without notice or demand, and Borrower hereby expressly waives any such notice or demand, anything contained herein or in any other Loan Document to the contrary notwithstanding. The foregoing provisions shall not be construed as a waiver by Lender of its right to pursue any other remedies available to it under this Agreement, the Security Instrument or any other Loan Document. Any payment hereunder may be enforced and recovered in whole or in part at such time by one or more of the remedies provided to Lender in the Loan Documents.
Appears in 4 contracts
Samples: Loan and Security Agreement (Strategic Hotels & Resorts, Inc), Loan and Security Agreement (Strategic Hotels & Resorts, Inc), Loan and Security Agreement (Strategic Hotels & Resorts, Inc)
Event of Default. (a) Each The occurrence of any one or more of the following events events, at the discretion of Lender, shall constitute an event of default hereunder (an “Event of Default”)::
(ia) if (A) any portion of the monthly Debt Service payment is not paid in full on the Maturity Datewhen due and such non-payment continues for five (5) days following such due date, (B) the Debt Service payment due on the Maturity Date is not paid in full on or before the related Payment Date, when due or (C) any other portion of the Debt is not paid within when due and such non-payment continues for five (5) days of when duefollowing notice to Borrower that the same is due and payable;
(iib) if any of the Taxes or Other Charges are is not paid (when the same is due and payable except to the extent sums sufficient to pay such Taxes and Other Charges have been deposited with respect Lender in accordance with the terms of this Agreement and Lender’s access to each such sums is not restricted or constrained in any Individual Property) prior to Delinquencymanner;
(iiic) if the Policies (with respect to each or any Individual Property) are not kept in full force and effect, effect or if certified copies evidence of the Policies (for each Individual Property) are same is not delivered to Lender upon request (or certificates thereof, if a Policy shall be renewed and certified copies of the Policy are not immediately available upon such renewal (each Borrower agreeing as provided in such instance to provide copies of the Policies to Lender promptly thereafter))Section 7.1 hereof;
(ivd) if any Borrower Transfers or otherwise encumbers any portion of the Properties, the Collateral representations or the Senior Mezzanine Collateral, covenants contained in Article 5 or there shall otherwise occur a Transfer without Lender’s prior consent Article 6 are breached or violated in violation of the provisions of this Agreement, the Pledge Agreement or any other Loan Documentmaterial adverse respect;
(ve) if any representation or warranty made by any Borrower herein, in the Guaranty or any other Loan Party herein in the Environmental Indemnity or in any other Loan Documentguaranty, or in any certificate, report, certificate, financial statement or other instrument, agreement instrument or document or other material or written information furnished to Lender in connection with the Loan shall have been false or misleading in any material adverse respect as of the date the representation when made;
(f) if (i) Borrower, any SPE Component Entity, Sponsor or warranty was made Guarantor shall commence any case, proceeding or other action (and, A) under any Creditor’s Rights Laws seeking to have an order for relief entered with respect to it, or seeking to adjudicate it a bankrupt or insolvent, or seeking reorganization, or (B) seeking appointment of a receiver, trustee, custodian, conservator or other similar official for it or for all or any substantial part of its assets, or Borrower or any managing member or general partner of Borrower, any SPE Component Entity, Sponsor or Guarantor shall make a general assignment for the benefit of its creditors; (ii) there shall be commenced against Borrower or any managing member or general partner of Borrower, any SPE Component Entity, Sponsor or Guarantor any case, proceeding or other action of a nature referred to in clause (i) above which (A) results in the entry of an order for relief or any such breach adjudication or appointment or (B) remains undismissed, undischarged or unbonded for a period of sixty (60) days; (iii) there shall be commenced against Borrower, any SPE Component Entity, Sponsor or Guarantor any case, proceeding or other action seeking issuance of a warrant of attachment, execution, distraint or similar process against all or any substantial part of its assets which results in the entry of any order for any such relief which shall not have been vacated, discharged, or stayed or bonded pending appeal within sixty (60) days from the entry thereof; (iv) Borrower, any SPE Component Entity, Sponsor or Guarantor shall take any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the acts set forth in clause (i), (ii), or (iii) above; or (v) Borrower, any SPE Component Entity, Sponsor or Guarantor shall generally not, or shall be unable to, or shall admit in writing its inability to, pay its debts as they become due;
(g) if Borrower shall be in default beyond applicable notice and grace periods under any other mortgage, deed of trust, deed to secure debt or other security agreement covering any part of the Property whether it be superior or junior in lien to the Security Instrument;
(h) if the Property becomes subject to any mechanic’s, materialman’s or other lien other than a lien for any Taxes not then due and payable and the lien shall remain undischarged of record (by payment, bonding or otherwise) for a period of thirty (30) days;
(i) if any federal tax lien is filed against Borrower, any SPE Component Entity, Sponsor, Guarantor or the Property and same is not the subject discharged of any other subsection of this Section 8.1 and which is capable of being curedrecord (by payment, such Borrower fails to remedy such condition within ten (10bonding or otherwise) days following notice to Borrower from Lender, in the case of any such breach which can be cured by the payment of a sum of money, or within thirty (30) days following notice from Lender in the case of any other such breach)after same is filed;
(vij) if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower shall make an assignment for the benefit of creditors; or if a receiverfail to deliver to Lender, liquidator or trustee shall be appointed for any Borrower, Senior Mezzanine Borrower or Mortgage Borrower, or if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower shall be adjudicated a bankrupt or insolvent, or if any petition for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by or against, consented to, or acquiesced in by, Borrower or Senior Mezzanine Borrower, or if any proceeding for the dissolution or liquidation of any Borrower, Senior Mezzanine Borrower or Mortgage Borrower shall be instituted; provided, however, if such appointment, adjudication, petition or proceeding was involuntary and not consented to by any Borrower, Senior Mezzanine Borrower or Mortgage Borrower, upon the same not being discharged, stayed or dismissed within ninety (90) days;
(vii) if any Operating Company, any Manager, Principal, Holdings or any Guarantor shall make an assignment for the benefit of creditors; or if a receiver, liquidator or trustee shall be appointed for any such Operating Company, any such Manager, Principal, Holdings or any such Guarantor, or if any Operating Company, any Manager, Principal, Holdings or any Guarantor shall be adjudicated a bankrupt or insolvent, or if any petition for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by or against, consented to, or acquiesced in by, any Operating Company, any Manager, Principal, Holdings or any Guarantor, or if any proceeding for the dissolution or liquidation of any Operating Company, any Manager, Principal, Holdings or any Guarantor shall be instituted; provided, however, if such appointment, adjudication, petition or proceeding was involuntary and not consented to by any such Operating Company, any such Manager, Principal, Holdings or any such Guarantor, upon the same not being discharged, stayed or dismissed within ninety (90) days;
(viii) if any Borrower attempts to assign its rights under this Agreement or any of the other Loan Documents or any interest herein or therein in contravention of the Loan Documents;
(ix) if any Borrower breaches any of its respective negative covenants contained in Section 5.2 or any covenant contained in Section 4.1.30 or Section 5.1.11 hereof (and, with respect to any such breach of any covenant set forth in Section 5.1.11 which is not the subject of any other subsection of this Section 8.1, such Borrower fails to remedy such condition within ten (10) days after notice to Borrower from request by Lender, in the case of any such Default under estoppel certificates required by Section 5.1.11 which can be cured by the payment of a sum of money, or for thirty (30) days after notice from Lender in the case of any other such Default under Section 5.1.11);
(x) with respect to any term, covenant or provision set forth herein which specifically contains a notice requirement or grace period, if any Borrower shall be in default under such term, covenant or condition after the giving of such notice or the expiration of such grace period;
(xi) if any of the assumptions contained in the Insolvency Opinion delivered in connection with the Loan, or in the Additional Insolvency Opinion delivered subsequent to the closing of the Loan, is or shall become untrue in any material respect; or if any of the assumptions contained in the True Lease Opinion in connection with the Loan, or in the Additional True Lease Opinion delivered subsequent to the closing of the Loan, is or shall become untrue in any material respect;
(xii) if any Mortgage Borrower, any Operating Company or any Guarantor (Operating Lease) is in default of any of its material obligations under any Operating Lease (or under another lease and/or management agreement in substitution for such Operating Lease in accordance herewith4.13(a) or under any such Operating Lease Guaranty (or under another operating lease guaranty in substitution for such Operating Lease Guaranty in accordance herewithc) beyond any applicable notice and cure periods contained therein; or if any Operating Lease (or such other lease and/or management agreement) or any Operating Lease Guaranty (or such other operating lease guaranty) shall be surrendered or any Operating Lease or any Operating Lease Guaranty shall be terminated or canceled for any reason or under any circumstances whatsoever, except with the consent of Lender; or if any of the terms, covenants or conditions of any Operating Lease (or such other lease and/or management agreement) or any Operating Lease Guaranty (or such other operating lease guaranty) shall in any manner be modified, changed, supplemented, altered, restated or amended without the consent of Lender except as may otherwise expressly permitted in this Agreement;
(xiii) intentionally omitted;
(xiv) if any Affiliate of any Borrower that is or becomes a party to the Windstorm Insurance Intercreditor Agreement is in default of any of its material obligations under the Windstorm Insurance Intercreditor Agreement beyond any applicable notice and cure periods contained therein; or if the Windstorm Insurance Intercreditor Agreement shall be surrendered, terminated or canceled for any reason or under any circumstances whatsoever, except with the consent of Lender; or if any of the terms, covenants or conditions of the Windstorm Insurance Intercreditor Agreement shall in any manner be modified, changed, supplemented, altered, restated or amended without the consent of Lender;
(xv) if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower fails to comply with the covenants as to Prescribed Laws set forth in Section 5.1.1 hereof;
(xvik) if a material default has occurred and continues beyond Lender receives any applicable cure period under any Management Agreement and if such default permits the Manager, the Operating Company or the Mortgage Borrower party thereto to terminate or cancel the Management Agreement in question;
(xvii) any Gaming License shall be refused, suspended, revoked, modified in a materially adverse manner or canceled or allowed to lapse or any proceeding is commenced notice of discontinuance by any Governmental Authority for the purpose of suspending, revoking or canceling any Gaming License in any materially adverse respect, or any Governmental Authority shall have appointed a conservator, supervisor or trustee to or for any of the Casino Components and, in each case of the foregoing, such action could reasonably be expected to (A) have an Individual Material Adverse Effect, (B) materially and adversely affect the continued operation of the Casino Components in the usual course of business and in substantially the same manner and to at least the same standard as was maintained prior to such action, or (C) result in any material decrease in the then expected cash flow and revenues to be derived from the Casino Components;
(xviii) if any Borrower shall continue to be in Default under any of the other terms, covenants or conditions of this Agreement not specified in subsections (i) to (xvii) above, for ten (10) days after notice to Borrower from Lender, in the case of any Default which can be cured by the payment of a sum of money, or for thirty (30) days after notice from Lender in the case of any other Default; provided, however, that if such non-monetary Default is susceptible of cure but cannot reasonably be cured within such thirty (30) day period and provided further that such Borrower shall have commenced to cure such Default within such thirty (30) day period and thereafter diligently and expeditiously proceeds to cure the same, such thirty (30) day period shall be extended for such time as is reasonably necessary for such Borrower in the exercise of due diligence to cure such Default, such additional period not to exceed one hundred twenty (120) days;
(xix) if there shall be a default under any of the other Loan Documents beyond any applicable cure periods contained in such documents, whether as to any Borrower, Mortgage Borrower, Senior Mezzanine Borrower, the Collateral, the Senior Mezzanine Collateral or any Individual Property, or if any other such event shall occur or condition shall existGuarantor, if the effect of such event Guaranty or condition is to accelerate the maturity of any portion of the Debt or to permit Lender to accelerate the maturity of all or any portion of the Debt;
(xx) if the Liens created pursuant to any Loan Document Environmental Indemnity shall cease to be a fully protected enforceable first priority security interest in full force and effect or if Guarantor shall deny or disaffirm its obligations under the Collateral, or any portion of Guaranty and/or the Collateral is Transferred without Lender’s prior written consent except as permitted hereunder; orEnvironmental Indemnity;
(xxil) if a Mortgage Loan Event of Default any default occurs under any guaranty or Senior Mezzanine Loan Event of Default shall occur.
indemnity executed in connection herewith (b) Upon the occurrence of an Event of Default (other than an Event of Default described in clauses (vi) or (vii) above) and at any time thereafter, in addition to any other rights or remedies available to it pursuant to this Agreement and the other Loan Documents or at law or in equity, Lender may take such action, without notice or demand, that Lender deems advisable to protect and enforce its rights against Borrower and in and to all or any of the Collateral, including, without limitation, declaring the Debt to be immediately due Environmental Indemnity and/or the Guaranty) and payablesuch default continues after the expiration of applicable grace periods, and Lender may enforce or avail itself of any or all rights or remedies provided in the Loan Documents and may exercise all the rights and remedies of a secured party under the Uniform Commercial Code, as adopted and enacted by the State or States where any of the Collateral is located, against Borrower and any or all of the Collateral, including, without limitation, all rights or remedies available at law or in equity; and upon any Event of Default described in clauses (vi) or (vii) above, the Debt and all other obligations of Borrower hereunder and under the other Loan Documents shall immediately and automatically become due and payable, without notice or demand, and Borrower hereby expressly waives any such notice or demand, anything contained herein or in any other Loan Document to the contrary notwithstanding.if any;
Appears in 4 contracts
Samples: Loan Agreement (Independence Realty Trust, Inc), Loan Agreement (Independence Realty Trust, Inc), Loan Agreement (Independence Realty Trust, Inc)
Event of Default. 19.1 The following events will result in you being in breach of this Agreement and each one is an "Event of Default":
(a) Each you default in any payment or other obligation you may have to us;
(b) any bankruptcy, winding-up, administration or similar petition be filed by or against you;
(c) notice be given of the following events shall constitute an a general meeting of your creditors or any similar event;
(d) you die or become of unsound mind;
(e) any event of default hereunder (howsoever described) occurs under any other agreement between us;
(f) any event beyond our control occurs in the country in which the client is normally resident, which, at our sole discretion, makes it desirable for the protection of Deutsche Numis to treat the event as an “Event of Default”):
(i) if (A) any portion of the Debt is not paid in full on the Maturity Date, (B) the Debt Service is not paid in full on or before the related Payment Date, or (C) any other portion of the Debt is not paid within five (5) days of when due;
(iig) if any termination or suspension or loss of the Taxes or Other Charges are not paid (with respect to each or any Individual Property) prior to Delinquencyrelevant regulatory authorisation;
(iiih) if the Policies (with respect to each or any Individual Property) are not kept in full force and effect, or if certified copies of the Policies (for each Individual Property) are not delivered to Lender upon request (or certificates thereof, if a Policy shall be renewed and certified copies of the Policy are not immediately available upon such renewal (each Borrower agreeing in such instance to provide copies of the Policies to Lender promptly thereafter));
(iv) if any Borrower Transfers or otherwise encumbers any portion of the Properties, the Collateral or the Senior Mezzanine Collateral, or there shall otherwise occur a Transfer without Lender’s prior consent in violation of the provisions of this Agreement, the Pledge Agreement or any other Loan Document;
(v) if any representation or warranty made by any Borrower under this Agreement proves or any other Loan Party herein or in any other Loan Document, or in any report, certificate, financial statement or other instrument, agreement or document or other material or written information furnished to Lender shall have been becomes false or misleading in any material respect as of the date the representation or warranty was made (and, with respect to any such breach which is not the subject of any other subsection of this Section 8.1 and which is capable of being cured, such Borrower fails to remedy such condition within ten (10) days following notice to Borrower from Lender, in the case of any such breach which can be cured by the payment of a sum of money, or within thirty (30) days following notice from Lender in the case of any other such breach);
(vi) if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower shall make an assignment for the benefit of creditors; or if a receiver, liquidator or trustee shall be appointed for any Borrower, Senior Mezzanine Borrower or Mortgage Borrower, or if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower shall be adjudicated a bankrupt or insolvent, or if any petition for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by or against, consented to, or acquiesced in by, Borrower or Senior Mezzanine Borrower, or if any proceeding for the dissolution or liquidation of any Borrower, Senior Mezzanine Borrower or Mortgage Borrower shall be instituted; provided, however, if such appointment, adjudication, petition or proceeding was involuntary and not consented to by any Borrower, Senior Mezzanine Borrower or Mortgage Borrower, upon the same not being discharged, stayed or dismissed within ninety (90) days;
(vii) if any Operating Company, any Manager, Principal, Holdings or any Guarantor shall make an assignment for the benefit of creditors; or if a receiver, liquidator or trustee shall be appointed for any such Operating Company, any such Manager, Principal, Holdings or any such Guarantor, or if any Operating Company, any Manager, Principal, Holdings or any Guarantor shall be adjudicated a bankrupt or insolvent, or if any petition for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by or against, consented to, or acquiesced in by, any Operating Company, any Manager, Principal, Holdings or any Guarantor, or if any proceeding for the dissolution or liquidation of any Operating Company, any Manager, Principal, Holdings or any Guarantor shall be instituted; provided, however, if such appointment, adjudication, petition or proceeding was involuntary and not consented to by any such Operating Company, any such Manager, Principal, Holdings or any such Guarantor, upon the same not being discharged, stayed or dismissed within ninety (90) days;
(viii) if any Borrower attempts to assign its rights under this Agreement or any of the other Loan Documents or any interest herein or therein in contravention of the Loan Documents;
(ix) if any Borrower breaches any of its respective negative covenants contained in Section 5.2 or any covenant contained in Section 4.1.30 or Section 5.1.11 hereof (and, with respect to any such breach of any covenant set forth in Section 5.1.11 which is not the subject of any other subsection of this Section 8.1, such Borrower fails to remedy such condition within ten (10) days after notice to Borrower from Lender, in the case of any such Default under Section 5.1.11 which can be cured by the payment of a sum of money, or for thirty (30) days after notice from Lender in the case of any other such Default under Section 5.1.11);
(x) with respect to any term, covenant or provision set forth herein which specifically contains a notice requirement or grace period, if any Borrower shall be in default under such term, covenant or condition after the giving of such notice or the expiration of such grace period;
(xi) if any of the assumptions contained in the Insolvency Opinion delivered in connection with the Loan, or in the Additional Insolvency Opinion delivered subsequent to the closing of the Loan, is or shall become untrue in any material respect; or if any of the assumptions contained in the True Lease Opinion in connection with the Loan, or in the Additional True Lease Opinion delivered subsequent to the closing of the Loan, is or shall become untrue in any material respect;and
(xii) if any Mortgage Borrower, any Operating Company or any Guarantor (Operating Lease) is in default of any of its material obligations under any Operating Lease (or under another lease and/or management agreement in substitution for such Operating Lease in accordance herewith) or under any such Operating Lease Guaranty (or under another operating lease guaranty in substitution for such Operating Lease Guaranty in accordance herewith) beyond any applicable notice and cure periods contained therein; or if any Operating Lease (or such other lease and/or management agreement) or any Operating Lease Guaranty (or such other operating lease guaranty) shall be surrendered or any Operating Lease or any Operating Lease Guaranty shall be terminated or canceled for any reason or under any circumstances whatsoever, except with the consent of Lender; or if any of the terms, covenants or conditions of any Operating Lease (or such other lease and/or management agreement) or any Operating Lease Guaranty (or such other operating lease guaranty) shall in any manner be modified, changed, supplemented, altered, restated or amended without the consent of Lender except as may otherwise expressly permitted in this Agreement;
(xiii) intentionally omitted;
(xiv) if any Affiliate of any Borrower that is or becomes a party to the Windstorm Insurance Intercreditor Agreement is in default of any of its material obligations under the Windstorm Insurance Intercreditor Agreement beyond any applicable notice and cure periods contained therein; or if the Windstorm Insurance Intercreditor Agreement shall be surrendered, terminated or canceled for any reason or under any circumstances whatsoever, except with the consent of Lender; or if any of the terms, covenants or conditions of the Windstorm Insurance Intercreditor Agreement shall in any manner be modified, changed, supplemented, altered, restated or amended without the consent of Lender;
(xv) if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower fails to comply with the covenants as to Prescribed Laws set forth in Section 5.1.1 hereof;
(xvi) if a material default has occurred and continues beyond any applicable cure period under any Management Agreement and if such default permits the Manager, the Operating Company or the Mortgage Borrower party thereto to terminate or cancel the Management Agreement in question;
(xvii) any Gaming License shall be refused, suspended, revoked, modified in a materially adverse manner or canceled or allowed to lapse or any proceeding is commenced by any Governmental Authority for the purpose of suspending, revoking or canceling any Gaming License in any materially adverse respect, or any Governmental Authority shall have appointed a conservator, supervisor or trustee to or for any of the Casino Components and, in each case of the foregoing, such action could reasonably be expected to (A) have an Individual Material Adverse Effect, (B) materially and adversely affect the continued operation of the Casino Components in the usual course of business and in substantially the same manner and to at least the same standard as was maintained prior to such action, or (C) result in any material decrease in the then expected cash flow and revenues to be derived from the Casino Components;
(xviii) if any Borrower shall continue to be in Default under any of the other terms, covenants or conditions of this Agreement not specified in subsections (i) we consider it necessary or desirable for our own protection or to (xvii) aboveprevent what we consider is, for ten (10) days after notice to Borrower from Lenderor might be, in the case a violation of any Default which can be cured by the payment Applicable Law or good standard of a sum of money, or for thirty (30) days after notice from Lender in the case of any other Default; provided, however, that if such non-monetary Default is susceptible of cure but cannot reasonably be cured within such thirty (30) day period and provided further that such Borrower shall have commenced to cure such Default within such thirty (30) day period and thereafter diligently and expeditiously proceeds to cure the same, such thirty (30) day period shall be extended for such time as is reasonably necessary for such Borrower in the exercise of due diligence to cure such Default, such additional period not to exceed one hundred twenty (120) days;
(xix) if there shall be a default under any of the other Loan Documents beyond any applicable cure periods contained in such documents, whether as to any Borrower, Mortgage Borrower, Senior Mezzanine Borrower, the Collateral, the Senior Mezzanine Collateral market practice or any Individual Property, action is taken or if any other such event shall occur or condition shall exist, if the occurs which we consider might have a material adverse effect of such event or condition is on your ability to accelerate the maturity of any portion of the Debt or to permit Lender to accelerate the maturity of all or any portion of the Debt;
(xx) if the Liens created pursuant to any Loan Document shall cease to be a fully protected enforceable first priority security interest in the Collateral, or any portion of the Collateral is Transferred without Lender’s prior written consent except as permitted hereunder; or
(xxi) if a Mortgage Loan Event of Default or Senior Mezzanine Loan Event of Default shall occurperform your obligations under this Agreement.
(b) Upon 19.2 On the occurrence of an Event of Default (other than an Event of Default described Default, or for any reason whatsoever where we reasonably deem it necessary for our protection, you agree that we are authorised in clauses (vi) our discretion to undertake one or (vii) above) and at any time thereafter, in addition to any other rights or remedies available to it pursuant to this Agreement and the other Loan Documents or at law or in equity, Lender may take such action, without notice or demand, that Lender deems advisable to protect and enforce its rights against Borrower and in and to all or any more of the Collateralfollowing acts:
(a) instead of returning to you investments equivalent to those credited to your account, including, without limitation, declaring to pay you the Debt to be immediately due and payable, and Lender may enforce fair market value of such investments at the time we exercise such right;
(b) sell or avail itself of charge in any or all rights or remedies provided in the Loan Documents and may exercise all the rights and remedies of a secured party under the Uniform Commercial Code, as adopted and enacted by the State or States where any of the Collateral is located, against Borrower and way any or all of the Collateral, includingyour assets and property which may be in our possession or control (including any assets held by way of safe custody), without limitationbeing responsible for any loss or diminution in price;
(c) buy any investment or other property of which you may be short or which you have failed to deliver;
(d) deliver such investment or other property to any company or entity, all rights or remedies available at law otherwise take any action we see fit in order to close-out your positions in whole or in equitypart;
(e) enter into any foreign exchange transaction, at such rates and times as conclusively determined by us as is appropriate, in order to meet obligations incurred on your behalf;
(f) to treat any transactions then outstanding as having been repudiated by you; and upon and/or
(g) to take such action as we consider necessary to cover or reduce our potential loss or liability in respect of your transactions, contracts, positions or commitments.
19.3 For any Event of Default described these purposes, we may convert any amount into the currency in clauses (vi) or (vii) above, the Debt and all other obligations of Borrower hereunder and under which the other Loan Documents shall immediately amount is denominated at the rate of exchange and automatically become due and payable, without notice or demand, and Borrower hereby expressly waives any such notice or demand, anything contained herein or in any other Loan Document to at the contrary notwithstandingtime as conclusively determined by us.
Appears in 4 contracts
Samples: Professional Client Agreement, Professional Client Agreement, Professional Client Agreement
Event of Default. (a) Each of the following events shall constitute an event of default hereunder (an “Event of Default” and each of the events in clauses (iii), (iv) and (v) below shall constitute a “Bankruptcy Event of Default”)::
(i) if the Company’s or any subsidiary’s failure to pay to the Holder any amount of Principal, Interest, Late Charges or other amounts when and as due under this Note (Aincluding, without limitation, the Company’s or any subsidiary’s failure to pay any redemption payments or amounts hereunder) any portion of the Debt is not paid in full on the Maturity Date, (B) the Debt Service is not paid in full on or before the related Payment Date, or (C) any other portion agreement, document, certificate or other instrument delivered in connection with the transactions contemplated hereby and thereby, except, in the case of the Debt is not paid within five a failure to pay Interest and Late Charges when and as due, in which case only if such failure remains uncured for a period of at least two (52) days of when dueTrading Days;
(ii) if the occurrence of any default under, redemption of or acceleration prior to maturity of at least $100,000, individually or in the aggregate, of Indebtedness of the Company or any of the Taxes or Other Charges are not paid (its subsidiaries, other than with respect to each or any Individual Property) prior to DelinquencyOther Notes;
(iii) if bankruptcy, insolvency, reorganization or liquidation proceedings or other proceedings for the Policies (with respect to each relief of debtors shall be instituted by or against the Company or any Individual Property) are not kept in full force and effect, or if certified copies of the Policies (for each Individual Property) are not delivered to Lender upon request (or certificates thereofsubsidiary and, if instituted against the Company or any subsidiary by a Policy third party, shall not be renewed and certified copies dismissed within forty five (45) days of the Policy are not immediately available upon such renewal (each Borrower agreeing in such instance to provide copies of the Policies to Lender promptly thereafter))their initiation;
(iv) if any Borrower Transfers or otherwise encumbers any portion of the Properties, commencement by the Collateral or the Senior Mezzanine Collateral, or there shall otherwise occur a Transfer without Lender’s prior consent in violation of the provisions of this Agreement, the Pledge Agreement Company or any other Loan Document;
(v) if subsidiary of a voluntary case or proceeding under any representation applicable federal, state or warranty made by any Borrower or any other Loan Party herein or in any other Loan Documentforeign bankruptcy, or in any reportinsolvency, certificate, financial statement reorganization or other instrument, agreement similar law or document or other material or written information furnished to Lender shall have been false or misleading in any material respect as of the date the representation or warranty was made (and, with respect to any such breach which is not the subject of any other subsection of this Section 8.1 and which is capable of being cured, such Borrower fails case or proceeding to remedy such condition within ten (10) days following notice to Borrower from Lender, in the case of any such breach which can be cured by the payment of a sum of money, or within thirty (30) days following notice from Lender in the case of any other such breach);
(vi) if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower shall make an assignment for the benefit of creditors; or if a receiver, liquidator or trustee shall be appointed for any Borrower, Senior Mezzanine Borrower or Mortgage Borrower, or if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower shall be adjudicated a bankrupt or insolvent, or if the consent by it to the entry of a decree, order, judgment or other similar document in respect of the Company or any petition for subsidiary in an involuntary case or proceeding under any applicable federal, state or foreign bankruptcy, insolvency, reorganization or arrangement pursuant other similar law or to federal the commencement of any bankruptcy or insolvency case or proceeding against it, or the filing by it of a petition or answer or consent seeking reorganization or relief under any applicable federal, state or foreign law, or the consent by it to the filing of such petition or to the appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee, sequestrator or other similar official of the Company or any similar federal subsidiary or state law, shall be filed by or against, consented toof any substantial part of its property, or acquiesced in by, Borrower or Senior Mezzanine Borrower, or if any proceeding for the dissolution or liquidation making by it of any Borrower, Senior Mezzanine Borrower or Mortgage Borrower shall be instituted; provided, however, if such appointment, adjudication, petition or proceeding was involuntary and not consented to by any Borrower, Senior Mezzanine Borrower or Mortgage Borrower, upon the same not being discharged, stayed or dismissed within ninety (90) days;
(vii) if any Operating Company, any Manager, Principal, Holdings or any Guarantor shall make an assignment for the benefit of creditors; , or if the execution of a receivercomposition of debts, liquidator or trustee shall be appointed for the occurrence of any other similar federal, state or foreign proceeding, or the admission by it in writing of its inability to pay its debts generally as they become due, the taking of corporate action by the Company or any subsidiary in furtherance of any such Operating Company, action or the taking of any such Manager, Principal, Holdings action by any Person to commence a Uniform Commercial Code foreclosure sale or any such Guarantorother similar action under federal, state or if any Operating Companyforeign law;
(v) the entry by a court of (i) a decree, any Managerorder, Principal, Holdings judgment or other similar document in respect of the Company or any Guarantor shall be adjudicated subsidiary of a voluntary or involuntary case or proceeding under any applicable federal, state or foreign bankruptcy, insolvency, reorganization or other similar law or (ii) a decree, order, judgment or other similar document adjudging the Company or any subsidiary as bankrupt or insolvent, or if approving as properly filed a petition seeking liquidation, reorganization, arrangement, adjustment or composition of or in respect of the Company or any petition for bankruptcysubsidiary under any applicable federal, reorganization state or arrangement pursuant to federal bankruptcy lawforeign law or (iii) a decree, order, judgment or other similar document appointing a custodian, receiver, liquidator, assignee, trustee, sequestrator or other similar official of the Company or any subsidiary or of any substantial part of its property, or any similar federal or state law, shall be filed by or against, consented to, or acquiesced in by, any Operating Company, any Manager, Principal, Holdings or any Guarantor, or if any proceeding for ordering the dissolution winding up or liquidation of its affairs, and the continuance of any Operating Companysuch decree, any Managerorder, Principal, Holdings judgment or other similar document or any Guarantor shall be institutedsuch other decree, order, judgment or other similar document unstayed and in effect for a period of forty five (45) consecutive days;
(vi) a final judgment or judgments for the payment of money aggregating in excess of $250,000 are rendered against the Company and/or any of its subsidiaries and which judgments are not, within forty five (45) days after the entry thereof, bonded, discharged, settled or stayed pending appeal, or are not discharged within forty five (45) days after the expiration of such stay; provided, however, if any judgment which is covered by insurance or an indemnity from a credit worthy party shall not be included in calculating the $250,000 amount set forth above so long as the Company provides the Holder a written statement from such appointmentinsurer or indemnity provider (which written statement shall be reasonably satisfactory to the Holder) to the effect that such judgment is covered by insurance or an indemnity and the Company or such subsidiary (as the case may be) will receive the proceeds of such insurance or indemnity within forty five (45) days of the issuance of such judgment;
(vii) the Company and/or any subsidiary, adjudicationindividually or in the aggregate, petition either (i) fails to pay, when due, or proceeding was involuntary and not consented to by within any such Operating Companyapplicable grace period, any payment with respect to any Indebtedness in excess of $100,000 due to any third party (other than, with respect to unsecured Indebtedness only, payments contested by the Company and/or such Managersubsidiary (as the case may be) in good faith by proper proceedings and with respect to which adequate reserves have been set aside for the payment thereof in accordance with GAAP) or is otherwise in breach or violation of any agreement for monies owed or owing in an amount in excess of $100,000, Principalwhich breach or violation permits the other party thereto to declare a default or otherwise accelerate amounts due thereunder, Holdings or (ii) suffer to exist any other circumstance or event that would, with or without the passage of time or the giving of notice, result in a default or event of default under any agreement binding the Company or any such Guarantorsubsidiary, upon which default or event of default would or is likely to have a material adverse effect on the same not being dischargedbusiness, stayed assets, operations (including results thereof), liabilities, properties, condition (including financial condition) or dismissed within ninety (90) daysprospects of the Company or any of its subsidiaries, individually or in the aggregate;
(viii) if any Borrower attempts to assign its rights under other than as specifically set forth in another clause of this Agreement Section 3(a), the Company or any subsidiary breaches in any material respect any representation, warranty, covenant or other term or condition of the other Loan Documents any or any interest herein other agreement, document, certificate or therein other instrument delivered in contravention connection with the transactions contemplated hereby and thereby, except, in the case of the Loan Documentsa breach of a covenant or other term or condition that is curable, only if such breach remains uncured for a period of five (5) consecutive Trading Days;
(ix) if any Borrower breaches breach or failure in any of its respective negative covenants contained in Section 5.2 material respect by the Company or any covenant contained in subsidiary to comply with any provision of Section 4.1.30 or Section 5.1.11 hereof (and, with respect to any such breach of any covenant set forth in Section 5.1.11 which is not the subject of any other subsection 9 of this Section 8.1Note, such Borrower fails to remedy such condition within ten (10) days after notice to Borrower from Lenderexcept, in the case of any a breach or failure that is curable, only if such Default under Section 5.1.11 which can be cured by the payment breach or failure remains uncured for a period of a sum of money, or for thirty five (305) days after notice from Lender in the case of any other such Default under Section 5.1.11)consecutive Trading Days;
(x) with respect to at any term, covenant or provision set forth herein which specifically contains a notice requirement or grace period, if any Borrower shall be in default under such term, covenant or condition time after the giving Issuance Date, any shares of Common Stock issued or issuable upon exercise of the Warrants (disregarding any limitation on exercise of the Warrants) shall fail to be eligible for resale pursuant to Rule 144 promulgated under the 1933 Act, but only if such notice or the expiration failure remains uncured for a period of such grace periodten (10) consecutive Trading Days;
(xi) if any Change of the assumptions contained in the Insolvency Opinion delivered in connection with the Loan, or in the Additional Insolvency Opinion delivered subsequent to the closing of the Loan, is or shall become untrue in any material respectControl occurs; or if any of the assumptions contained in the True Lease Opinion in connection with the Loan, or in the Additional True Lease Opinion delivered subsequent to the closing of the Loan, is or shall become untrue in any material respect;or
(xii) if any Mortgage Borrower, any Operating Company or any Guarantor (Operating Lease) is in default of any of its material obligations under any Operating Lease (or under another lease and/or management agreement in substitution for such Operating Lease in accordance herewith) or under any such Operating Lease Guaranty (or under another operating lease guaranty in substitution for such Operating Lease Guaranty in accordance herewith) beyond any applicable notice and cure periods contained therein; or if any Operating Lease (or such other lease and/or management agreement) or any Operating Lease Guaranty (or such other operating lease guaranty) shall be surrendered or any Operating Lease or any Operating Lease Guaranty shall be terminated or canceled for any reason or under any circumstances whatsoever, except with the consent of Lender; or if any of the terms, covenants or conditions of any Operating Lease (or such other lease and/or management agreement) or any Operating Lease Guaranty (or such other operating lease guaranty) shall in any manner be modified, changed, supplemented, altered, restated or amended without the consent of Lender except as may otherwise expressly permitted in this Agreement;
(xiii) intentionally omitted;
(xiv) if any Affiliate of any Borrower that is or becomes a party to the Windstorm Insurance Intercreditor Agreement is in default of any of its material obligations under the Windstorm Insurance Intercreditor Agreement beyond any applicable notice and cure periods contained therein; or if the Windstorm Insurance Intercreditor Agreement shall be surrendered, terminated or canceled for any reason or under any circumstances whatsoever, except with the consent of Lender; or if any of the terms, covenants or conditions of the Windstorm Insurance Intercreditor Agreement shall in any manner be modified, changed, supplemented, altered, restated or amended without the consent of Lender;
(xv) if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower fails to comply with the covenants as to Prescribed Laws set forth in Section 5.1.1 hereof;
(xvi) if a material default has occurred and continues beyond any applicable cure period under any Management Agreement and if such default permits the Manager, the Operating Company or the Mortgage Borrower party thereto to terminate or cancel the Management Agreement in question;
(xvii) any Gaming License shall be refused, suspended, revoked, modified in a materially adverse manner or canceled or allowed to lapse or any proceeding is commenced by any Governmental Authority for the purpose of suspending, revoking or canceling any Gaming License in any materially adverse respect, or any Governmental Authority shall have appointed a conservator, supervisor or trustee to or for any of the Casino Components and, in each case of the foregoing, such action could reasonably be expected to (A) have an Individual Material Adverse Effect, (B) materially and adversely affect the continued operation of the Casino Components in the usual course of business and in substantially the same manner and to at least the same standard as was maintained prior to such action, or (C) result in any material decrease in the then expected cash flow and revenues to be derived from the Casino Components;
(xviii) if any Borrower shall continue to be in Default under any of the other terms, covenants or conditions of this Agreement not specified in subsections (i) to (xvii) above, for ten (10) days after notice to Borrower from Lender, in the case of any Default which can be cured by the payment of a sum of money, or for thirty (30) days after notice from Lender in the case of any other Default; provided, however, that if such non-monetary Default is susceptible of cure but cannot reasonably be cured within such thirty (30) day period and provided further that such Borrower shall have commenced to cure such Default within such thirty (30) day period and thereafter diligently and expeditiously proceeds to cure the same, such thirty (30) day period shall be extended for such time as is reasonably necessary for such Borrower in the exercise of due diligence to cure such Default, such additional period not to exceed one hundred twenty (120) days;
(xix) if there shall be a default under any of the other Loan Documents beyond any applicable cure periods contained in such documents, whether as to any Borrower, Mortgage Borrower, Senior Mezzanine Borrower, the Collateral, the Senior Mezzanine Collateral or any Individual Property, or if any other such event shall occur or condition shall exist, if the effect of such event or condition is to accelerate the maturity of any portion of the Debt or to permit Lender to accelerate the maturity of all or any portion of the Debt;
(xx) if the Liens created pursuant to any Loan Document shall cease to be a fully protected enforceable first priority security interest in the Collateral, or any portion of the Collateral is Transferred without Lender’s prior written consent except as permitted hereunder; or
(xxi) if a Mortgage Loan Event of Default or Senior Mezzanine Loan Event of Default shall occur.
(b) Upon the occurrence of an Event of Default (other than an Event of Default described as defined in clauses (vithe Other Notes) or (vii) above) and at any time thereafter, in addition occurs with respect to any other rights or remedies available to it pursuant to this Agreement and the other Loan Documents or at law or in equity, Lender may take such action, without notice or demand, that Lender deems advisable to protect and enforce its rights against Borrower and in and to all or any of the Collateral, including, without limitation, declaring the Debt to be immediately due and payable, and Lender may enforce or avail itself of any or all rights or remedies provided in the Loan Documents and may exercise all the rights and remedies of a secured party under the Uniform Commercial Code, as adopted and enacted by the State or States where any of the Collateral is located, against Borrower and any or all of the Collateral, including, without limitation, all rights or remedies available at law or in equity; and upon any Event of Default described in clauses (vi) or (vii) above, the Debt and all other obligations of Borrower hereunder and under the other Loan Documents shall immediately and automatically become due and payable, without notice or demand, and Borrower hereby expressly waives any such notice or demand, anything contained herein or in any other Loan Document to the contrary notwithstandingOther Notes.
Appears in 4 contracts
Samples: Agreement for Amendment to Series a and Series B Warrants (Repros Therapeutics Inc.), Agreement for Amendment to Series a and Series B Warrants (Repros Therapeutics Inc.), Agreement for Amendment to Series a and Series B Warrants (Repros Therapeutics Inc.)
Event of Default. (a) Each For purposes of this Agreement, the occurrence of any one of the following events shall constitute an event of default hereunder (each an “Event of Default”):) shall constitute a default hereunder, under the Promissory Notes and the other Credit Documents:
(i) if Debtor shall (A1) fail to pay when due any portion of the Debt is not paid in full on the Maturity Date, (B) the Debt Service is not paid in full on or before the related Payment Dateprincipal of, or interest on, any Obligation or (C2) any other portion of the Debt is not paid fail to pay within five (5) days after the same becomes due, any other amount required under the terms of when dueany Promissory Note or any of the other Credit Documents;
(ii) if Debtor shall fail to perform any of the Taxes or Other Charges are not paid (with respect to each other non-monetary Obligation set forth in this Agreement or any Individual Property) prior to Delinquencyother Credit Document which by its nature cannot be cured;
(iii) if the Policies (with respect Debtor shall fail to each perform any other non-monetary Obligation set forth in this Agreement or any Individual Propertyother Credit Document, which failure is not cured within ten (10) are not kept in full force and effect, Business Days after written notice of such failure is provided to Debtor or if certified copies of the Policies (for each Individual Property) are such failure cannot delivered to Lender upon request (or certificates thereofbe cured within such time period, if work on such cure is not begun within such time period and continuously prosecuted thereafter on a Policy shall be renewed and certified copies of the Policy are not immediately available upon such renewal (each Borrower agreeing in such instance to provide copies of the Policies to Lender promptly thereafter))commercially reasonable basis until cured;
(iv) if any Borrower Transfers Any representation, warranty, certificate, information or otherwise encumbers any portion other statement (financial or otherwise) made or furnished by or on behalf of Debtor to the Properties, the Collateral Secured Party in or the Senior Mezzanine Collateral, or there shall otherwise occur a Transfer without Lender’s prior consent in violation of the provisions of connection with this Agreement, any Promissory Note, the Pledge Credit and Restructuring Agreement or any of the other Loan Document;
(v) if any representation or warranty made by any Borrower or any other Loan Party herein or in any other Loan DocumentCredit Documents, or in any reportas an inducement to the Secured Party to enter into this Agreement, certificateshall be false, financial statement or other instrumentincorrect, agreement or document or other material or written information furnished to Lender shall have been false incomplete or misleading in any material respect as when made or furnished;
(v) Any levy, assessment, attachment, seizure, Lien or encumbrance (other than a Permitted Lien) is made on all or any part of the date the representation or warranty was made (and, with respect to any such breach Collateral which is not cured or contested within twenty (20) Business Days after the subject occurrence of any other subsection of this Section 8.1 and which is capable of being cured, such Borrower fails to remedy such condition within ten (10) days following notice to Borrower from Lender, in the case of any such breach which can be cured by the payment of a sum of money, or within thirty (30) days following notice from Lender in the case of any other such breach)same;
(vi) if Except as otherwise disclosed in writing to and approved in advance by the Secured Party, Debtor breaches any Borrowercontract or obligation, Senior Mezzanine Borrower which has or Mortgage may reasonably be expected to have a Material Adverse Effect;
(vii) Borrower shall make an breach any covenant, in any material respect, in this Agreement, the Credit and Restructuring Agreement, any Promissory Note or any of the other Credit Documents or any other agreement entered into between the Debtor and the Secured Party in connection therewith, which breach has or may reasonably be expect to have a Material Adverse Effect;
(viii) Dissolution, termination of existence, or appointment of a receiver, trustee or custodian, for all or any part of the property of, assignment for the benefit of creditors; or if a receiver, liquidator or trustee shall be appointed for any Borrower, Senior Mezzanine Borrower or Mortgage Borrowercreditors by, or if the commencement of any Borrowerproceeding by Debtor under any reorganization, Senior Mezzanine Borrower or Mortgage Borrower shall be adjudicated a bankrupt or insolvent, or if any petition for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy lawarrangement, or any similar federal or state law, shall be filed by or against, consented to, or acquiesced in by, Borrower or Senior Mezzanine Borrower, or if any proceeding for the dissolution or liquidation law or statute of any Borrowerjurisdiction, Senior Mezzanine Borrower now or Mortgage Borrower shall be instituted; providedin the future in effect;
(ix) Commencement of any proceeding against Debtor under any reorganization, howeverbankruptcy, if such appointmentarrangement, adjudicationdissolution or liquidation law or statute of any jurisdiction, petition now or proceeding was involuntary and in the future in effect, which is not consented to cured by any Borrower, Senior Mezzanine Borrower or Mortgage Borrower, upon the same not being discharged, stayed or dismissed dismissal thereof within ninety (90) days;
(vii) if any Operating Company, any Manager, Principal, Holdings or any Guarantor shall make an assignment for the benefit of creditors; or if a receiver, liquidator or trustee shall be appointed for any such Operating Company, any such Manager, Principal, Holdings or any such Guarantor, or if any Operating Company, any Manager, Principal, Holdings or any Guarantor shall be adjudicated a bankrupt or insolvent, or if any petition for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by or against, consented to, or acquiesced in by, any Operating Company, any Manager, Principal, Holdings or any Guarantor, or if any proceeding for the dissolution or liquidation of any Operating Company, any Manager, Principal, Holdings or any Guarantor shall be instituted; provided, however, if such appointment, adjudication, petition or proceeding was involuntary and not consented to by any such Operating Company, any such Manager, Principal, Holdings or any such Guarantor, upon the same not being discharged, stayed or dismissed within ninety (90) days;
(viii) if any Borrower attempts to assign its rights under this Agreement or any of the other Loan Documents or any interest herein or therein in contravention of the Loan Documents;
(ix) if any Borrower breaches any of its respective negative covenants contained in Section 5.2 or any covenant contained in Section 4.1.30 or Section 5.1.11 hereof (and, with respect to any such breach of any covenant set forth in Section 5.1.11 which is not the subject of any other subsection of this Section 8.1, such Borrower fails to remedy such condition within ten (10) days after notice to Borrower from Lender, in the case of any such Default under Section 5.1.11 which can be cured by the payment of a sum of money, or for thirty (30) days after notice from Lender in the case of any other such Default under Section 5.1.11)date commenced;
(x) with respect to Revocation or termination of, or limitation or denial of liability under, any term, covenant or provision set forth herein which specifically contains a notice requirement or grace period, if any Borrower shall be in default under such term, covenant or condition after the giving of such notice or the expiration of such grace periodCredit Document by Debtor;
(xi) if any A Change of Control shall have occurred without the prior written consent of the assumptions contained in the Insolvency Opinion delivered in connection with the Loan, or in the Additional Insolvency Opinion delivered subsequent to the closing of the Loan, is or shall become untrue in any material respect; or if any of the assumptions contained in the True Lease Opinion in connection with the Loan, or in the Additional True Lease Opinion delivered subsequent to the closing of the Loan, is or shall become untrue in any material respectSecured Party;
(xii) if Debtor shall conceal, remove or transfer any Mortgage Borrowerpart of its property, with intent to hinder, delay or defraud its creditors, or make or suffer any Operating Company or any Guarantor (Operating Lease) is in default transfer of any of its material obligations property which may be fraudulent under any Operating Lease (bankruptcy, fraudulent conveyance or under another lease and/or management agreement in substitution for such Operating Lease in accordance herewith) or under any such Operating Lease Guaranty (or under another operating lease guaranty in substitution for such Operating Lease Guaranty in accordance herewith) beyond any applicable notice and cure periods contained therein; or if any Operating Lease (or such other lease and/or management agreement) or any Operating Lease Guaranty (or such other operating lease guaranty) shall be surrendered or any Operating Lease or any Operating Lease Guaranty shall be terminated or canceled for any reason or under any circumstances whatsoever, except with the consent of Lender; or if any of the terms, covenants or conditions of any Operating Lease (or such other lease and/or management agreement) or any Operating Lease Guaranty (or such other operating lease guaranty) shall in any manner be modified, changed, supplemented, altered, restated or amended without the consent of Lender except as may otherwise expressly permitted in this Agreementsimilar law;
(xiii) intentionally omitted;Debtor shall be in default beyond any applicable period of grace or cure under any other agreement involving the borrowing of money, the purchase of property, the advance of credit or any other monetary liability of any kind to any lender or to any Person which results in the acceleration of payment of such obligation in an amount in excess of $150,000; or
(xiv) if any Affiliate of any Borrower that is or becomes a party to the Windstorm Insurance Intercreditor Agreement is in default of any of its material obligations under the Windstorm Insurance Intercreditor Agreement beyond any applicable notice and cure periods contained therein; or if the Windstorm Insurance Intercreditor Agreement shall be surrendered, terminated or canceled for any reason or under any circumstances whatsoever, except with the consent of Lender; or if any The failure of the terms, covenants or conditions Debtor to obtain Disinterested Stockholder Approval of the Windstorm Insurance Intercreditor Agreement shall in any manner be modified, changed, supplemented, altered, restated or amended without Proposals at the consent of Lender;
(xv) if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower fails to comply with the covenants Stockholder Meeting as to Prescribed Laws set forth provided in Section 5.1.1 hereof;
(xvi) if a material default has occurred and continues beyond any applicable cure period under any Management Agreement and if such default permits the Manager, the Operating Company or the Mortgage Borrower party thereto to terminate or cancel the Management Agreement in question;
(xvii) any Gaming License shall be refused, suspended, revoked, modified in a materially adverse manner or canceled or allowed to lapse or any proceeding is commenced by any Governmental Authority for the purpose of suspending, revoking or canceling any Gaming License in any materially adverse respect, or any Governmental Authority shall have appointed a conservator, supervisor or trustee to or for any 7.1 of the Casino Components and, in each case of the foregoing, such action could reasonably be expected to (A) have an Individual Material Adverse Effect, (B) materially Credit and adversely affect the continued operation of the Casino Components in the usual course of business and in substantially the same manner and to at least the same standard as was maintained prior to such action, or (C) result in any material decrease in the then expected cash flow and revenues to be derived from the Casino Components;
(xviii) if any Borrower shall continue to be in Default under any of the other terms, covenants or conditions of this Agreement not specified in subsections (i) to (xvii) above, for ten (10) days after notice to Borrower from Lender, in the case of any Default which can be cured by the payment of a sum of money, or for thirty (30) days after notice from Lender in the case of any other Default; provided, however, that if such non-monetary Default is susceptible of cure but cannot reasonably be cured within such thirty (30) day period and provided further that such Borrower shall have commenced to cure such Default within such thirty (30) day period and thereafter diligently and expeditiously proceeds to cure the same, such thirty (30) day period shall be extended for such time as is reasonably necessary for such Borrower in the exercise of due diligence to cure such Default, such additional period not to exceed one hundred twenty (120) days;
(xix) if there shall be a default under any of the other Loan Documents beyond any applicable cure periods contained in such documents, whether as to any Borrower, Mortgage Borrower, Senior Mezzanine Borrower, the Collateral, the Senior Mezzanine Collateral or any Individual Property, or if any other such event shall occur or condition shall exist, if the effect of such event or condition is to accelerate the maturity of any portion of the Debt or to permit Lender to accelerate the maturity of all or any portion of the Debt;
(xx) if the Liens created pursuant to any Loan Document shall cease to be a fully protected enforceable first priority security interest in the Collateral, or any portion of the Collateral is Transferred without Lender’s prior written consent except as permitted hereunder; or
(xxi) if a Mortgage Loan Event of Default or Senior Mezzanine Loan Event of Default shall occurRestructuring Agreement.
(b) Upon the occurrence of an Event of Default (other than an Event of Default described in clauses (vi) or (vii) above) and at any time thereafter, in addition to any other rights or remedies available to it pursuant to this Agreement and the other Loan Documents or at law or in equity, Lender may take such action, without notice or demand, that Lender deems advisable to protect and enforce its rights against Borrower and in and to all or any of the Collateral, including, without limitation, declaring the Debt to be immediately due and payable, and Lender may enforce or avail itself of any or all rights or remedies provided in the Loan Documents and may exercise all the rights and remedies of a secured party under the Uniform Commercial Code, as adopted and enacted by the State or States where any of the Collateral is located, against Borrower and any or all of the Collateral, including, without limitation, all rights or remedies available at law or in equity; and upon any Event of Default described in clauses (vi) or (vii) above, the Debt and all other obligations of Borrower hereunder and under the other Loan Documents shall immediately and automatically become due and payable, without notice or demand, and Borrower hereby expressly waives any such notice or demand, anything contained herein or in any other Loan Document to the contrary notwithstanding.
Appears in 3 contracts
Samples: Blanket Security Agreement (Genesys Industries, Inc.), Blanket Security Agreement (Genesys Industries, Inc.), Security Agreement (Digital Lightwave Inc)
Event of Default. (a) Each of the following events shall constitute an event of default hereunder (an “Event of Default”):
(i) if (A) any portion of the Debt is not paid in full on the Maturity Date, (B) the Debt Service is not paid in full on or before the related Payment Date, or (C) any other portion of the Debt is not paid within five (5) days of when due;
(ii) subject to Borrowers’ right to contest as provided herein, if any of the Taxes or Other Charges are not paid (when the same are due and payable, unless, with respect to each or any Individual Propertythe payment of Taxes (a) prior sums equaling the amount of the Taxes then payable have been delivered to DelinquencyLender in accordance with Section 7.2 hereof, (b) no Event of Default shall have occurred and be continuing, and (c) there is no restriction of Lender’s release of the Tax and Insurance Escrow Funds;
(iii) if the Policies (with respect to each or any Individual Property) are not kept in full force and effect, or if certified copies of the Policies (for each Individual Property) are not delivered to Lender upon request (or certificates thereof, if a Policy shall be renewed and certified copies of the Policy are not immediately available upon such renewal (each Borrower agreeing in such instance to provide copies of the Policies to Lender promptly thereafter))written request;
(iv) if any either Borrower Transfers or otherwise encumbers any portion of the Properties, the Collateral or the Senior Mezzanine Collateral, or there shall otherwise occur a Transfer Properties without Lender’s prior written consent in violation of the provisions of this Agreement, the Pledge Agreement or any other Loan DocumentArticle 6 of the Mortgage;
(v) if any representation or warranty made by any either Borrower or any other Loan Party herein or herein, in any other Loan DocumentDocument or in any financial statement, or in any report, certificate, financial statement certificate or other instrument, agreement or document or other material or written information prepared by either Borrower and furnished to Lender shall have been false or misleading in any material respect as of the date the representation or warranty was made (and, with respect to any such breach which is not the subject of any other subsection of this Section 8.1 and which is capable of being cured, such Borrower fails to remedy such condition within ten (10) days following notice to Borrower from Lender, in the case of any such breach which can be cured by the payment of a sum of money, or within thirty (30) days following notice from Lender in the case of any other such breach)made;
(vi) if either of the Borrowers, either of the Principals or any Borrower, Senior Mezzanine Borrower or Mortgage Borrower Guarantor shall make an assignment for the benefit of creditors; or ;
(vii) if a receiver, liquidator or trustee shall be appointed for either of the Borrowers, either of the Principals or any Borrower, Senior Mezzanine Borrower or Mortgage BorrowerGuarantor, or if either of the Borrowers, either of the Principals or any Borrower, Senior Mezzanine Borrower or Mortgage Borrower Guarantor shall be adjudicated a bankrupt or insolvent, or if any petition for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by or against, consented to, or acquiesced in by, Borrower or Senior Mezzanine Borrowereither of the Borrowers, or if any proceeding for either of the dissolution or liquidation of any Borrower, Senior Mezzanine Borrower or Mortgage Borrower shall be instituted; provided, however, if such appointment, adjudication, petition or proceeding was involuntary and not consented to by any Borrower, Senior Mezzanine Borrower or Mortgage Borrower, upon the same not being discharged, stayed or dismissed within ninety (90) days;
(vii) if any Operating Company, any Manager, Principal, Holdings or any Guarantor shall make an assignment for the benefit of creditors; or if a receiver, liquidator or trustee shall be appointed for any such Operating Company, any such Manager, Principal, Holdings or any such Guarantor, or if any Operating Company, any Manager, Principal, Holdings or any Guarantor shall be adjudicated a bankrupt or insolvent, or if any petition for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by or against, consented to, or acquiesced in by, any Operating Company, any Manager, Principal, Holdings Principals or any Guarantor, or if any proceeding for the dissolution or liquidation of any Operating Companyeither of the Borrowers, any Manager, Principal, Holdings either of the Principals or any Guarantor shall be instituted; provided, however, if such appointment, adjudication, petition or proceeding was involuntary and not consented to by any such Operating Companyeither of the Borrowers, any such Manager, Principal, Holdings either of the Principals or any such Guarantor, the same shall constitute an Event of Default hereunder only upon the same not being discharged, stayed or dismissed within ninety sixty (9060) days;
(viii) if any either Borrower attempts to assign its rights under this Agreement or any of the other Loan Documents or any interest herein or therein in contravention of the Loan Documents;
(ix) if any either Borrower breaches any of its respective negative covenants contained in Section 5.2 hereof or any covenant contained in Section 4.1.30 or Section 5.1.11 hereof (and, with respect to any such breach of any covenant set forth in Section 5.1.11 which is not the subject of any other subsection of this Section 8.1, such Borrower fails to remedy such condition within ten (10) days after notice to Borrower from Lender, in the case of any such Default under Section 5.1.11 which can be cured by the payment of a sum of money, or for thirty (30) days after notice from Lender in the case of any other such Default under Section 5.1.11)hereof;
(x) with respect to any term, covenant or provision set forth herein which specifically contains a notice requirement or grace period, if any either Borrower shall be in default under such term, covenant or condition after the giving of such notice or the expiration of such grace period;
(xi) if any of the assumptions contained in the Insolvency Opinion delivered to Lender in connection with the Loan, or in the any Additional Insolvency Opinion delivered subsequent to the closing of the Loan, is or shall become untrue in any material respect; or if any of the assumptions contained in the True Lease Opinion in connection with the Loan, or in the Additional True Lease Opinion delivered subsequent to the closing of the Loan, is or shall become untrue in any material respect;
(xii) if any Mortgage Borrower, any Operating Company or any Guarantor (Operating Lease) is in a material default of any of its material obligations under any Operating Lease (or under another lease and/or management agreement in substitution for such Operating Lease in accordance herewith) or under any such Operating Lease Guaranty (or under another operating lease guaranty in substitution for such Operating Lease Guaranty in accordance herewith) by either Borrower has occurred and continues beyond any applicable notice and cure periods contained therein; period under any Management Agreement (or if any Operating Lease Replacement Management Agreement) which default permits Manager thereunder to terminate or cancel such Management Agreement (or such other lease and/or management agreement) or any Operating Lease Guaranty (or such other operating lease guaranty) shall be surrendered or any Operating Lease or any Operating Lease Guaranty shall be terminated or canceled for any reason or under any circumstances whatsoever, except with the consent of Lender; or if any of the terms, covenants or conditions of any Operating Lease (or such other lease and/or management agreement) or any Operating Lease Guaranty (or such other operating lease guaranty) shall in any manner be modified, changed, supplemented, altered, restated or amended without the consent of Lender except as may otherwise expressly permitted in this Replacement Management Agreement);
(xiii) intentionally omitted;
(xiv) if any Affiliate of any Borrower that is or becomes a party to the Windstorm Insurance Intercreditor Agreement is in default of any of its material obligations under the Windstorm Insurance Intercreditor Agreement beyond any applicable notice and cure periods contained therein; or if the Windstorm Insurance Intercreditor Agreement shall be surrendered, terminated or canceled for any reason or under any circumstances whatsoever, except with the consent of Lender; or if any of the terms, covenants or conditions of the Windstorm Insurance Intercreditor Agreement shall in any manner be modified, changed, supplemented, altered, restated or amended without the consent of Lender;
(xv) if any Borrower, Senior Mezzanine Borrower or Mortgage either Borrower fails to comply with the covenants as to Prescribed Laws set forth in Section 5.1.1 hereof;
(xvixiv) if a material default has occurred and continues beyond any applicable cure period under any Management Agreement and if such default permits the Manager, the Operating Company or the Mortgage Borrower party thereto to terminate or cancel the Management Agreement in question;
(xvii) any Gaming License shall be refused, suspended, revoked, modified in a materially adverse manner or canceled or allowed to lapse or any proceeding is commenced by any Governmental Authority for the purpose of suspending, revoking or canceling any Gaming License in any materially adverse respect, or any Governmental Authority shall have appointed a conservator, supervisor or trustee to or for any of the Casino Components and, in each case of the foregoing, such action could reasonably be expected to (A) have an Individual Material Adverse Effect, (B) materially and adversely affect the continued operation of the Casino Components in the usual course of business and in substantially the same manner and to at least the same standard as was maintained prior to such action, or (C) result in any material decrease in the then expected cash flow and revenues to be derived from the Casino Components;
(xviii) if any either Borrower shall continue to be in Default under any of the other terms, covenants or conditions of this Agreement Other Obligations not specified in subsections clauses (i) to through (xviixiii) above, for ten (10) days after notice to Borrower Borrowers from Lender, in the case of any Default which can be cured by the payment of a sum of money, or for thirty (30) days after notice from Lender in the case of any other Default; provided, however, that if such non-monetary Default is susceptible of cure but cannot reasonably be cured within such thirty (30) day period and provided further that such Borrower Borrowers shall have commenced to cure such Default within such thirty (30) day period and thereafter diligently and expeditiously proceeds to cure the same, such thirty (30) day period shall be extended for such time as is reasonably necessary for such Borrower Borrowers in the exercise of due diligence to cure such Default, such additional period not to exceed one hundred twenty sixty (12060) days;
(xixxv) if there shall be a default under any of the other Loan Documents beyond any applicable cure periods contained in such documents, whether as to any Borrower, Mortgage Borrower, Senior Mezzanine Borrower, either of the Collateral, Borrowers or either of the Senior Mezzanine Collateral or any Individual PropertyProperties, or if any other such event shall occur or condition shall exist, if the effect of such event or condition is to accelerate the maturity of any portion of the Debt or to permit Lender to accelerate the maturity of all or any portion of the Debt;
(xxxvi) if the Liens created pursuant to any Loan Document there shall cease to be a fully protected enforceable first priority security interest in the Collateral, or any portion exist an event of default under either of the Collateral is Transferred Master Leases beyond any applicable notice and/or cure period contained therein, if either of the Master Leases shall have been amended or modified without Lender’s prior written consent except as permitted hereunderconsent, if the Master Leases shall have been terminated, cancelled or surrendered without Lender’s prior written consent, or if the lessee under either of the Master Leases is the subject of a Bankruptcy Action;
(xvii) if there shall exist an event of default by Tower Borrower under the Parking Easement beyond any applicable notice and/or cure period contained therein, if the Parking Easement shall have been amended or modified without Lender’s prior written consent, if the Parking Easement shall have been terminated, cancelled or surrendered (other than by the terms of the Parking Easement) without Lender’s prior written consent; or
(xxixviii) if a Mortgage Loan the occurrence of any event that is expressly specified to be an Event of Default in this Agreement or Senior Mezzanine any other Loan Event of Default shall occurDocument.
(b) Upon the occurrence of an Event of Default (other than an Event of Default described in clauses (vi), (vii) or (viiviii) above) and at any time thereafter, in addition to any other rights or remedies available to it pursuant to this Agreement and the other Loan Documents or at law or in equity, Lender may take such action, without notice or demand, that Lender deems advisable to protect and enforce its rights against Borrower Borrowers and in and to all or any of the CollateralProperties, including, without limitation, including declaring the Debt Obligations to be immediately due and payable, and Lender may enforce or avail itself of any or all rights or remedies provided in the Loan Documents against Borrowers and may exercise all the rights and remedies of a secured party under the Uniform Commercial CodeProperties (or any Property), as adopted and enacted by the State or States where any of the Collateral is located, against Borrower and any or all of the Collateral, including, without limitation, including all rights or remedies available at law or in equity; and upon the occurrence of any Event of Default described in clauses (vi), (vii) or (viiviii) above, the Debt and all other obligations Other Obligations of Borrower Borrowers hereunder and under the other Loan Documents shall immediately and automatically become due and payable, without notice or demand, and Borrower Borrowers hereby expressly waives waive any such notice or demand, anything contained herein or in any other Loan Document to the contrary notwithstanding.
Appears in 3 contracts
Samples: Loan Agreement (MPG Office Trust, Inc.), Loan Agreement (MPG Office Trust, Inc.), Loan Agreement (Maguire Properties Inc)
Event of Default. (a) Each of the following events occurrences shall constitute an event of default hereunder (an “Event of Default”)::
(ia) if (A) any portion of the Debt is not paid in full on the Maturity DateTenant’s failure to pay rent, (B) the Debt Service is not paid in full on or before the related Payment Date, or (C) any other portion of the Debt is not paid within five (5) days of when due;
(ii) if any of the Taxes or Other Charges are not paid (with respect to each or any Individual Property) prior to Delinquency;
(iii) if the Policies (with respect to each or any Individual Property) are not kept in full force and effect, or if certified copies of the Policies (for each Individual Property) are not delivered to Lender upon request (or certificates thereof, if a Policy shall be renewed and certified copies of the Policy are not immediately available upon such renewal (each Borrower agreeing in such instance to provide copies of the Policies to Lender promptly thereafter));
(iv) if any Borrower Transfers or otherwise encumbers any portion of the Properties, the Collateral or the Senior Mezzanine Collateral, or there shall otherwise occur a Transfer without Lender’s prior consent in violation of the provisions of this Agreement, the Pledge Agreement or any other Loan Document;
(v) if any representation or warranty made by any Borrower or any other Loan Party herein or in any other Loan Document, or in any report, certificate, financial statement or other instrument, agreement or document or other material or written information furnished sums due from Tenant to Lender shall have been false or misleading in any material respect as of Landlord under the date the representation or warranty was made (and, with respect to any such breach which is not the subject of any other subsection of this Section 8.1 and which is capable of being cured, such Borrower fails to remedy such condition Lease within ten (10) days following notice to Borrower from Lender, in the case of any such breach which can be cured by the payment of a sum of money, or within thirty (30) days following notice from Lender in the case of any other such breach)their due dates;
(vib) if any BorrowerTenant’s failure to perform, Senior Mezzanine Borrower or Mortgage Borrower shall make an assignment for the benefit of creditors; or if a receiver, liquidator or trustee shall be appointed for any Borrower, Senior Mezzanine Borrower or Mortgage Borrowercomply with, or if observe any Borrower, Senior Mezzanine Borrower other agreement or Mortgage Borrower shall be adjudicated a bankrupt or insolvent, or if any petition for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by or against, consented to, or acquiesced in by, Borrower or Senior Mezzanine Borrower, or if any proceeding for the dissolution or liquidation obligation of any Borrower, Senior Mezzanine Borrower or Mortgage Borrower shall be instituted; provided, however, if such appointment, adjudication, petition or proceeding was involuntary and not consented to by any Borrower, Senior Mezzanine Borrower or Mortgage Borrower, upon the same not being discharged, stayed or dismissed within ninety (90) days;
(vii) if any Operating Company, any Manager, Principal, Holdings or any Guarantor shall make an assignment for the benefit of creditors; or if a receiver, liquidator or trustee shall be appointed for any such Operating Company, any such Manager, Principal, Holdings or any such Guarantor, or if any Operating Company, any Manager, Principal, Holdings or any Guarantor shall be adjudicated a bankrupt or insolvent, or if any petition for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by or against, consented to, or acquiesced in by, any Operating Company, any Manager, Principal, Holdings or any Guarantor, or if any proceeding for the dissolution or liquidation of any Operating Company, any Manager, Principal, Holdings or any Guarantor shall be instituted; provided, however, if such appointment, adjudication, petition or proceeding was involuntary and not consented to by any such Operating Company, any such Manager, Principal, Holdings or any such Guarantor, upon the same not being discharged, stayed or dismissed within ninety (90) days;
(viii) if any Borrower attempts to assign its rights Tenant under this Agreement or any Lease and the continuance of the other Loan Documents or any interest herein or therein in contravention such failure for a period of the Loan Documents;
(ix) if any Borrower breaches any of its respective negative covenants contained in Section 5.2 or any covenant contained in Section 4.1.30 or Section 5.1.11 hereof (and, with respect to any such breach of any covenant set forth in Section 5.1.11 which is not the subject of any other subsection of this Section 8.1, such Borrower fails to remedy such condition within ten (10) days after notice to Borrower from Lender, in the case of any such Default under Section 5.1.11 which can be cured by the payment of a sum of money, or for thirty (30) days after the date Landlord delivers to Tenant written notice from Lender in the case of any other such Default under Section 5.1.11);
(x) with respect to any termthereof, covenant or provision set forth herein which specifically contains a notice requirement or grace period, if any Borrower shall be in default under such term, covenant or condition after the giving of such notice or the expiration of such grace period;
(xi) if any of the assumptions contained in the Insolvency Opinion delivered in connection with the Loan, or in the Additional Insolvency Opinion delivered subsequent to the closing of the Loan, is or shall become untrue in any material respect; or if any of the assumptions contained in the True Lease Opinion in connection with the Loan, or in the Additional True Lease Opinion delivered subsequent to the closing of the Loan, is or shall become untrue in any material respect;
(xii) if any Mortgage Borrower, any Operating Company or any Guarantor (Operating Lease) is in default of any of its material obligations under any Operating Lease (or under another lease and/or management agreement in substitution for such Operating Lease in accordance herewith) or under any such Operating Lease Guaranty (or under another operating lease guaranty in substitution for such Operating Lease Guaranty in accordance herewith) beyond any applicable notice and cure periods contained therein; or if any Operating Lease (or such other lease and/or management agreement) or any Operating Lease Guaranty (or such other operating lease guaranty) shall be surrendered or any Operating Lease or any Operating Lease Guaranty shall be terminated or canceled for any reason or under any circumstances whatsoever, except with the consent of Lender; or if any of the terms, covenants or conditions of any Operating Lease (or such other lease and/or management agreement) or any Operating Lease Guaranty (or such other operating lease guaranty) shall in any manner be modified, changed, supplemented, altered, restated or amended without the consent of Lender except as may otherwise expressly permitted in this Agreement;
(xiii) intentionally omitted;
(xiv) if any Affiliate of any Borrower that is or becomes a party to the Windstorm Insurance Intercreditor Agreement is in default of any of its material obligations under the Windstorm Insurance Intercreditor Agreement beyond any applicable notice and cure periods contained therein; or if the Windstorm Insurance Intercreditor Agreement shall be surrendered, terminated or canceled for any reason or under any circumstances whatsoever, except with the consent of Lender; or if any of the terms, covenants or conditions of the Windstorm Insurance Intercreditor Agreement shall in any manner be modified, changed, supplemented, altered, restated or amended without the consent of Lender;
(xv) if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower fails to comply with the covenants as to Prescribed Laws set forth in Section 5.1.1 hereof;
(xvi) if a material default has occurred and continues beyond any applicable cure period under any Management Agreement and if such default permits the Manager, the Operating Company or the Mortgage Borrower party thereto to terminate or cancel the Management Agreement in question;
(xvii) any Gaming License shall be refused, suspended, revoked, modified in a materially adverse manner or canceled or allowed to lapse or any proceeding is commenced by any Governmental Authority for the purpose of suspending, revoking or canceling any Gaming License in any materially adverse respect, or any Governmental Authority shall have appointed a conservator, supervisor or trustee to or for any of the Casino Components and, in each case of the foregoing, such action could reasonably be expected to (A) have an Individual Material Adverse Effect, (B) materially and adversely affect the continued operation of the Casino Components in the usual course of business and in substantially the same manner and to at least the same standard as was maintained prior to such action, or (C) result in any material decrease in the then expected cash flow and revenues to be derived from the Casino Components;
(xviii) if any Borrower shall continue to be in Default under any of the other terms, covenants or conditions of this Agreement not specified in subsections (i) to (xvii) above, for ten (10) days after notice to Borrower from Lender, in the case of any Default which can be cured by the payment of a sum of money, or for thirty (30) days after notice from Lender in the case of any other Default; provided, however, that if such non-monetary Default is susceptible of cure but cannot reasonably be cured within Tenant proceeds with due diligence during such thirty (30) day period and provided further that such Borrower shall have commenced to cure such Default default and is unable, by reason of the nature of the work involved, to cure the same within such the said thirty (30) day period and thereafter diligently and expeditiously proceeds days its time to do so shall be extended by the time reasonably necessary to cure the same, such thirty (30) day period shall be extended for such time as is reasonably necessary for such Borrower in the exercise of due diligence to cure such Default, such additional period not to exceed one hundred twenty (120) days;
(xixc) if there shall be The filing of a default petition by or against Tenant (i) in any bankruptcy or other insolvency proceeding; (ii) seeking any relief under any state or federal debtor relief law; (iii) for the appointment of a liquidator or receiver for all or substantially all of Tenant’s property or for Tenant’s interest in this Lease; or (iv) for the other Loan Documents beyond any applicable cure periods contained in such documents, whether as to any Borrower, Mortgage Borrower, Senior Mezzanine Borrower, the Collateral, the Senior Mezzanine Collateral reorganization or any Individual Property, or if any other such event shall occur or condition shall existmodification of Tenant’s capital structure; however, if the effect of such event or condition a petition is to accelerate the maturity of any portion of the Debt or to permit Lender to accelerate the maturity of all or any portion of the Debt;
(xx) if the Liens created pursuant to any Loan Document filed against Tenant by non-affiliated third parties, then such filing shall cease to not be a fully protected enforceable first priority security interest in the Collateral, or any portion of the Collateral is Transferred without Lender’s prior written consent except as permitted hereunder; or
(xxi) if a Mortgage Loan Event of Default or Senior Mezzanine Loan Event of Default shall occur.
(b) Upon the occurrence of an Event of Default unless Tenant fails to have the proceedings initiated by such petition dismissed within sixty (other than an Event of Default described in clauses 60) days after filing thereof; and
(vid) or (vii) above) and at any time thereafter, in addition to any other rights or remedies available to The admission by Tenant that it pursuant to this Agreement and the other Loan Documents or at law or in equity, Lender may take such action, without notice or demand, that Lender deems advisable to protect and enforce cannot meet its rights against Borrower and in and to all or any of the Collateral, including, without limitation, declaring the Debt to be immediately due and payable, and Lender may enforce or avail itself of any or all rights or remedies provided in the Loan Documents and may exercise all the rights and remedies of a secured party under the Uniform Commercial Code, obligations as adopted and enacted by the State or States where any of the Collateral is located, against Borrower and any or all of the Collateral, including, without limitation, all rights or remedies available at law or in equity; and upon any Event of Default described in clauses (vi) or (vii) above, the Debt and all other obligations of Borrower hereunder and under the other Loan Documents shall immediately and automatically they become due and payable, without notice or demand, and Borrower hereby expressly waives any such notice or demand, anything contained herein or in any other Loan Document to the contrary notwithstandingmaking by Tenant of an assignment for the benefit of its creditors.
Appears in 3 contracts
Samples: Share Purchase Agreement (AmeriCann, Inc.), Share Purchase Agreement (AmeriCann, Inc.), Share Purchase Agreement (AmeriCann, Inc.)
Event of Default. (a) Each The occurrence of any one or more of the following events shall constitute an event of default hereunder (an “Event of Default”):"EVENT OF DEFAULT":
(ia) if (A) any portion of the Debt is not paid in full on prior to the Maturity Date, tenth (B10th) calendar day following the date the same is due or if the entire Debt Service is not paid in full on or before the related Payment Maturity Date, or (C) any other portion of the Debt is not paid within five (5) days of when due;
(iib) except as otherwise expressly provided in the Loan Documents, if any of the Taxes or Other Charges are not paid (with respect when the same are due and payable, unless there is sufficient money in the Tax and Insurance Reserve Account for payment of amounts then due and payable and Lender's access to each such money has not been constrained or restricted in any Individual Property) prior to Delinquencymanner;
(iiic) if the Policies (with respect to each or any Individual Property) are not kept in full force and effect, or if the Insurance Certificates or certified copies of the Policies (for each Individual Property) are not delivered to Lender upon request (or certificates thereof, if a Policy shall be renewed and certified copies of the Policy are not immediately available upon such renewal (each Borrower agreeing as provided in such instance to provide copies of the Policies to Lender promptly thereafter))Section 8.1;
(ivd) if Borrower breaches (i) any Borrower Transfers covenant with respect to itself or otherwise encumbers any portion SPE Component Entity (if any) contained in Article 6 and (A) such breach is not cured within ten (10) days of the Propertiesoccurrence thereof and (B) if an Insolvency Opinion was delivered to Lender in connection with the closing of the Loan, Borrower fails to deliver to Lender, within such ten (10) day period, a new or revised Insolvency Opinion, in form and substance, and from a source satisfactory to Lender and if the Loan has been Securitized, the Collateral Rating Agencies, to the effect that such breach does not negate or impair the Senior Mezzanine Collateralopinion previously delivered to Lender, or there shall otherwise occur a Transfer without Lender’s prior consent (ii) any covenant contained in violation of the provisions of this Agreement, the Pledge Agreement or any other Loan DocumentArticle 7 hereof;
(ve) if any representation or warranty made by of, or with respect to, Borrower, Borrower Principal, any Borrower SPE Component Entity, or any other Loan Party herein member, general partner, principal or beneficial owner of any of the foregoing, made herein, in any other Loan Document, or in any certificate, report, certificate, financial statement or other instrument, agreement instrument or document or other material or written information furnished to Lender at the time of the closing of the Loan or during the term of the Loan shall have been false or misleading in any material respect as when made;
(f) if (i) Borrower, or any managing member or general partner of the date the representation Borrower, Borrower Principal, or warranty was made any SPE Component Entity (andif any) shall commence any case, proceeding or other action (A) under any Creditors Rights Laws, seeking to have an order for relief entered with respect to any such breach which is not the subject of any other subsection of this Section 8.1 and which is capable of being cured, such Borrower fails to remedy such condition within ten (10) days following notice to Borrower from Lender, in the case of any such breach which can be cured by the payment of a sum of moneyit, or within thirty (30) days following notice from Lender in the case of any other such breach);
(vi) if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower shall make an assignment for the benefit of creditors; or if a receiver, liquidator or trustee shall be appointed for any Borrower, Senior Mezzanine Borrower or Mortgage Borrower, or if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower shall be adjudicated seeking to adjudicate it a bankrupt or insolvent, or if seeking reorganization, or (B) seeking appointment of a receiver, trustee, custodian, conservator or other similar official for it or for all or any petition for bankruptcysubstantial part of its assets, reorganization or arrangement pursuant to federal bankruptcy lawBorrower, any managing member or general partner of Borrower, Borrower Principal, or any similar federal or state law, shall be filed by or against, consented to, or acquiesced in by, Borrower or Senior Mezzanine Borrower, or SPE Component Entity (if any proceeding for the dissolution or liquidation of any Borrower, Senior Mezzanine Borrower or Mortgage Borrower shall be instituted; provided, however, if such appointment, adjudication, petition or proceeding was involuntary and not consented to by any Borrower, Senior Mezzanine Borrower or Mortgage Borrower, upon the same not being discharged, stayed or dismissed within ninety (90any) days;
(vii) if any Operating Company, any Manager, Principal, Holdings or any Guarantor shall make an a general assignment for the benefit of its creditors; or if a receiver, liquidator or trustee (ii) there shall be appointed commenced against Borrower, any managing member or general partner of Borrower, Borrower Principal, or any SPE Component Entity (if any) any case, proceeding or other action of a nature referred to in clause (i) above which (A) results in the entry of an order for relief or any such adjudication or appointment or (B) remains undismissed, undischarged or unbonded for a period of sixty (60) days; or (iii) there shall be commenced against Borrower, any managing member or general partner of Borrower, Borrower Principal, or any SPE Component Entity (if any) any case, proceeding or other action seeking issuance of a warrant of attachment, execution, distraint or similar process against all or any substantial part of its assets which results in the entry of any order for any such Operating Companyrelief which shall not have been vacated, any such Manager, Principal, Holdings or any such Guarantordischarged, or if any Operating Company, any Manager, Principal, Holdings or any Guarantor shall be adjudicated a bankrupt or insolvent, or if any petition for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by or against, consented to, or acquiesced in by, any Operating Company, any Manager, Principal, Holdings or any Guarantor, or if any proceeding for the dissolution or liquidation of any Operating Company, any Manager, Principal, Holdings or any Guarantor shall be instituted; provided, however, if such appointment, adjudication, petition or proceeding was involuntary and not consented to by any such Operating Company, any such Manager, Principal, Holdings or any such Guarantor, upon the same not being discharged, stayed or dismissed bonded pending appeal within ninety sixty (90) days;
(viii) if any Borrower attempts to assign its rights under this Agreement or any of the other Loan Documents or any interest herein or therein in contravention of the Loan Documents;
(ix) if any Borrower breaches any of its respective negative covenants contained in Section 5.2 or any covenant contained in Section 4.1.30 or Section 5.1.11 hereof (and, with respect to any such breach of any covenant set forth in Section 5.1.11 which is not the subject of any other subsection of this Section 8.1, such Borrower fails to remedy such condition within ten (1060) days after notice to Borrower from Lender, in the case of any such Default under Section 5.1.11 which can be cured by the payment of a sum of money, or for thirty (30) days after notice from Lender in the case of any other such Default under Section 5.1.11);
(x) with respect to any term, covenant or provision set forth herein which specifically contains a notice requirement or grace period, if any Borrower shall be in default under such term, covenant or condition after the giving of such notice or the expiration of such grace period;
(xi) if any of the assumptions contained in the Insolvency Opinion delivered in connection with the Loan, or in the Additional Insolvency Opinion delivered subsequent to the closing of the Loan, is or shall become untrue in any material respect; or if any of the assumptions contained in the True Lease Opinion in connection with the Loan, or in the Additional True Lease Opinion delivered subsequent to the closing of the Loan, is or shall become untrue in any material respect;
(xii) if any Mortgage Borrower, any Operating Company or any Guarantor (Operating Lease) is in default of any of its material obligations under any Operating Lease (or under another lease and/or management agreement in substitution for such Operating Lease in accordance herewith) or under any such Operating Lease Guaranty (or under another operating lease guaranty in substitution for such Operating Lease Guaranty in accordance herewith) beyond any applicable notice and cure periods contained therein; or if any Operating Lease (or such other lease and/or management agreement) or any Operating Lease Guaranty (or such other operating lease guaranty) shall be surrendered or any Operating Lease or any Operating Lease Guaranty shall be terminated or canceled for any reason or under any circumstances whatsoever, except with the consent of Lender; or if any of the terms, covenants or conditions of any Operating Lease (or such other lease and/or management agreement) or any Operating Lease Guaranty (or such other operating lease guaranty) shall in any manner be modified, changed, supplemented, altered, restated or amended without the consent of Lender except as may otherwise expressly permitted in this Agreement;
(xiii) intentionally omitted;
(xiv) if any Affiliate of any Borrower that is or becomes a party to the Windstorm Insurance Intercreditor Agreement is in default of any of its material obligations under the Windstorm Insurance Intercreditor Agreement beyond any applicable notice and cure periods contained therein; or if the Windstorm Insurance Intercreditor Agreement shall be surrendered, terminated or canceled for any reason or under any circumstances whatsoever, except with the consent of Lender; or if any of the terms, covenants or conditions of the Windstorm Insurance Intercreditor Agreement shall in any manner be modified, changed, supplemented, altered, restated or amended without the consent of Lender;
(xv) if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower fails to comply with the covenants as to Prescribed Laws set forth in Section 5.1.1 hereof;
(xvi) if a material default has occurred and continues beyond any applicable cure period under any Management Agreement and if such default permits the Manager, the Operating Company or the Mortgage Borrower party thereto to terminate or cancel the Management Agreement in question;
(xvii) any Gaming License shall be refused, suspended, revoked, modified in a materially adverse manner or canceled or allowed to lapse or any proceeding is commenced by any Governmental Authority for the purpose of suspending, revoking or canceling any Gaming License in any materially adverse respect, or any Governmental Authority shall have appointed a conservator, supervisor or trustee to or for any of the Casino Components and, in each case of the foregoing, such action could reasonably be expected to (A) have an Individual Material Adverse Effect, (B) materially and adversely affect the continued operation of the Casino Components in the usual course of business and in substantially the same manner and to at least the same standard as was maintained prior to such action, or (C) result in any material decrease in the then expected cash flow and revenues to be derived from the Casino Components;
(xviii) if any Borrower shall continue to be in Default under any of the other terms, covenants or conditions of this Agreement not specified in subsections (i) to (xvii) above, for ten (10) days after notice to Borrower from Lender, in the case of any Default which can be cured by the payment of a sum of money, or for thirty (30) days after notice from Lender in the case of any other Default; provided, however, that if such non-monetary Default is susceptible of cure but cannot reasonably be cured within such thirty (30) day period and provided further that such Borrower shall have commenced to cure such Default within such thirty (30) day period and thereafter diligently and expeditiously proceeds to cure the same, such thirty (30) day period shall be extended for such time as is reasonably necessary for such Borrower in the exercise of due diligence to cure such Default, such additional period not to exceed one hundred twenty (120) days;
(xix) if there shall be a default under any of the other Loan Documents beyond any applicable cure periods contained in such documents, whether as to any Borrower, Mortgage Borrower, Senior Mezzanine Borrower, the Collateral, the Senior Mezzanine Collateral or any Individual Property, or if any other such event shall occur or condition shall exist, if the effect of such event or condition is to accelerate the maturity of any portion of the Debt or to permit Lender to accelerate the maturity of all or any portion of the Debt;
(xx) if the Liens created pursuant to any Loan Document shall cease to be a fully protected enforceable first priority security interest in the Collateral, or any portion of the Collateral is Transferred without Lender’s prior written consent except as permitted hereunderentry thereof; or
(xxi) if a Mortgage Loan Event of Default or Senior Mezzanine Loan Event of Default shall occur.
(b) Upon the occurrence of an Event of Default (other than an Event of Default described in clauses (vi) or (vii) above) and at any time thereafter, in addition to any other rights or remedies available to it pursuant to this Agreement and the other Loan Documents or at law or in equity, Lender may take such action, without notice or demand, that Lender deems advisable to protect and enforce its rights against Borrower and in and to all or any of the Collateral, including, without limitation, declaring the Debt to be immediately due and payable, and Lender may enforce or avail itself of any or all rights or remedies provided in the Loan Documents and may exercise all the rights and remedies of a secured party under the Uniform Commercial Code, as adopted and enacted by the State or States where any of the Collateral is located, against Borrower and any or all of the Collateral, including, without limitation, all rights or remedies available at law or in equity; and upon any Event of Default described in clauses (vi) or (vii) above, the Debt and all other obligations of Borrower hereunder and under the other Loan Documents shall immediately and automatically become due and payable, without notice or demand, and Borrower hereby expressly waives any such notice or demand, anything contained herein or in any other Loan Document to the contrary notwithstanding.
Appears in 3 contracts
Samples: Loan Agreement (Manufactured Home Communities Inc), Loan Agreement (Manufactured Home Communities Inc), Loan Agreement (Manufactured Home Communities Inc)
Event of Default. (a) Each The occurrence of any one or more of the ---------------- following events shall constitute an event of default hereunder (an “"Event of Default”):"): ----------------
5.1.1. The Pledgor shall fail to pay when due any principal (iwhether at stated maturity, upon acceleration, upon required prepayment or otherwise) if (A) any portion of or other sum due under the Debt Note, which default is not paid in full on the Maturity Date, (B) the Debt Service is not paid in full on or before the related Payment Date, or (C) any other portion of the Debt is not paid within five (5) days of when due;
(ii) if any of the Taxes or Other Charges are not paid (with respect to each or any Individual Property) prior to Delinquency;
(iii) if the Policies (with respect to each or any Individual Property) are not kept in full force and effect, or if certified copies of the Policies (for each Individual Property) are not delivered to Lender upon request (or certificates thereof, if a Policy shall be renewed and certified copies of the Policy are not immediately available upon such renewal (each Borrower agreeing in such instance to provide copies of the Policies to Lender promptly thereafter));
(iv) if any Borrower Transfers or otherwise encumbers any portion of the Properties, the Collateral or the Senior Mezzanine Collateral, or there shall otherwise occur a Transfer without Lender’s prior consent in violation of the provisions of this Agreement, the Pledge Agreement or any other Loan Document;
(v) if any representation or warranty made by any Borrower or any other Loan Party herein or in any other Loan Document, or in any report, certificate, financial statement or other instrument, agreement or document or other material or written information furnished to Lender shall have been false or misleading in any material respect as of the date the representation or warranty was made (and, with respect to any such breach which is not the subject of any other subsection of this Section 8.1 and which is capable of being cured, such Borrower fails to remedy such condition cured within ten (10) business days following after written notice to Borrower from Lender, the Pledgor;
5.1.2. The Pledgor (i) shall default in the case payment, beyond any period of grace provided therefor, of any principal of or interest of the Secured Obligations in an amount exceeding $200,000, or (ii) shall commit any breach of or default under any other term of any agreement or indenture or instrument relating to the Secured Obligations, if the effect of such breach which can or default is to cause, or to permit the Holder (or a person on behalf of such holders) to cause (upon the giving of notice or the lapse of time or both, or otherwise), any such Secured Obligation to become or be cured declared due and payable prior to its stated maturity (or to be, or become required to be, purchased or redeemed prior to its stated maturity) or to cause, or to permit the holder or holders thereof to cause, the Pledgor to be deprived of any of the Pledgor's assets having a value in excess of $200,000;
5.1.3. Any representation or warranty or certification made or furnished by the payment of a sum of money, Pledgor under this Agreement or within thirty (30) days following notice from Lender in the case of any other such breachrelated document shall prove to have been false or incorrect in any material respect when made (or deemed made);
5.1.4. The Pledgor shall fail to perform, comply with or observe any agreement or obligation to be performed or complied with by it under this Agreement (viother than those provisions referred to in Section 5.1.1 above) if or any Borrowerother related document, Senior Mezzanine Borrower and such failure shall not have been remedied within 30 days after notice thereof from the Lender to the Pledgor;
5.1.5. There shall be commenced against the Pledgor an involuntary case seeking the liquidation or Mortgage Borrower reorganization of the Pledgor under Chapter 7, 11 or 13, respectively, of the Bankruptcy Code or any similar proceeding under any other applicable law or an involuntary case or proceeding seeking the appointment of a receiver, liquidator, sequestrator, custodian, trustee or other officer having similar powers of the Pledgor or to take possession of all or a substantial portion of its property or to operate all or a substantial portion of its business, and any of the following events occur: (i) the Pledgor consents to the institution of the involuntary case or proceeding; (ii) the petition commencing the involuntary case or proceeding is not timely controverted; (iii) the petition commencing the involuntary case or proceeding remains undismissed and unstayed for a period of 60 days; or (iv) an order for relief shall have been issued or entered therein;
5.1.6. The Pledgor shall institute a voluntary case seeking liquidation or reorganization under Chapter 7, 11 or 13, respectively, of the Bankruptcy Code or any similar proceeding under any other applicable law, or shall consent thereto; or shall consent to the conversion of an involuntary case to a voluntary case; or shall file a petition, answer a complaint or otherwise institute any proceeding seeking, or shall consent or acquiesce to the appointment of, a receiver, liquidator, sequestrator, custodian, trustee or other officer with similar powers of it or to take possession of all or a substantial portion of its property or to operate all or a substantial portion of its business; or shall make an a general assignment for the benefit of creditors; or if a receivershall generally not pay its debts as they become due; or the board of directors (or any committee thereof) of the Pledgor adopts any resolution or otherwise authorize action to approve any of the foregoing;
5.1.7. This Agreement, liquidator the Note or trustee shall be appointed for any Borrower, Senior Mezzanine Borrower or Mortgage Borrower, or if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower shall be adjudicated a bankrupt or insolvent, or if any petition for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy lawother related document, or any similar federal or state law, shall be filed by or against, consented to, or acquiesced material provision in by, Borrower or Senior Mezzanine Borrower, or if any proceeding for the dissolution or liquidation of any Borrower, Senior Mezzanine Borrower or Mortgage Borrower shall be instituted; provided, however, if such appointment, adjudication, petition or proceeding was involuntary and not consented to by any Borrower, Senior Mezzanine Borrower or Mortgage Borrower, upon the same not being discharged, stayed or dismissed within ninety (90) days;
(vii) if any Operating Company, any Manager, Principal, Holdings or any Guarantor shall make an assignment for the benefit of creditors; or if a receiver, liquidator or trustee shall be appointed for any such Operating Company, any such Manager, Principal, Holdings or any such Guarantor, or if any Operating Company, any Manager, Principal, Holdings or any Guarantor shall be adjudicated a bankrupt or insolvent, or if any petition for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by or against, consented to, or acquiesced in by, any Operating Company, any Manager, Principal, Holdings or any Guarantor, or if any proceeding for the dissolution or liquidation of any Operating Company, any Manager, Principal, Holdings or any Guarantor shall be instituted; provided, however, if such appointment, adjudication, petition or proceeding was involuntary and not consented to by any such Operating Company, any such Manager, Principal, Holdings or any such Guarantor, upon the same not being discharged, stayed or dismissed within ninety (90) days;
(viii) if any Borrower attempts to assign its rights under this Agreement or any of the other Loan Documents or any interest herein or therein in contravention of the Loan Documents;
(ix) if any Borrower breaches any of its respective negative covenants contained in Section 5.2 or any covenant contained in Section 4.1.30 or Section 5.1.11 hereof (andthem, with respect to any such breach of any covenant set forth in Section 5.1.11 which is not the subject of any other subsection of this Section 8.1, such Borrower fails to remedy such condition within ten (10) days after notice to Borrower from Lender, in the case of any such Default under Section 5.1.11 which can be cured by the payment of a sum of money, or for thirty (30) days after notice from Lender in the case of any other such Default under Section 5.1.11);
(x) with respect to any term, covenant or provision set forth herein which specifically contains a notice requirement or grace period, if any Borrower shall be in default under such term, covenant or condition after the giving of such notice or the expiration of such grace period;
(xi) if any of the assumptions contained in the Insolvency Opinion delivered in connection with the Loan, or in the Additional Insolvency Opinion delivered subsequent to the closing of the Loan, is or shall become untrue in any material respect; or if any of the assumptions contained in the True Lease Opinion in connection with the Loan, or in the Additional True Lease Opinion delivered subsequent to the closing of the Loan, is or shall become untrue in any material respect;
(xii) if any Mortgage Borrower, any Operating Company or any Guarantor (Operating Lease) is in default of any of its material obligations under any Operating Lease (or under another lease and/or management agreement in substitution for such Operating Lease in accordance herewith) or under any such Operating Lease Guaranty (or under another operating lease guaranty in substitution for such Operating Lease Guaranty in accordance herewith) beyond any applicable notice and cure periods contained therein; or if any Operating Lease (or such other lease and/or management agreement) or any Operating Lease Guaranty (or such other operating lease guaranty) shall be surrendered or any Operating Lease or any Operating Lease Guaranty shall be terminated or canceled for any reason or under any circumstances whatsoever, except with the consent of Lender; or if any of the terms, covenants or conditions of any Operating Lease (or such other lease and/or management agreement) or any Operating Lease Guaranty (or such other operating lease guaranty) shall in any manner be modified, changed, supplemented, altered, restated or amended without the consent of Lender except as may otherwise expressly permitted in this Agreement;
(xiii) intentionally omitted;
(xiv) if any Affiliate of any Borrower that is or becomes a party to the Windstorm Insurance Intercreditor Agreement is in default of any of its material obligations under the Windstorm Insurance Intercreditor Agreement beyond any applicable notice and cure periods contained therein; or if the Windstorm Insurance Intercreditor Agreement shall be surrendered, terminated or canceled for any reason or under any circumstances whatsoever, except with the consent of Lender; or if any of the terms, covenants or conditions of the Windstorm Insurance Intercreditor Agreement shall in any manner be modified, changed, supplemented, altered, restated or amended without the consent of Lender;
(xv) if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower fails to comply with the covenants as to Prescribed Laws set forth in Section 5.1.1 hereof;
(xvi) if a material default has occurred and continues beyond any applicable cure period under any Management Agreement and if such default permits the Manager, the Operating Company or the Mortgage Borrower party thereto to terminate or cancel the Management Agreement in question;
(xvii) any Gaming License shall be refused, suspended, revoked, modified in a materially adverse manner or canceled or allowed to lapse or any proceeding is commenced by any Governmental Authority for the purpose of suspending, revoking or canceling any Gaming License in any materially adverse respect, or any Governmental Authority shall have appointed a conservator, supervisor or trustee to or for any of the Casino Components and, in each case of the foregoing, such action could reasonably be expected to (A) have an Individual Material Adverse Effect, (B) materially and adversely affect the continued operation of the Casino Components in the usual course of business and in substantially the same manner and to at least the same standard as was maintained prior to such action, or (C) result in any material decrease in the then expected cash flow and revenues to be derived from the Casino Components;
(xviii) if any Borrower shall continue to be in Default under any of the other terms, covenants or conditions of this Agreement not specified in subsections (i) to (xvii) above, for ten (10) days after notice to Borrower from Lender, in the case of any Default which can be cured by the payment of a sum of money, or for thirty (30) days after notice from Lender in the case of any other Default; provided, however, that if such non-monetary Default is susceptible of cure but cannot reasonably be cured within such thirty (30) day period and provided further that such Borrower shall have commenced to cure such Default within such thirty (30) day period and thereafter diligently and expeditiously proceeds to cure the same, such thirty (30) day period shall be extended for such time as is reasonably necessary for such Borrower in the exercise of due diligence to cure such Default, such additional period not to exceed one hundred twenty (120) days;
(xix) if there shall be a default under any of the other Loan Documents beyond any applicable cure periods contained in such documents, whether as to any Borrower, Mortgage Borrower, Senior Mezzanine Borrower, the Collateral, the Senior Mezzanine Collateral or any Individual Property, or if any other such event shall occur or condition shall exist, if the effect of such event or condition is to accelerate the maturity of any portion of the Debt or to permit Lender to accelerate the maturity of all or any portion of the Debt;
(xx) if the Liens created pursuant to any Loan Document shall cease to be in full force and effect as against the Pledgor for any reason other than a fully protected enforceable first priority security interest in release or termination thereof upon the Collateralpayment and satisfaction of the Secured Obligations thereunder pursuant to its terms, or any portion of the Collateral is Transferred without Lender’s prior written consent except as permitted hereunder; or
(xxi) if a Mortgage Loan Event of Default Pledgor shall contest or Senior Mezzanine Loan Event of Default shall occur.
(b) Upon the occurrence of an Event of Default (other than an Event of Default described in clauses (vi) purport to repudiate or (vii) above) and at any time thereafter, in addition to any other rights or remedies available to it pursuant to this Agreement and the other Loan Documents or at law or in equity, Lender may take such action, without notice or demand, that Lender deems advisable to protect and enforce its rights against Borrower and in and to all or disavow any of its obligations thereunder or the Collateral, including, without limitation, declaring the Debt to be immediately due and payable, and Lender may enforce or avail itself validity of any or all rights or remedies provided in the Loan Documents and may exercise all the rights and remedies of a secured party under the Uniform Commercial Code, as adopted and enacted by the State or States where any of the Collateral is located, against Borrower and any or all of the Collateral, including, without limitation, all rights or remedies available at law or in equity; and upon any Event of Default described in clauses (vi) or (vii) above, the Debt and all other obligations of Borrower hereunder and under the other Loan Documents shall immediately and automatically become due and payable, without notice or demand, and Borrower hereby expressly waives any such notice or demand, anything contained herein or in any other Loan Document to the contrary notwithstandingenforceability thereof.
Appears in 3 contracts
Samples: Stock Pledge Agreement (Craig Corp), Stock Pledge Agreement (Craig Corp), Stock Pledge Agreement (Citadel Holding Corp)
Event of Default. (a) Each of the following events shall constitute an event of default hereunder (an “Event of Default”"EVENT OF DEFAULT"):
(i) if (A) any portion of the Debt is not paid in full on the Maturity Date, (B) the Debt Service is not paid in full on or before the related Payment Date, or (C) any other portion of the Debt is not paid within five (5) days of when duethe applicable due date;
(ii) if any of the Taxes or Other Charges are not paid (with respect to each or any Individual Property) prior to Delinquencythe date when the same become delinquent, except to the extent that Borrower is contesting same in accordance with the terms of Section 5.1.2 hereof, or there are sufficient funds in the Tax and Insurance Escrow Fund to pay such Taxes or Other Charges and Lender fails to or refuses to release the same from the Tax and Insurance Escrow Fund;
(iii) if the Policies (with respect to each or any Individual Property) are not kept in full force and effect, or if certified copies of the Policies (for each Individual Property) are not delivered to Lender upon request within ten (or certificates thereof, if a Policy shall be renewed and certified copies 10) days of the Policy are not immediately available upon such renewal (each Borrower agreeing in such instance to provide copies of the Policies to Lender promptly thereafter))request;
(iv) if any Borrower Transfers transfers or otherwise encumbers any portion of the Properties, the Collateral or the Senior Mezzanine Collateral, or there shall otherwise occur a Transfer Property without Lender’s 's prior written consent in violation of (to extent such consent is required) or otherwise violates the provisions of Section 5.2.13 of this Loan Agreement, the Pledge Agreement or any other Loan Document;
(v) if any material representation or warranty made by any Borrower or any other Loan Party herein or in any other Loan Document, or in any report, certificate, financial statement or other instrument, agreement or document or other material or written information furnished to Lender shall have been false or misleading in any material respect as of the date the representation or warranty was made (and, with respect to any such breach which is not the subject of any other subsection of this Section 8.1 and which is capable of being cured, such Borrower fails to remedy such condition within ten (10) days following notice to Borrower from Lender, in the case of any such breach which can be cured by the payment of a sum of money, or within thirty (30) days following notice from Lender in the case of any other such breach)made;
(vi) if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower indemnitor or any guarantor under any guaranty or indemnity issued in connection with the Loan shall make an assignment for the benefit of creditors; or ;
(vii) if a receiver, liquidator or trustee shall be appointed for any Borrower, Senior Mezzanine Borrower or Mortgage Borrower, any guarantor or indemnitor under any guarantee or indemnity issued in connection with the Loan or if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower such guarantor or indemnitor shall be adjudicated a bankrupt or insolvent, or if any petition for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by or against, consented to, or acquiesced in by, Borrower or Senior Mezzanine Borrowersuch guarantor or indemnitor, or if any proceeding for the dissolution or liquidation of any Borrower, Senior Mezzanine Borrower or Mortgage Borrower such guarantor or indemnitor shall be instituted; providedPROVIDED, howeverHOWEVER, if such appointment, adjudication, petition or proceeding was involuntary and not consented to by any Borrower, Senior Mezzanine Borrower or Mortgage Borrowersuch guarantor or indemnitor, upon the same not being discharged, stayed or dismissed within ninety one hundred eighty (90) days;
(vii) if any Operating Company, any Manager, Principal, Holdings or any Guarantor shall make an assignment for the benefit of creditors; or if a receiver, liquidator or trustee shall be appointed for any such Operating Company, any such Manager, Principal, Holdings or any such Guarantor, or if any Operating Company, any Manager, Principal, Holdings or any Guarantor shall be adjudicated a bankrupt or insolvent, or if any petition for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by or against, consented to, or acquiesced in by, any Operating Company, any Manager, Principal, Holdings or any Guarantor, or if any proceeding for the dissolution or liquidation of any Operating Company, any Manager, Principal, Holdings or any Guarantor shall be instituted; provided, however, if such appointment, adjudication, petition or proceeding was involuntary and not consented to by any such Operating Company, any such Manager, Principal, Holdings or any such Guarantor, upon the same not being discharged, stayed or dismissed within ninety (90180) days;
(viii) if any Borrower attempts to assign its rights under this Agreement or any of the other Loan Documents or any interest herein or therein in contravention of the Loan Documents;
(ix) if any Borrower breaches any of its respective negative covenants contained in Section 5.2 or any covenant contained in Section 4.1.30 or Section 5.1.11 hereof (and, with respect to any such breach of any covenant set forth in Section 5.1.11 which is not the subject of any other subsection of this Section 8.1, such Borrower fails to remedy such condition within ten (10) days after notice to Borrower from Lender, in the case of any such Default under Section 5.1.11 which can be cured by the payment of a sum of money, or for thirty (30) days after notice from Lender in the case of any other such Default under Section 5.1.11)hereof;
(x) with respect to any term, covenant or provision set forth herein which specifically contains a notice requirement or grace period, if any Borrower shall be in default under such term, covenant or condition after the giving of such notice or the expiration of such grace period;
(xi) if any of the assumptions contained in the any Insolvency Opinion delivered in connection with the Loan, or in the Additional Insolvency Opinion delivered subsequent to the closing of the Loan, is or shall become untrue in any material respect; or if any of the assumptions contained in the True Lease Opinion in connection with the Loan, or in the Additional True Lease Opinion delivered subsequent to the closing of the Loan, is are or shall become untrue in any material respect;
(xii) if any Mortgage Borrower, any Operating Company or any Guarantor (Operating Lease) is in default of any of its material obligations under any Operating Lease (or under another lease and/or management agreement in substitution for such Operating Lease in accordance herewith) or under any such Operating Lease Guaranty (or under another operating lease guaranty in substitution for such Operating Lease Guaranty in accordance herewith) beyond any applicable notice and cure periods contained therein; or if any Operating Lease (or such other lease and/or management agreement) or any Operating Lease Guaranty (or such other operating lease guaranty) shall be surrendered or any Operating Lease or any Operating Lease Guaranty shall be terminated or canceled for any reason or under any circumstances whatsoever, except with the consent of Lender; or if any of the terms, covenants or conditions of any Operating Lease (or such other lease and/or management agreement) or any Operating Lease Guaranty (or such other operating lease guaranty) shall in any manner be modified, changed, supplemented, altered, restated or amended without the consent of Lender except as may otherwise expressly permitted in this Agreement;
(xiii) intentionally omitted;
(xiv) if any Affiliate of any Borrower that is or becomes a party to the Windstorm Insurance Intercreditor Agreement is in default of any of its material obligations under the Windstorm Insurance Intercreditor Agreement beyond any applicable notice and cure periods contained therein; or if the Windstorm Insurance Intercreditor Agreement shall be surrendered, terminated or canceled for any reason or under any circumstances whatsoever, except with the consent of Lender; or if any of the terms, covenants or conditions of the Windstorm Insurance Intercreditor Agreement shall in any manner be modified, changed, supplemented, altered, restated or amended without the consent of Lender;
(xv) if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower fails to comply with the covenants as to Prescribed Laws set forth in Section 5.1.1 hereof;
(xvi) if a material default has occurred and continues beyond any applicable cure period under any Management Agreement and if such default permits the Manager, the Operating Company or the Mortgage Borrower party thereto to terminate or cancel the Management Agreement in question;
(xvii) any Gaming License shall be refused, suspended, revoked, modified in a materially adverse manner or canceled or allowed to lapse or any proceeding is commenced by any Governmental Authority for the purpose of suspending, revoking or canceling any Gaming License in any materially adverse respect, or any Governmental Authority shall have appointed a conservator, supervisor or trustee to or for any of the Casino Components and, in each case of the foregoing, such action could reasonably be expected to (A) have an Individual Material Adverse Effect, (B) materially and adversely affect the continued operation of the Casino Components in the usual course of business and in substantially the same manner and to at least the same standard as was maintained prior to such action, or (C) result in any material decrease in the then expected cash flow and revenues to be derived from the Casino Components;
(xviii) if any Borrower shall continue to be in Default under any of the other terms, covenants or conditions of this Agreement not specified in subsections (i) to (xviixi) above, for ten (10) days after notice to Borrower from Lender, in the case of any Default which can be cured by the payment of a sum of money, or for thirty (30) days after notice from Lender in the case of any other Default; providedPROVIDED, howeverHOWEVER, that if such non-monetary Default is susceptible of cure but cannot reasonably be cured within such thirty (30) -day period and provided further that such Borrower shall have commenced to cure such Default within such thirty (30) -day period and thereafter diligently and expeditiously proceeds to cure the same, such thirty (30) -day period shall be extended for such time as is reasonably necessary for such Borrower in the exercise of due diligence to cure such Default, such additional period not to exceed one hundred twenty eighty (120180) days;; or
(xixxiii) if there shall be a default under any of the other Loan Documents beyond any applicable cure periods contained in such documents, whether as to any Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Borrower or the Collateral, the Senior Mezzanine Collateral or any Individual Property, or if any other such event shall occur or condition shall exist, if the effect of such event or condition is to accelerate the maturity of any portion of the Debt or to permit Lender to accelerate the maturity of all or any portion of the Debt;
(xx) if the Liens created pursuant to any Loan Document shall cease to be a fully protected enforceable first priority security interest in the Collateral, or any portion of the Collateral is Transferred without Lender’s prior written consent except as permitted hereunder; or
(xxi) if a Mortgage Loan Event of Default or Senior Mezzanine Loan Event of Default shall occur.
(b) Upon the occurrence of an Event of Default (other than an Event of Default described in clauses (vi), (vii) or (viiviii) above) and at any time thereafterthereafter Lender may, in addition to any other rights or remedies available to it pursuant to this Agreement and the other Loan Documents or at law or in equity, Lender may take such action, without notice or demand, that Lender deems advisable to protect and enforce its rights against Borrower and in and to all or any of the CollateralProperty, including, without limitation, declaring the Debt to be immediately due and payable, and Lender may enforce or avail itself of any or all rights or remedies provided in the Loan Documents and may exercise all the rights and remedies of a secured party under the Uniform Commercial Code, as adopted and enacted by the State or States where any of the Collateral is located, against Borrower and any or all of the CollateralProperty, including, without limitation, all rights or remedies available at law or in equity; and upon any Event of Default described in clauses (vi), (vii) or (viiviii) above, the Debt and all other obligations of Borrower hereunder and under the other Loan Documents shall immediately and automatically become due and payable, without notice or demand, and Borrower hereby expressly waives any such notice or demand, anything contained herein or in any other Loan Document to the contrary notwithstanding.
Appears in 3 contracts
Samples: Loan Agreement (Inland Western Retail Real Estate Trust Inc), Loan Agreement (Inland Western Retail Real Estate Trust Inc), Loan Agreement (Inland Western Retail Real Estate Trust Inc)
Event of Default. (a) Each The occurrence of one or more of the following events shall constitute be an event “Event of default hereunder Default” hereunder:
(a) if Borrower fails to (i) make any scheduled payment of principal, interest, or amounts due under Article 2 on any Payment Date, or (ii) pay any other amount payable pursuant to the Loan Documents within 5 days after written notice from Lender (provided such notice and cure period shall not apply to the payment due on the Maturity Date)
(b) if the Borrowers fail to pay the outstanding Indebtedness on the Maturity Date;
(c) if on any Payment Date the Borrowers fail to pay the Tax and Insurance Monthly Installment;
(d) the occurrence of the events identified elsewhere in the Loan Documents as constituting an “Event of Default”):
(i) if (A) any portion of the Debt is not paid in full on the Maturity Date, (B) the Debt Service is not paid in full on or before the related Payment Date, or (C) any other portion of the Debt is not paid within five (5) days of when due;
(iie) if any breach of the Taxes or Other Charges are not paid (with respect to each or any Individual Property) prior to Delinquency;
(iii) if the Policies (with respect to each or any Individual Property) are not kept in full force and effectSections 2.11, or if certified copies of the Policies (for each Individual Property) are not delivered to Lender upon request (or certificates thereofSection 2.14, if a Policy shall be renewed and certified copies of the Policy are not immediately available upon such renewal (each Borrower agreeing in such instance to provide copies of the Policies to Lender promptly thereafterSection 5.1(r), Section 5.1(t), Section 5.1(u), Section 5.1(v), Section 6.1(b);
(iv) if any Borrower Transfers or otherwise encumbers any portion of the Properties, the Collateral or the Senior Mezzanine Collateral, or there shall otherwise occur a Transfer without Lender’s prior consent in violation of the provisions of this Agreement, the Pledge Agreement or any other Loan Document;
(vf) if any representation or warranty made herein by any Borrower Borrowers or any other Loan Party herein Operating Lessee or in any other Loan Document, or in any report, certificate, financial statement or other instrumentInstrument, agreement or document furnished by any Borrower or Operating Lessee in connection with this Agreement, the Note or any other material Loan Document executed and delivered by such Borrower or written information furnished to Lender Operating Lessee, as applicable, shall have been be false or misleading in any material respect as of the date the such representation or warranty was made (and, with respect to any such breach which is not the subject of any other subsection of this Section 8.1 and which is capable of being cured, such Borrower fails to remedy such condition within ten (10) days following notice to Borrower from Lender, in the case of any such breach which can be cured by the payment of a sum of money, or within thirty (30) days following notice from Lender in the case of any other such breach)remade;
(vig) if any Borrower, Senior Mezzanine Borrower any of such Borrower’s partners or Mortgage Borrower shall make members, as applicable, Operating Lessee, or any SPE Equity Owner makes an assignment for the benefit of creditors; or ;
(h) if a receiver, liquidator or trustee shall be appointed for any Borrower, Senior Mezzanine Borrower any of such Borrower’s partners, members or Mortgage Borrowershareholders, as applicable, or any SPE Equity Owner or if any Borrower, Senior Mezzanine Borrower any of such Borrower’s partners, members or Mortgage Borrower shareholders, as applicable, Operating Lessee or any SPE Equity Owner shall be adjudicated a as bankrupt or insolvent, or if any petition for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by or against, consented to, or acquiesced in by, Borrower or Senior Mezzanine by such Borrower, any of such Borrower’s partners, members or shareholders, as applicable, Operating Lessee or any SPE Equity Owner or if any proceeding for the dissolution or liquidation of any such Borrower, Senior Mezzanine Borrower any of such Borrower’s partners, members or Mortgage Borrower shareholders, as applicable, Operating Lessee or any SPE Equity Owner shall be instituted; provided, however, that if such appointment, adjudication, petition or proceeding was involuntary and not consented to by any such Borrower, Senior Mezzanine Borrower any of such Borrower’s partners, members or Mortgage Borrowershareholders, as applicable, Operating Lessee or any SPE Equity Owner as the case may be, upon the same not being discharged, stayed or dismissed within ninety (90) days; or if such Borrower, any of such Borrower’s partners, members or shareholders, as applicable, Operating Lessee or any SPE Equity Owner shall generally not be paying its debts as they become due;
(viii) if any Operating Companyexcept as otherwise permitted by the Loan Documents, any Manager, Principal, Holdings or any Guarantor shall make an assignment for the benefit of creditors; or if a receiver, liquidator or trustee shall be appointed for any such Operating Company, any such Manager, Principal, Holdings or any such Guarantor, or if any Operating Company, any Manager, Principal, Holdings or any Guarantor shall be adjudicated a bankrupt or insolvent, or if any petition for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by or against, consented to, or acquiesced in by, any Operating Company, any Manager, Principal, Holdings or any Guarantor, or if any proceeding for the dissolution or liquidation of any Operating Company, any Manager, Principal, Holdings or any Guarantor shall be instituted; provided, however, if such appointment, adjudication, petition or proceeding was involuntary and not consented to by any such Operating Company, any such Manager, Principal, Holdings or any such Guarantor, upon the same not being discharged, stayed or dismissed within ninety (90) days;
(viii) if any Borrower or Operating Lessee attempts to delegate its obligations or assign its rights under this Agreement or Agreement, any of the other Loan Documents or any interest herein or therein in contravention of the Loan Documentstherein;
(ixj) if any provision of any organizational document of any Borrower, Operating Lessee or any SPE Equity Owner is amended or modified in any respect, or if any Borrower, Operating Lessee, any SPE Equity Owner or any of their respective partners, members, or shareholders as applicable, fails to perform or enforce the provisions of such organizational documents or attempts to dissolve any Borrower, Operating Lessee or any SPE Equity Owner; or if any Borrower, Operating Lessee or any SPE Equity Owner or any of their respective partners, members or shareholders, as applicable, breaches any of the covenants set forth in Sections 5.1(r), or 6.1(d);
(k) if any Borrower, SPE Equity Owner or Operating Lessee enters into any interest rate cap protection agreement, interest rate swap, interest rate hedge agreement or any similar agreement other than the Interest Rate Cap Agreement or unless consented to by Lender in its reasonable discretion;
(l) if an event or condition specified in Section 5.1(q) shall occur or exist with respect to any Plan, Multiemployer Plan or plan and, as a result of such event or condition, together with all other such events or conditions, Borrower or any ERISA Affiliate or any affiliate shall incur or in the opinion of Lender shall be reasonably likely to incur a liability to a Plan, a Multiemployer Plan, PBGC or plan (or any combination of the foregoing) which would constitute, in the determination of Lender, a Material Adverse Effect;
(m) if without Lender’s prior written consent (A) any Manager resigns or is removed or is replaced, (B) intentionally omitted, (C) any Management Agreement is entered into for any Individual Property or (D) there is any change in or termination of any Management Agreement for any Individual Property;
(n) if without Lender’s prior written consent or except as permitted by the Loan Documents (A) any Franchisor resigns or is removed or is replaced, or (B) any Franchise Agreement is entered into for any Individual Property or (C) there is any material change in or termination of any Franchise Agreement for any Individual Property;
(o) if without Lender’s prior written consent or except as permitted by the Loan Documents (A) any Operating Lessee resigns or is removed or is replaced, (B) intentionally omitted, (C) any Operating Lease is entered into for any Individual Property or (D) there is any change in or termination of any Operating Lease;
(p) if any Borrower breaches or Operating Lessee shall be in default under any of its respective negative covenants contained in Section 5.2 the other obligations, agreements, undertakings, terms, covenants, provisions or any covenant contained in Section 4.1.30 or Section 5.1.11 hereof (and, with respect to any such breach of any covenant set forth in Section 5.1.11 which is not the subject of any other subsection conditions of this Agreement, the Note, any Mortgage or the other Loan Documents, not otherwise referred to in this Section 8.17.1, such Borrower fails to remedy such condition within for ten (10) days after written notice to any Borrower from LenderLender or its successors or assigns, in the case of any such Default under Section 5.1.11 default which can be cured by the payment of a commercially reasonable sum of money, money or for thirty (30) days after written notice from Lender or its successors or assigns, in the case of any other such Default under Section 5.1.11);
default (x) with respect to any term, covenant or provision set forth unless otherwise provided herein which specifically contains a notice requirement or grace period, if any Borrower shall be in default under such term, covenant or condition after the giving of such notice or the expiration of such grace period;
(xi) if any of the assumptions contained in the Insolvency Opinion delivered in connection with the Loan, or in the Additional Insolvency Opinion delivered subsequent to the closing of the Loan, is or shall become untrue in any material respect; or if any of the assumptions contained in the True Lease Opinion in connection with the Loan, or in the Additional True Lease Opinion delivered subsequent to the closing of the Loan, is or shall become untrue in any material respect;
(xii) if any Mortgage Borrower, any Operating Company or any Guarantor (Operating Lease) is in default of any of its material obligations under any Operating Lease (or under another lease and/or management agreement in substitution for such Operating Lease in accordance herewith) or under any such Operating Lease Guaranty (or under another operating lease guaranty in substitution for such Operating Lease Guaranty in accordance herewith) beyond any applicable notice and cure periods contained therein; or if any Operating Lease (or such other lease and/or management agreement) or any Operating Lease Guaranty (or such other operating lease guaranty) shall be surrendered or any Operating Lease or any Operating Lease Guaranty shall be terminated or canceled for any reason or under any circumstances whatsoever, except with the consent of Lender; or if any of the terms, covenants or conditions of any Operating Lease (or such other lease and/or management agreement) or any Operating Lease Guaranty (or such other operating lease guaranty) shall in any manner be modified, changed, supplemented, altered, restated or amended without the consent of Lender except as may otherwise expressly permitted in this Agreement;
(xiii) intentionally omitted;
(xiv) if any Affiliate of any Borrower that is or becomes a party to the Windstorm Insurance Intercreditor Agreement is in default of any of its material obligations under the Windstorm Insurance Intercreditor Agreement beyond any applicable notice and cure periods contained therein; or if the Windstorm Insurance Intercreditor Agreement shall be surrendered, terminated or canceled for any reason or under any circumstances whatsoever, except with the consent of Lender; or if any of the terms, covenants or conditions of the Windstorm Insurance Intercreditor Agreement shall in any manner be modified, changed, supplemented, altered, restated or amended without the consent of Lender;
(xv) if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower fails to comply with the covenants as to Prescribed Laws set forth in Section 5.1.1 hereof;
(xvi) if a material default has occurred and continues beyond any applicable cure period under any Management Agreement and if such default permits the Manager, the Operating Company or the Mortgage Borrower party thereto to terminate or cancel the Management Agreement in question;
(xvii) any Gaming License shall be refused, suspended, revoked, modified in a materially adverse manner or canceled or allowed to lapse or any proceeding is commenced by any Governmental Authority for the purpose of suspending, revoking or canceling any Gaming License in any materially adverse respect, or any Governmental Authority shall have appointed a conservator, supervisor or trustee to or for any of the Casino Components and, in each case of the foregoing, such action could reasonably be expected to (A) have an Individual Material Adverse Effect, (B) materially and adversely affect the continued operation of the Casino Components in the usual course of business and in substantially the same manner and to at least the same standard as was maintained prior to such action, or (C) result in any material decrease in the then expected cash flow and revenues to be derived from the Casino Components;
(xviii) if any Borrower shall continue to be in Default under any of the other terms, covenants or conditions of this Agreement not specified in subsections (i) to (xvii) above, for ten (10) days after notice to Borrower from Lender, in the case of any Default which can be cured by the payment of a sum of money, or for thirty (30) days after notice from Lender in the case of any other DefaultLoan Document); provided, however, that if such non-monetary Default default under this subparagraph is susceptible of cure but cannot reasonably be cured within such thirty (30) day period and provided further that such Borrower shall have commenced to cure such Default default within such thirty (30) day period and thereafter diligently and expeditiously proceeds to cure the same, such thirty (30) day period shall be extended for such time as is reasonably necessary for such Borrower in the exercise of due diligence to cure such Defaultdefault, but in no event shall such additional period not to exceed one hundred twenty ninety (12090) daysdays after the original notice from Lender;
(xixq) if there any Operating Lessee is in default beyond any applicable notice, grace or cure period under the applicable Operating Lease;
(r) if an “Event of Default” shall be a default occur under any Subordination, Attornment and Security Agreement;
(s) if any Borrower or Operating Lessee breaches Section 9(b) of any Collection Account Agreement;
(t) if any of the other Loan Documents beyond any applicable cure periods contained assumptions set forth in such documents, whether that certain non-consolidation opinion from the Borrowers’ counsel to Lender dated as to any Borrower, Mortgage Borrower, Senior Mezzanine Borrower, the Collateral, the Senior Mezzanine Collateral or any Individual Property, or if any other such event shall occur or condition shall exist, if the effect of such event or condition is to accelerate the maturity of any portion of the Debt or to permit Lender to accelerate the maturity of all or date hereof shall be untrue in any portion of the Debt;material respect; and
(xxu) if Borrower’s failure to comply with the Liens created pursuant to any Loan Document shall cease to be a fully protected enforceable first priority security interest covenants set forth in the Collateral, or any portion Section 5.1(u) of the Collateral is Transferred without Lender’s prior written consent except as permitted hereunder; or
(xxi) if a Mortgage Loan Event of Default or Senior Mezzanine Loan Event of Default shall occurthis Agreement.
(b) Upon the occurrence of an Event of Default (other than an Event of Default described in clauses (vi) or (vii) above) and at any time thereafter, in addition to any other rights or remedies available to it pursuant to this Agreement and the other Loan Documents or at law or in equity, Lender may take such action, without notice or demand, that Lender deems advisable to protect and enforce its rights against Borrower and in and to all or any of the Collateral, including, without limitation, declaring the Debt to be immediately due and payable, and Lender may enforce or avail itself of any or all rights or remedies provided in the Loan Documents and may exercise all the rights and remedies of a secured party under the Uniform Commercial Code, as adopted and enacted by the State or States where any of the Collateral is located, against Borrower and any or all of the Collateral, including, without limitation, all rights or remedies available at law or in equity; and upon any Event of Default described in clauses (vi) or (vii) above, the Debt and all other obligations of Borrower hereunder and under the other Loan Documents shall immediately and automatically become due and payable, without notice or demand, and Borrower hereby expressly waives any such notice or demand, anything contained herein or in any other Loan Document to the contrary notwithstanding.
Appears in 3 contracts
Samples: Loan Agreement, Loan Agreement (Ashford Hospitality Trust Inc), Loan Agreement (Ashford Hospitality Trust Inc)
Event of Default. (a) Each If any of the following events shall occur, it is hereby defined as and declared to be and to constitute an event of default hereunder (an “"Event of Default”):":
(ia) if (A) any portion of failure by the Debt is not paid in full on the Maturity Date, (B) the Debt Service is not paid in full on or before the related Payment DateGovernmental Agency to pay, or (C) cause to be paid, any other portion of the Debt is not Loan Repayment required to be paid within five (5) days of hereunder when due, which failure shall continue for a period of thirty (30) days;
(iib) failure by the Governmental Agency to make, or cause to be made, any required payments of interest and principal, redemption premium, if any, and interest on any bonds, notes, or other obligations of the Taxes or Other Charges Governmental Agency for borrowed money (other than the Loan and the Governmental Agency Bond), after giving effect to the applicable grace period, the payments of which are not paid (with respect to each or any Individual secured by the Pledged Property) prior to Delinquency;
(iiic) failure by the Governmental Agency to observe and perform any duty, covenant, obligation or agreement on its part to be observed or performed under this Loan Agreement other than as referred to in Paragraph (a) of this Section, which failure shall continue for a period of thirty (30) days after written notice, specifying such failure and requesting that it be remedied, is given to the Governmental Agency; provided, however, that if the Policies (with respect to each or any Individual Property) are not kept in full force and effect, or if certified copies of the Policies (for each Individual Property) are not delivered to Lender upon request (or certificates thereof, if a Policy shall be renewed and certified copies of the Policy are not immediately available upon such renewal (each Borrower agreeing failure stated in such instance notice is correctable, but cannot be corrected within the applicable period, the Authority may consent to provide copies an extension of such time if corrective action is instituted by the Policies to Lender promptly thereafter))Governmental Agency within the applicable period and diligently pursued until the Event of Default is corrected;
(ivd) if any Borrower Transfers representation made by or otherwise encumbers any portion on behalf of the Properties, the Collateral or the Senior Mezzanine Collateral, or there shall otherwise occur a Transfer without Lender’s prior consent Governmental Agency contained in violation of the provisions of this Loan Agreement, the Pledge Agreement or any other Loan Document;
(v) if any representation or warranty made by any Borrower or any other Loan Party herein or in any other Loan Document, or in any reportinstrument furnished in compliance with or with reference to this Loan Agreement or the Loan, certificate, financial statement or other instrument, agreement or document or other material or written information furnished to Lender shall have been is false or misleading in any material respect as of respect; or
(e) (i) a petition is filed by or against the Governmental Agency under any federal or state bankruptcy or insolvency law, or other similar law in effect on the date the representation or warranty was made (and, with respect to any such breach which is not the subject of any other subsection of this Section 8.1 and which is capable of being curedLoan Agreement or thereafter enacted, such Borrower fails to remedy such condition within ten (10) days following notice to Borrower from Lender, unless in the case of any such breach which can petition filed against the Governmental Agency such petition shall be cured by the payment of a sum of money, or dismissed within thirty (30) days following notice from Lender in after such filing, and such dismissal shall be final and not subject to appeal; or (ii) the case of any other such breach);
(vi) if any BorrowerGovernmental Agency shall become insolvent, Senior Mezzanine Borrower or Mortgage Borrower shall bankrupt or make an assignment for the benefit of its creditors; or if a receiver, liquidator or trustee shall be appointed for any Borrower, Senior Mezzanine Borrower or Mortgage Borrower, or if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower shall be adjudicated a bankrupt or insolvent, or if any petition for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by or against, consented to, or acquiesced in by, Borrower or Senior Mezzanine Borrower, or if any proceeding for the dissolution or liquidation of any Borrower, Senior Mezzanine Borrower or Mortgage Borrower shall be instituted; provided, however, if such appointment, adjudication, petition or proceeding was involuntary and not consented to by any Borrower, Senior Mezzanine Borrower or Mortgage Borrower, upon the same not being discharged, stayed or dismissed within ninety (90iii) days;
custodian (vii) if any Operating Company, any Manager, Principal, Holdings or any Guarantor shall make an assignment for the benefit of creditors; or if a receiver, liquidator or trustee shall be appointed for any such Operating Company, any such Manager, Principal, Holdings or any such Guarantor, or if any Operating Company, any Manager, Principal, Holdings or any Guarantor shall be adjudicated a bankrupt or insolvent, or if any petition for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by or against, consented to, or acquiesced in by, any Operating Company, any Manager, Principal, Holdings or any Guarantor, or if any proceeding for the dissolution or liquidation of any Operating Company, any Manager, Principal, Holdings or any Guarantor shall be instituted; provided, however, if such appointment, adjudication, petition or proceeding was involuntary and not consented to by any such Operating Company, any such Manager, Principal, Holdings or any such Guarantor, upon the same not being discharged, stayed or dismissed within ninety (90) days;
(viii) if any Borrower attempts to assign its rights under this Agreement or any of the other Loan Documents or any interest herein or therein in contravention of the Loan Documents;
(ix) if any Borrower breaches any of its respective negative covenants contained in Section 5.2 or any covenant contained in Section 4.1.30 or Section 5.1.11 hereof (and, with respect to any such breach of any covenant set forth in Section 5.1.11 which is not the subject of any other subsection of this Section 8.1, such Borrower fails to remedy such condition within ten (10) days after notice to Borrower from Lender, in the case of any such Default under Section 5.1.11 which can be cured by the payment of a sum of money, or for thirty (30) days after notice from Lender in the case of any other such Default under Section 5.1.11);
(x) with respect to any term, covenant or provision set forth herein which specifically contains a notice requirement or grace period, if any Borrower shall be in default under such term, covenant or condition after the giving of such notice or the expiration of such grace period;
(xi) if any of the assumptions contained in the Insolvency Opinion delivered in connection with the Loan, or in the Additional Insolvency Opinion delivered subsequent to the closing of the Loan, is or shall become untrue in any material respect; or if any of the assumptions contained in the True Lease Opinion in connection with the Loan, or in the Additional True Lease Opinion delivered subsequent to the closing of the Loan, is or shall become untrue in any material respect;
(xii) if any Mortgage Borrower, any Operating Company or any Guarantor (Operating Lease) is in default of any of its material obligations under any Operating Lease (or under another lease and/or management agreement in substitution for such Operating Lease in accordance herewith) or under any such Operating Lease Guaranty (or under another operating lease guaranty in substitution for such Operating Lease Guaranty in accordance herewith) beyond any applicable notice and cure periods contained therein; or if any Operating Lease (or such other lease and/or management agreement) or any Operating Lease Guaranty (or such other operating lease guaranty) shall be surrendered or any Operating Lease or any Operating Lease Guaranty shall be terminated or canceled for any reason or under any circumstances whatsoever, except with the consent of Lender; or if any of the terms, covenants or conditions of any Operating Lease (or such other lease and/or management agreement) or any Operating Lease Guaranty (or such other operating lease guaranty) shall in any manner be modified, changed, supplemented, altered, restated or amended without the consent of Lender except as may otherwise expressly permitted in this Agreement;
(xiii) intentionally omitted;
(xiv) if any Affiliate of any Borrower that is or becomes a party to the Windstorm Insurance Intercreditor Agreement is in default of any of its material obligations under the Windstorm Insurance Intercreditor Agreement beyond any applicable notice and cure periods contained therein; or if the Windstorm Insurance Intercreditor Agreement shall be surrendered, terminated or canceled for any reason or under any circumstances whatsoever, except with the consent of Lender; or if any of the terms, covenants or conditions of the Windstorm Insurance Intercreditor Agreement shall in any manner be modified, changed, supplemented, altered, restated or amended without the consent of Lender;
(xv) if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower fails to comply with the covenants as to Prescribed Laws set forth in Section 5.1.1 hereof;
(xvi) if a material default has occurred and continues beyond any applicable cure period under any Management Agreement and if such default permits the Manager, the Operating Company or the Mortgage Borrower party thereto to terminate or cancel the Management Agreement in question;
(xvii) any Gaming License shall be refused, suspended, revoked, modified in a materially adverse manner or canceled or allowed to lapse or any proceeding is commenced by any Governmental Authority for the purpose of suspending, revoking or canceling any Gaming License in any materially adverse respect, or any Governmental Authority shall have appointed a conservator, supervisor or trustee to or for any of the Casino Components and, in each case of the foregoing, such action could reasonably be expected to (A) have an Individual Material Adverse Effect, (B) materially and adversely affect the continued operation of the Casino Components in the usual course of business and in substantially the same manner and to at least the same standard as was maintained prior to such action, or (C) result in any material decrease in the then expected cash flow and revenues to be derived from the Casino Components;
(xviii) if any Borrower shall continue to be in Default under any of the other terms, covenants or conditions of this Agreement not specified in subsections (i) to (xvii) above, for ten (10) days after notice to Borrower from Lender, in the case of any Default which can be cured by the payment of a sum of money, or for thirty (30) days after notice from Lender in the case of any other Default; provided, however, that if such non-monetary Default is susceptible of cure but cannot reasonably be cured within such thirty (30) day period and provided further that such Borrower shall have commenced to cure such Default within such thirty (30) day period and thereafter diligently and expeditiously proceeds to cure the same, such thirty (30) day period shall be extended for such time as is reasonably necessary for such Borrower in the exercise of due diligence to cure such Default, such additional period not to exceed one hundred twenty (120) days;
(xix) if there shall be a default under any of the other Loan Documents beyond any applicable cure periods contained in such documents, whether as to any Borrower, Mortgage Borrower, Senior Mezzanine Borrower, the Collateral, the Senior Mezzanine Collateral or any Individual Property, or if any other such event shall occur or condition shall exist, if the effect of such event or condition is to accelerate the maturity of any portion of the Debt or to permit Lender to accelerate the maturity of all or any portion of the Debt;
(xx) if the Liens created pursuant to any Loan Document shall cease to be a fully protected enforceable first priority security interest in the Collateral, or any portion of the Collateral is Transferred without Lender’s prior written consent except as permitted hereunder; or
(xxi) if a Mortgage Loan Event of Default or Senior Mezzanine Loan Event of Default shall occur.
(b) Upon the occurrence of an Event of Default (other than an Event of Default described in clauses (vi) or (vii) above) and at any time thereafter, in addition to any other rights or remedies available to it pursuant to this Agreement and the other Loan Documents or at law or in equity, Lender may take such action, without notice or demand, that Lender deems advisable to protect and enforce its rights against Borrower and in and to all or any of the Collateral, including, without limitation, declaring a receiver, liquidator, or trustee of the Debt to be immediately due and payable, and Lender may enforce Governmental Agency or avail itself of any or all rights or remedies provided in the Loan Documents and may exercise all the rights and remedies of a secured party under the Uniform Commercial Code, as adopted and enacted by the State or States where any of the Collateral is locatedits property) shall be appointed by court order, against Borrower and any or all take possession of the CollateralGovernmental Agency, includingor its property or assets, without limitationif such order remains in effect, all rights or remedies available at law or in equity; and upon any Event of Default described in clauses such possession continues, for more than thirty (vi30) or (vii) above, the Debt and all other obligations of Borrower hereunder and under the other Loan Documents shall immediately and automatically become due and payable, without notice or demand, and Borrower hereby expressly waives any such notice or demand, anything contained herein or in any other Loan Document to the contrary notwithstandingdays.
Appears in 3 contracts
Samples: Loan Agreement, Loan Agreement, Loan Agreement
Event of Default. (a) Each The occurrence of any of the following events shall constitute an event of default hereunder (an “Event of Default”):Default hereunder:
(a) non-payment when due of (i) if (A) any portion of the Debt is not paid in full principal or interest on the Maturity Date, (B) the Debt Service is not paid in full on or before the related Payment DateIndebtedness under this Agreement, or (Cii) any fees or other portion of the Debt is not paid within five (5) days of when due;
(ii) if amounts payable by any of the Taxes Loan Party hereunder or Other Charges are not paid (with respect to each or any Individual Property) prior to Delinquency;
(iii) if the Policies (with respect to each or any Individual Property) are not kept in full force and effect, or if certified copies of the Policies (for each Individual Property) are not delivered to Lender upon request (or certificates thereof, if a Policy shall be renewed and certified copies of the Policy are not immediately available upon such renewal (each Borrower agreeing in such instance to provide copies of the Policies to Lender promptly thereafter));
(iv) if any Borrower Transfers or otherwise encumbers any portion of the Properties, the Collateral or the Senior Mezzanine Collateral, or there shall otherwise occur a Transfer without Lender’s prior consent in violation of the provisions of this Agreement, the Pledge Agreement or under any other Loan Document, and in the case of interest payments or the amounts specified by clause (ii) hereof, continuance thereof for three (3) Business Days;
(vb) if default in the observance or performance of any of the conditions, covenants or agreements set forth in Sections 7 or Section 8 in its entirety;
(c) default in the observance or performance of any of the other conditions, covenants or agreements set forth herein, and continuance thereof for a period of thirty (30) days after notice or when a senior officer of any Loan Party obtains knowledge thereof;
(d) any representation or warranty made by any Borrower or any other Loan Party herein or in any Loan Document proves untrue in any material adverse respect when made or deemed made;
(e) default in the observance or performance of any of the conditions, covenants or agreements of any Loan Party set forth in any Loan Document or in any other agreement or instrument related to or connected with this Agreement or the Indebtedness and continuance for a period of thirty (30) days;
(f) default in the payment of any other obligations of any Loan DocumentParty for borrowed money in an aggregate amount in excess of $50,000 individually or in the aggregate when due (whether by acceleration or otherwise) and continuance thereof beyond any applicable period of cure, or in the observance or performance of any reportconditions, certificate, financial statement covenants or other instrument, agreement agreements related or document or other material or written information furnished to Lender shall have been false or misleading in any material respect as of the date the representation or warranty was made (and, given with respect to any such breach obligations for borrowed money in an aggregate amount in excess of $50,000 individually or in the aggregate which is not the subject continues beyond any applicable period of any other subsection of this Section 8.1 cure and which is capable sufficient to permit the holder thereof to accelerate the maturity of being curedsuch obligations;
(g) judgments (not covered by insurance from a solvent insurer who is defending such action without reservation of rights) for the payment of money in excess of the sum of $50,000 in the aggregate shall be rendered against any Loan Party and such judgments shall remain unpaid, unvacated, unbonded or unstayed by appeal or otherwise for a period of thirty (30) consecutive days from the date of its entry or any action shall be legally taken by a judgment creditor to levy upon assets or properties of any Loan Party to enforce such Borrower fails judgment;
(h) the occurrence of any event, which is determined by the PBGC to remedy such condition within ten constitute grounds for termination by the PBGC of any Pension Plan or for the appointment of a trustee (10) days following notice to Borrower from Lender, in the case of a Pension Plan, by the appropriate United States District Court) to administer such plan, and such event is not corrected and such determination is not revoked within sixty (60) days after notice thereof has been given to the plan administrator or any Loan Party; or the institution of proceedings by the PBGC to terminate any such breach which can be cured by Pension Plan or to appoint a trustee to administer such plan; or the payment appointment of a sum of money, or within thirty trustee (30) days following notice from Lender in the case of a Pension Plan by the appropriate United States District Court) to administer any other such breach)Pension Plan;
(vii) the occurrence of a Change of Control or if the Individual Guarantor shall die;
(j) any Loan Party shall be dissolved or liquidated (or any judgment, order or decree therefor shall be entered); or if a creditors’ committee shall have been appointed for the business of the any Loan Party; or if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower Loan Party shall make an have made a general assignment for the benefit of creditorscreditors or shall have been adjudicated bankrupt and if not an adjudication based on a filing by a Loan Party it shall not have been dismissed within sixty (60) days, or shall have filed a voluntary petition in bankruptcy or for reorganization or to effect a plan or arrangement with creditors or shall fail to pay or shall admit in writing its inability or refusal to pay, its debts generally as such debts become due in the ordinary course of business (except as contested in good faith and for which adequate reserves are made in such party’s financial statements); or shall file an answer to a creditor’s petition or other petition filed against it, admitting the material allegations thereof for an adjudication in bankruptcy or for reorganization; or shall have applied for or permitted the appointment of a receiver or trustee or custodian for any of its property or assets; or such receiver, trustee or custodian shall have been appointed for any of its property or assets (otherwise than upon application or consent of any Loan Party) and shall not have been removed within sixty (60) days; or if a receiver, liquidator or trustee an order shall be appointed for any Borrower, Senior Mezzanine Borrower or Mortgage Borrower, or if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower shall be adjudicated a bankrupt or insolvent, or if entered approving any petition for bankruptcyreorganization of any Loan Party and shall not have been reversed or dismissed within sixty (60) days; or any Loan Party shall take any action (corporate or other) authorizing or in furtherance any of the actions described above in this subsection;
(k) any material provision of any Loan Document shall at any time for any reason cease to be valid, reorganization binding and enforceable against any Loan Party or arrangement pursuant any other Person party to federal bankruptcy lawa Loan Document (other than in accordance with the terms thereof) or, (ii) the validity, binding effect or enforceability thereof shall be contested by any Loan Party or any other Person party to a Loan Document, or (iii) any Loan Party or any other Person party to a Loan Document, shall deny that it has any or further liability or obligation under any Loan Document, or any similar federal or state law, such Loan Document shall be filed by terminated (other than in accordance with the terms thereof), invalidated, revoked or against, consented to, set aside or acquiesced in by, Borrower any way cease to give or Senior Mezzanine Borrower, or if any proceeding for provide to Bank the dissolution or liquidation of any Borrower, Senior Mezzanine Borrower or Mortgage Borrower shall benefits purported to be instituted; provided, however, if such appointment, adjudication, petition or proceeding was involuntary and not consented to by any Borrower, Senior Mezzanine Borrower or Mortgage Borrower, upon the same not being discharged, stayed or dismissed within ninety (90) dayscreated thereby;
(viil) if any Operating CompanyLoan Party shall fail to maintain in full force and effect any federal, state or local license, permit or operating right material to the operation of its business; or
(m) any ManagerLoan Party is enjoined, Principalrestrained, Holdings or in any way prevented by court order or by any governmental authority from continuing to conduct all or any Guarantor shall make an assignment for the benefit of creditors; or if a receiver, liquidator or trustee shall be appointed for any such Operating Company, any such Manager, Principal, Holdings or any such Guarantor, or if any Operating Company, any Manager, Principal, Holdings or any Guarantor shall be adjudicated a bankrupt or insolvent, or if any petition for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by or against, consented to, or acquiesced in by, any Operating Company, any Manager, Principal, Holdings or any Guarantor, or if any proceeding for the dissolution or liquidation of any Operating Company, any Manager, Principal, Holdings or any Guarantor shall be instituted; provided, however, if such appointment, adjudication, petition or proceeding was involuntary and not consented to by any such Operating Company, any such Manager, Principal, Holdings or any such Guarantor, upon the same not being discharged, stayed or dismissed within ninety (90) days;
(viii) if any Borrower attempts to assign its rights under this Agreement or any of the other Loan Documents or any interest herein or therein in contravention of the Loan Documents;
(ix) if any Borrower breaches any material part of its respective negative covenants contained in Section 5.2 or any covenant contained in Section 4.1.30 or Section 5.1.11 hereof (and, with respect to any such breach of any covenant set forth in Section 5.1.11 which is not the subject of any other subsection of this Section 8.1, such Borrower fails to remedy such condition within ten (10) days after notice to Borrower from Lender, in the case of any such Default under Section 5.1.11 which can be cured by the payment of a sum of money, or business affairs for more than thirty (30) days after notice from Lender in the case of any other such Default under Section 5.1.11);
(x) with respect to any term, covenant or provision set forth herein which specifically contains a notice requirement or grace period, if any Borrower shall be in default under such term, covenant or condition after the giving of such notice or the expiration of such grace period;
(xi) if any of the assumptions contained in the Insolvency Opinion delivered in connection with the Loan, or in the Additional Insolvency Opinion delivered subsequent to the closing of the Loan, is or shall become untrue in any material respect; or if any of the assumptions contained in the True Lease Opinion in connection with the Loan, or in the Additional True Lease Opinion delivered subsequent to the closing of the Loan, is or shall become untrue in any material respect;
(xii) if any Mortgage Borrower, any Operating Company or any Guarantor (Operating Lease) is in default of any of its material obligations under any Operating Lease (or under another lease and/or management agreement in substitution for such Operating Lease in accordance herewith) or under any such Operating Lease Guaranty (or under another operating lease guaranty in substitution for such Operating Lease Guaranty in accordance herewith) beyond any applicable notice and cure periods contained therein; or if any Operating Lease (or such other lease and/or management agreement) or any Operating Lease Guaranty (or such other operating lease guaranty) shall be surrendered or any Operating Lease or any Operating Lease Guaranty shall be terminated or canceled for any reason or under any circumstances whatsoever, except with the consent of Lender; or if any of the terms, covenants or conditions of any Operating Lease (or such other lease and/or management agreement) or any Operating Lease Guaranty (or such other operating lease guaranty) shall in any manner be modified, changed, supplemented, altered, restated or amended without the consent of Lender except as may otherwise expressly permitted in this Agreement;
(xiii) intentionally omitted;
(xiv) if any Affiliate of any Borrower that is or becomes a party to the Windstorm Insurance Intercreditor Agreement is in default of any of its material obligations under the Windstorm Insurance Intercreditor Agreement beyond any applicable notice and cure periods contained therein; or if the Windstorm Insurance Intercreditor Agreement shall be surrendered, terminated or canceled for any reason or under any circumstances whatsoever, except with the consent of Lender; or if any of the terms, covenants or conditions of the Windstorm Insurance Intercreditor Agreement shall in any manner be modified, changed, supplemented, altered, restated or amended without the consent of Lender;
(xv) if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower fails to comply with the covenants as to Prescribed Laws set forth in Section 5.1.1 hereof;
(xvi) if a material default has occurred and continues beyond any applicable cure period under any Management Agreement and if such default permits the Manager, the Operating Company or the Mortgage Borrower party thereto to terminate or cancel the Management Agreement in question;
(xvii) any Gaming License shall be refused, suspended, revoked, modified in a materially adverse manner or canceled or allowed to lapse or any proceeding is commenced by any Governmental Authority for the purpose of suspending, revoking or canceling any Gaming License in any materially adverse respect, or any Governmental Authority shall have appointed a conservator, supervisor or trustee to or for any of the Casino Components and, in each case of the foregoing, such action could reasonably be expected to (A) have an Individual Material Adverse Effect, (B) materially and adversely affect the continued operation of the Casino Components in the usual course of business and in substantially the same manner and to at least the same standard as was maintained prior to such action, or (C) result in any material decrease in the then expected cash flow and revenues to be derived from the Casino Components;
(xviii) if any Borrower shall continue to be in Default under any of the other terms, covenants or conditions of this Agreement not specified in subsections (i) to (xvii) above, for ten (10) days after notice to Borrower from Lender, in the case of any Default which can be cured by the payment of a sum of money, or for thirty (30) days after notice from Lender in the case of any other Default; provided, however, that if such non-monetary Default is susceptible of cure but cannot reasonably be cured within such thirty (30) day period and provided further that such Borrower shall have commenced to cure such Default within such thirty (30) day period and thereafter diligently and expeditiously proceeds to cure the same, such thirty (30) day period shall be extended for such time as is reasonably necessary for such Borrower in the exercise of due diligence to cure such Default, such additional period not to exceed one hundred twenty (120) days;
(xix) if there shall be a default under any of the other Loan Documents beyond any applicable cure periods contained in such documents, whether as to any Borrower, Mortgage Borrower, Senior Mezzanine Borrower, the Collateral, the Senior Mezzanine Collateral or any Individual Property, or if any other such event shall occur or condition shall exist, if the effect of such event or condition is to accelerate the maturity of any portion of the Debt or to permit Lender to accelerate the maturity of all or any portion of the Debt;
(xx) if the Liens created pursuant to any Loan Document shall cease to be a fully protected enforceable first priority security interest in the Collateral, or any portion of the Collateral is Transferred without Lender’s prior written consent except as permitted hereunder; or
(xxi) if a Mortgage Loan Event of Default or Senior Mezzanine Loan Event of Default shall occur.
(b) Upon the occurrence of an Event of Default (other than an Event of Default described in clauses (vi) or (vii) above) and at any time thereafter, in addition to any other rights or remedies available to it pursuant to this Agreement and the other Loan Documents or at law or in equity, Lender may take such action, without notice or demand, that Lender deems advisable to protect and enforce its rights against Borrower and in and to all or any of the Collateral, including, without limitation, declaring the Debt to be immediately due and payable, and Lender may enforce or avail itself of any or all rights or remedies provided in the Loan Documents and may exercise all the rights and remedies of a secured party under the Uniform Commercial Code, as adopted and enacted by the State or States where any of the Collateral is located, against Borrower and any or all of the Collateral, including, without limitation, all rights or remedies available at law or in equity; and upon any Event of Default described in clauses (vi) or (vii) above, the Debt and all other obligations of Borrower hereunder and under the other Loan Documents shall immediately and automatically become due and payable, without notice or demand, and Borrower hereby expressly waives any such notice or demand, anything contained herein or in any other Loan Document to the contrary notwithstanding.
Appears in 3 contracts
Samples: Credit Agreement, Credit Agreement (Brooklyn Cheesecake & Desert Com), Credit Agreement (Brooklyn Cheesecake & Desert Com)
Event of Default. (a) Each The occurrence of any one or more of the following events shall will constitute an event of default hereunder (an “Event of Default”):” under this Agreement:
(ia) if (A) the Recipient fails to perform or comply with any portion of the Debt is not paid in full on the Maturity Date, (B) the Debt Service is not paid in full on terms or before the related Payment Date, or (C) any other portion conditions of the Debt is not paid within five (5) days of when duethis Agreement;
(iib) if the Recipient fails to either commence, make satisfactory progress, or substantially complete the Work within the time required by this Agreement or the Project Proposal;
(c) the Recipient fails to satisfy the Performance Measures;
(d) the results of the Audit Program show, in the sole opinion of FII, that the Recipient is not complying with the terms and conditions of this Agreement or that the Recipient is failing to meet the objectives of the Program;
(e) any of the Taxes representations or Other Charges are not paid (with respect to each or any Individual Property) prior to Delinquency;
(iii) if the Policies (with respect to each or any Individual Property) are not kept in full force and effect, or if certified copies of the Policies (for each Individual Property) are not delivered to Lender upon request (or certificates thereof, if a Policy shall be renewed and certified copies of the Policy are not immediately available upon such renewal (each Borrower agreeing in such instance to provide copies of the Policies to Lender promptly thereafter));
(iv) if any Borrower Transfers or otherwise encumbers any portion of the Properties, the Collateral or the Senior Mezzanine Collateral, or there shall otherwise occur a Transfer without Lender’s prior consent in violation of the provisions of this Agreement, the Pledge Agreement or any other Loan Document;
(v) if any representation or warranty warranties made by any Borrower the Recipient in Section 6.3 above or any other Loan Party herein or by the Recipient in any other Loan Document, or in any report, certificate, financial statement or other instrument, agreement or document or other material or written information furnished to Lender shall have been false or misleading in any material respect as of the date the representation or warranty was made (and, with respect to any such breach which is not the subject of any other subsection of this Section 8.1 and which is capable of being cured, such Borrower fails to remedy such condition within ten (10) days following notice to Borrower from Lender, in the case of any such breach which can be cured by the payment of a sum of money, or within thirty (30) days following notice from Lender in the case of any other such breach);
(vi) if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower shall make an assignment for the benefit of creditors; or if a receiver, liquidator or trustee shall be appointed for any Borrower, Senior Mezzanine Borrower or Mortgage Borrower, or if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower shall be adjudicated a bankrupt or insolvent, or if any petition for bankruptcy, reorganization or arrangement certificate given pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by or against, consented to, or acquiesced in by, Borrower or Senior Mezzanine Borrower, or if any proceeding for the dissolution or liquidation of any Borrower, Senior Mezzanine Borrower or Mortgage Borrower shall be instituted; provided, however, if such appointment, adjudication, petition or proceeding was involuntary and not consented to by any Borrower, Senior Mezzanine Borrower or Mortgage Borrower, upon the same not being discharged, stayed or dismissed within ninety (90) days;
(vii) if any Operating Company, any Manager, Principal, Holdings or any Guarantor shall make an assignment for the benefit of creditors; or if a receiver, liquidator or trustee shall be appointed for any such Operating Company, any such Manager, Principal, Holdings or any such Guarantor, or if any Operating Company, any Manager, Principal, Holdings or any Guarantor shall be adjudicated a bankrupt or insolvent, or if any petition for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by or against, consented to, or acquiesced in by, any Operating Company, any Manager, Principal, Holdings or any Guarantor, or if any proceeding for the dissolution or liquidation of any Operating Company, any Manager, Principal, Holdings or any Guarantor shall be instituted; provided, however, if such appointment, adjudication, petition or proceeding was involuntary and not consented to by any such Operating Company, any such Manager, Principal, Holdings or any such Guarantor, upon the same not being discharged, stayed or dismissed within ninety (90) days;
(viii) if any Borrower attempts to assign its rights under this Agreement being untrue or any of the other Loan Documents or any interest herein or therein in contravention of the Loan Documents;
(ix) if any Borrower breaches any of its respective negative covenants contained in Section 5.2 or any covenant contained in Section 4.1.30 or Section 5.1.11 hereof (and, with respect to any such breach of any covenant set forth in Section 5.1.11 which is not the subject of any other subsection of this Section 8.1, such Borrower fails to remedy such condition within ten (10) days after notice to Borrower from Lender, in the case of any such Default under Section 5.1.11 which can be cured by the payment of a sum of money, or for thirty (30) days after notice from Lender in the case of any other such Default under Section 5.1.11);
(x) with respect to any term, covenant or provision set forth herein which specifically contains a notice requirement or grace period, if any Borrower shall be in default under such term, covenant or condition after the giving of such notice or the expiration of such grace period;
(xi) if any of the assumptions contained in the Insolvency Opinion delivered in connection with the Loan, or in the Additional Insolvency Opinion delivered subsequent to the closing of the Loan, is or shall become untrue in any material respect; or if any of the assumptions contained in the True Lease Opinion in connection with the Loan, or in the Additional True Lease Opinion delivered subsequent to the closing of the Loan, is or shall become untrue incorrect in any material respect;
(xiif) if any Mortgage Borrowerinformation, statement, certificate, report or other document given by or on behalf of the Recipient pursuant to or as a result of this Agreement being untrue or incorrect in any Operating Company material respect;
(g) any change occurring with respect to any one or any Guarantor more, or all of the properties, assets, conditions (Operating Lease) is financial or otherwise), business or operations of the Recipient which, in default the sole opinion of any FII, materially adversely affects the ability of the Recipient to fulfil its material obligations under any Operating Lease (or under another lease and/or management agreement in substitution for such Operating Lease in accordance herewith) or under any such Operating Lease Guaranty (or under another operating lease guaranty in substitution for such Operating Lease Guaranty in accordance herewith) beyond any applicable notice and cure periods contained therein; or if any Operating Lease (or such other lease and/or management agreement) or any Operating Lease Guaranty (or such other operating lease guaranty) shall be surrendered or any Operating Lease or any Operating Lease Guaranty shall be terminated or canceled for any reason or under any circumstances whatsoever, except with the consent of Lender; or if any of the terms, covenants or conditions of any Operating Lease (or such other lease and/or management agreement) or any Operating Lease Guaranty (or such other operating lease guaranty) shall in any manner be modified, changed, supplemented, altered, restated or amended without the consent of Lender except as may otherwise expressly permitted in this Agreement;
(xiiih) intentionally omitted;
(xiv) if the Recipient admits its inability to, or FII otherwise determines that the Recipient is unable to, pay its debts generally as they become due, or the Recipient makes a general assignment for the benefit of creditors, or commits any Affiliate other act of bankruptcy or insolvency under applicable law of any Borrower that jurisdiction in which it is incorporated or becomes a party to the Windstorm Insurance Intercreditor Agreement is in default of any of its material obligations under the Windstorm Insurance Intercreditor Agreement beyond any applicable notice and cure periods contained therein; or if the Windstorm Insurance Intercreditor Agreement shall be surrendered, terminated or canceled for any reason or under any circumstances whatsoever, except with the consent of Lender; or if any of the terms, covenants or conditions of the Windstorm Insurance Intercreditor Agreement shall in any manner be modified, changed, supplemented, altered, restated or amended without the consent of Lender;
(xv) if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower fails to comply with the covenants as to Prescribed Laws set forth in Section 5.1.1 hereof;
(xvi) if a material default has occurred and continues beyond any applicable cure period under any Management Agreement and if such default permits the Manager, the Operating Company or the Mortgage Borrower party thereto to terminate or cancel the Management Agreement in question;
(xvii) any Gaming License shall be refused, suspended, revoked, modified in a materially adverse manner or canceled or allowed to lapse or any proceeding is commenced by any Governmental Authority for the purpose of suspending, revoking or canceling any Gaming License in any materially adverse respect, or any Governmental Authority shall have appointed a conservator, supervisor or trustee to or for any of the Casino Components and, in each case of the foregoing, such action could reasonably be expected to (A) have an Individual Material Adverse Effect, (B) materially and adversely affect the continued operation of the Casino Components in the usual course of business and in substantially the same manner and to at least the same standard as was maintained prior to such action, or (C) result in any material decrease in the then expected cash flow and revenues to be derived from the Casino Components;
(xviii) if any Borrower shall continue to be in Default under any of the other terms, covenants or conditions of this Agreement not specified in subsections (i) to (xvii) above, for ten (10) days after notice to Borrower from Lender, in the case of any Default which can be cured by the payment of a sum of money, or for thirty (30) days after notice from Lender in the case of any other Default; provided, however, that if such non-monetary Default is susceptible of cure but cannot reasonably be cured within such thirty (30) day period and provided further that such Borrower shall have commenced to cure such Default within such thirty (30) day period and thereafter diligently and expeditiously proceeds to cure the same, such thirty (30) day period shall be extended for such time as is reasonably necessary for such Borrower in the exercise of due diligence to cure such Default, such additional period not to exceed one hundred twenty (120) days;
(xix) if there shall be a default under any of the other Loan Documents beyond any applicable cure periods contained in such documents, whether as to any Borrower, Mortgage Borrower, Senior Mezzanine Borrower, the Collateral, the Senior Mezzanine Collateral or any Individual Property, or if any other such event shall occur or condition shall exist, if the effect of such event or condition is to accelerate the maturity of any portion of the Debt or to permit Lender to accelerate the maturity of all or any portion of the Debt;
(xx) if the Liens created pursuant to any Loan Document shall cease to be a fully protected enforceable first priority security interest in the Collateral, or any portion of the Collateral is Transferred without Lender’s prior written consent except as permitted hereunderresident; or
(xxii) if a Mortgage Loan Event of Default bankruptcy petition is filed or Senior Mezzanine Loan Event of Default shall occur.
(b) Upon the occurrence of an Event of Default (other than an Event of Default described in clauses (vi) presented against, or (vii) above) and at any time thereafter, in addition to any other rights or remedies available to it pursuant to this Agreement and the other Loan Documents or at law or in equity, Lender may take such action, without notice or demand, that Lender deems advisable to protect and enforce its rights against Borrower and in and to all or any of the Collateral, including, without limitation, declaring the Debt to be immediately due and payable, and Lender may enforce or avail itself of any or all rights or remedies provided in the Loan Documents and may exercise all the rights and remedies of a secured party under the Uniform Commercial Code, as adopted and enacted proposal for creditor protections is made by the State or States where Recipient under any of the Collateral is located, against Borrower and any or all of the Collateral, including, without limitation, all rights or remedies available at law or in equity; and upon any Event of Default described in clauses (vi) or (vii) above, the Debt and all other obligations of Borrower hereunder and under the other Loan Documents shall immediately and automatically become due and payable, without notice or demand, and Borrower hereby expressly waives any such notice or demand, anything contained herein or in any other Loan Document to the contrary notwithstandingapplicable laws.
Appears in 3 contracts
Samples: Recipient Agreement, Recipient Agreement, Recipient Agreement
Event of Default. (a) Each If one or more of the following events shall constitute an event of default hereunder (an “Event Events of Default”):) shall have occurred and be continuing:
(i) if (A) any portion of the Debt is not paid in full on the Maturity Date, (Ba) the Debt Service is not paid in full on Borrower shall fail to pay any principal of any Loan or before the related Payment Date, or (C) any other portion of the Debt is not paid within five (5) days of Reimbursement Obligation when due;
(b) the Borrower shall fail to pay within 5 days of the due date thereof (i) any facility fee or (ii) if interest on any of the Taxes or Other Charges are not paid (with respect to each or any Individual Property) prior to DelinquencyLoan;
(iiic) if the Policies (with respect Borrower shall fail to each or pay within 30 days after a request for payment by any Individual Property) are not kept in full force and effect, or if certified copies of Lender acting through the Policies (for each Individual Property) are not delivered to Lender upon request (or certificates thereof, if a Policy shall be renewed and certified copies of the Policy are not immediately available upon such renewal (each Borrower agreeing in such instance to provide copies of the Policies to Lender promptly thereafter))Administrative Agent any other amount payable under this Agreement;
(ivd) if the Borrower shall fail to observe or perform any Borrower Transfers agreement contained in Section 5.01(e) or otherwise encumbers any portion of the Properties, the Collateral or the Senior Mezzanine Collateral, or there shall otherwise occur a Transfer without Lender’s prior consent in violation of the provisions of this Agreement, the Pledge Agreement or any other Loan Document;
(v) if any representation or warranty made by any Borrower or any other Loan Party herein or in any other Loan Document, or in any report, certificate, financial statement or other instrument, agreement or document or other material or written information furnished to Lender shall have been false or misleading in any material respect as of the date the representation or warranty was made Section 5.07 through 5.11 (and, with respect to any such breach which is not the subject of any other subsection of this Section 8.1 5.10 and which is capable of being cured5.11, such failure shall have continued for 10 days after notice thereof has been given to the Borrower fails to remedy such condition within ten (10) days following notice to Borrower from Lender, in the case of any such breach which can be cured by the payment Administrative Agent at the request of a sum of money, or within thirty (30) days following notice from Lender in the case of any other such breachRequired Lenders);
(vie) if the Borrower shall fail to observe or perform any Borrowercovenant or agreement contained in this Agreement (other than those covered by clauses (a) through (d) above) for 30 days after notice thereof has been given to the Borrower by the Administrative Agent at the request of the Required Lenders;
(f) any representation, Senior Mezzanine warranty or certification made by the Borrower in this Agreement or in any certificate, or writing delivered pursuant to this Agreement shall prove to have been incorrect in any material respect when made and such deficiency shall remain unremedied for five days after notice thereof shall have been given to the Borrower by the Administrative Agent at the request of the Required Lenders;
(g) any Material Financial Obligations shall become due before stated maturity by the acceleration of the maturity thereof by reason of default, or any Material Financial Obligations shall become due by its terms and shall not be paid and, in any case aforesaid in this clause (g), corrective action satisfactory to the Required Lenders shall not have been taken within 5 days after written notice of the situation shall have been given to the Borrower by the Administrative Agent at the request of the Required Lenders;
(h) the Borrower or Mortgage Borrower any Restricted Subsidiary shall commence a voluntary case or other proceeding seeking liquidation, reorganization or other relief with respect to itself or its debts under any bankruptcy, insolvency or other similar law now or hereafter in effect or seeking the appointment of a trustee, receiver, liquidator, custodian or other similar official of it or any substantial part of its property, or shall consent to any such relief or to the appointment of or taking possession by any such official in an involuntary case or other proceeding commenced against it, or shall make an a general assignment for the benefit of creditors; , or if a receivershall fail generally to pay its debts as they become due, liquidator or trustee shall take any corporate action to authorize any of the foregoing;
(i) an involuntary case or other proceeding shall be appointed for any Borrower, Senior Mezzanine commenced against the Borrower or Mortgage Borrower, or if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower shall be adjudicated a bankrupt or insolvent, or if any petition for bankruptcyRestricted Subsidiary seeking liquidation, reorganization or arrangement pursuant other relief with respect to it or its debts under any bankruptcy, insolvency or other similar law now or hereafter in effect or seeking the appointment of a trustee, receiver, liquidator, custodian or other similar official of it or any substantial part of its property, and such involuntary case or other proceeding shall remain undismissed and unstayed for a period of 90 days; or an order for relief shall be entered against the Borrower or any Restricted Subsidiary under the federal bankruptcy law, laws as now or any similar federal or state law, shall be filed by or against, consented to, or acquiesced hereafter in by, Borrower or Senior Mezzanine Borrower, or if any proceeding for the dissolution or liquidation of any Borrower, Senior Mezzanine Borrower or Mortgage Borrower shall be instituted; provided, however, if such appointment, adjudication, petition or proceeding was involuntary and not consented to by any Borrower, Senior Mezzanine Borrower or Mortgage Borrower, upon the same not being discharged, stayed or dismissed within ninety (90) dayseffect;
(viij) if any Operating Company, any Manager, Principal, Holdings a final judgment for the payment of money in excess of $50,000,000 shall have been entered against the Borrower or any Guarantor Restricted Subsidiary, and the Borrower or such Subsidiary shall make an assignment for not have satisfied the benefit of creditors; or if a receiver, liquidator or trustee shall be appointed for any such Operating Company, any such Manager, Principal, Holdings or any such Guarantorsame within 60 days, or if any Operating Companycaused execution thereon to be stayed within 60 days, any Manager, Principal, Holdings and such failure to satisfy or any Guarantor stay such judgment shall be adjudicated a bankrupt or insolvent, or if any petition remain unremedied for bankruptcy, reorganization or arrangement pursuant 5 days after notice thereof shall have been given to federal bankruptcy law, or any similar federal or state law, shall be filed the Borrower by or against, consented to, or acquiesced in by, any Operating Company, any Manager, Principal, Holdings or any Guarantor, or if any proceeding for the dissolution or liquidation Administrative Agent at the request of any Operating Company, any Manager, Principal, Holdings or any Guarantor shall be instituted; provided, however, if such appointment, adjudication, petition or proceeding was involuntary and not consented to by any such Operating Company, any such Manager, Principal, Holdings or any such Guarantor, upon the same not being discharged, stayed or dismissed within ninety (90) daysRequired Lenders;
(viiik) if a final judgment either (1) requiring termination or imposing liability (other than for premiums under Section 4007 of ERISA) under Title IV of ERISA in respect of, or requiring a trustee to be appointed under Title IV of ERISA to administer, any Borrower attempts Plan or Plans having aggregate Unfunded Liabilities in excess of $50,000,000 or (2) in an action relating to assign its rights under this Agreement a Multiemployer Plan involving a current payment obligation in excess of $50,000,000, which judgment, in either case, has not been satisfied or any of the other Loan Documents stayed within 60 days and such failure to satisfy or any interest herein or therein in contravention of the Loan Documents;
(ix) if any Borrower breaches any of its respective negative covenants contained in Section 5.2 or any covenant contained in Section 4.1.30 or Section 5.1.11 hereof (and, with respect to any such breach of any covenant set forth in Section 5.1.11 which stay is not the subject of any other subsection of this Section 8.1, such Borrower fails to remedy such condition within ten (10) unremedied for 5 days after notice thereof shall have been given to the Borrower from Lender, in the case of any such Default under Section 5.1.11 which can be cured by the payment of a sum of money, or for thirty (30) days after notice from Lender in Administrative Agent at the case of any other such Default under Section 5.1.11);
(x) with respect to any term, covenant or provision set forth herein which specifically contains a notice requirement or grace period, if any Borrower shall be in default under such term, covenant or condition after the giving of such notice or the expiration of such grace period;
(xi) if any request of the assumptions contained in the Insolvency Opinion delivered in connection with the Loan, or in the Additional Insolvency Opinion delivered subsequent to the closing of the Loan, is or shall become untrue in any material respect; or if any of the assumptions contained in the True Lease Opinion in connection with the Loan, or in the Additional True Lease Opinion delivered subsequent to the closing of the Loan, is or shall become untrue in any material respect;
(xii) if any Mortgage Borrower, any Operating Company or any Guarantor (Operating Lease) is in default of any of its material obligations under any Operating Lease (or under another lease and/or management agreement in substitution for such Operating Lease in accordance herewith) or under any such Operating Lease Guaranty (or under another operating lease guaranty in substitution for such Operating Lease Guaranty in accordance herewith) beyond any applicable notice and cure periods contained therein; or if any Operating Lease (or such other lease and/or management agreement) or any Operating Lease Guaranty (or such other operating lease guaranty) shall be surrendered or any Operating Lease or any Operating Lease Guaranty shall be terminated or canceled for any reason or under any circumstances whatsoever, except with the consent of Lender; or if any of the terms, covenants or conditions of any Operating Lease (or such other lease and/or management agreement) or any Operating Lease Guaranty (or such other operating lease guaranty) shall in any manner be modified, changed, supplemented, altered, restated or amended without the consent of Lender except as may otherwise expressly permitted in this Agreement;
(xiii) intentionally omitted;
(xiv) if any Affiliate of any Borrower that is or becomes a party to the Windstorm Insurance Intercreditor Agreement is in default of any of its material obligations under the Windstorm Insurance Intercreditor Agreement beyond any applicable notice and cure periods contained therein; or if the Windstorm Insurance Intercreditor Agreement shall be surrendered, terminated or canceled for any reason or under any circumstances whatsoever, except with the consent of Lender; or if any of the terms, covenants or conditions of the Windstorm Insurance Intercreditor Agreement shall in any manner be modified, changed, supplemented, altered, restated or amended without the consent of Lender;
(xv) if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower fails to comply with the covenants as to Prescribed Laws set forth in Section 5.1.1 hereof;
(xvi) if a material default has occurred and continues beyond any applicable cure period under any Management Agreement and if such default permits the Manager, the Operating Company or the Mortgage Borrower party thereto to terminate or cancel the Management Agreement in question;
(xvii) any Gaming License shall be refused, suspended, revoked, modified in a materially adverse manner or canceled or allowed to lapse or any proceeding is commenced by any Governmental Authority for the purpose of suspending, revoking or canceling any Gaming License in any materially adverse respect, or any Governmental Authority shall have appointed a conservator, supervisor or trustee to or for any of the Casino Components and, in each case of the foregoing, such action could reasonably be expected to (A) have an Individual Material Adverse Effect, (B) materially and adversely affect the continued operation of the Casino Components in the usual course of business and in substantially the same manner and to at least the same standard as was maintained prior to such action, or (C) result in any material decrease in the then expected cash flow and revenues to be derived from the Casino Components;
(xviii) if any Borrower shall continue to be in Default under any of the other terms, covenants or conditions of this Agreement not specified in subsections (i) to (xvii) above, for ten (10) days after notice to Borrower from Lender, in the case of any Default which can be cured by the payment of a sum of money, or for thirty (30) days after notice from Lender in the case of any other Default; provided, however, that if such non-monetary Default is susceptible of cure but cannot reasonably be cured within such thirty (30) day period and provided further that such Borrower shall have commenced to cure such Default within such thirty (30) day period and thereafter diligently and expeditiously proceeds to cure the same, such thirty (30) day period shall be extended for such time as is reasonably necessary for such Borrower in the exercise of due diligence to cure such Default, such additional period not to exceed one hundred twenty (120) days;
(xix) if there shall be a default under any of the other Loan Documents beyond any applicable cure periods contained in such documents, whether as to any Borrower, Mortgage Borrower, Senior Mezzanine Borrower, the Collateral, the Senior Mezzanine Collateral or any Individual Property, or if any other such event shall occur or condition shall exist, if the effect of such event or condition is to accelerate the maturity of any portion of the Debt or to permit Lender to accelerate the maturity of all or any portion of the Debt;
(xx) if the Liens created pursuant to any Loan Document shall cease to be a fully protected enforceable first priority security interest in the Collateral, or any portion of the Collateral is Transferred without Lender’s prior written consent except as permitted hereunderRequired Lenders; or
(xxil) any person or group of persons (within the meaning of Section 13 or 14 of the Securities Exchange Act of 1934, as amended) shall have acquired beneficial ownership (within the meaning of Rule 13d-3 promulgated by the Securities and Exchange Commission under said Act) of 35% or more of the outstanding shares of common stock of the Borrower; or during any two-year period, individuals who at the beginning of such period constituted the Borrower’s Board of Directors (together with any new director whose election by the Board of Directors or whose nomination for election by the shareholders of the Borrower was approved by a vote of at least two-thirds of the directors then in office who either were directors as the beginning of such period or whose election or nomination for election was previously so approved) cease for any reason to constitute a majority of the directors then in office; then, and in every such event, the Administrative Agent shall, if a Mortgage Loan Event of Default or Senior Mezzanine Loan Event of Default requested by the Required Lenders, (i) by notice to the Borrower terminate the Commitments and they shall occur.
thereupon terminate, and (bii) Upon by notice to the occurrence of an Event of Default (Borrower declare the Loans, interest accrued thereon and all other than an Event of Default described in clauses (vi) or (vii) above) and at any time thereafteramounts payable hereunder to be, in addition to any other rights or remedies available to it pursuant to this Agreement and the other Loan Documents or at law or in equitysame shall thereupon become, Lender may take such action, without notice or demand, that Lender deems advisable to protect and enforce its rights against Borrower and in and to all or any of the Collateral, including, without limitation, declaring the Debt to be immediately due and payablepayable without presentment, and Lender may enforce demand, protest or avail itself other notice of any or kind, all rights or remedies of which are hereby waived by the Borrower; provided that in the Loan Documents and may exercise all event of (A) the rights and remedies filing by the Borrower of a secured party petition, or (B) an actual or deemed entry of an order for relief with respect to the Borrower, under the Uniform Commercial Codefederal bankruptcy laws as now or hereafter in effect, as adopted and enacted without any notice to the Borrower or any other act by the State Administrative Agent or States where any of the Collateral is located, against Borrower and any or all of the Collateral, including, without limitation, all rights or remedies available at law or in equity; and upon any Event of Default described in clauses (vi) or (vii) aboveLenders, the Debt Commitments shall thereupon terminate and the Loans, interest accrued thereon and all other obligations of Borrower amounts payable hereunder and under the other Loan Documents shall become immediately and automatically become due and payablepayable without presentment, without notice or demand, and Borrower protest or other notice of any kind, all of which are hereby expressly waives any such notice or demand, anything contained herein or in any other Loan Document to waived by the contrary notwithstandingBorrower.
Appears in 3 contracts
Samples: Credit Agreement (Martin Marietta Materials Inc), Credit Agreement (Martin Marietta Materials Inc), Credit Agreement (Martin Marietta Materials Inc)
Event of Default. (a) Each of During the following events shall constitute period during which an event of default hereunder (an “Event of Default”):
(i) if (A) any portion of the Debt is not paid in full on the Maturity Date, (B) the Debt Service is not paid in full on or before the related Payment Date, or (C) any other portion of the Debt is not paid within five (5) days of when due;
(ii) if any of the Taxes or Other Charges are not paid (with respect to each or any Individual Property) prior to Delinquency;
(iii) if the Policies (with respect to each or any Individual Property) are not kept in full force and effect, or if certified copies of the Policies (for each Individual Property) are not delivered to Lender upon request (or certificates thereof, if a Policy shall be renewed and certified copies of the Policy are not immediately available upon such renewal (each Borrower agreeing in such instance to provide copies of the Policies to Lender promptly thereafter));
(iv) if any Borrower Transfers or otherwise encumbers any portion of the Properties, the Collateral or the Senior Mezzanine Collateral, or there shall otherwise occur a Transfer without Lender’s prior consent in violation of the provisions of this Agreement, the Pledge Agreement or any other Loan Document;
(v) if any representation or warranty made by any Borrower or any other Loan Party herein or in any other Loan Document, or in any report, certificate, financial statement or other instrument, agreement or document or other material or written information furnished to Lender shall have been false or misleading in any material respect as of the date the representation or warranty was made (and, with respect to any such breach which is not the subject of any other subsection of this Section 8.1 and which is capable of being cured, such Borrower fails to remedy such condition within ten (10) days following notice to Borrower from Lender, in the case of any such breach which can be cured by the payment of a sum of money, or within thirty (30) days following notice from Lender in the case of any other such breach);
(vi) if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower shall make an assignment for the benefit of creditors; or if a receiver, liquidator or trustee shall be appointed for any Borrower, Senior Mezzanine Borrower or Mortgage Borrower, or if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower shall be adjudicated a bankrupt or insolvent, or if any petition for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by or against, consented to, or acquiesced in by, Borrower or Senior Mezzanine Borrower, or if any proceeding for the dissolution or liquidation of any Borrower, Senior Mezzanine Borrower or Mortgage Borrower shall be instituted; provided, however, if such appointment, adjudication, petition or proceeding was involuntary and not consented to by any Borrower, Senior Mezzanine Borrower or Mortgage Borrower, upon the same not being discharged, stayed or dismissed within ninety (90) days;
(vii) if any Operating Company, any Manager, Principal, Holdings or any Guarantor shall make an assignment for the benefit of creditors; or if a receiver, liquidator or trustee shall be appointed for any such Operating Company, any such Manager, Principal, Holdings or any such Guarantor, or if any Operating Company, any Manager, Principal, Holdings or any Guarantor shall be adjudicated a bankrupt or insolvent, or if any petition for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by or against, consented to, or acquiesced in by, any Operating Company, any Manager, Principal, Holdings or any Guarantor, or if any proceeding for the dissolution or liquidation of any Operating Company, any Manager, Principal, Holdings or any Guarantor shall be instituted; provided, however, if such appointment, adjudication, petition or proceeding was involuntary and not consented to by any such Operating Company, any such Manager, Principal, Holdings or any such Guarantor, upon the same not being discharged, stayed or dismissed within ninety (90) days;
(viii) if any Borrower attempts to assign its rights under this Agreement or any of the other Loan Documents or any interest herein or therein in contravention of the Loan Documents;
(ix) if any Borrower breaches any of its respective negative covenants contained in Section 5.2 or any covenant contained in Section 4.1.30 or Section 5.1.11 hereof (and, with respect to any such breach of any covenant set forth in Section 5.1.11 which is not the subject of any other subsection of this Section 8.1, such Borrower fails to remedy such condition within ten (10) days after notice to Borrower from Lender, in the case of any such Default under Section 5.1.11 which can be cured by the payment of a sum of money, or for thirty (30) days after notice from Lender in the case of any other such Default under Section 5.1.11);
(x) with respect to any term, covenant or provision set forth herein which specifically contains a notice requirement or grace period, if any Borrower shall be in default under such term, covenant or condition after the giving of such notice or the expiration of such grace period;
(xi) if any of the assumptions contained in the Insolvency Opinion delivered in connection with the Loan, or in the Additional Insolvency Opinion delivered subsequent to the closing of the Loan, is or shall become untrue in any material respect; or if any of the assumptions contained in the True Lease Opinion in connection with the Loan, or in the Additional True Lease Opinion delivered subsequent to the closing of the Loan, is or shall become untrue in any material respect;
(xii) if any Mortgage Borrower, any Operating Company or any Guarantor (Operating Lease) is in default of any of its material obligations under any Operating Lease (or under another lease and/or management agreement in substitution for such Operating Lease in accordance herewith) or under any such Operating Lease Guaranty (or under another operating lease guaranty in substitution for such Operating Lease Guaranty in accordance herewith) beyond any applicable notice and cure periods contained therein; or if any Operating Lease (or such other lease and/or management agreement) or any Operating Lease Guaranty (or such other operating lease guaranty) shall be surrendered or any Operating Lease or any Operating Lease Guaranty shall be terminated or canceled for any reason or under any circumstances whatsoever, except with the consent of Lender; or if any of the terms, covenants or conditions of any Operating Lease (or such other lease and/or management agreement) or any Operating Lease Guaranty (or such other operating lease guaranty) shall in any manner be modified, changed, supplemented, altered, restated or amended without the consent of Lender except as may otherwise expressly permitted in this Agreement;
(xiii) intentionally omitted;
(xiv) if any Affiliate of any Borrower that is or becomes a party to the Windstorm Insurance Intercreditor Agreement is in default of any of its material obligations under the Windstorm Insurance Intercreditor Agreement beyond any applicable notice and cure periods contained therein; or if the Windstorm Insurance Intercreditor Agreement shall be surrendered, terminated or canceled for any reason or under any circumstances whatsoever, except with the consent of Lender; or if any of the terms, covenants or conditions of the Windstorm Insurance Intercreditor Agreement shall in any manner be modified, changed, supplemented, altered, restated or amended without the consent of Lender;
(xv) if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower fails to comply with the covenants as to Prescribed Laws set forth in Section 5.1.1 hereof;
(xvi) if a material default has occurred and continues beyond any applicable cure period under any Management Agreement and if such default permits the Manager, the Operating Company or the Mortgage Borrower party thereto to terminate or cancel the Management Agreement in question;
(xvii) any Gaming License shall be refused, suspended, revoked, modified in a materially adverse manner or canceled or allowed to lapse or any proceeding is commenced by any Governmental Authority for the purpose of suspending, revoking or canceling any Gaming License in any materially adverse respect, or any Governmental Authority shall have appointed a conservator, supervisor or trustee to or for any of the Casino Components and, in each case of the foregoing, such action could reasonably be expected to (A) have an Individual Material Adverse Effect, (B) materially and adversely affect the continued operation of the Casino Components in the usual course of business and in substantially the same manner and to at least the same standard as was maintained prior to such action, or (C) result in any material decrease in the then expected cash flow and revenues to be derived from the Casino Components;
(xviii) if any Borrower shall continue to be in Default under any of the other terms, covenants or conditions of this Agreement not specified in subsections (i) to (xvii) above, for ten (10) days after notice to Borrower from Lender, in the case of any Default which can be cured by the payment of a sum of money, or for thirty (30) days after notice from Lender in the case of any other Default; provided, however, that if such non-monetary Default is susceptible of cure but cannot reasonably be cured within such thirty (30) day period and provided further that such Borrower shall have commenced to cure such Default within such thirty (30) day period and thereafter diligently and expeditiously proceeds to cure the same, such thirty (30) day period shall be extended for such time as is reasonably necessary for such Borrower in the exercise of due diligence to cure such Default, such additional period not to exceed one hundred twenty (120) days;
(xix) if there shall be a default under any of the other Loan Documents beyond any applicable cure periods contained in such documents, whether as to any Borrower, Mortgage Borrower, Senior Mezzanine Borrower, the Collateral, the Senior Mezzanine Collateral or any Individual Property, or if any other such event shall occur or condition shall exist, if the effect of such event or condition is to accelerate the maturity of any portion of the Debt or to permit Lender to accelerate the maturity of all or any portion of the Debt;
(xx) if the Liens created pursuant to any Loan Document shall cease to be a fully protected enforceable first priority security interest in the Collateral, or any portion of the Collateral is Transferred without Lender’s prior written consent except as permitted hereunder; or
(xxi) if a Mortgage Loan Event of Default or Senior Mezzanine Loan Event of Default shall occur.have occurred and be continuing:
(ba) Upon the occurrence of an Event of Default (other than an Event of Default described in clauses (vi) or (vii) above) and at any time thereafter, in addition to any other rights or remedies available to it pursuant to this Agreement and the other Loan Documents or at law or in equity, Lender may take such action, without notice or demand, that Lender deems advisable to protect and enforce its rights against Borrower and in and to all or any of the Collateral, including, without limitation, declaring the Debt to be immediately due and payableTrustee shall have, and Lender may enforce or avail itself shall be entitled to exercise, all of any or all rights or remedies provided in the Loan Documents and may exercise all the rights and remedies with respect to the Collateral of a secured party under the Uniform Commercial CodeCode and such additional rights and remedies to which a secured party is entitled under the laws in effect in any jurisdiction where any rights and remedies hereunder may be asserted, including the right, to the maximum extent permitted by law, to exercise all voting, consensual and other incidental powers of ownership pertaining to any Pledged Equity Interests or other capital stock, ownership interests, securities, notes or other obligations constituting Collateral as adopted if the Trustee were the sole and enacted by absolute owner thereof, including, pursuant to an irrevocable proxy which is hereby granted to the State Trustee, exercisable upon the Trustee's notification to the Company of its intention to exercise its voting power under this Section 8.01, to vote the Pledged Equity Interests and such other Collateral (and the Company agrees to take all such action as may be appropriate to give effect to such right);
(b) the Trustee in its discretion may, in its name or States where in the name of the Company or otherwise, demand, xxx for, collect or receive any money or property at any time payable or receivable on account of or in exchange for any of the Collateral, but shall be under no obligation to do so;
(c) the Trustee may, upon ten Business Days' (or such longer period as may be required under applicable law) prior written notice to the Company of the time and place thereof, with respect to the Collateral or any part thereof that shall then be or shall thereafter come into the possession, custody or control of the Trustee or any of its agents, sell, lease, assign or otherwise dispose of all or any part of such Collateral, at such place or places as the Trustee deems best, and for cash or for credit or for future delivery (without thereby assuming any credit risk), at public or private sale, without demand of performance or notice of intention to effect any such disposition or of the time or place thereof (except such notice as is locatedrequired above or by applicable statute, against Borrower including the Uniform Commercial Code, and cannot be waived), and the Trustee or any Holder or anyone else may be the purchaser, lessee, assignee or recipient of any or all of the CollateralCollateral so disposed of at any public sale (or, includingto the extent permitted by law, without limitationat any private sale) and thereafter hold the same absolutely, all rights free from any claim or remedies available at law right of whatsoever kind, including any right or in equity; equity of redemption (statutory or otherwise), of the Company, any such demand, notice and upon any Event of Default described in clauses (vi) right or (vii) above, equity being hereby expressly waived and released to the Debt and all other obligations of Borrower hereunder and under the other Loan Documents shall immediately and automatically become due and payablemaximum extent permitted by applicable law. The Trustee may, without notice or demandpublication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for the sale, and Borrower hereby expressly waives such sale may be made at any such notice time or demand, anything contained herein place to which the sale may be so adjourned;
(d) the Trustee may transfer or register in any other Loan Document its name or the name of its nominee the Pledged Equity Interests;
(e) to the contrary notwithstandingextent permitted by law, the Trustee may accept the Pledged Equity Interests in full or partial satisfaction of the Secured Obligations;
(f) the Trustee may make such payments and take such actions as the Trustee deems necessary to protect, perfect or continue the perfection its Lien on the Pledged Equity Interests; and
(g) the Trustee may, without being required to give prior notice, withdraw or cause the withdrawal of any and all cash constituting Trust Moneys. The Trustee shall have no obligation to marshal any of the Collateral or the assets of the Company. The proceeds of each collection, sale or other disposition and any cash constituting Trust Moneys withdrawn under this Section 8.01 shall be applied in accordance with Section 7.03 hereof.
Appears in 3 contracts
Samples: Indenture (Pg&e National Energy Group Inc), Indenture (Pg&e National Energy Group Inc), Indenture (Pg&e National Energy Group Inc)
Event of Default. (a) Each of the following events shall constitute an event of default hereunder (an “Event of Default”)::
(i) if (A) any portion the suspension from trading or failure of the Debt is not paid Common Stock to be listed on an Eligible Market for a period of five consecutive days or for more than an aggregate of 10 days in full on the Maturity Date, (B) the Debt Service is not paid in full on or before the related Payment Date, or (C) any other portion of the Debt is not paid within five (5) days of when due365-day period;
(ii) if the Company's (A) failure to cure a Conversion Failure by delivery of the required number of shares of Common Stock within ten Trading Days after the applicable Conversion Date or (B) notice, written or oral, to any holder of the Notes, including by way of public announcement or through any of its agents, at any time, of its intention not to comply with a request for conversion of any Notes into shares of Common Stock that is tendered in accordance with the Taxes or Other Charges are not paid (with respect to each or any Individual Property) prior to Delinquencyprovisions of the Notes;
(iii) if the Policies Holder's Authorized Share Allocation is less than the number of shares of Common Stock that the Holder would be entitled to receive upon a full conversion of this Note (with respect without regard to each any limitations on conversion set forth in Section 3(d) or any Individual Propertyotherwise) are not kept in full force and effect, or if certified copies of the Policies (for each Individual Property) are not delivered to Lender upon request (or certificates thereof, if a Policy shall be renewed and certified copies of the Policy are not immediately available upon such renewal (each Borrower agreeing in such instance to provide copies of the Policies to Lender promptly thereafter))10 consecutive Business Days;
(iv) if the Company's failure to pay to the Holder any Borrower Transfers amount of Principal, Interest, Late Charges or otherwise encumbers any portion of the Propertiesother amounts when and as due under this Note (including, without limitation, the Collateral Company's failure to pay any redemption payments, premiums or the Senior Mezzanine Collateral, or there shall otherwise occur a Transfer without Lender’s prior consent in violation of the provisions of this Agreement, the Pledge Agreement other amounts hereunder) or any other Loan DocumentTransaction Document (as defined in the Securities Purchase Agreement) except in the case of a failure to pay Interest and Late Charges when and as due, in which case only if such failure continues for a period of at least five Trading Days;
(v) if any representation or warranty made by any Borrower or any other Loan Party herein or in any other Loan Documentthe Company shall either (i) fail to pay, when due, or within any applicable grace period, any payment with respect to any Indebtedness in excess of $250,000 due to any reportthird party, certificate, financial statement or other instrument, agreement or document or other material or written information furnished to Lender shall have been false or misleading in any material respect as of the date the representation or warranty was made (andthan, with respect to any such unsecured Indebtedness only, payments contested by the Company in good faith by proper proceedings and with respect to which adequate reserves have been set aside for the payment thereof in accordance with GAAP, or otherwise be in breach which is not the subject or violation of any agreement for monies owed or owing in an amount in excess of $250,000, which breach or violation permits the other subsection party thereto to declare a default or otherwise accelerate amounts due thereunder, or (ii) suffer to exist any other circumstance or event that would, with or without the passage of this Section 8.1 and time or the giving of notice, result in a default or event of default under any agreement binding the Company, which default or event of default would or is capable likely to have a material adverse effect on the business, operations, properties, prospects or financial condition of being curedthe Company or any of its Subsidiaries, such Borrower fails to remedy such condition within ten (10) days following notice to Borrower from Lender, individually or in the case of any such breach which can be cured by the payment of a sum of money, or within thirty (30) days following notice from Lender in the case of any other such breach)aggregate;
(vi) if the Company or any Borrowerof its Subsidiaries, Senior Mezzanine Borrower pursuant to or Mortgage Borrower shall make within the meaning of Title 11, U.S. Code, or the Bankruptcy and Insolvency Act (Canada), or any similar Federal, foreign or state law for the relief of debtors (collectively, “Bankruptcy Law”), (A) commences a voluntary case, (B) consents to the entry of an order for relief against it in an involuntary case, (C) consents to the appointment of a receiver, trustee, assignee, liquidator or similar official (a “Custodian”), (D) makes a general assignment for the benefit of creditors; its creditors or if a receiver, liquidator or trustee shall be appointed for any Borrower, Senior Mezzanine Borrower or Mortgage Borrower, or if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower shall be adjudicated a bankrupt or insolvent, or if any petition for bankruptcy, reorganization or arrangement pursuant (E) admits in writing that it is generally unable to federal bankruptcy law, or any similar federal or state law, shall be filed by or against, consented to, or acquiesced in by, Borrower or Senior Mezzanine Borrower, or if any proceeding for the dissolution or liquidation of any Borrower, Senior Mezzanine Borrower or Mortgage Borrower shall be instituted; provided, however, if such appointment, adjudication, petition or proceeding was involuntary and not consented to by any Borrower, Senior Mezzanine Borrower or Mortgage Borrower, upon the same not being discharged, stayed or dismissed within ninety (90) dayspay its debts as they become due;
(vii) if a court of competent jurisdiction enters an order or decree under any Operating Company, any Manager, Principal, Holdings Bankruptcy Law that (A) is for relief against the Company or any Guarantor shall make of its Subsidiaries in an assignment for involuntary case, (B) appoints a Custodian of the benefit of creditors; or if a receiver, liquidator or trustee shall be appointed for any such Operating Company, any such Manager, Principal, Holdings Company or any such Guarantor, of its Subsidiaries or if any Operating Company, any Manager, Principal, Holdings (C) orders the liquidation of the Company or any Guarantor shall be adjudicated a bankrupt or insolvent, or if any petition for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by or against, consented to, or acquiesced in by, any Operating Company, any Manager, Principal, Holdings or any Guarantor, or if any proceeding for the dissolution or liquidation of any Operating Company, any Manager, Principal, Holdings or any Guarantor shall be instituted; provided, however, if such appointment, adjudication, petition or proceeding was involuntary and not consented to by any such Operating Company, any such Manager, Principal, Holdings or any such Guarantor, upon the same not being discharged, stayed or dismissed within ninety (90) daysits Subsidiaries;
(viii) if any Borrower attempts to assign its rights under this Agreement bankruptcy, insolvency, reorganization or liquidation proceedings or other proceedings for the relief of debtors shall be instituted by or against the Company or any of its Subsidiaries and, if instituted against the other Loan Documents Company or any interest herein or therein in contravention of the Loan Documentsits Subsidiaries by a third party, shall not be dismissed within 60 days of their initiation;
(ix) if any Borrower breaches a final judgment or judgments for the payment of money aggregating in excess of $500,000 are rendered against the Company or any of its respective negative covenants contained in Section 5.2 or any covenant contained in Section 4.1.30 or Section 5.1.11 hereof (andSubsidiaries, with respect to any such breach of any covenant set forth in Section 5.1.11 which is not the subject of any other subsection of this Section 8.1judgments are not, such Borrower fails to remedy such condition within ten (10) 60 days after notice to Borrower from Lenderthe entry thereof, in the case of any such Default under Section 5.1.11 which can be cured by the payment of a sum of moneybonded, discharged or stayed pending appeal, or for thirty (30) are not discharged within 60 days after notice from Lender in the case of any other such Default under Section 5.1.11);
(x) with respect to any term, covenant or provision set forth herein which specifically contains a notice requirement or grace period, if any Borrower shall be in default under such term, covenant or condition after the giving of such notice or the expiration of such grace period;
(xi) if any of the assumptions contained in the Insolvency Opinion delivered in connection with the Loan, or in the Additional Insolvency Opinion delivered subsequent to the closing of the Loan, is or shall become untrue in any material respect; or if any of the assumptions contained in the True Lease Opinion in connection with the Loan, or in the Additional True Lease Opinion delivered subsequent to the closing of the Loan, is or shall become untrue in any material respect;
(xii) if any Mortgage Borrower, any Operating Company or any Guarantor (Operating Lease) is in default of any of its material obligations under any Operating Lease (or under another lease and/or management agreement in substitution for such Operating Lease in accordance herewith) or under any such Operating Lease Guaranty (or under another operating lease guaranty in substitution for such Operating Lease Guaranty in accordance herewith) beyond any applicable notice and cure periods contained therein; or if any Operating Lease (or such other lease and/or management agreement) or any Operating Lease Guaranty (or such other operating lease guaranty) shall be surrendered or any Operating Lease or any Operating Lease Guaranty shall be terminated or canceled for any reason or under any circumstances whatsoever, except with the consent of Lender; or if any of the terms, covenants or conditions of any Operating Lease (or such other lease and/or management agreement) or any Operating Lease Guaranty (or such other operating lease guaranty) shall in any manner be modified, changed, supplemented, altered, restated or amended without the consent of Lender except as may otherwise expressly permitted in this Agreement;
(xiii) intentionally omitted;
(xiv) if any Affiliate of any Borrower that is or becomes a party to the Windstorm Insurance Intercreditor Agreement is in default of any of its material obligations under the Windstorm Insurance Intercreditor Agreement beyond any applicable notice and cure periods contained therein; or if the Windstorm Insurance Intercreditor Agreement shall be surrendered, terminated or canceled for any reason or under any circumstances whatsoever, except with the consent of Lender; or if any of the terms, covenants or conditions of the Windstorm Insurance Intercreditor Agreement shall in any manner be modified, changed, supplemented, altered, restated or amended without the consent of Lender;
(xv) if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower fails to comply with the covenants as to Prescribed Laws set forth in Section 5.1.1 hereof;
(xvi) if a material default has occurred and continues beyond any applicable cure period under any Management Agreement and if such default permits the Manager, the Operating Company or the Mortgage Borrower party thereto to terminate or cancel the Management Agreement in question;
(xvii) any Gaming License shall be refused, suspended, revoked, modified in a materially adverse manner or canceled or allowed to lapse or any proceeding is commenced by any Governmental Authority for the purpose of suspending, revoking or canceling any Gaming License in any materially adverse respect, or any Governmental Authority shall have appointed a conservator, supervisor or trustee to or for any of the Casino Components and, in each case of the foregoing, such action could reasonably be expected to (A) have an Individual Material Adverse Effect, (B) materially and adversely affect the continued operation of the Casino Components in the usual course of business and in substantially the same manner and to at least the same standard as was maintained prior to such action, or (C) result in any material decrease in the then expected cash flow and revenues to be derived from the Casino Components;
(xviii) if any Borrower shall continue to be in Default under any of the other terms, covenants or conditions of this Agreement not specified in subsections (i) to (xvii) above, for ten (10) days after notice to Borrower from Lender, in the case of any Default which can be cured by the payment of a sum of money, or for thirty (30) days after notice from Lender in the case of any other Defaultstay; provided, however, that if such non-monetary Default any judgment that is susceptible of cure but cancovered by insurance or an indemnity from a credit worthy party shall not reasonably be cured within such thirty (30) day period and provided further that such Borrower shall have commenced to cure such Default within such thirty (30) day period and thereafter diligently and expeditiously proceeds to cure included in calculating the same, such thirty (30) day period shall be extended for such time as is reasonably necessary for such Borrower in the exercise of due diligence to cure such Default, such additional period not to exceed one hundred twenty (120) days$500,000 amount set forth above;
(xixx) if there shall be a default under the Company breaches any representation, warranty, covenant (other than the covenants set forth in Section 14 of the this Note) or other Loan Documents beyond any applicable cure periods contained in such documents, whether as to any Borrower, Mortgage Borrower, Senior Mezzanine Borrower, the Collateral, the Senior Mezzanine Collateral or any Individual Property, or if any other such event shall occur term or condition shall exist, if the effect of such event or condition is to accelerate the maturity of any portion Transaction Document, except, in the case of a breach of a covenant which is curable, only if such breach continues for a period of at least 10 consecutive days after written notice thereof to the Debt or to permit Lender to accelerate Company by the maturity of all or any portion of the DebtHolder;
(xxxi) if any breach or failure to comply with Section 14 of this Note;
(xii) the Liens created pursuant Company fails to remove any Loan Document shall cease to be a fully protected enforceable first priority security interest in the Collateral, restrictive legend on any certificate or any portion shares of Common Stock issued to the holders of Notes upon conversion of the Collateral is Transferred without Lender’s prior written consent except Notes as permitted hereunderand when required by the Notes or the Securities Purchase Agreement (a “Legend Removal Failure”), and any such failure continues uncured for five Business Days after the Company has been notified thereof in writing by the holder; or
(xxixiii) if a Mortgage Loan Event of Default or Senior Mezzanine Loan Event of Default shall occur.
(b) Upon the occurrence of an any Event of Default (other than an Event of Default described as defined in clauses (vithe Other Notes) or (vii) above) and at any time thereafter, in addition occurs with respect to any other rights or remedies available to it pursuant to this Agreement and the other Loan Documents or at law or in equity, Lender may take such action, without notice or demand, that Lender deems advisable to protect and enforce its rights against Borrower and in and to all or any of the Collateral, including, without limitation, declaring the Debt to be immediately due and payable, and Lender may enforce or avail itself of any or all rights or remedies provided in the Loan Documents and may exercise all the rights and remedies of a secured party under the Uniform Commercial Code, as adopted and enacted by the State or States where any of the Collateral is located, against Borrower and any or all of the Collateral, including, without limitation, all rights or remedies available at law or in equity; and upon any Event of Default described in clauses (vi) or (vii) above, the Debt and all other obligations of Borrower hereunder and under the other Loan Documents shall immediately and automatically become due and payable, without notice or demand, and Borrower hereby expressly waives any such notice or demand, anything contained herein or in any other Loan Document to the contrary notwithstandingOther Notes.
Appears in 3 contracts
Samples: Securities Purchase Agreement (Security Devices International Inc.), Securities Purchase Agreement (Security Devices International Inc.), Securities Purchase Agreement (Security Devices International Inc.)
Event of Default. (a) Each of the following events shall constitute an event of default hereunder (an “Event of Default”):
(i) if (A) any portion of the Debt is not paid in full on the Maturity Date, (B) any regularly scheduled monthly payment of interest due under the Debt Service Note is not paid in full on or before the related applicable Payment Date, or (C) any other portion prepayment of principal or Release Amount due under this Agreement or the Debt Note is not paid within five when due or (5D) days of any Spread Maintenance Premium, Interest Shortfall or Breakage Costs is not paid when due, in the case of clauses (B), (C) or (D), such failure continuing for two (2) Business Days after the due date for such payment or deposit;
(ii) if any of deposit to the Taxes or Other Charges are Reserve Funds is not paid made on the required deposit date therefor, with such failure continuing for two (with respect 2) Business Days after Lender delivers written notice thereof to each or any Individual Property) prior to DelinquencyBorrower;
(iii) if any other amount payable pursuant to this Agreement, the Note or any other Loan Document (other than as set forth in the foregoing clauses (i) and (ii)) is not paid in full when due and payable in accordance with the provisions of the applicable Loan Document, with such failure continuing for ten (10) days after Lender delivers written notice thereof to Borrower;
(iv) if the Policies (with respect to each or any Individual Property) are not (A) delivered to Lender within five (5) Business Days of Lender’s written request and (B) kept in full force and effect, or if certified copies of each in accordance with the Policies (for each Individual Property) are not delivered to Lender upon request (or certificates thereof, if a Policy shall be renewed terms and certified copies of the Policy are not immediately available upon such renewal (each Borrower agreeing in such instance to provide copies of the Policies to Lender promptly thereafter))conditions hereof;
(ivv) a Transfer other than a Permitted Transfer occurs;
(vi) if any Borrower Transfers certification, representation or otherwise encumbers any portion of the Properties, the Collateral or the Senior Mezzanine Collateral, or there shall otherwise occur warranty made by a Transfer without Lender’s prior consent in violation of the provisions of this Agreement, the Pledge Agreement Relevant Party herein or any other Loan Document;
(v) if any representation or warranty made by any Borrower or any , other Loan Party herein or in any other Loan Documentthan a Property Representation, or in any report, certificate, financial statement or other instrument, agreement or document or other material or written information furnished by a Relevant Party to Lender shall have been false or misleading in any material and adverse respect as of the date the such representation or warranty was made; provided, however, if any untrue certification, representation or warranty made (and, with respect to any such breach which after the Closing Date is not the subject of any other subsection of this Section 8.1 and which is capable susceptible of being cured, Borrower shall have the right to cure such Borrower fails to remedy such condition within ten (10) days following notice to Borrower from Lendercertification, in the case of any such breach which can be cured by the payment of a sum of money, representation or warranty within thirty (30) days following after receipt of notice from Lender Lender; and provided further that for any certification, representation or warranty made in the case connection with a delivery of any other a report, Borrower shall have such breach)longer grace period as applicable for delivery of such report;
(vivii) if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower Relevant Party shall make an assignment for the benefit of creditors; or ;
(viii) if a receiver, liquidator or trustee shall be appointed for any BorrowerRelevant Party, Senior Mezzanine Borrower or Mortgage Borrower, or if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower Relevant Party shall be adjudicated a bankrupt or insolvent, or if any petition for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by or against, consented to, or acquiesced in by, Borrower or Senior Mezzanine BorrowerRelevant Party, or if any proceeding for the dissolution or liquidation of any Borrower, Senior Mezzanine Borrower or Mortgage Borrower Relevant Party shall be instituted, or if any Loan Party is substantively consolidated with any Person other than a Loan Party; provided, however, if such appointment, adjudication, petition petition, proceeding or proceeding consolidation was involuntary and not consented to by any Borrower, Senior Mezzanine Borrower or Mortgage Borrowersuch Relevant Party, upon the same not being discharged, stayed or dismissed within ninety sixty (9060) daysdays following its filing;
(viiix) if any Operating Company, any Manager, Principal, Holdings or any Guarantor shall make an assignment for the benefit of creditors; or if a receiver, liquidator or trustee shall be appointed for any such Operating Company, any such Manager, Principal, Holdings or any such Guarantor, or if any Operating Company, any Manager, Principal, Holdings or any Guarantor shall be adjudicated a bankrupt or insolvent, or if any petition for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by or against, consented to, or acquiesced in by, any Operating Company, any Manager, Principal, Holdings or any Guarantor, or if any proceeding for the dissolution or liquidation of any Operating Company, any Manager, Principal, Holdings or any Guarantor shall be instituted; provided, however, if such appointment, adjudication, petition or proceeding was involuntary and not consented to by any such Operating Company, any such Manager, Principal, Holdings or any such Guarantor, upon the same not being discharged, stayed or dismissed within ninety (90) days;
(viii) if any Borrower Loan Party attempts to assign its rights under this Agreement or any of the other Loan Documents or any interest herein or therein in contravention of the Loan Documents;
(ix) if any Borrower breaches any of its respective negative covenants contained in Section 5.2 or any covenant contained in Section 4.1.30 or Section 5.1.11 hereof (and, with respect to any such breach of any covenant set forth in Section 5.1.11 which is not the subject of any other subsection of this Section 8.1, such Borrower fails to remedy such condition within ten (10) days after notice to Borrower from Lender, in the case of any such Default under Section 5.1.11 which can be cured by the payment of a sum of money, or for thirty (30) days after notice from Lender in the case of any other such Default under Section 5.1.11);
(x) with respect to any term, covenant or provision set forth herein which specifically contains a notice requirement or grace period, if any Borrower shall be in default under such term, covenant or condition after the giving of such notice or the expiration of such grace period;
(xi) if any of the assumptions contained in the Insolvency Opinion delivered in connection with the LoanOpinion, or in the any Additional Insolvency Opinion delivered subsequent to the closing of the Loan, is or shall become untrue in any material respect; or if any of the assumptions contained in the True Lease Opinion Lender in connection with the Loan, or in the Additional True Lease Opinion delivered subsequent to the closing of the Loan, is or shall become untrue in any material respect;
(xi) a breach of the covenants set forth in Sections 4.1.1, 4.1.2, 4.1.3, 4.1.4, 4.1.12, 4.1.19, 4.2.2, 4.2.3, 4.2.5, 4.2.8, 4.2.9, 4.2.11, 4.2.14 or 4.2.15;
(xii) if with respect to any Mortgage BorrowerDisqualified Property, any Operating Company or any Guarantor Borrower fails to within the time periods specified in Section 2.4.2(a) either: (Operating LeaseA) is pay the Release Amount in default of any of its material obligations under any Operating Lease respect thereof, (or under another lease and/or management agreement in substitution for B) substitute such Operating Lease Disqualified Property with a Substitute Property in accordance herewithwith Section 2.4.2(a) or under any such Operating Lease Guaranty (C) or under another operating lease guaranty deposit an amount equal to one hundred percent (100%) of the Allocated Loan Amount for the Disqualified Property in substitution for such Operating Lease Guaranty the Eligibility Reserve Subaccount in accordance herewithwith Section 2.4.2(a) beyond any applicable and such failure continues for more than five (5) Business Days after written notice and cure periods contained therein; or if any Operating Lease (or such other lease and/or management agreement) or any Operating Lease Guaranty (or such other operating lease guaranty) shall be surrendered or any Operating Lease or any Operating Lease Guaranty shall be terminated or canceled for any reason or under any circumstances whatsoever, except with the consent of Lender; or if any of the terms, covenants or conditions of any Operating Lease (or such other lease and/or management agreement) or any Operating Lease Guaranty (or such other operating lease guaranty) shall in any manner be modified, changed, supplemented, altered, restated or amended without the consent of thereof from Lender except as may otherwise expressly permitted in this Agreementto Borrower;
(xiii) intentionally omittedif, (A) without Lender’s prior written consent, (i) any Management Agreement is terminated (unless simultaneously therewith, Borrower and a new Qualified Manager enter into a Replacement Management Agreement in accordance with Section 4.2.1), or (ii) there is a default by Borrower under any Management Agreement beyond any applicable notice or grace period and such Manager terminates or cancels the applicable Management Agreement (unless, within thirty (30) days after the expiration of such notice or grace period, Borrower and a new Qualified Manager enter into a Replacement Management Agreement in accordance with Section 4.2.1) or (B) following the occurrence of a Manager Default, Borrower fails to exercise its right to terminate the Manager under the Management Agreement;
(xiv) if any Affiliate Loan Party, Parent, any Qualified Transferee, or any subsidiary of Parent or any Borrower Qualified Transferee that is owns a direct or becomes a party to the Windstorm Insurance Intercreditor Agreement is indirect ownership interest in default of any of its material obligations under the Windstorm Insurance Intercreditor Agreement beyond any applicable notice and cure periods contained therein; or if the Windstorm Insurance Intercreditor Agreement Loan Party shall be surrendered, terminated or canceled for any reason or under any circumstances whatsoever, except with the consent convicted of Lender; or if any a Patriot Act Offense by a court of the terms, covenants or conditions of the Windstorm Insurance Intercreditor Agreement shall in any manner be modified, changed, supplemented, altered, restated or amended without the consent of Lendercompetent jurisdiction;
(xv) if any Borrower, Senior Mezzanine failure on the part of any Borrower to duly observe or Mortgage Borrower fails to comply with the perform any of its covenants as to Prescribed Laws set forth in Section 5.1.1 hereof4.1.20 or the representation and warranty in Section 3.1.24 shall fail to be correct in respect of a Tenant of any Property and, in each case, Borrower fails to notify OFAC within five (5) Business Days of Borrower obtaining knowledge that such Tenant is on any of the lists described in those sections and promptly take such steps as may be required by OFAC with respect to such Tenant;
(xvi) if a material default has occurred and continues beyond any applicable cure period under any Management Agreement and if such default permits the Manager, the Operating Company or the Mortgage Borrower party thereto to terminate or cancel the Management Agreement in question;
(xvii) any Gaming License shall be refused, suspended, revoked, modified in a materially adverse manner or canceled or allowed to lapse or any proceeding is commenced by any Governmental Authority for the purpose of suspending, revoking or canceling any Gaming License in any materially adverse respect, or any Governmental Authority shall have appointed a conservator, supervisor or trustee to or for any of the Casino Components and, in each case of the foregoing, such action could reasonably be expected to (A) have an Individual Material Adverse Effect, (B) materially and adversely affect the continued operation of the Casino Components in the usual course of business and in substantially the same manner and to at least the same standard as was maintained prior to such action, or (C) result in any material decrease in the then expected cash flow and revenues to be derived from the Casino Components;
(xviii) if any Borrower shall continue to be in Default under any of the other terms, covenants or conditions of this Agreement not specified in subsections (i) to (xvii) above, for ten (10) days after notice to Borrower from Lender, in the case of any Default which can be cured by the payment of a sum of money, or for thirty (30) days after notice from Lender in the case of any other Default; provided, however, that if such non-monetary Default is susceptible of cure but cannot reasonably be cured within such thirty (30) day period and provided further that such Borrower shall have commenced to cure such Default within such thirty (30) day period and thereafter diligently and expeditiously proceeds to cure the same, such thirty (30) day period shall be extended for such time as is reasonably necessary for such Borrower in the exercise of due diligence to cure such Default, such additional period not to exceed one hundred twenty (120) days;
(xix) if there shall be a default under any of the other Loan Documents by any Relevant Party beyond any applicable cure periods contained in such documentsLoan Documents, whether as to any Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Relevant Party or the Collateral, the Senior Mezzanine Collateral or any Individual PropertyProperties, or if any other such event shall occur or condition shall exist, if the effect of such event or condition is to accelerate the maturity of any portion of the Debt Obligations or to permit Lender to accelerate the maturity of all or any portion of the DebtObligations;
(xvii) if Borrower fails to obtain or maintain an Interest Rate Cap Agreement or replacement thereof in accordance with Section 2.2.7;
(xviii) if any Loan Document or any Lien granted thereunder by any Relevant Party shall (except in accordance with its terms or pursuant to Lender’s written consent), in whole or in part, terminate, cease to be effective or cease to be the legally valid, binding and enforceable obligation of the parties thereto or any Relevant Party or any other party shall disaffirm or contest, in writing, in any manner such effectiveness, validity, binding nature or enforceability (other than as a result of the occurrence of the payment in full of the Obligations);
(xix) one or more final judgments for the payment of $2,500,000 or more rendered against any Loan Party, and such amount is not covered by insurance or indemnity or discharged, paid or stayed within sixty (60) days after (i) the date on which the right to appeal thereof has expired if no such appeal has commenced, or (ii) the date on which all rights to appeal have been extinguished;
(xx) if the Liens created Parent or any Qualified Transferee that executes and delivers a replacement guaranty pursuant to any Loan Document shall cease Section 4.2.17(e) fails to be a fully protected enforceable first priority security interest in comply with the Collateral, or any portion of the Collateral is Transferred without Lender’s prior written consent except as permitted hereunderParent Financial Covenant; or
(xxi) if a Mortgage any Relevant Party shall continue to be in Default under any of the other terms, covenants or conditions of this Agreement or any other Loan Event of Default or Senior Mezzanine Loan Event of Document not specified in subsections (i) to (xx) above, and such Default shall occurcontinue for ten (10) days after notice to Borrower from Lender, in the case of any such Default which can be cured by the payment of a sum of money, or for thirty (30) days after notice to Borrower from Lender in the case of any other such Default; provided, however, that if such non-monetary Default is susceptible of cure but cannot reasonably be cured within such thirty (30)-day period, and provided further that Borrower shall have commenced to cure such Default within such thirty (30)-day period and thereafter diligently and expeditiously proceeds to cure the same, such thirty (30)-day period shall be extended for such time as is reasonably necessary for Borrower in the exercise of due diligence to cure such Default, such additional period not to exceed one hundred twenty (120) days.
(b) Upon During the occurrence continuance of an Event of Default (other than an Event of Default described in clauses (vivii), (viii) or (viiix) above) and at any time thereafter), in addition to any other rights or remedies available to it pursuant to this Agreement and the other Loan Documents or at law or in equity, Lender may take such action, without notice or demand, that Lender deems advisable to protect and enforce its rights against Borrower any Relevant Party and in and to any or all or any of the CollateralProperties, including, without limitation, declaring the Debt to be immediately due and payable, and Lender may enforce or avail itself of any or all rights or remedies provided in the Loan Documents and may exercise all against the rights and remedies of a secured party under the Uniform Commercial Code, as adopted and enacted by the State or States where any of the Collateral is located, against Borrower Relevant Parties and any or all of the CollateralProperties, including, without limitation, all rights or remedies available at law or in equity; and upon any Event of Default described in clauses (vivii), (viii) or (viiix) above, the Debt and all other obligations Other Obligations of Borrower hereunder and under the other Loan Documents shall immediately and automatically become due and payable, without notice or demand, and Borrower hereby expressly waives any such notice or demand, anything contained herein or in any other Loan Document to the contrary notwithstanding.
Appears in 3 contracts
Samples: Loan Agreement (Altisource Residential Corp), Loan Agreement (Altisource Residential Corp), Loan Agreement (Altisource Residential Corp)
Event of Default. (a) Each The occurrence of any of the following events shall constitute an event of default hereunder (an “Event of Default”):Default tinder this Lease Agreement and/or any Lease Schedule:
(i) if (A) any portion of the Debt is not paid in full on the Maturity Date, (B1) the Debt Service is not paid in full on or before the related Payment Datenonpayment by Lessee of any Lease Charges when due, or (C) the nonpayment by Lessee of any other portion sum required hereunder to be paid by Lessee which non-payment continues for a period of the Debt is not paid within five ten (510) days of from the date when due;
(ii2) if the failure of Lessee to perform any of the Taxes other term, covenant or Other Charges are not paid (with respect to each or any Individual Property) prior to Delinquency;
(iii) if the Policies (with respect to each or any Individual Property) are not kept in full force and effect, or if certified copies of the Policies (for each Individual Property) are not delivered to Lender upon request (or certificates thereof, if a Policy shall be renewed and certified copies of the Policy are not immediately available upon such renewal (each Borrower agreeing in such instance to provide copies of the Policies to Lender promptly thereafter));
(iv) if any Borrower Transfers or otherwise encumbers any portion of the Properties, the Collateral or the Senior Mezzanine Collateral, or there shall otherwise occur a Transfer without Lender’s prior consent in violation of the provisions condition of this Lease Agreement, the Pledge Agreement any Lease Schedule or any other Loan Document;
(v) if any representation or warranty made by any Borrower or any other Loan Party herein or in any other Loan Document, or in any report, certificate, financial statement or other instrumentdocument, agreement or document instrument executed pursuant hereto or other material or written information furnished to Lender shall have been false or misleading in any material respect as of the date the representation or warranty was made (andconnection herewith, with respect to any such breach which is not the subject of any other subsection of this Section 8.1 and which is capable of being cured, such Borrower fails to remedy such condition cured within ten (10) days following notice to Borrower from Lender, in the case of any such breach which can be cured by the payment of a sum of money, or within thirty (30) days following notice from Lender in the case of any other such breach);
(vi) if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower shall make an assignment for the benefit of creditors; or if a receiver, liquidator or trustee shall be appointed for any Borrower, Senior Mezzanine Borrower or Mortgage Borrower, or if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower shall be adjudicated a bankrupt or insolvent, or if any petition for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by or against, consented to, or acquiesced in by, Borrower or Senior Mezzanine Borrower, or if any proceeding for the dissolution or liquidation of any Borrower, Senior Mezzanine Borrower or Mortgage Borrower shall be instituted; provided, however, if such appointment, adjudication, petition or proceeding was involuntary and not consented to by any Borrower, Senior Mezzanine Borrower or Mortgage Borrower, upon the same not being discharged, stayed or dismissed within ninety (90) days;
(vii3) if any Operating CompanyLessee attempts to or does transfer, sell, swap, assign, trade, exchange, encumber, receive an allowance or credit for, or part with possession of, any Manager, Principal, Holdings or any Guarantor shall make an assignment for the benefit item of creditors; or if a receiver, liquidator or trustee shall be appointed for any such Operating Company, any such Manager, Principal, Holdings or any such Guarantor, or if any Operating Company, any Manager, Principal, Holdings or any Guarantor shall be adjudicated a bankrupt or insolvent, or if any petition for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by or against, consented to, or acquiesced in by, any Operating Company, any Manager, Principal, Holdings or any Guarantor, or if any proceeding for the dissolution or liquidation of any Operating Company, any Manager, Principal, Holdings or any Guarantor shall be instituted; provided, however, if such appointment, adjudication, petition or proceeding was involuntary and not consented to by any such Operating Company, any such Manager, Principal, Holdings or any such Guarantor, upon the same not being discharged, stayed or dismissed within ninety (90) daysEquipment;
(viii4) if any Borrower attempts to assign its rights under this Agreement Lessee or any guarantor of the other Loan Documents or any interest herein or therein in contravention of the Loan Documentsthis Lease Agreement ceases doing business as a going concern;
(ix5) without Lessor's express prior written consent, (i) Lessee or any guarantor of this Lease Agreement sells, conveys all or substantially all of its assets, (ii) Lessee or any guarantor of this Lease Agreement merges, consolidates, liquidates, dissolves or combines its assets with any other entity, or (iii) if any Borrower breaches any of its respective negative covenants contained in Section 5.2 Lessee or any covenant contained in Section 4.1.30 or Section 5.1.11 hereof (and, with respect to any such breach of any covenant set forth in Section 5.1.11 which is not the subject of any other subsection guarantor of this Section 8.1Lease Agreement is a corporation, such Borrower fails to remedy such condition within ten (10) days after notice to Borrower from Lenderpartnership, in the case of any such Default under Section 5.1.11 which can be cured by the payment of a sum of moneylimited liability company or other entity, or for thirty (30) days after notice from Lender in the case of any other such Default under Section 5.1.11);
(x) with respect to any term, covenant or provision set forth herein which specifically contains a notice requirement or grace period, if any Borrower shall be in default under such term, covenant or condition after the giving of such notice or the expiration of such grace period;
(xi) if any more than 50% of the assumptions contained in outstanding equity interests of Lessee or such guarantor are owned directly or indirectly at any time during the Insolvency Opinion delivered in connection with Term of this Lease Agreement by a person or group of persons other than the Loan, or in the Additional Insolvency Opinion delivered subsequent to the closing person(s) who held all of the Loan, is or shall become untrue in any material respect; or if any outstanding equity interests on the date of the assumptions contained in the True this Lease Opinion in connection with the Loan, or in the Additional True Lease Opinion delivered subsequent to the closing of the Loan, is or shall become untrue in any material respect;
(xii) if any Mortgage Borrower, any Operating Company or any Guarantor (Operating Lease) is in default of any of its material obligations under any Operating Lease (or under another lease and/or management agreement in substitution for such Operating Lease in accordance herewith) or under any such Operating Lease Guaranty (or under another operating lease guaranty in substitution for such Operating Lease Guaranty in accordance herewith) beyond any applicable notice and cure periods contained therein; or if any Operating Lease (or such other lease and/or management agreement) or any Operating Lease Guaranty (or such other operating lease guaranty) shall be surrendered or any Operating Lease or any Operating Lease Guaranty shall be terminated or canceled for any reason or under any circumstances whatsoever, except with the consent of Lender; or if any of the terms, covenants or conditions of any Operating Lease (or such other lease and/or management agreement) or any Operating Lease Guaranty (or such other operating lease guaranty) shall in any manner be modified, changed, supplemented, altered, restated or amended without the consent of Lender except as may otherwise expressly permitted in this Agreement;
(xiii6) intentionally omittedany representations or warranties made at any time by Lessee or any guarantor in this Lease Agreement or in any agreement, statement, certificate, financial or credit information provided in connection herewith are false or misleading when made;
(xiv7) if Lessee or any Affiliate guarantor of this Lease Agreement defaults under or otherwise has accelerated any Borrower that is material obligation, credit agreement, loan agreement, conditional sales contract, lease, indenture or becomes a party to debenture with the Windstorm Insurance Intercreditor Agreement is in default of any of its material obligations under the Windstorm Insurance Intercreditor Agreement beyond any applicable notice and cure periods contained thereinLessor; or if the Windstorm Insurance Intercreditor Lessee or any guarantor of this Lease Agreement shall be surrendered, terminated or canceled for any reason or defaults under any circumstances whatsoeverother agreement now existing or hereafter made with Lessor, except with the consent of Lender; or if any of the terms, covenants or conditions of the Windstorm Insurance Intercreditor Agreement shall in any manner be modified, changed, supplemented, altered, restated or amended without the consent of Lender;
(xv) if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower fails to comply with the covenants as to Prescribed Laws set forth in Section 5.1.1 hereof;
(xvi) if a material default has occurred and continues beyond any applicable cure period under any Management Agreement and if such default permits the Manager, the Operating Company or the Mortgage Borrower party thereto to terminate or cancel the Management Agreement in question;
(xvii) any Gaming License shall be refused, suspended, revoked, modified in a materially adverse manner or canceled or allowed to lapse or any proceeding is commenced by any Governmental Authority for the purpose of suspending, revoking or canceling any Gaming License in any materially adverse respect, or any Governmental Authority shall have appointed a conservator, supervisor or trustee to or for any of the Casino Components and, in each case of the foregoing, such action could reasonably be expected to (A) have including an Individual Material Adverse Effect, (B) materially and adversely affect the continued operation of the Casino Components in the usual course of business and in substantially the same manner and to at least the same standard as was maintained prior to such action, or (C) result in any material decrease in the then expected cash flow and revenues to be derived from the Casino Components;
(xviii) if any Borrower shall continue to be in Default under any of the other terms, covenants or conditions of this Agreement not specified in subsections (i) to (xvii) above, for ten (10) days after notice to Borrower from Lender, in the case of any Default which can be cured by the payment of a sum of money, or for thirty (30) days after notice from Lender in the case of any other Default; provided, however, that if such non-monetary Default is susceptible of cure but cannot reasonably be cured within such thirty (30) day period and provided further that such Borrower shall have commenced to cure such Default within such thirty (30) day period and thereafter diligently and expeditiously proceeds to cure the same, such thirty (30) day period shall be extended for such time as is reasonably necessary for such Borrower in the exercise of due diligence to cure such Default, such additional period not to exceed one hundred twenty (120) days;
(xix) if there shall be a default under any of the other Loan Documents beyond any applicable cure periods contained in such documents, whether as to any Borrower, Mortgage Borrower, Senior Mezzanine Borrower, the Collateral, the Senior Mezzanine Collateral or any Individual Property, or if any other such event shall occur or condition shall exist, if the effect of such event or condition is to accelerate the maturity of any portion of the Debt or to permit Lender to accelerate the maturity of all or any portion of the Debt;
(xx) if the Liens created pursuant to any Loan Document shall cease to be a fully protected enforceable first priority security interest in the Collateral, or any portion of the Collateral is Transferred without Lender’s prior written consent except as permitted hereunderEquipment Purchase Agreement; or
(xxi) if a Mortgage Loan Event of Default 8) the breach or Senior Mezzanine Loan Event of Default shall occur.
(b) Upon the occurrence of an Event of Default (other than an Event of Default described in clauses (vi) or (vii) above) and at repudiation by any time thereafter, in addition to any other rights or remedies available to it pursuant to this Agreement and the other Loan Documents or at law or in equity, Lender may take such action, without notice or demand, that Lender deems advisable to protect and enforce its rights against Borrower and in and to all or any of the Collateral, including, without limitation, declaring the Debt to be immediately due and payable, and Lender may enforce or avail itself party thereto of any guaranty, subordination agreement or all rights or remedies provided other agreement running in the Loan Documents and may exercise all the rights and remedies favor of a secured party under the Uniform Commercial Code, as adopted and enacted by the State or States where any of the Collateral is located, against Borrower and any or all of the Collateral, including, without limitation, all rights or remedies available at law or Lessor obtained in equity; and upon any Event of Default described in clauses (vi) or (vii) above, the Debt and all other obligations of Borrower hereunder and under the other Loan Documents shall immediately and automatically become due and payable, without notice or demand, and Borrower hereby expressly waives any such notice or demand, anything contained herein or in any other Loan Document to the contrary notwithstandingconnection with this Lease Agreement.
Appears in 3 contracts
Samples: Lease Agreement (Knightscope, Inc.), Lease Agreement (Knightscope, Inc.), Lease Agreement (Knightscope, Inc.)
Event of Default. (a) Each If any of the following events shall constitute an event of default hereunder (any such event, an “Event of Default”):) shall occur:
(i) if (A) any portion of the Debt is not paid in full on the Maturity Date, (Ba) the Debt Service is not paid Borrower shall fail to pay any principal of any Loan or any reimbursement obligation in full on respect of any LC Disbursement when and as the same shall become due and payable, whether at the due date thereof or before the related Payment Date, at a date fixed for prepayment thereof or (C) any other portion of the Debt is not paid within five (5) days of when due;otherwise; or
(iib) if the Borrower shall fail to pay any of the Taxes or Other Charges are not paid (with respect to each interest on any Loan or any Individual Property) prior to Delinquency;
(iii) if the Policies (with respect to each or any Individual Property) are not kept in full force and effect, or if certified copies of the Policies (for each Individual Property) are not delivered to Lender upon request (or certificates thereof, if a Policy shall be renewed and certified copies of the Policy are not immediately available upon such renewal (each Borrower agreeing in such instance to provide copies of the Policies to Lender promptly thereafter));
(iv) if any Borrower Transfers or otherwise encumbers any portion of the Properties, the Collateral or the Senior Mezzanine Collateral, or there shall otherwise occur a Transfer without Lender’s prior consent in violation of the provisions of this Agreement, the Pledge Agreement fee or any other amount (other than an amount referred to in paragraph (a) of this Article VII) payable under any Loan Document;, when and as the same shall become due and payable, and such failure shall continue unremedied for a period of five Business Days; or
(vc) if any representation or warranty made or deemed made by or on behalf of the Borrower in or in connection with any Borrower Loan Document or any other Loan Party herein amendment or in any other Loan Documentmodification thereof or waiver thereunder, or in any report, certificate, financial statement or other instrumentdocument furnished pursuant to Article II, agreement Article IV, Section 5.01 or document Section 5.02 or other material any amendment or written information furnished modification thereof or waiver thereunder, shall, if qualified by materiality, prove to Lender shall have been false or misleading incorrect or, if not so qualified, prove to have been incorrect in any material respect as of the date the representation respect, in each case when made or warranty was deemed made (and, with respect to any such breach which is not the subject of any other subsection of this Section 8.1 and which is extent capable of being cured, such Borrower fails to remedy such condition within ten (10) days following notice to Borrower from Lender, in the case incorrect representation or warranty shall remain incorrect for a period of any such breach which can be cured by the payment of a sum of money, or within thirty (30) days following notice from Lender in the case of any other such breach);
(vi) if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower shall make an assignment for the benefit of creditors; or if a receiver, liquidator or trustee shall be appointed for any Borrower, Senior Mezzanine Borrower or Mortgage Borrower, or if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower shall be adjudicated a bankrupt or insolvent, or if any petition for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by or against, consented to, or acquiesced in by, Borrower or Senior Mezzanine Borrower, or if any proceeding for the dissolution or liquidation of any Borrower, Senior Mezzanine Borrower or Mortgage Borrower shall be instituted; provided, however, if such appointment, adjudication, petition or proceeding was involuntary and not consented to by any Borrower, Senior Mezzanine Borrower or Mortgage Borrower, upon the same not being discharged, stayed or dismissed within ninety (90) days;
(vii) if any Operating Company, any Manager, Principal, Holdings or any Guarantor shall make an assignment for the benefit of creditors; or if a receiver, liquidator or trustee shall be appointed for any such Operating Company, any such Manager, Principal, Holdings or any such Guarantor, or if any Operating Company, any Manager, Principal, Holdings or any Guarantor shall be adjudicated a bankrupt or insolvent, or if any petition for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by or against, consented to, or acquiesced in by, any Operating Company, any Manager, Principal, Holdings or any Guarantor, or if any proceeding for the dissolution or liquidation of any Operating Company, any Manager, Principal, Holdings or any Guarantor shall be instituted; provided, however, if such appointment, adjudication, petition or proceeding was involuntary and not consented to by any such Operating Company, any such Manager, Principal, Holdings or any such Guarantor, upon the same not being discharged, stayed or dismissed within ninety (90) days;
(viii) if any Borrower attempts to assign its rights under this Agreement or any of the other Loan Documents or any interest herein or therein in contravention of the Loan Documents;
(ix) if any Borrower breaches any of its respective negative covenants contained in Section 5.2 or any covenant contained in Section 4.1.30 or Section 5.1.11 hereof (and, with respect to any such breach of any covenant set forth in Section 5.1.11 which is not the subject of any other subsection of this Section 8.1, such Borrower fails to remedy such condition within ten (10) days after notice to Borrower from Lender, in the case of any such Default under Section 5.1.11 which can be cured by the payment of a sum of money, or for thirty (30) days after written notice thereof from Lender in the case of any other such Default under Section 5.1.11);Administrative Agent to the Borrower; or
(xd) the Borrower shall fail to observe or perform any covenant, condition or agreement contained in Section 5.02(a), Section 5.03(a) (solely with respect to the legal existence of the Borrower) or in Article VI; or
(e) the Borrower shall fail to observe or perform any termcovenant, covenant condition or provision set forth herein which specifically contains agreement contained in any Loan Document (other than those specified in paragraph (a), (b) or (d) of this Article VII), and such failure shall continue unremedied for a period of 30 days after notice requirement thereof from the Administrative Agent to the Borrower; or
(f) the Borrower or any Restricted Subsidiary shall fail to make any payment (whether of principal or interest and regardless of amount) in respect of any Material Indebtedness, when and as the same shall become due and payable (subject to the expiration of any applicable grace period); or
(g) any event or condition occurs that results in any Material Indebtedness of the Borrower or any Restricted Subsidiary becoming due prior to its scheduled maturity or that, after the expiration of any applicable grace period, if any Borrower shall be in default under such term, covenant enables or condition after permits (with or without the giving of notice, the lapse of time or both) the holder or holders of any Material Indebtedness of the Borrower or any Restricted Subsidiary or any trustee or agent on its or their behalf to cause any Material Indebtedness of the Borrower or any Restricted Subsidiary to become due, or to require the prepayment, repurchase, redemption or defeasance thereof, prior to its scheduled maturity; provided that this paragraph (g) shall not apply to (i) secured Indebtedness that becomes due as a result of the sale, transfer or other disposition (including as a result of a casualty or condemnation event) of the property or assets securing such notice Indebtedness or the expiration (ii) any Indebtedness that becomes due as a result of such grace period;a refinancing thereof permitted by Section 6.01; or
(xih) if an involuntary proceeding shall be commenced or an involuntary petition shall be filed seeking (i) liquidation, reorganization or other relief in respect of the Borrower or any Material Restricted Subsidiary or its debts, or of a substantial part of its assets, under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect or (ii) the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for the Borrower or any Material Restricted Subsidiary or for a substantial part of its assets, and, in any such case, such proceeding or petition shall continue undismissed or undischarged for 60 days or an order or decree approving or ordering any of the assumptions contained foregoing shall be entered; or
(i) the Borrower or any Material Restricted Subsidiary shall (i) voluntarily commence any proceeding or file any petition seeking liquidation, reorganization or other relief under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect, (ii) consent to the Insolvency Opinion delivered in connection with the Loaninstitution of, or fail to contest in the Additional Insolvency Opinion delivered subsequent a timely and appropriate manner, any proceeding or petition described in paragraph (h) of this Article VII, (iii) apply for or consent to the closing appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for the Borrower or any Material Restricted Subsidiary or for a substantial part of its assets, (iv) file an answer admitting the material allegations of a petition filed against it in any such proceeding, (v) make a general assignment for the benefit of creditors or (vi) take any action for the purpose of effecting any of the Loan, is foregoing; or
(j) the Borrower or any Material Restricted Subsidiary shall become untrue unable, admit in writing its inability or fail generally to pay its debts as they become due; or
(k) one or more judgments for the payment of money in an aggregate amount in excess of the Threshold Amount (to the extent not paid, fully bonded or covered by insurance) shall be rendered against the Borrower, any Restricted Subsidiary or any combination thereof and the same shall remain unpaid, undischarged, undismissed or unvacated for a period of 60 consecutive days during which execution shall not be effectively stayed, or any action shall be legally taken by a judgment creditor to attach or levy upon any assets of the Borrower or any Restricted Subsidiary to enforce any such judgment and such action shall not have been stayed; or
(l) an ERISA Event shall have occurred that would reasonably be expected to have a Material Adverse Effect; or
(m) a Change in Control shall occur; or
(n) any Loan Document, at any time after its execution and delivery and for any reason other than as expressly permitted hereunder or thereunder or satisfaction in full of all the Obligations, ceases to be in full force and effect in any material respect; or if the Borrower or any Loan Party contests in any manner the validity or enforceability of any Loan Document; or the Borrower or any Loan Party denies that it has any or further liability or obligation under any Loan Document, or purports to revoke, terminate or rescind any Loan Document (other than pursuant to any termination in accordance with the terms hereof or thereof or satisfaction in full of the assumptions contained in the True Lease Opinion in connection with the Loan, or in the Additional True Lease Opinion delivered subsequent Obligations); or
(o) any Collateral Document shall for any reason (other than pursuant to the closing terms thereof including as a result of the Loan, is or shall become untrue a transaction not prohibited under this Agreement) cease to create a valid and perfected Lien on and security interest in any material respect;
(xii) if any Mortgage Borrower, any Operating Company or any Guarantor (Operating Lease) is in default of any of its material obligations under any Operating Lease (or under another lease and/or management agreement in substitution for such Operating Lease in accordance herewith) or under any such Operating Lease Guaranty (or under another operating lease guaranty in substitution for such Operating Lease Guaranty in accordance herewith) beyond any applicable notice and cure periods contained therein; or if any Operating Lease (or such other lease and/or management agreement) or any Operating Lease Guaranty (or such other operating lease guaranty) shall be surrendered or any Operating Lease or any Operating Lease Guaranty shall be terminated or canceled for any reason or under any circumstances whatsoever, except with the consent of Lender; or if any of the terms, covenants or conditions of any Operating Lease (or such other lease and/or management agreement) or any Operating Lease Guaranty (or such other operating lease guaranty) shall in any manner be modified, changed, supplemented, altered, restated or amended without the consent of Lender except as may otherwise expressly permitted in this Agreement;
(xiii) intentionally omitted;
(xiv) if any Affiliate of any Borrower that is or becomes a party to the Windstorm Insurance Intercreditor Agreement is in default of any of its material obligations under the Windstorm Insurance Intercreditor Agreement beyond any applicable notice and cure periods contained therein; or if the Windstorm Insurance Intercreditor Agreement shall be surrendered, terminated or canceled for any reason or under any circumstances whatsoever, except with the consent of Lender; or if any of the terms, covenants or conditions of the Windstorm Insurance Intercreditor Agreement shall in any manner be modified, changed, supplemented, altered, restated or amended without the consent of Lender;
(xv) if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower fails to comply with the covenants as to Prescribed Laws set forth in Section 5.1.1 hereof;
(xvi) if a material default has occurred and continues beyond any applicable cure period under any Management Agreement and if such default permits the Manager, the Operating Company or the Mortgage Borrower party thereto to terminate or cancel the Management Agreement in question;
(xvii) any Gaming License shall be refused, suspended, revoked, modified in a materially adverse manner or canceled or allowed to lapse or any proceeding is commenced by any Governmental Authority for the purpose of suspending, revoking or canceling any Gaming License in any materially adverse respect, or any Governmental Authority shall have appointed a conservator, supervisor or trustee to or for any of the Casino Components and, in each case of the foregoing, such action could reasonably be expected to (A) have an Individual Material Adverse Effect, (B) materially and adversely affect the continued operation of the Casino Components in the usual course of business and in substantially the same manner and to at least the same standard as was maintained prior to such action, or (C) result in any material decrease in the then expected cash flow and revenues to be derived from the Casino Components;
(xviii) if any Borrower shall continue to be in Default under any of the other terms, covenants or conditions of this Agreement not specified in subsections (i) to (xvii) above, for ten (10) days after notice to Borrower from Lender, in the case of any Default which can be cured by the payment of a sum of money, or for thirty (30) days after notice from Lender in the case of any other Default; provided, however, that if such non-monetary Default is susceptible of cure but cannot reasonably be cured within such thirty (30) day period and provided further that such Borrower shall have commenced to cure such Default within such thirty (30) day period and thereafter diligently and expeditiously proceeds to cure the same, such thirty (30) day period shall be extended for such time as is reasonably necessary for such Borrower in the exercise of due diligence to cure such Default, such additional period not to exceed one hundred twenty (120) days;
(xix) if there shall be a default under any of the other Loan Documents beyond any applicable cure periods contained in such documents, whether as to any Borrower, Mortgage Borrower, Senior Mezzanine Borrower, the Collateral, the Senior Mezzanine Collateral or any Individual Property, or if any other such event shall occur or condition shall exist, if the effect of such event or condition is to accelerate the maturity of any portion of the Debt or to permit Lender to accelerate the maturity of all or any portion of the Debt;
(xx) if the Liens created pursuant to any Loan Document shall cease to be a fully protected enforceable first priority security interest in the Collateral, or any portion of the Collateral purported to be covered thereby, subject to Liens permitted under Section 6.02, except to the extent that any such perfection is Transferred without Lender’s prior written consent except as permitted hereundernot required pursuant to the Collateral and Guarantee Requirement or any loss thereof results from the failure of the Administrative Agent or the Collateral Agent to maintain possession of certificates actually delivered to it representing securities pledged under the Collateral Documents or to file Uniform Commercial Code continuation statements; or
(xxi) if a Mortgage Loan Event of Default or Senior Mezzanine Loan Event of Default shall occur.
(b) Upon the occurrence of an Event of Default then, and in every such event (other than an Event of Default event with respect to the Borrower described in clauses paragraph (vih) or (viii) above) of this Article VII), and at any time thereafterthereafter during the continuance of such event, in addition the Administrative Agent may, and at the request of the Required Lenders shall, by notice to any other rights or remedies available to it pursuant to this Agreement and the other Loan Documents or at law or in equityBorrower, Lender may take such action, without notice or demand, that Lender deems advisable to protect and enforce its rights against Borrower and in and to all or any of the Collateralfollowing actions, includingat the same or different times: (i) terminate the Commitments, without limitationand thereupon the Commitments shall terminate immediately, declaring (ii) declare the Debt Loans then outstanding to be immediately due and payable in whole (or in part, in which case any principal not so declared to be due and payable may thereafter be declared to be due and payable), and thereupon the principal of the Loans so declared to be due and payable, together with accrued interest thereon and Lender may enforce all fees and other obligations of the Borrower accrued hereunder, shall become due and payable immediately, without presentment, demand, protest or avail itself other notice of any or kind, all rights or remedies provided in the Loan Documents and may exercise all the rights and remedies of a secured party under the Uniform Commercial Code, as adopted and enacted which are hereby waived by the State or States where any of the Collateral is located, against Borrower and any or all of (iii) require the Collateral, including, without limitation, all rights or remedies available at law or in equityBorrower to Cash Collateralize the LC Exposure; and upon in case of any Event of Default with respect to the Borrower described in clauses paragraph (vih) or (viii) aboveof this Article VII, the Debt Commitments shall automatically terminate and the principal of the Loans then outstanding, together with accrued interest thereon and all fees and other obligations of the Borrower hereunder and under the other Loan Documents accrued hereunder, shall immediately and automatically become due and payablepayable and the Borrower shall be required to Cash Collateralize the LC Exposure, without notice or presentment, demand, and Borrower protest or other notice of any kind, all of which are hereby expressly waives any such notice or demand, anything contained herein or in any other Loan Document to waived by the contrary notwithstandingBorrower.
Appears in 3 contracts
Samples: Credit Agreement (Tradeweb Markets Inc.), Credit Agreement (Tradeweb Markets Inc.), Credit Agreement (Tradeweb Markets Inc.)
Event of Default. (a) Each of the following events shall constitute an event of default hereunder (an As used herein, “Event of Default”):
” shall mean the occurrence and/or existence of any one or more of the following: (a) (i) if (A) Tenant shall fail to pay any portion installment of the Debt is not paid in full on the Maturity DateBase Rent, (B) the Debt Service is not paid in full Additional Rent or any other amount due under this Lease on or before the related Payment Datedate on which the same becomes due and payable, or (C) any other portion of the Debt is not paid within and such failure continues for five (5) days of when due;
after written notice from Landlord thereof or (ii) if Landlord having given the notice specified in the foregoing clause (a)(i) to Tenant twice in any twelve (12) month period, Tenant shall fail, on a third occasion within the twelve (12) months following the giving of the Taxes or Other Charges are not paid (with respect first such notice by Landlord, to each or pay any Individual Property) prior to Delinquency;
(iii) if the Policies (with respect to each or any Individual Property) are not kept in full force and effectinstallment of Base Rent, or if certified copies of the Policies (for each Individual Property) are not delivered to Lender upon request (or certificates thereof, if a Policy shall be renewed and certified copies of the Policy are not immediately available upon such renewal (each Borrower agreeing in such instance to provide copies of the Policies to Lender promptly thereafter));
(iv) if any Borrower Transfers or otherwise encumbers any portion of the Properties, the Collateral or the Senior Mezzanine Collateral, or there shall otherwise occur a Transfer without Lender’s prior consent in violation of the provisions of this Agreement, the Pledge Agreement Additional Rent or any other Loan Document;
(v) if any representation amount due under this Lease on or warranty made by any Borrower or any other Loan Party herein or in any other Loan Document, or in any report, certificate, financial statement or other instrument, agreement or document or other material or written information furnished to Lender shall have been false or misleading in any material respect as of before the date on which the representation or warranty was made (and, with respect to any such breach which is not the subject of any other subsection of this Section 8.1 same becomes due and which is capable of being cured, such Borrower fails to remedy such condition within ten (10) days following notice to Borrower from Lender, in the case of any such breach which can be cured by the payment of a sum of money, or within thirty (30) days following notice from Lender in the case of any other such breach);
(vi) if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower shall make an assignment for the benefit of creditorspayable; or if a receiver, liquidator (b) Tenant shall neglect or trustee shall be appointed for any Borrower, Senior Mezzanine Borrower fail to perform or Mortgage Borrower, or if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower shall be adjudicated a bankrupt or insolvent, or if any petition for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by or against, consented to, or acquiesced in by, Borrower or Senior Mezzanine Borrower, or if any proceeding for the dissolution or liquidation of any Borrower, Senior Mezzanine Borrower or Mortgage Borrower shall be instituted; provided, however, if such appointment, adjudication, petition or proceeding was involuntary and not consented to by any Borrower, Senior Mezzanine Borrower or Mortgage Borrower, upon the same not being discharged, stayed or dismissed within ninety (90) days;
(vii) if any Operating Company, any Manager, Principal, Holdings or any Guarantor shall make an assignment for the benefit of creditors; or if a receiver, liquidator or trustee shall be appointed for any such Operating Company, any such Manager, Principal, Holdings or any such Guarantor, or if any Operating Company, any Manager, Principal, Holdings or any Guarantor shall be adjudicated a bankrupt or insolvent, or if any petition for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by or against, consented to, or acquiesced in by, any Operating Company, any Manager, Principal, Holdings or any Guarantor, or if any proceeding for the dissolution or liquidation of any Operating Company, any Manager, Principal, Holdings or any Guarantor shall be instituted; provided, however, if such appointment, adjudication, petition or proceeding was involuntary and not consented to by any such Operating Company, any such Manager, Principal, Holdings or any such Guarantor, upon the same not being discharged, stayed or dismissed within ninety (90) days;
(viii) if any Borrower attempts to assign its rights under this Agreement or observe any of the other Loan Documents covenants or any interest undertakings herein on its part to be performed or therein in contravention of the Loan Documents;
(ix) if any Borrower breaches any of its respective negative covenants contained in Section 5.2 observed and such neglect or any covenant contained in Section 4.1.30 or Section 5.1.11 hereof (and, with respect to any such breach of any covenant set forth in Section 5.1.11 which is not the subject of any other subsection of this Section 8.1, such Borrower fails to remedy such condition within ten (10) days after notice to Borrower from Lender, in the case of any such Default under Section 5.1.11 which can be cured by the payment of a sum of money, or failure shall continue for thirty (30) days after notice from Lender in the case of any other such Default under Section 5.1.11);
(x) with respect to any term, covenant or provision set forth herein which specifically contains a notice requirement or grace period, if any Borrower shall be in default under such term, covenant or condition after the giving of such notice or the expiration of such grace period;
(xi) if any of the assumptions contained in the Insolvency Opinion delivered in connection with the Loan, or in the Additional Insolvency Opinion delivered subsequent to the closing of the Loan, is or shall become untrue in any material respect; or if any of the assumptions contained in the True Lease Opinion in connection with the Loan, or in the Additional True Lease Opinion delivered subsequent to the closing of the Loan, is or shall become untrue in any material respect;
(xii) if any Mortgage Borrower, any Operating Company or any Guarantor (Operating Lease) is in default of any of its material obligations under any Operating Lease (or under another lease and/or management agreement in substitution for such Operating Lease in accordance herewith) or under any such Operating Lease Guaranty (or under another operating lease guaranty in substitution for such Operating Lease Guaranty in accordance herewith) beyond any applicable notice and cure periods contained therein; or if any Operating Lease (or such other lease and/or management agreement) or any Operating Lease Guaranty (or such other operating lease guaranty) shall be surrendered or any Operating Lease or any Operating Lease Guaranty shall be terminated or canceled for any reason or under any circumstances whatsoever, except with the consent of Lender; or if any of the terms, covenants or conditions of any Operating Lease (or such other lease and/or management agreement) or any Operating Lease Guaranty (or such other operating lease guaranty) shall in any manner be modified, changed, supplemented, altered, restated or amended without the consent of Lender except as may otherwise expressly permitted in this Agreement;
(xiii) intentionally omitted;
(xiv) if any Affiliate of any Borrower that is or becomes a party to the Windstorm Insurance Intercreditor Agreement is in default of any of its material obligations under the Windstorm Insurance Intercreditor Agreement beyond any applicable notice and cure periods contained therein; or if the Windstorm Insurance Intercreditor Agreement shall be surrendered, terminated or canceled for any reason or under any circumstances whatsoever, except with the consent of Lender; or if any of the terms, covenants or conditions of the Windstorm Insurance Intercreditor Agreement shall in any manner be modified, changed, supplemented, altered, restated or amended without the consent of Lender;
(xv) if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower fails to comply with the covenants as to Prescribed Laws set forth in Section 5.1.1 hereof;
(xvi) if a material default has occurred and continues beyond any applicable cure period under any Management Agreement and if such default permits the Manager, the Operating Company or the Mortgage Borrower party thereto to terminate or cancel the Management Agreement in question;
(xvii) any Gaming License shall be refused, suspended, revoked, modified in a materially adverse manner or canceled or allowed to lapse or any proceeding is commenced by any Governmental Authority for the purpose of suspending, revoking or canceling any Gaming License in any materially adverse respect, or any Governmental Authority shall have appointed a conservator, supervisor or trustee to or for any of the Casino Components and, in each case of the foregoing, such action could reasonably be expected to (A) have an Individual Material Adverse Effect, (B) materially and adversely affect the continued operation of the Casino Components in the usual course of business and in substantially the same manner and to at least the same standard as was maintained prior to such action, or (C) result in any material decrease in the then expected cash flow and revenues to be derived from the Casino Components;
(xviii) if any Borrower shall continue to be in Default under any of the other terms, covenants or conditions of this Agreement not specified in subsections (i) to (xvii) above, for ten (10) days after notice to Borrower from Lender, in the case of any Default which can be cured by the payment of a sum of money, or for thirty (30) days after notice from Lender in the case of any other DefaultTenant; provided, however, that if the default is other than a default under clause (a) above, or clauses (c) through (i) below, and is such non-monetary Default is susceptible of cure but that it cannot reasonably be cured within such thirty (30) day period and provided further that such Borrower shall have commenced to cure such Default within such thirty (30) day period and thereafter diligently and expeditiously proceeds to cure the samedays, but is capable of being cured, such thirty (30) day period shall be extended for such time as is reasonably necessary for such Borrower in the exercise of due diligence by up to sixty (60) additional days provided that Tenant commences to cure such Defaultdefault within said thirty (30) day period, continues to do so diligently, and thereafter completes such additional period cure within not to exceed one hundred twenty more than ninety (12090) days following the notice of default; or (c) there is filed by Tenant any case, petition, proceeding or other action under any Bankruptcy Law; or (d) any other proceedings shall be instituted against Tenant under any Bankruptcy Law and not be dismissed within sixty (60) days;
; or (xixe) if there Tenant shall execute an assignment of its property for the benefit of its creditors; or (f) a receiver, custodian or other similar officer for Tenant shall be a default under any appointed and not be discharged within sixty (60) days; or (g) the estate hereby created shall be taken by execution or by other process of law and is not redeemed by Tenant within thirty (30) days thereafter; or (h) an assignment or sublease in violation of the other Loan Documents beyond any applicable cure periods contained in such documents, whether as to any Borrower, Mortgage Borrower, Senior Mezzanine Borrower, the Collateral, the Senior Mezzanine Collateral terms of this Lease; or any Individual Property, or if (i) any other such event shall occur or condition shall exist, if the effect of such event or condition is to accelerate the maturity of any portion of the Debt or to permit Lender to accelerate the maturity of all or any portion of the Debt;
(xx) if the Liens created pursuant to any Loan Document shall cease to be a fully protected enforceable first priority security interest in the Collateral, or any portion of the Collateral is Transferred without Lender’s prior written consent except as permitted hereunder; or
(xxi) if a Mortgage Loan Event of Default or Senior Mezzanine Loan Event of Default shall occur.
(b) Upon the occurrence of constituting an Event of Default (under other than an Event Sections of Default described in clauses (vi) or (vii) above) and at any time thereafter, in addition to any other rights or remedies available to it pursuant to this Agreement and the other Loan Documents or at law or in equity, Lender may take such action, without notice or demand, that Lender deems advisable to protect and enforce its rights against Borrower and in and to all or any of the Collateral, including, without limitation, declaring the Debt to be immediately due and payable, and Lender may enforce or avail itself of any or all rights or remedies provided in the Loan Documents and may exercise all the rights and remedies of a secured party under the Uniform Commercial Code, as adopted and enacted by the State or States where any of the Collateral is located, against Borrower and any or all of the Collateral, including, without limitation, all rights or remedies available at law or in equity; and upon any Event of Default described in clauses (vi) or (vii) above, the Debt and all other obligations of Borrower hereunder and under the other Loan Documents shall immediately and automatically become due and payable, without notice or demand, and Borrower hereby expressly waives any such notice or demand, anything contained herein or in any other Loan Document to the contrary notwithstandingLease.
Appears in 3 contracts
Samples: Sublease Agreement (Genocea Biosciences, Inc.), Sublease Agreement (Genocea Biosciences, Inc.), Sublease Agreement (Genocea Biosciences, Inc.)
Event of Default. (a) Each The occurrence of any of the following events or conditions shall constitute and is hereby defined to be an event of default hereunder (an “"Event of Default”):":
(ia) if (A) Any failure to make any portion of the Debt is not paid in full payment on the Maturity Date, (B) date that such payment is due under the Debt Service is not paid in full on or before the related Payment Date, or (C) any other portion of the Debt is not paid within five (5) days of when dueNote;
(iib) if The sale, lease, transfer, assignment, pledge, mortgage, encumbrance, hypothecation or other disposal of or abandonment of any or all of the Collateral without the prior written consent of Secured Party;
(c) Any failure or neglect to perform or observe any of the Taxes other terms, provisions, or Other Charges are not paid (with respect to each or any Individual Property) prior to Delinquencycovenants of this Agreement;
(iiid) if the Policies (with respect to each Any warranty, representation or any Individual Property) are not kept statement contained in full force and effect, or if certified copies of the Policies (for each Individual Property) are not delivered to Lender upon request (or certificates thereof, if a Policy shall be renewed and certified copies of the Policy are not immediately available upon such renewal (each Borrower agreeing in such instance to provide copies of the Policies to Lender promptly thereafter));
(iv) if any Borrower Transfers or otherwise encumbers any portion of the Properties, the Collateral or the Senior Mezzanine Collateral, or there shall otherwise occur a Transfer without Lender’s prior consent in violation of the provisions of this Agreement, the Pledge Agreement or any other Loan Documentdocument or agreement executed or delivered in connection with the Obligations that shall be or shall prove to have been materially false when made or furnished;
(ve) if any representation The filing by Debtor (or warranty made by any Borrower against Debtor in which Debtor acquiesces or any other Loan Party herein or in any other Loan Document, or in any report, certificate, financial statement or other instrument, agreement or document or other material or written information furnished to Lender shall have been false or misleading in any material respect as of the date the representation or warranty was made (and, with respect to any such breach which is not the subject of any other subsection of this Section 8.1 and which is capable of being cured, such Borrower fails to remedy such condition within ten (10) days following notice to Borrower from Lender, in the case of any such breach which can be cured by the payment of a sum of money, or dismissed within thirty (30) days following notice from Lender in after the case filing thereof) of any proceeding under the federal bankruptcy laws now or hereafter existing or any other similar statute now or hereafter in effect; the entry of an order for relief under such breach)laws with respect to Debtor; or the appointment of a receiver, trustee, custodian or conservator of all or any part of the assets of Debtor;
(vif) if any Borrower, Senior Mezzanine Borrower The insolvency of Debtor; or Mortgage Borrower shall make the execution by Debtor of an assignment for the benefit of creditors; or if the convening by Debtor of a receiver, liquidator or trustee shall be appointed for any Borrower, Senior Mezzanine Borrower or Mortgage Borrower, or if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower shall be adjudicated a bankrupt or insolvent, or if any petition for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy lawmeeting of his creditors, or any similar federal class thereof, for purposes of effecting a moratorium upon or state law, shall be filed by extension or against, consented to, composition of his debts; or acquiesced in by, Borrower or Senior Mezzanine Borrower, the failure of Debtor to pay his debts as they mature; or if any proceeding for the dissolution or liquidation of any Borrower, Senior Mezzanine Borrower or Mortgage Borrower shall be instituted; provided, however, if such appointment, adjudication, petition or proceeding was involuntary and Debtor is generally not consented to by any Borrower, Senior Mezzanine Borrower or Mortgage Borrower, upon the same not being discharged, stayed or dismissed within ninety (90) dayspaying his debts as they mature;
(viig) if any Operating Company, any Manager, Principal, Holdings The admission in writing by Debtor that he is unable to pay his debts as they mature or any Guarantor shall make an assignment for the benefit of creditorsthat he is generally not paying his debts as they mature; or if a receiver, liquidator or trustee shall be appointed for any such Operating Company, any such Manager, Principal, Holdings or any such Guarantor, or if any Operating Company, any Manager, Principal, Holdings or any Guarantor shall be adjudicated a bankrupt or insolvent, or if any petition for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by or against, consented to, or acquiesced in by, any Operating Company, any Manager, Principal, Holdings or any Guarantor, or if any proceeding for the dissolution or liquidation and
(h) The institution of any Operating Company, any Manager, Principal, Holdings legal action or any Guarantor shall be instituted; provided, however, if such appointment, adjudication, petition proceedings to enforce a lien or proceeding was involuntary and not consented to by any such Operating Company, any such Manager, Principal, Holdings or any such Guarantor, upon the same not being discharged, stayed or dismissed within ninety (90) days;
(viii) if any Borrower attempts to assign its rights under this Agreement or any of the other Loan Documents or any interest herein or therein in contravention of the Loan Documents;
(ix) if any Borrower breaches any of its respective negative covenants contained in Section 5.2 or any covenant contained in Section 4.1.30 or Section 5.1.11 hereof (and, with respect to any such breach of any covenant set forth in Section 5.1.11 which is not the subject of any other subsection of this Section 8.1, such Borrower fails to remedy such condition within ten (10) days after notice to Borrower from Lender, in the case of any such Default under Section 5.1.11 which can be cured by the payment of a sum of money, or for thirty (30) days after notice from Lender in the case of any other such Default under Section 5.1.11);
(x) with respect to any term, covenant or provision set forth herein which specifically contains a notice requirement or grace period, if any Borrower shall be in default under such term, covenant or condition after the giving of such notice or the expiration of such grace period;
(xi) if any of the assumptions contained in the Insolvency Opinion delivered in connection with the Loan, or in the Additional Insolvency Opinion delivered subsequent to the closing of the Loan, is or shall become untrue in any material respect; or if any of the assumptions contained in the True Lease Opinion in connection with the Loan, or in the Additional True Lease Opinion delivered subsequent to the closing of the Loan, is or shall become untrue in any material respect;
(xii) if any Mortgage Borrower, any Operating Company or any Guarantor (Operating Lease) is in default of any of its material obligations under any Operating Lease (or under another lease and/or management agreement in substitution for such Operating Lease in accordance herewith) or under any such Operating Lease Guaranty (or under another operating lease guaranty in substitution for such Operating Lease Guaranty in accordance herewith) beyond any applicable notice and cure periods contained therein; or if any Operating Lease (or such other lease and/or management agreement) or any Operating Lease Guaranty (or such other operating lease guaranty) shall be surrendered or any Operating Lease or any Operating Lease Guaranty shall be terminated or canceled for any reason or under any circumstances whatsoever, except with the consent of Lender; or if any of the terms, covenants or conditions of any Operating Lease (or such other lease and/or management agreement) or any Operating Lease Guaranty (or such other operating lease guaranty) shall in any manner be modified, changed, supplemented, altered, restated or amended without the consent of Lender except as may otherwise expressly permitted in this Agreement;
(xiii) intentionally omitted;
(xiv) if any Affiliate of any Borrower that is or becomes a party to the Windstorm Insurance Intercreditor Agreement is in default of any of its material obligations under the Windstorm Insurance Intercreditor Agreement beyond any applicable notice and cure periods contained therein; or if the Windstorm Insurance Intercreditor Agreement shall be surrendered, terminated or canceled for any reason or under any circumstances whatsoever, except with the consent of Lender; or if any of the terms, covenants or conditions of the Windstorm Insurance Intercreditor Agreement shall in any manner be modified, changed, supplemented, altered, restated or amended without the consent of Lender;
(xv) if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower fails to comply with the covenants as to Prescribed Laws set forth in Section 5.1.1 hereof;
(xvi) if a material default has occurred and continues beyond any applicable cure period under any Management Agreement and if such default permits the Manager, the Operating Company or the Mortgage Borrower party thereto to terminate or cancel the Management Agreement in question;
(xvii) any Gaming License shall be refused, suspended, revoked, modified in a materially adverse manner or canceled or allowed to lapse or any proceeding is commenced by any Governmental Authority for the purpose of suspending, revoking or canceling any Gaming License in any materially adverse respect, or any Governmental Authority shall have appointed a conservator, supervisor or trustee to or for any of the Casino Components and, in each case of the foregoing, such action could reasonably be expected to (A) have an Individual Material Adverse Effect, (B) materially and adversely affect the continued operation of the Casino Components in the usual course of business and in substantially the same manner and to at least the same standard as was maintained prior to such action, or (C) result in any material decrease in the then expected cash flow and revenues to be derived from the Casino Components;
(xviii) if any Borrower shall continue to be in Default under any of the other terms, covenants or conditions of this Agreement not specified in subsections (i) to (xvii) above, for ten (10) days after notice to Borrower from Lender, in the case of any Default which can be cured by the payment of a sum of money, or for thirty (30) days after notice from Lender in the case of any other Default; provided, however, that if such non-monetary Default is susceptible of cure but cannot reasonably be cured within such thirty (30) day period and provided further that such Borrower shall have commenced to cure such Default within such thirty (30) day period and thereafter diligently and expeditiously proceeds to cure the same, such thirty (30) day period shall be extended for such time as is reasonably necessary for such Borrower in the exercise of due diligence to cure such Default, such additional period not to exceed one hundred twenty (120) days;
(xix) if there shall be a default under any of the other Loan Documents beyond any applicable cure periods contained in such documents, whether as to any Borrower, Mortgage Borrower, Senior Mezzanine Borrower, the Collateral, the Senior Mezzanine Collateral or any Individual Property, or if any other such event shall occur or condition shall exist, if the effect of such event or condition is to accelerate the maturity of any portion of the Debt or to permit Lender to accelerate the maturity of all or any portion of the Debt;
(xx) if the Liens created pursuant to any Loan Document shall cease to be a fully protected enforceable first priority security interest in the Collateral, or any portion of the Collateral that is Transferred without Lender’s prior written consent except as permitted hereunder; or
(xxi) if a Mortgage Loan Event of Default or Senior Mezzanine Loan Event of Default shall occur.
(b) Upon the occurrence of an Event of Default (other than an Event of Default described in clauses (vi) or (vii) above) and at any time thereafter, in addition to any other rights or remedies available to it pursuant to this Agreement and the other Loan Documents or at law or in equity, Lender may take such action, without notice or demand, that Lender deems advisable to protect and enforce its rights against Borrower and in and to all or any of the Collateral, including, without limitation, declaring the Debt to be immediately due and payable, and Lender may enforce or avail itself of any or all rights or remedies provided in the Loan Documents and may exercise all the rights and remedies of a secured party under the Uniform Commercial Code, as adopted and enacted by the State or States where any of the Collateral is located, against Borrower and any or all of the Collateral, including, without limitation, all rights or remedies available at law or in equity; and upon any Event of Default described in clauses (vi) or (vii) above, the Debt and all other obligations of Borrower hereunder and under the other Loan Documents shall immediately and automatically become due and payable, without notice or demand, and Borrower hereby expressly waives any such notice or demand, anything contained herein or in any other Loan Document not dismissed to the contrary notwithstandingsatisfaction of Secured Party within fifteen (15) days of such institution.
Appears in 3 contracts
Samples: Stock Purchase Agreement (Shuster Stanley), Purchase and Sale Agreement (Shuster Stanley), Purchase and Sale Agreement (Shuster Stanley)
Event of Default. (a) Each of the following events shall constitute an event of default hereunder (an “Event of Default”) by the defaulting Owner (a “Defaulting Owner”):
(ia) the failure to make, when due, any payment required pursuant to this Agreement, if (A) any portion of the Debt such failure is not paid in full on the Maturity Date, remedied within thirty (B) the Debt Service is not paid in full on or before the related Payment Date, or (C) any other portion of the Debt is not paid within five (530) days of when dueafter written notice thereof from the Non-Defaulting Owner;
(iib) if any of the Taxes or Other Charges are not paid (with respect to each or any Individual Property) prior to Delinquency;
(iii) if the Policies (with respect to each or any Individual Property) are not kept in full force and effect, or if certified copies of the Policies (for each Individual Property) are not delivered to Lender upon request (or certificates thereof, if a Policy shall be renewed and certified copies of the Policy are not immediately available upon such renewal (each Borrower agreeing in such instance to provide copies of the Policies to Lender promptly thereafter));
(iv) if any Borrower Transfers or otherwise encumbers any portion of the Properties, the Collateral or the Senior Mezzanine Collateral, or there shall otherwise occur a Transfer without Lender’s prior consent in violation of the provisions of this Agreement, the Pledge Agreement or any other Loan Document;
(v) if any representation or warranty made by any Borrower or any other Loan Party such Defaulting Owner herein or in any other Loan Document, or in any report, certificate, financial statement or other instrument, agreement or document or other material or written information furnished to Lender shall have been is false or misleading in any material respect as when made, unless (i) the fact, circumstance or condition that is the subject of the date the such representation or warranty was is made (and, with respect to any such breach which is not the subject of any other subsection of this Section 8.1 and which is capable of being cured, such Borrower fails to remedy such condition true within ten (10) days following notice to Borrower from Lender, in the case of any such breach which can be cured by the payment of a sum of money, or within thirty (30) days following notice from Lender in the case of any other such breach);
(vi) if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower shall make an assignment for the benefit of creditors; or if a receiver, liquidator or trustee shall be appointed for any Borrower, Senior Mezzanine Borrower or Mortgage Borrower, or if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower shall be adjudicated a bankrupt or insolvent, or if any petition for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by or against, consented to, or acquiesced in by, Borrower or Senior Mezzanine Borrower, or if any proceeding for the dissolution or liquidation of any Borrower, Senior Mezzanine Borrower or Mortgage Borrower shall be instituted; provided, however, if such appointment, adjudication, petition or proceeding was involuntary and not consented to by any Borrower, Senior Mezzanine Borrower or Mortgage Borrower, upon the same not being discharged, stayed or dismissed within ninety (90) days;
(vii) if any Operating Company, any Manager, Principal, Holdings or any Guarantor shall make an assignment for the benefit of creditors; or if a receiver, liquidator or trustee shall be appointed for any such Operating Company, any such Manager, Principal, Holdings or any such Guarantor, or if any Operating Company, any Manager, Principal, Holdings or any Guarantor shall be adjudicated a bankrupt or insolvent, or if any petition for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by or against, consented to, or acquiesced in by, any Operating Company, any Manager, Principal, Holdings or any Guarantor, or if any proceeding for the dissolution or liquidation of any Operating Company, any Manager, Principal, Holdings or any Guarantor shall be instituted; provided, however, if such appointment, adjudication, petition or proceeding was involuntary and not consented to by any such Operating Company, any such Manager, Principal, Holdings or any such Guarantor, upon the same not being discharged, stayed or dismissed within ninety (90) days;
(viii) if any Borrower attempts to assign its rights under this Agreement or any of the other Loan Documents or any interest herein or therein in contravention of the Loan Documents;
(ix) if any Borrower breaches any of its respective negative covenants contained in Section 5.2 or any covenant contained in Section 4.1.30 or Section 5.1.11 hereof (and, with respect to any such breach of any covenant set forth in Section 5.1.11 which is not the subject of any other subsection of this Section 8.1, such Borrower fails to remedy such condition within ten (10) days after notice to Borrower from Lender, in the case of any such Default under Section 5.1.11 which can be cured by the payment of a sum of money, or for thirty (30) days after notice thereof from Lender in the case of any other such Default under Section 5.1.11);
(x) with respect to any termNon-Defaulting Owner, covenant or provision set forth herein which specifically contains a notice requirement or grace periodprovided that if the fact, if any Borrower shall be in default under such term, covenant circumstance or condition after that is the giving subject of such notice representation or the expiration of such grace period;
(xi) if any of the assumptions contained in the Insolvency Opinion delivered in connection with the Loan, or in the Additional Insolvency Opinion delivered subsequent to the closing of the Loan, is or shall become untrue in any material respect; or if any of the assumptions contained in the True Lease Opinion in connection with the Loan, or in the Additional True Lease Opinion delivered subsequent to the closing of the Loan, is or shall become untrue in any material respect;
(xii) if any Mortgage Borrower, any Operating Company or any Guarantor (Operating Lease) is in default of any of its material obligations under any Operating Lease (or under another lease and/or management agreement in substitution for such Operating Lease in accordance herewith) or under any such Operating Lease Guaranty (or under another operating lease guaranty in substitution for such Operating Lease Guaranty in accordance herewith) beyond any applicable notice and cure periods contained therein; or if any Operating Lease (or such other lease and/or management agreement) or any Operating Lease Guaranty (or such other operating lease guaranty) shall be surrendered or any Operating Lease or any Operating Lease Guaranty shall be terminated or canceled for any reason or under any circumstances whatsoever, except with the consent of Lender; or if any of the terms, covenants or conditions of any Operating Lease (or such other lease and/or management agreement) or any Operating Lease Guaranty (or such other operating lease guaranty) shall in any manner be modified, changed, supplemented, altered, restated or amended without the consent of Lender except as may otherwise expressly permitted in this Agreement;
(xiii) intentionally omitted;
(xiv) if any Affiliate of any Borrower that is or becomes a party to the Windstorm Insurance Intercreditor Agreement is in default of any of its material obligations under the Windstorm Insurance Intercreditor Agreement beyond any applicable notice and cure periods contained therein; or if the Windstorm Insurance Intercreditor Agreement shall be surrendered, terminated or canceled for any reason or under any circumstances whatsoever, except with the consent of Lender; or if any of the terms, covenants or conditions of the Windstorm Insurance Intercreditor Agreement shall in any manner be modified, changed, supplemented, altered, restated or amended without the consent of Lender;
(xv) if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower fails to comply with the covenants as to Prescribed Laws set forth in Section 5.1.1 hereof;
(xvi) if a material default has occurred and continues beyond any applicable cure period under any Management Agreement and if such default permits the Manager, the Operating Company or the Mortgage Borrower party thereto to terminate or cancel the Management Agreement in question;
(xvii) any Gaming License shall be refused, suspended, revoked, modified in a materially adverse manner or canceled or allowed to lapse or any proceeding is commenced by any Governmental Authority for the purpose of suspending, revoking or canceling any Gaming License in any materially adverse respect, or any Governmental Authority shall have appointed a conservator, supervisor or trustee to or for any of the Casino Components and, in each case of the foregoing, such action could warranty reasonably be expected to (A) have an Individual Material Adverse Effect, (B) materially and adversely affect the continued operation of the Casino Components in the usual course of business and in substantially the same manner and to at least the same standard as was maintained prior to such action, or (C) result in any material decrease in the then expected cash flow and revenues to be derived from the Casino Components;
(xviii) if any Borrower shall continue to be in Default under any of the other terms, covenants or conditions of this Agreement not specified in subsections (i) to (xvii) above, for ten (10) days after notice to Borrower from Lender, in the case of any Default which can be cured by the payment of a sum of money, or for thirty (30) days after notice from Lender in the case of any other Default; provided, however, that if such non-monetary Default is susceptible of cure but cannot reasonably be cured corrected within such thirty (30) day period and provided further that such Borrower period, then the Defaulting Owner shall have commenced an additional period of time (not to exceed sixty (60) days) in which to correct the fact, circumstance or condition that is the subject of such representation or warranty, and (ii) such cure removes any adverse effect on the Non-Defaulting Owner of such Default fact, circumstance or condition being otherwise than as first represented, or such fact, circumstance or condition being otherwise than as first represented does not materially adversely affect the Non-Defaulting Owner;
(c) a transfer, assignment or other disposition of its interest in this Agreement or its Ownership Interest (or Capacity Share) in the Transmission Facilities, in each case, in violation of Article XIX;
(d) the failure to perform or breach of its covenants and obligations in Section 4.06;
(e) the failure to be a Qualified Owner, if such failure is not remedied within such thirty (30) day period and thereafter diligently and expeditiously proceeds days after written notice thereof from the Non-Defaulting Owner;
(f) the failure to cure the sameperform or breach of any material covenant or obligation set forth in this Agreement (other than provided for in Section 12.01(a), (b), (c), (d) or (e)), if such failure is not remedied within thirty (30) day days after written notice thereof from the Non-Defaulting Owner, provided that if such failure or breach cannot reasonably be cured within thirty (30) days, then the Defaulting Owner shall have an additional period shall be extended for such of time as is reasonably necessary for such Borrower (not to exceed ninety (90) days) in the exercise of due diligence which to cure such Default, such additional failure or breach so long as the Defaulting Owner commences good faith activities to cure the failure or breach during the initial 30-day cure period not and continues to exceed one hundred twenty (120) days;
(xix) if there shall be utilize its Commercially Reasonable Efforts to effect a default under any of the other Loan Documents beyond any applicable cure periods contained in such documents, whether as to any Borrower, Mortgage Borrower, Senior Mezzanine Borrower, the Collateral, the Senior Mezzanine Collateral or any Individual Property, or if any other such event shall occur or condition shall exist, if the effect of such event or condition is to accelerate the maturity of any portion of the Debt or to permit Lender to accelerate the maturity of all or any portion of the Debt;
(xx) if the Liens created pursuant to any Loan Document shall cease to be a fully protected enforceable first priority security interest in the Collateral, or any portion of the Collateral is Transferred without Lender’s prior written consent except as permitted hereundercure; or
(xxig) if a Mortgage Loan Event of Default or Senior Mezzanine Loan Event of Default shall occurthe Defaulting Party becomes Bankrupt.
(b) Upon the occurrence of an Event of Default (other than an Event of Default described in clauses (vi) or (vii) above) and at any time thereafter, in addition to any other rights or remedies available to it pursuant to this Agreement and the other Loan Documents or at law or in equity, Lender may take such action, without notice or demand, that Lender deems advisable to protect and enforce its rights against Borrower and in and to all or any of the Collateral, including, without limitation, declaring the Debt to be immediately due and payable, and Lender may enforce or avail itself of any or all rights or remedies provided in the Loan Documents and may exercise all the rights and remedies of a secured party under the Uniform Commercial Code, as adopted and enacted by the State or States where any of the Collateral is located, against Borrower and any or all of the Collateral, including, without limitation, all rights or remedies available at law or in equity; and upon any Event of Default described in clauses (vi) or (vii) above, the Debt and all other obligations of Borrower hereunder and under the other Loan Documents shall immediately and automatically become due and payable, without notice or demand, and Borrower hereby expressly waives any such notice or demand, anything contained herein or in any other Loan Document to the contrary notwithstanding.
Appears in 3 contracts
Samples: Joint Ownership and Operating Agreement (Idacorp Inc), Joint Purchase and Sale Agreement (Idacorp Inc), Joint Ownership and Operating Agreement (Idacorp Inc)
Event of Default. (a) Each The occurrence of any one or more of the following events during the term of the Loan (which list is not exhaustive) shall constitute an event of default hereunder (be deemed an “Event of Default”):” for the purpose of this Deed of Trust:
(i) if (A) The determination by the County, at any portion time during the life of this Loan, that the Borrower did not meet one or more of the Debt is not paid in full on PATHWAY TO PURCHASE Program qualifications at the Maturity Date, (time of making this Loan;
B) The refinancing, sale, transfer, conveyance or any encumbrance of the Debt Service Property (or portion thereof) during the term of this Loan without the prior written consent of the County (which consent shall not be deemed to have been given in the absence of a County-approved subordination agreement recorded in the County land records), the Property is not paid leased in full on its entirety or before the related Payment Date, or (Borrower otherwise violated the permitted use of the property;
C) The use of the proceeds of this Loan for any other portion purpose other than down payment and closing cost assistance associated with the acquisition of the Debt is not paid within five (5) days of when dueProperty;
(iiD) if Xxxxxxxx defaults or otherwise fails to perform or fulfill any of his/her/their covenants or agreements under any of the Taxes or Other Charges are not paid (with respect to each Loan Documents or any Individual documents evidencing any other loan affecting the Property, beyond any applicable periods of notice and cure; or
E) prior to Delinquency;
(iii) if If the Policies (with respect to each Borrower, or any Individual Propertyparty on behalf of or against Borrower:
i) are not kept in full force and effect, or if certified copies Files any petition for relief under Title 11 of the Policies United States Code, as amended (for each Individual Property) are not delivered to Lender upon request (or certificates thereof, if a Policy shall be renewed and certified copies of the Policy are not immediately available upon such renewal (each Borrower agreeing in such instance to provide copies of the Policies to Lender promptly thereafter)“Bankruptcy Code”);
(ivii) if Files any Borrower Transfers petition or otherwise encumbers pleading initiating any portion of the Properties, the Collateral state or the Senior Mezzanine Collateral, or there shall otherwise occur a Transfer without Lender’s prior consent in violation of the provisions of this Agreement, the Pledge Agreement or any other Loan Documentfederal insolvency proceeding;
(viii) if Makes or files any representation or warranty made by any Borrower or any other Loan Party herein or in any other Loan Document, or in any report, certificate, financial statement or other instrument, agreement or document or other material or written information furnished petition to Lender shall have been false or misleading in any material respect as of the date the representation or warranty was made (and, with respect to any such breach which is not the subject of any other subsection of this Section 8.1 and which is capable of being cured, such Borrower fails to remedy such condition within ten (10) days following notice to Borrower from Lender, in the case of any such breach which can be cured by the payment of a sum of money, or within thirty (30) days following notice from Lender in the case of any other such breach);
(vi) if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower shall make initiate an assignment or composition for the benefit of creditors; or
iv) Files any petition or if pleading initiating any action seeking a receiverjudicial modification or alteration of the rights of Beneficiary.
F) If Borrower shall:
i) Become insolvent, liquidator as that term is defined in the Bankruptcy Code or trustee shall be appointed for other applicable law; or
ii) Become unable to pay debts generally as they become due.
G) If any Borrower, Senior Mezzanine Borrower or Mortgage Borrowercourt of competent jurisdiction enters an order appointing a trustee, or if any Borrower, Senior Mezzanine Borrower receiver of or Mortgage Borrower shall be adjudicated a bankrupt or insolventfor the Property, or a substantial portion of the Property, or for Borrower.
H) If any proceeding instituted under (E) or (G) above is not dismissed or stayed within sixty (60) days of filing:
I) If the Borrower fails to pay or perform any obligation contained in any other mortgage, deed of trust, security agreement or other instrument that creates a lien upon the title to the Property, which is not cured within any permissible grace period, if any, specified in any petition for bankruptcysuch instrument.
J) If any representation or warranty of the Borrower contained in this Deed of Trust, reorganization or arrangement pursuant to federal bankruptcy lawthe Note, or any similar federal other Loan Document or state law, certificate executed in connection with the Loan or application for the Loan shall be filed by untrue or against, consented to, or acquiesced in by, Borrower or Senior Mezzanine Borrower, or if any proceeding for the dissolution or liquidation of any Borrower, Senior Mezzanine Borrower or Mortgage Borrower shall be instituted; provided, however, if such appointment, adjudication, petition or proceeding was involuntary and not consented to by any Borrower, Senior Mezzanine Borrower or Mortgage Borrower, upon the same not being discharged, stayed or dismissed within ninety (90) days;
(vii) if any Operating Company, any Manager, Principal, Holdings or any Guarantor shall make an assignment for the benefit of creditors; or if a receiver, liquidator or trustee shall be appointed for any such Operating Company, any such Manager, Principal, Holdings or any such Guarantor, or if any Operating Company, any Manager, Principal, Holdings or any Guarantor shall be adjudicated a bankrupt or insolvent, or if any petition for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by or against, consented to, or acquiesced in by, any Operating Company, any Manager, Principal, Holdings or any Guarantor, or if any proceeding for the dissolution or liquidation of any Operating Company, any Manager, Principal, Holdings or any Guarantor shall be instituted; provided, however, if such appointment, adjudication, petition or proceeding was involuntary and not consented to by any such Operating Company, any such Manager, Principal, Holdings or any such Guarantor, upon the same not being discharged, stayed or dismissed within ninety (90) days;
(viii) if any Borrower attempts to assign its rights under this Agreement or any of the other Loan Documents or any interest herein or therein in contravention of becomes untrue while the Loan Documents;
(ix) if is outstanding in any Borrower breaches any of its respective negative covenants contained in Section 5.2 or any covenant contained in Section 4.1.30 or Section 5.1.11 hereof (and, with material respect to any such breach of any covenant set forth in Section 5.1.11 which is and shall not the subject of any other subsection of this Section 8.1, such Borrower fails to remedy such condition be rectified within ten (10) days after notice to Borrower from Lender, in the case of any such Default under Section 5.1.11 which can be cured by the payment of a sum of money, or for thirty (30) days after notice from Lender in days.
K) If the case of Property or any other such Default under Section 5.1.11);
(x) with respect to any term, covenant or provision set forth herein which specifically contains a notice requirement or grace period, if any Borrower shall be in default under such term, covenant or condition after the giving of such notice or the expiration of such grace period;
(xi) if any of the assumptions contained in the Insolvency Opinion delivered in connection with the Loanpart thereof is sold, or in the Additional Insolvency Opinion conveyed without prior written notice delivered subsequent to the closing of the Loan, is or shall become untrue in any material respect; or if any of the assumptions contained in the True Lease Opinion in connection with the Loan, or in the Additional True Lease Opinion delivered subsequent to the closing of the Loan, is or shall become untrue in any material respect;
(xii) if any Mortgage Borrower, any Operating Company or any Guarantor (Operating Lease) is in default of any of its material obligations under any Operating Lease (or under another lease and/or management agreement in substitution for such Operating Lease in accordance herewith) or under any such Operating Lease Guaranty (or under another operating lease guaranty in substitution for such Operating Lease Guaranty in accordance herewith) beyond any applicable notice and cure periods contained therein; or if any Operating Lease (or such other lease and/or management agreement) or any Operating Lease Guaranty (or such other operating lease guaranty) shall be surrendered or any Operating Lease or any Operating Lease Guaranty shall be terminated or canceled for any reason or under any circumstances whatsoever, except with the consent of Lender; or if any of the terms, covenants or conditions of any Operating Lease (or such other lease and/or management agreement) or any Operating Lease Guaranty (or such other operating lease guaranty) shall in any manner be modified, changed, supplemented, altered, restated or amended without the consent of Lender except as may otherwise expressly permitted in this Agreement;
(xiii) intentionally omitted;
(xiv) if any Affiliate of any Borrower that is or becomes a party to the Windstorm Insurance Intercreditor Agreement is in default of any of its material obligations under the Windstorm Insurance Intercreditor Agreement beyond any applicable notice and cure periods contained therein; or if the Windstorm Insurance Intercreditor Agreement shall be surrendered, terminated or canceled for any reason or under any circumstances whatsoever, except with the consent of Lender; or if any of the terms, covenants or conditions of the Windstorm Insurance Intercreditor Agreement shall in any manner be modified, changed, supplemented, altered, restated or amended without the consent of Lender;
(xv) if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower fails to comply with the covenants as to Prescribed Laws set forth in Section 5.1.1 hereof;
(xvi) if a material default has occurred and continues beyond any applicable cure period under any Management Agreement and if such default permits the Manager, the Operating Company or the Mortgage Borrower party thereto to terminate or cancel the Management Agreement in question;
(xvii) any Gaming License shall be refused, suspended, revoked, modified in a materially adverse manner or canceled or allowed to lapse or any proceeding is commenced by any Governmental Authority for the purpose of suspending, revoking or canceling any Gaming License in any materially adverse respect, or any Governmental Authority shall have appointed a conservator, supervisor or trustee to or for any of the Casino Components and, in each case of the foregoing, such action could reasonably be expected to (A) have an Individual Material Adverse Effect, (B) materially and adversely affect the continued operation of the Casino Components in the usual course of business and in substantially the same manner and to at least the same standard as was maintained prior to such action, or (C) result in any material decrease in the then expected cash flow and revenues to be derived from the Casino Components;
(xviii) if any Borrower shall continue to be in Default under any of the other terms, covenants or conditions of this Agreement not specified in subsections (i) to (xvii) above, for ten (10) days after notice to Borrower from Lender, in the case of any Default which can be cured by the payment of a sum of money, or for thirty (30) days after notice from Lender in the case of any other Default; provided, however, that if such non-monetary Default is susceptible of cure but cannot reasonably be cured within such thirty (30) day period and provided further that such Borrower shall have commenced to cure such Default within such thirty (30) day period and thereafter diligently and expeditiously proceeds to cure the same, such thirty (30) day period shall be extended for such time as is reasonably necessary for such Borrower in the exercise of due diligence to cure such Default, such additional period not to exceed one hundred twenty (120) days;
(xix) if there shall be a default under any of the other Loan Documents beyond any applicable cure periods contained in such documents, whether as to any Borrower, Mortgage Borrower, Senior Mezzanine Borrower, the Collateral, the Senior Mezzanine Collateral or any Individual Property, or if any other such event shall occur or condition shall exist, if the effect of such event or condition is to accelerate the maturity of any portion of the Debt or to permit Lender to accelerate the maturity of all or any portion of the Debt;
(xx) if the Liens created pursuant to any Loan Document shall cease to be a fully protected enforceable first priority security interest in the Collateral, or any portion of the Collateral is Transferred without Lender’s prior written consent except as permitted hereunderBeneficiary; or
(xxiL) if a Mortgage Loan Event of Default or Senior Mezzanine Loan Event of Default shall occur.
(b) Upon The failure to timely pay all taxes imposed upon the occurrence of an Event of Default (other than an Event of Default described in clauses (vi) or (vii) above) and at any time thereafter, in addition to any other rights or remedies available to it pursuant to this Agreement Borrower and the other Loan Documents or at law or in equity, Lender may take such action, without notice or demand, that Lender deems advisable to protect and enforce its rights against Borrower and in and to all or any of the Collateral, including, without limitation, declaring the Debt to be immediately due and payable, and Lender may enforce or avail itself of any or all rights or remedies provided in the Loan Documents and may exercise all the rights and remedies of a secured party under the Uniform Commercial Code, as adopted and enacted by the State or States where any of the Collateral is located, against Borrower and any or all of the Collateral, including, without limitation, all rights or remedies available at law or in equity; and upon any Event of Default described in clauses (vi) or (vii) above, the Debt and all other obligations of Borrower hereunder and under the other Loan Documents shall immediately and automatically become due and payable, without notice or demand, and Borrower hereby expressly waives any such notice or demand, anything contained herein or in any other Loan Document Property prior to the contrary notwithstandingdate when any interest or penalty would accrue for non-payment, except for those taxes the Borrower is contesting in good faith by appropriate legal proceedings.
Appears in 3 contracts
Samples: Deed of Trust, Deed of Trust, Deed of Trust
Event of Default. (a) Each of the following events shall constitute an event of default hereunder (an “Event of Default”):
(i) if (A) any portion of the Debt is not paid in full on when due, except, with respect to the Maturity Date, (B) payment of the Monthly Debt Service is not paid Payment Amount during a Cash Sweep Period caused solely by a DSCR Trigger, to the extent there are sufficient funds in full on or before the related Cash Management Account to pay such Monthly Debt Service Payment Date, or (C) any other portion of the Debt is not paid within five (5) days of Amount when due;
(ii) if any of the Taxes or Other Charges are not paid (with respect to each or any Individual Property) prior to Delinquencythe date when the same become delinquent, except to the extent that (x) Borrower is contesting the same in accordance with the terms of Section 5.1.2 hereof, or (y) during a Cash Sweep Period caused solely by a DSCR Trigger, there are sufficient funds in the Tax and Insurance Escrow Account (after deducting funds deposited into such account in respect of Premiums) to pay such Taxes or Other Charges and Lender fails to or refuses to pay the same to the extent required under this Agreement;
(iii) if the Policies (with respect to each or any Individual Property) are not kept in full force and effect, or if certified copies of the Policies (for each Individual Property) are not delivered to Lender upon request within ten (or certificates thereof, if a Policy shall be renewed and certified copies 10) days of the Policy are not immediately available upon such renewal (each Borrower agreeing in such instance to provide copies of the Policies to Lender promptly thereafter))request;
(iv) if any Borrower Transfers or otherwise encumbers any portion of the Properties, the Collateral or the Senior Mezzanine Collateral, or there shall otherwise occur a Transfer Property without Lender’s prior written consent in violation (to extent such consent is required) or otherwise violates any of the provisions of this Agreement, Agreement and Article 6 of the Pledge Agreement or any other Loan DocumentMortgage;
(v) if any representation or warranty made by any Borrower or any other Loan Party herein or in any other Loan Document, or in any report, certificate, financial statement or other instrument, agreement or document or other material or written information furnished to Lender shall have been false or misleading in any material respect as of the date the representation or warranty was made (and, with respect to any such breach which is not the subject of any other subsection of this Section 8.1 and which is capable of being cured, such Borrower fails to remedy such condition within ten (10) days following notice to Borrower from Lender, in the case of any such breach which can be cured by the payment of a sum of money, or within thirty (30) days following notice from Lender in the case of any other such breach)made;
(vi) if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower Principal shall make an assignment for the benefit of creditors; or ;
(vii) if a receiver, liquidator or trustee shall be appointed for any Borrower, Senior Mezzanine Borrower or Mortgage Borrower, Principal or any other guarantor under any guarantee issued in connection with the Loan or if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower Principal shall be adjudicated a bankrupt or insolvent, or if any petition for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by or against, consented to, or acquiesced in by, Borrower or Senior Mezzanine BorrowerPrincipal, or if any proceeding for the dissolution or liquidation of any Borrower, Senior Mezzanine Borrower or Mortgage Borrower Principal shall be instituted; provided, however, if such appointment, adjudication, petition or proceeding was involuntary and not consented to by any Borrower, Senior Mezzanine Borrower or Mortgage Borrower, Principal upon the same not being discharged, stayed or dismissed within ninety (90) days;
(viiviii) if any Operating Company, any Manager, Principal, Holdings Borrower attempts to assign its rights under this Agreement or any of the other Loan Documents or any interest herein or therein in contravention of the Loan Documents;
(ix) if Guarantor or any guarantor or indemnitor under any guaranty or indemnity issued in connection with the Loan shall make an assignment for the benefit of creditors; creditors or if a receiver, liquidator or trustee shall be appointed for any such Operating Company, any such Manager, Principal, Holdings Guarantor or any such Guarantor, guarantor or indemnitor under any guarantee or indemnity issued in connection with the Loan or if any Operating Company, any Manager, Principal, Holdings Guarantor or any Guarantor such other guarantor or indemnitor shall be adjudicated a bankrupt or insolvent, or if any petition for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by or against, consented to, or acquiesced in by, any Operating Company, any Manager, Principal, Holdings Guarantor or any Guarantorsuch other guarantor or indemnitor, or if any proceeding for the dissolution or liquidation of any Operating Company, any Manager, Principal, Holdings Guarantor or any Guarantor such other guarantor or indemnitor shall be instituted; provided, however, if such appointment, adjudication, petition or proceeding was involuntary and not consented to by any Guarantor or such Operating Company, any such Manager, Principal, Holdings other guarantor or any such Guarantorindemnitor, upon the same not being discharged, stayed or dismissed within ninety (90) days; provided, further, however, it shall be at Lender’s option to determine whether any of the foregoing shall be an Event of Default;
(viiix) if any Borrower attempts to assign its rights under this Agreement or any of the other Loan Documents or any interest herein or therein in contravention of the Loan Documents;
(ix) if any Borrower breaches any of its respective negative covenants contained in Section 5.2 or any covenant contained in Section 4.1.30 hereof or Section 5.1.11 hereof (and, with respect to any such breach of any negative covenant set forth contained in Section 5.1.11 which is not the subject of any other subsection of this Section 8.1, such Borrower fails to remedy such condition within ten (10) days after notice to Borrower from Lender, in the case of any such Default under Section 5.1.11 which can be cured by the payment of a sum of money, or for thirty (30) days after notice from Lender in the case of any other such Default under Section 5.1.11)5.2 hereof;
(xxi) with respect to any term, covenant or provision set forth herein which specifically contains a notice requirement or grace period, if any Borrower shall be in default under such term, covenant or condition after the giving of such notice or the expiration of such grace period;
(xixii) if any of the assumptions contained in the any Insolvency Opinion delivered to Lender in connection with the Loan, or in the any Additional Insolvency Opinion delivered subsequent to the closing of the Loan, is or shall become untrue in any material respect; or if any of the assumptions contained in the True Lease Opinion in connection with the Loan, or in the Additional True Lease Opinion delivered subsequent to the closing of the Loan, is or shall become untrue in any material respect;
(xii) if any Mortgage Borrower, any Operating Company or any Guarantor (Operating Lease) is in default of any of its material obligations under any Operating Lease (or under another lease and/or management agreement in substitution for such Operating Lease in accordance herewith) or under any such Operating Lease Guaranty (or under another operating lease guaranty in substitution for such Operating Lease Guaranty in accordance herewith) beyond any applicable notice and cure periods contained therein; or if any Operating Lease (or such other lease and/or management agreement) or any Operating Lease Guaranty (or such other operating lease guaranty) shall be surrendered or any Operating Lease or any Operating Lease Guaranty shall be terminated or canceled for any reason or under any circumstances whatsoever, except with the consent of Lender; or if any of the terms, covenants or conditions of any Operating Lease (or such other lease and/or management agreement) or any Operating Lease Guaranty (or such other operating lease guaranty) shall in any manner be modified, changed, supplemented, altered, restated or amended without the consent of Lender except as may otherwise expressly permitted in this Agreement;
(xiii) intentionally omitted;
(xiv) if any Affiliate of any Borrower that is or becomes a party shall continue to the Windstorm Insurance Intercreditor Agreement is be in default of any of its material obligations Default under the Windstorm Insurance Intercreditor Agreement beyond any applicable notice and cure periods contained therein; or if the Windstorm Insurance Intercreditor Agreement shall be surrendered, terminated or canceled for any reason or under any circumstances whatsoever, except with the consent of Lender; or if any of the terms, covenants or conditions of Section 9.1 hereof, or fails to cooperate with Lender in connection with a Securitization pursuant to the Windstorm Insurance Intercreditor Agreement shall in any manner be modifiedprovisions of Section 9.1 hereof, changed, supplemented, altered, restated or amended without the consent of for five (5) days after notice to Borrower from Lender;
(xv) if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower fails to comply with the covenants as to Prescribed Laws set forth in Section 5.1.1 hereof;
(xvi) if a material default has occurred and continues beyond any applicable cure period under any Management Agreement and if such default permits the Manager, the Operating Company or the Mortgage Borrower party thereto to terminate or cancel the Management Agreement in question;
(xvii) any Gaming License shall be refused, suspended, revoked, modified in a materially adverse manner or canceled or allowed to lapse or any proceeding is commenced by any Governmental Authority for the purpose of suspending, revoking or canceling any Gaming License in any materially adverse respect, or any Governmental Authority shall have appointed a conservator, supervisor or trustee to or for any of the Casino Components and, in each case of the foregoing, such action could reasonably be expected to (A) have an Individual Material Adverse Effect, (B) materially and adversely affect the continued operation of the Casino Components in the usual course of business and in substantially the same manner and to at least the same standard as was maintained prior to such action, or (C) result in any material decrease in the then expected cash flow and revenues to be derived from the Casino Components;
(xviii) if any Borrower shall continue to be in Default under any of the other terms, covenants or conditions of this Agreement not specified in subsections (i) to (xviixiv) above, for ten (10) days after notice to Borrower from Lender, in the case of any Default which can be cured by the payment of a sum of money, or for thirty (30) days after notice from Lender in the case of any other Default; provided, however, that if such non-monetary Default is susceptible of cure but cannot reasonably be cured within such thirty (30) day period and provided further that such Borrower shall have commenced to cure such Default within such thirty (30) day period and thereafter diligently and expeditiously proceeds to cure the same, such thirty (30) day period shall be extended for such time as is reasonably necessary for such Borrower in the exercise of due diligence to cure such Default, such additional period not to exceed one hundred twenty (120) days;; or
(xixxvi) if there shall be a default under any of the other Loan Documents beyond any applicable cure periods contained in such documents, whether as to any Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Borrower or the Collateral, the Senior Mezzanine Collateral or any Individual Property, or if any other such event shall occur or condition shall exist, if the effect of such default, event or condition is to accelerate the maturity of any portion of the Debt or to permit Lender to accelerate the maturity of all or any portion of the Debt;
(xx) if the Liens created pursuant to any Loan Document shall cease to be a fully protected enforceable first priority security interest in the Collateral, or any portion of the Collateral is Transferred without Lender’s prior written consent except as permitted hereunder; or
(xxi) if a Mortgage Loan Event of Default or Senior Mezzanine Loan Event of Default shall occur.
(b) Upon the occurrence of an Event of Default (other than an Event of Default described in clauses (vi), (vii) or (viiviii) above) and at any time thereafter, in addition to any other rights or remedies available to it pursuant to this Agreement and the other Loan Documents or at law or in equity, Lender may take such action, without notice or demand, that Lender deems advisable to protect and enforce its rights against Borrower and in and to all or any of the CollateralProperty, including, without limitation, declaring the Debt to be immediately due and payable, and Lender may enforce or avail itself of any or all rights or remedies provided in the Loan Documents and may exercise all the rights and remedies of a secured party under the Uniform Commercial Code, as adopted and enacted by the State or States where any of the Collateral is located, against Borrower and any or all of the CollateralProperty, including, without limitation, all rights or remedies available at law or in equity; and upon any Event of Default described in clauses (vi), (vii) or (viiviii) above, the Debt and all other obligations Other Obligations of Borrower hereunder and under the other Loan Documents shall immediately and automatically become due and payable, without notice or demand, and Borrower hereby expressly waives any such notice or demand, anything contained herein or in any other Loan Document to the contrary notwithstanding.
Appears in 3 contracts
Samples: Loan Agreement (Inland Diversified Real Estate Trust, Inc.), Loan Agreement (Inland Diversified Real Estate Trust, Inc.), Loan Agreement (Inland Diversified Real Estate Trust, Inc.)
Event of Default. (a) Each of the following events shall constitute an event of default hereunder (an “Event of Default”):
(i) if (A) any portion of the Debt is not paid in full on the Maturity Date, (B) the Debt Service is not paid in full on or before the related Payment Date, or (C) any other portion of the Debt is not paid within five (5) days of the date when duedue (except that Borrower shall not be afforded such 5-day cure period for the portion of the Debt due and payable on the Maturity Date);
(ii) if any of the Taxes (other than Taxes being contested pursuant to Section 5.1.2 of this Agreement) are not paid when the same are due and payable or Other Charges are not paid within five (with respect to each or any Individual Property5) prior to Delinquencydays after Borrower receives notice of same;
(iii) if the Policies (with respect to each or any Individual Property) are not kept in full force and effect, or if certified copies of the Policies (for each Individual Property) are not delivered to Lender upon request (or certificates thereof, if a Policy shall be renewed and certified copies of the Policy are not immediately available upon such renewal (each Borrower agreeing in such instance to provide copies of the Policies to Lender promptly thereafter))request;
(iv) if any Borrower Transfers or otherwise encumbers any portion of the Properties, the Collateral or the Senior Mezzanine Collateral, or there shall otherwise occur a Transfer Property without Lender’s prior written consent in violation of the provisions of this Agreement, the Pledge Agreement or any other Loan Documentthe Mortgage;
(v) if any material representation or warranty made by any Borrower or any other Loan Party Guarantor herein or in any other Loan Document, or in any report, certificate, financial statement or other instrument, agreement or document or other material or written information furnished to Lender shall have been false or misleading in any material respect as of the date the representation or warranty was made (and, with respect to any such breach which is not the subject of any other subsection of this Section 8.1 and which is capable of being cured, such Borrower fails to remedy such condition within ten (10) days following notice to Borrower from Lender, in the case of any such breach which can be cured by the payment of a sum of money, or within thirty (30) days following notice from Lender in the case of any other such breach)made;
(vi) if any Borrower, Senior Mezzanine Borrower Borrower, Guarantor or Mortgage Borrower any other guarantor under any guaranty issued in connection with the Loan shall make an assignment for the benefit of creditors; or ;
(vii) if a receiver, liquidator or trustee shall be appointed for any Borrower, Senior Mezzanine Borrower or Mortgage Borrower, Guarantor or any other guarantor under any guarantee issued in connection with the Loan or if any Borrower, Senior Mezzanine Borrower Borrower, Guarantor or Mortgage Borrower such other guarantor shall be adjudicated a bankrupt or insolvent, or if any petition for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by or against, consented to, or acquiesced in by, Borrower or Senior Borrower, Mezzanine Borrower, Guarantor or such other guarantor, or if any proceeding for the dissolution or liquidation of any Borrower, Senior Mezzanine Borrower Borrower, Guarantor or Mortgage Borrower such other guarantor shall be instituted; provided, however, if such appointment, adjudication, petition or proceeding was involuntary and not consented to by any Borrower, Senior Mezzanine Borrower or Mortgage Borrower, upon the same not being discharged, stayed Guarantor or dismissed within ninety (90) days;
(vii) if any Operating Company, any Manager, Principal, Holdings or any Guarantor shall make an assignment for the benefit of creditors; or if a receiver, liquidator or trustee shall be appointed for any such Operating Company, any such Manager, Principal, Holdings or any such Guarantor, or if any Operating Company, any Manager, Principal, Holdings or any Guarantor shall be adjudicated a bankrupt or insolvent, or if any petition for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by or against, consented to, or acquiesced in by, any Operating Company, any Manager, Principal, Holdings or any Guarantor, or if any proceeding for the dissolution or liquidation of any Operating Company, any Manager, Principal, Holdings or any Guarantor shall be instituted; provided, however, if such appointment, adjudication, petition or proceeding was involuntary and not consented to by any such Operating Company, any such Manager, Principal, Holdings or any such Guarantorother guarantor, upon the same not being discharged, stayed or dismissed within ninety (90) days;
(viii) if any Borrower attempts to assign its rights under this Agreement or any of the other Loan Documents or any interest herein or therein in contravention of the Loan Documents;
(ix) if any Borrower breaches any of its respective negative covenants contained in Section 5.2 or any covenant contained in Section 4.1.30 or Section 5.1.11 hereof (and, with respect to any such breach of any covenant set forth in Section 5.1.11 which is not the subject of any other subsection of this Section 8.1, such Borrower fails to remedy such condition within ten (10) days after notice to Borrower from Lender, in the case of any such Default under Section 5.1.11 which can be cured by the payment of a sum of money, or for thirty (30) days after notice from Lender in the case of any other such Default under Section 5.1.11)4.1.30;
(x) with respect to any term, covenant or provision set forth herein which specifically contains a notice requirement or grace period, if any Borrower shall be in default under such term, covenant or condition after the giving of such notice or the expiration of such grace period;
(xi) if any of the assumptions contained in the Insolvency Opinion delivered to Lender in connection with the Loan, or in the any Additional Insolvency Opinion delivered subsequent to the closing of the Loan, is or shall become untrue in any material respect; or if any of the assumptions contained in the True Lease Opinion in connection with the Loan, or in the Additional True Lease Opinion delivered subsequent to the closing of the Loan, is or shall become untrue in any material respect;
(xii) if any Mortgage BorrowerBorrower fails to pay the Administration Fee, any Operating Company or any Guarantor portion or installment thereof, within five (Operating Lease5) is in default of any of its material obligations under any Operating Lease (or under another lease and/or management agreement in substitution for such Operating Lease in accordance herewith) or under any such Operating Lease Guaranty (or under another operating lease guaranty in substitution for such Operating Lease Guaranty in accordance herewith) beyond any applicable notice and cure periods contained therein; or if any Operating Lease (or such other lease and/or management agreement) or any Operating Lease Guaranty (or such other operating lease guaranty) shall be surrendered or any Operating Lease or any Operating Lease Guaranty shall be terminated or canceled for any reason or under any circumstances whatsoever, except with the consent of Lender; or if any days of the terms, covenants or conditions of any Operating Lease (or such other lease and/or management agreement) or any Operating Lease Guaranty (or such other operating lease guaranty) shall in any manner be modified, changed, supplemented, altered, restated or amended without the consent of Lender except as may otherwise expressly permitted in this Agreementdate when due;
(xiii) intentionally omittedIf Borrower fails to deposit with Lender the cash deposit or Letter of Credit required in accordance with Section 2.12.2 hereof;
(xiv) if any Affiliate of any Borrower that is or becomes a party fails to the Windstorm Insurance Intercreditor Agreement is in default of any of its material obligations under the Windstorm Insurance Intercreditor Agreement beyond any applicable notice and cure periods contained therein; or if the Windstorm Insurance Intercreditor Agreement shall be surrendered, terminated or canceled for any reason or under any circumstances whatsoever, except materially comply with the consent of Lender; or if any of the terms, covenants or conditions of the Windstorm Insurance Intercreditor Agreement shall in any manner be modified, changed, supplemented, altered, restated or amended without the consent of LenderConstruction Schedule;
(xv) if any Borrowerthe Completion of the Improvements has not occurred on or prior to the Required Completion Date, Senior Mezzanine Borrower subject to Force Majeure or Mortgage Borrower fails if Lender or the Construction Consultant determines that Completion of the Improvements cannot occur on or prior to comply with the covenants as to Prescribed Laws set forth in Section 5.1.1 hereofRequired Completion Date;
(xvi) if any voucher or invoice is fraudulently submitted by Borrower or in connection with any Advance for services performed or for materials used in or furnished for the Property;
(xvii) if there is any cessation at any time in construction of the Project Improvements for more than twenty (20) consecutive Business Days, other than as a result of Force Majeure;
(xviii) if Borrower expressly confesses in writing to Lender its inability to continue or complete construction of the Project Improvements in accordance with this Agreement;
(xix) if Lender, the Construction Consultant or their representatives are not permitted at all reasonable times upon not less than three (3) Business Days notice to enter upon the Property, inspect the Improvements and the construction thereof and all materials, fixtures and articles used or to be used in the construction and to examine all the Plans and Specifications, or if Borrower shall fail to furnish to Lender or its authorized representative, when requested upon not less than five (5) Business Days notice, copies of the Plans and Specifications;
(xx) if a material adverse change in Borrower’s financial condition shall occur which would, in Lender’s reasonable determination, materially and adversely affect Borrower’s ability to perform its obligations under this Agreement or any other document evidencing or securing the Loan beyond any applicable notice and grace periods expressly set forth in the Loan Documents;
(xxi) if the conditions precedent to the Final Advance have not been satisfied on or prior to the Required Completion Date;
(xxii) If the Guarantor fails to maintain the Required Liquidity and the Required Net Worth covenants specified in the Guaranty of Completion or if the Guarantor shall default under the Guaranty of Completion or the Guaranty of Recourse Carveouts;
(xxiii) if a material default has occurred and continues beyond any applicable cure period under any the Management Agreement (or any Replacement Management Agreement) and if such default permits the Manager, the Operating Company or the Mortgage Borrower party thereto Manager thereunder to terminate or cancel the Management Agreement in question(or any Replacement Management Agreement);
(xviixxiv) any Gaming License if Borrower shall continue to be refused, suspended, revoked, modified in a materially adverse manner or canceled or allowed to lapse or any proceeding is commenced by any Governmental Authority for the purpose of suspending, revoking or canceling any Gaming License in any materially adverse respect, or any Governmental Authority shall have appointed a conservator, supervisor or trustee to or for Default under any of the Casino Components andterms, covenants or conditions of Section 9.1 hereof, or fails to cooperate with Lender in connection with a Securitization pursuant to the provisions of Section 9.1 hereof, in each either case of the foregoing, such action could reasonably be expected for three (3) Business Days after notice to (A) have an Individual Material Adverse Effect, (B) materially and adversely affect the continued operation of the Casino Components in the usual course of business and in substantially the same manner and to at least the same standard as was maintained prior to such action, or (C) result in any material decrease in the then expected cash flow and revenues to be derived Borrower from the Casino ComponentsLender;
(xviiixxv) if an Event of Default (as defined in the Building Loan Agreement) shall have occurred;
(xxvi) if there shall be default by Borrower or Guarantor under any of the other Loan Documents, beyond applicable cure periods, if any, contained in such documents, whether as to Borrower, Guarantor or the Property, or if any other such event shall occur or condition shall exist, if the effect of such other default, event or condition is to accelerate the maturity of all or any portion of the Debt or to permit Lender to accelerate the maturity of all or any portion of the Debt;
(xxvii) if Guarantor shall dissolve or cease to exist during the term of the Loan, except in compliance with the provisions of Section 5.2.15 of the Building Loan Agreement;
(xxviii) if all of the Initial Advance Conditions, including, without limitation, the Unsatisfied Initial Advance Conditions, are not satisfied by the Required Initial Advance Date; or
(xxix) if Borrower shall continue to be in Default under any of the other terms, covenants or conditions of this Agreement not specified in subsections (i) to (xviixxviii) above, for ten twenty (1020) days after notice to Borrower from Lender, in the case of any Default which can be cured by the payment of a sum of money, or for thirty (30) days after notice from Lender in the case of any other Default; provided, however, that if such non-monetary Default is susceptible of cure but cannot reasonably be cured within such thirty (30) day period and provided further that such Borrower shall have commenced to cure such Default within such thirty (30) day period and thereafter diligently and expeditiously proceeds to cure the same, such thirty (30) day period shall be extended for such time as is reasonably necessary for such Borrower in the exercise of due diligence to cure such Default, such additional period not to exceed one hundred twenty sixty (12060) days;
(xix) if there shall be a default under any of the other Loan Documents beyond any applicable cure periods contained in such documents, whether as to any Borrower, Mortgage Borrower, Senior Mezzanine Borrower, the Collateral, the Senior Mezzanine Collateral or any Individual Property, or if any other such event shall occur or condition shall exist, if the effect of such event or condition is to accelerate the maturity of any portion of the Debt or to permit Lender to accelerate the maturity of all or any portion of the Debt;
(xx) if the Liens created pursuant to any Loan Document shall cease to be a fully protected enforceable first priority security interest in the Collateral, or any portion of the Collateral is Transferred without Lender’s prior written consent except as permitted hereunder; or
(xxi) if a Mortgage Loan Event of Default or Senior Mezzanine Loan Event of Default shall occur.
(b) Upon the occurrence of an Event of Default (other than an Event of Default described in clauses (vi), (vii) or (viiviii) above) and at any time thereafter, in addition to any other rights or remedies available to it pursuant to this Agreement and the other Loan Documents or at law or in equity, Lender may take such action, without notice or demand, that Lender deems advisable to protect and enforce its rights against Borrower and in and to all or any of the CollateralProperty, including, without limitation, declaring the Debt to be immediately due and payable, and Lender may enforce or avail itself of any or all rights or remedies provided in the Loan Documents and may exercise all the rights and remedies of a secured party under the Uniform Commercial Code, as adopted and enacted by the State or States where any of the Collateral is located, against Borrower and any or all of the CollateralProperty, including, without limitation, all rights or remedies available at law or in equity; and upon any Event of Default described in clauses (vi), (vii) or (viiviii) above, the Debt and all other obligations Other Obligations of Borrower hereunder and under the other Loan Documents shall immediately and automatically become due and payable, without notice or demand, and Borrower hereby expressly waives any such notice or demand, anything contained herein or in any other Loan Document to the contrary notwithstanding.
Appears in 2 contracts
Samples: Project Loan Agreement (Acadia Realty Trust), Project Loan Agreement (Acadia Realty Trust)
Event of Default. (a) Each Except under circumstances when the terms of Article VI of this Agreement are applicable, if (a) an Event of Default shall have occurred and be continuing, and (b) the Second Lien Administrative Agent or other representative shall have received an Event of Default Notice, then no Borrower or other Obligor may make, and no Second Lien Lender shall accept, receive or collect, any direct or indirect Distribution of any kind or character (in cash, securities, other property, by setoff, or otherwise, other than Reorganization Subordination Securities) of any properties or assets of any Borrower or other Obligor on account of the following events Second Lien Obligations. In the event that, notwithstanding the foregoing, the Company or any other Obligor shall constitute an make any Distribution to any Second Lien Lender prohibited by the foregoing provisions of this Section 3.07, then and in such event such Distribution shall be held in trust for the benefit of default hereunder and promptly shall be paid over to the holders of the First Lien Obligations or the First Lien Administrative Agent for application against the First Lien Obligations remaining unpaid until the Discharge of First Lien Obligations occurs.
(an “b) No Event of Default”):Default shall be deemed to have been waived for purposes of this Section 3.07 or otherwise under this Agreement unless and until it is cured or waived in accordance with the terms of the First Lien Loan Documents.
(c) Notwithstanding any provision of this Agreement to the contrary:
(i) if the failure of the Company to make any Distribution with respect to any Second Lien Obligations or to comply with any other provision of the Second Lien Loan Documents by reason of the operation of this Agreement shall not be construed as preventing a breach of such document or the occurrence of a Second Lien Default or any other default under the applicable Second Lien Loan Documents; and
(ii) this Section 3.07 shall not be deemed to prohibit (A) any portion the accrual of the Debt is not paid in full interest on the Maturity DateSecond Lien Obligations, including at the default rate, in accordance with the Second Lien Loan Documents, (B) the Debt Service is not paid in full on or before the related Payment DatePIK Interest Payments, or (C) any the accrual or capitalization of fees or other portion of amounts pursuant to the Debt is not paid within five (5) days of when due;
(ii) if any of the Taxes or Other Charges are not paid (with respect to each or any Individual Property) prior to Delinquency;Second Lien Loan Documents.
(iii) if the Policies (with respect to each or any Individual Property) are not kept in full force and effect, or if certified copies of the Policies (for each Individual Property) are not delivered to Lender upon request (or certificates thereof, if a Policy shall be renewed and certified copies of the Policy are not immediately available upon such renewal (each Borrower agreeing in such instance to provide copies of the Policies to Lender promptly thereafter));
(iv) if any Borrower Transfers or otherwise encumbers any portion of the Properties, the Collateral or the Senior Mezzanine Collateral, or there shall otherwise occur a Transfer without Lender’s prior consent in violation of the provisions of this Agreement, the Pledge Agreement or any other Loan Document;
(v) if any representation or warranty made by any Borrower or any other Loan Party herein or in any other Loan Document, or in any report, certificate, financial statement or other instrument, agreement or document or other material or written information furnished to Lender shall have been false or misleading in any material respect as of the date the representation or warranty was made (and, with respect to any such breach which is not the subject of any other subsection of this Section 8.1 and which is capable of being cured, such Borrower fails 3.07 shall not be deemed to remedy such condition within ten (10) days following notice to Borrower from Lender, in the case of any such breach which can be cured by prohibit the payment of a sum that portion of moneySecond Lien Obligations constituting fees, or within thirty expenses and indemnities payable to the Second Lien Administrative Agent in its capacity as such, for its own account (30) days following notice from Lender in the case of any other such breach);
(vi) if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower shall make an assignment for the benefit of creditors; or if a receiver, liquidator or trustee shall be appointed for any Borrower, Senior Mezzanine Borrower or Mortgage Borrower, or if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower shall be adjudicated a bankrupt or insolvent, or if any petition for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by or against, consented to, or acquiesced in by, Borrower or Senior Mezzanine Borrower, or if any proceeding for the dissolution or liquidation of any Borrower, Senior Mezzanine Borrower or Mortgage Borrower shall be instituted; provided, however, if such appointment, adjudication, petition or proceeding was involuntary and not consented to by any Borrower, Senior Mezzanine Borrower or Mortgage Borrower, upon the same not being discharged, stayed or dismissed within ninety (90) days;
(vii) if any Operating Company, any Manager, Principal, Holdings or any Guarantor shall make an assignment for the benefit of creditors; or if a receiver, liquidator or trustee shall be appointed for any such Operating Company, any such Manager, Principal, Holdings or any such Guarantor, or if any Operating Company, any Manager, Principal, Holdings or any Guarantor shall be adjudicated a bankrupt or insolvent, or if any petition for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by or against, consented to, or acquiesced in by, any Operating Company, any Manager, Principal, Holdings or any Guarantor, or if any proceeding for the dissolution or liquidation of any Operating Company, any Manager, Principal, Holdings or any Guarantor shall be instituted; provided, however, if such appointment, adjudication, petition or proceeding was involuntary and not consented to by any such Operating Company, any such Manager, Principal, Holdings or any such Guarantor, upon the same not being discharged, stayed or dismissed within ninety (90) days;
(viii) if any Borrower attempts to assign its rights under this Agreement or any of the other Loan Documents or any interest herein or therein in contravention of the Loan Documents;
(ix) if any Borrower breaches any of its respective negative covenants contained in Section 5.2 or any covenant contained in Section 4.1.30 or Section 5.1.11 hereof (and, with respect to any such breach of any covenant set forth in Section 5.1.11 which is not the subject of any other subsection of this Section 8.1, such Borrower fails to remedy such condition within ten (10) days after notice to Borrower from Lender, in the case of any such Default under Section 5.1.11 which can be cured by the payment of a sum of money, or for thirty (30) days after notice from Lender in the case of any other such Default under Section 5.1.11);
(x) with respect to any term, covenant or provision set forth herein which specifically contains a notice requirement or grace period, if any Borrower shall be in default under such term, covenant or condition after the giving of such notice or the expiration of such grace period;
(xi) if any of the assumptions contained in the Insolvency Opinion delivered in connection with the Loan, or in the Additional Insolvency Opinion delivered subsequent to the closing of the Loan, is or shall become untrue in any material respect; or if any of the assumptions contained in the True Lease Opinion in connection with the Loan, or in the Additional True Lease Opinion delivered subsequent to the closing of the Loan, is or shall become untrue in any material respect;
(xii) if any Mortgage Borrower, any Operating Company or any Guarantor (Operating Lease) is in default of any of its material obligations under any Operating Lease (or under another lease and/or management agreement in substitution for such Operating Lease in accordance herewith) or under any such Operating Lease Guaranty (or under another operating lease guaranty in substitution for such Operating Lease Guaranty in accordance herewith) beyond any applicable notice and cure periods contained therein; or if any Operating Lease (or such other lease and/or management agreement) or any Operating Lease Guaranty (or such other operating lease guaranty) shall be surrendered or any Operating Lease or any Operating Lease Guaranty shall be terminated or canceled for any reason or under any circumstances whatsoever, except with the consent of Lender; or if any of the terms, covenants or conditions of any Operating Lease (or such other lease and/or management agreement) or any Operating Lease Guaranty (or such other operating lease guaranty) shall in any manner be modified, changed, supplemented, altered, restated or amended without the consent of Lender except as may otherwise expressly permitted in this Agreement;
(xiii) intentionally omitted;
(xiv) if any Affiliate of any Borrower that is or becomes a party to the Windstorm Insurance Intercreditor Agreement is in default of any of its material obligations under the Windstorm Insurance Intercreditor Agreement beyond any applicable notice and cure periods contained therein; or if the Windstorm Insurance Intercreditor Agreement shall be surrendered, terminated or canceled for any reason or under any circumstances whatsoever, except with the consent of Lender; or if any of the terms, covenants or conditions of the Windstorm Insurance Intercreditor Agreement shall in any manner be modified, changed, supplemented, altered, restated or amended without the consent of Lender;
(xv) if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower fails to comply with the covenants as to Prescribed Laws set forth in Section 5.1.1 hereof;
(xvi) if a material default has occurred and continues beyond any applicable cure period under any Management Agreement and if such default permits the Manager, the Operating Company or the Mortgage Borrower party thereto to terminate or cancel the Management Agreement in question;
(xvii) any Gaming License shall be refused, suspended, revoked, modified in a materially adverse manner or canceled or allowed to lapse or any proceeding is commenced by any Governmental Authority for the purpose of suspending, revoking or canceling any Gaming License in any materially adverse respect, or any Governmental Authority shall have appointed a conservator, supervisor or trustee to or for any of the Casino Components and, in each case of the foregoing, such action could reasonably be expected to (A) have an Individual Material Adverse Effect, (B) materially and adversely affect the continued operation of the Casino Components in the usual course of business and in substantially the same manner and to at least the same standard as was maintained prior to such action, or (C) result in any material decrease in the then expected cash flow and revenues to be derived from the Casino Components;
(xviii) if any Borrower shall continue to be in Default under any of the other terms, covenants or conditions of this Agreement not specified in subsections (i) to (xvii) above, for ten (10) days after notice to Borrower from Lender, in the case of any Default which can be cured by the payment of a sum of money, or for thirty (30) days after notice from Lender in the case of any other Default; provided, however, that if such non-monetary Default is susceptible of cure but cannot reasonably be cured within such thirty (30) day period and provided further that such Borrower shall have commenced to cure such Default within such thirty (30) day period and thereafter diligently and expeditiously proceeds to cure the same, such thirty (30) day period shall be extended for such time as is reasonably necessary for such Borrower in the exercise of due diligence to cure such Default, such additional period not to exceed one hundred twenty (120) days;
(xix) if there shall be a default under any of the other Loan Documents beyond any applicable cure periods contained in such documents, whether as to any Borrower, Mortgage Borrower, Senior Mezzanine Borrower, the Collateral, the Senior Mezzanine Collateral or any Individual Property, or if any other such event shall occur or condition shall exist, if the effect of such event or condition is to accelerate the maturity of any portion of the Debt Second Lien Obligations constituting fees, indemnities and other amounts payable to, for the account of, or for distribution to, any other Second Lien Secured Party) pursuant to permit Lender to accelerate the maturity of all or Second Lien Loan Documents; provided, that any portion such expenses of the Debt;
(xx) if the Liens created pursuant to any Loan Document shall cease to Second Lien Administrative Agent must be a fully protected enforceable first priority security interest in the Collateral, or any portion of the Collateral is Transferred without Lender’s prior written consent except as permitted hereunder; or
(xxi) if a Mortgage Loan Event of Default or Senior Mezzanine Loan Event of Default shall occurreasonable and documented out-of-pocket expenses.
(b) Upon the occurrence of an Event of Default (other than an Event of Default described in clauses (vi) or (vii) above) and at any time thereafter, in addition to any other rights or remedies available to it pursuant to this Agreement and the other Loan Documents or at law or in equity, Lender may take such action, without notice or demand, that Lender deems advisable to protect and enforce its rights against Borrower and in and to all or any of the Collateral, including, without limitation, declaring the Debt to be immediately due and payable, and Lender may enforce or avail itself of any or all rights or remedies provided in the Loan Documents and may exercise all the rights and remedies of a secured party under the Uniform Commercial Code, as adopted and enacted by the State or States where any of the Collateral is located, against Borrower and any or all of the Collateral, including, without limitation, all rights or remedies available at law or in equity; and upon any Event of Default described in clauses (vi) or (vii) above, the Debt and all other obligations of Borrower hereunder and under the other Loan Documents shall immediately and automatically become due and payable, without notice or demand, and Borrower hereby expressly waives any such notice or demand, anything contained herein or in any other Loan Document to the contrary notwithstanding.
Appears in 2 contracts
Samples: Credit Agreement (Quintana Energy Services Inc.), Credit Agreement (Quintana Energy Services Inc.)
Event of Default. (a) Each The occurrence of any one or more of the following events shall constitute an event of default hereunder (an “Event of Default”):"EVENT OF DEFAULT":
(ia) if (A) any portion of the Debt is not paid in full on or prior to the Maturity Date, (B) date the same is due or if the entire Debt Service is not paid in full on or before the related Payment Maturity Date; provided, however, (i) Borrower shall not be in default so long as there is sufficient money in the Lockbox Account for payment of all amounts then due and payable (including any deposits into Reserve Accounts) and Lender's access to such money has not been constrained or constricted in any manner and (Cii) any other portion with respect to payments that are not regularly scheduled pursuant to the terms of the Debt is not paid within Loan Documents, Borrower shall have a five (5) days of when dueday grace period;
(iib) except as otherwise expressly provided in the Loan Documents, if any of the Taxes or Other Charges are not paid (with respect to each or any Individual Property) prior to Delinquencythe time that such Taxes or Other Charges would be delinquent, unless there is sufficient money in the Tax and Insurance Reserve Account for payment of amounts then due and payable and Lender's access to such money has not been constrained or restricted in any manner;
(iiic) if the Policies (with respect to each or any Individual Property) are not kept in full force and effect, or if certified copies of the Policies (for each Individual Property) are not delivered to Lender upon request (or certificates thereof, if a Policy shall be renewed and certified copies of the Policy are not immediately available upon such renewal (each Borrower agreeing as provided in such instance to provide copies of the Policies to Lender promptly thereafter))Section 8.1;
(ivd) if Borrower breaches any Borrower Transfers or otherwise encumbers any portion of the Properties, the Collateral or the Senior Mezzanine Collateral, or there shall otherwise occur a Transfer without Lender’s prior consent covenant with respect to itself contained in violation of the provisions of this Agreement, the Pledge Agreement Article 6 or any other Loan Documentcovenant contained in Article 7 hereof;
(ve) if any representation or warranty made by any of, or with respect to, Borrower, Borrower Principal or any other Loan Party herein member, general partner, principal or beneficial owner of any of the foregoing, made herein, in any other Loan Document, or in any certificate, report, certificate, financial statement or other instrument, agreement instrument or document or other material or written information furnished to Lender at the time of the closing of the Loan or during the term of the Loan shall have been false or misleading in any material respect as of the date the representation or warranty was when made (anda "REP & WARRANTY BREACH"), with respect to any unless
(i) Borrower notifies Lender of such breach which Rep & Warranty Breach promptly upon becoming aware of it and (ii) such Rep & Warranty Breach (A) was unintentional, (B) is not the subject of any other subsection of this Section 8.1 immaterial and which is (iii) if capable of being cured, such Borrower fails to remedy such condition within ten (10) days following notice to Borrower from Lender, in the case of any such breach which can be is cured by the payment of a sum of money, or within thirty (30) days following notice from Lender in the case of any other such breach)Lender;
(vif) if any Borrower, Senior Mezzanine Borrower or Mortgage (i) Borrower shall make commence any case, proceeding or other action (A) under any Creditors Rights Laws, seeking to have an assignment order for the benefit of creditors; or if a receiver, liquidator or trustee shall be appointed for any Borrower, Senior Mezzanine Borrower or Mortgage Borrowerrelief entered with respect to it, or if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower shall be adjudicated seeking to adjudicate it a bankrupt or insolvent, or if any petition for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy lawseeking reorganization, or (B) seeking appointment of a receiver, trustee, custodian, conservator or other similar official for it or for all or any similar federal or state law, shall be filed by or against, consented tosubstantial part of its assets, or acquiesced in by, Borrower or Senior Mezzanine Borrower, or if any proceeding for the dissolution or liquidation of any Borrower, Senior Mezzanine Borrower or Mortgage Borrower shall be instituted; provided, however, if such appointment, adjudication, petition or proceeding was involuntary and not consented to by any Borrower, Senior Mezzanine Borrower or Mortgage Borrower, upon the same not being discharged, stayed or dismissed within ninety (90) days;
(vii) if any Operating Company, any Manager, Principal, Holdings or any Guarantor shall make an a general assignment for the benefit of its creditors; or if a receiver, liquidator or trustee (ii) there shall be appointed commenced against Borrower any case, proceeding or other action of a nature referred to in clause (i) above which (A) results in the entry of an order for relief or any such adjudication or appointment or (B) remains undismissed, undischarged or unbonded for a period of sixty (60) days; or (iii) there shall be commenced against Borrower, any managing member or general partner of Borrower any case, proceeding or other action seeking issuance of a warrant of attachment, execution, distraint or similar process against all or any substantial part of its assets which results in the entry of any order for any such Operating Companyrelief which shall not have been vacated, any such Manager, Principal, Holdings or any such Guarantordischarged, or if any Operating Company, any Manager, Principal, Holdings or any Guarantor shall be adjudicated a bankrupt or insolvent, or if any petition for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by or against, consented to, or acquiesced in by, any Operating Company, any Manager, Principal, Holdings or any Guarantor, or if any proceeding for the dissolution or liquidation of any Operating Company, any Manager, Principal, Holdings or any Guarantor shall be instituted; provided, however, if such appointment, adjudication, petition or proceeding was involuntary and not consented to by any such Operating Company, any such Manager, Principal, Holdings or any such Guarantor, upon the same not being discharged, stayed or dismissed bonded pending appeal within ninety sixty (90) days;
(viii) if any Borrower attempts to assign its rights under this Agreement or any of the other Loan Documents or any interest herein or therein in contravention of the Loan Documents;
(ix) if any Borrower breaches any of its respective negative covenants contained in Section 5.2 or any covenant contained in Section 4.1.30 or Section 5.1.11 hereof (and, with respect to any such breach of any covenant set forth in Section 5.1.11 which is not the subject of any other subsection of this Section 8.1, such Borrower fails to remedy such condition within ten (1060) days after notice to Borrower from Lender, in the case of any such Default under Section 5.1.11 which can be cured by the payment of a sum of money, or for thirty (30) days after notice from Lender in the case of any other such Default under Section 5.1.11);
(x) with respect to any term, covenant or provision set forth herein which specifically contains a notice requirement or grace period, if any Borrower shall be in default under such term, covenant or condition after the giving of such notice or the expiration of such grace period;
(xi) if any of the assumptions contained in the Insolvency Opinion delivered in connection with the Loan, or in the Additional Insolvency Opinion delivered subsequent to the closing of the Loan, is or shall become untrue in any material respect; or if any of the assumptions contained in the True Lease Opinion in connection with the Loan, or in the Additional True Lease Opinion delivered subsequent to the closing of the Loan, is or shall become untrue in any material respect;
(xii) if any Mortgage Borrower, any Operating Company or any Guarantor (Operating Lease) is in default of any of its material obligations under any Operating Lease (or under another lease and/or management agreement in substitution for such Operating Lease in accordance herewith) or under any such Operating Lease Guaranty (or under another operating lease guaranty in substitution for such Operating Lease Guaranty in accordance herewith) beyond any applicable notice and cure periods contained therein; or if any Operating Lease (or such other lease and/or management agreement) or any Operating Lease Guaranty (or such other operating lease guaranty) shall be surrendered or any Operating Lease or any Operating Lease Guaranty shall be terminated or canceled for any reason or under any circumstances whatsoever, except with the consent of Lender; or if any of the terms, covenants or conditions of any Operating Lease (or such other lease and/or management agreement) or any Operating Lease Guaranty (or such other operating lease guaranty) shall in any manner be modified, changed, supplemented, altered, restated or amended without the consent of Lender except as may otherwise expressly permitted in this Agreement;
(xiii) intentionally omitted;
(xiv) if any Affiliate of any Borrower that is or becomes a party to the Windstorm Insurance Intercreditor Agreement is in default of any of its material obligations under the Windstorm Insurance Intercreditor Agreement beyond any applicable notice and cure periods contained therein; or if the Windstorm Insurance Intercreditor Agreement shall be surrendered, terminated or canceled for any reason or under any circumstances whatsoever, except with the consent of Lender; or if any of the terms, covenants or conditions of the Windstorm Insurance Intercreditor Agreement shall in any manner be modified, changed, supplemented, altered, restated or amended without the consent of Lender;
(xv) if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower fails to comply with the covenants as to Prescribed Laws set forth in Section 5.1.1 hereof;
(xvi) if a material default has occurred and continues beyond any applicable cure period under any Management Agreement and if such default permits the Manager, the Operating Company or the Mortgage Borrower party thereto to terminate or cancel the Management Agreement in question;
(xvii) any Gaming License shall be refused, suspended, revoked, modified in a materially adverse manner or canceled or allowed to lapse or any proceeding is commenced by any Governmental Authority for the purpose of suspending, revoking or canceling any Gaming License in any materially adverse respect, or any Governmental Authority shall have appointed a conservator, supervisor or trustee to or for any of the Casino Components and, in each case of the foregoing, such action could reasonably be expected to (A) have an Individual Material Adverse Effect, (B) materially and adversely affect the continued operation of the Casino Components in the usual course of business and in substantially the same manner and to at least the same standard as was maintained prior to such action, or (C) result in any material decrease in the then expected cash flow and revenues to be derived from the Casino Components;
(xviii) if any Borrower shall continue to be in Default under any of the other terms, covenants or conditions of this Agreement not specified in subsections (i) to (xvii) above, for ten (10) days after notice to Borrower from Lender, in the case of any Default which can be cured by the payment of a sum of money, or for thirty (30) days after notice from Lender in the case of any other Default; provided, however, that if such non-monetary Default is susceptible of cure but cannot reasonably be cured within such thirty (30) day period and provided further that such Borrower shall have commenced to cure such Default within such thirty (30) day period and thereafter diligently and expeditiously proceeds to cure the same, such thirty (30) day period shall be extended for such time as is reasonably necessary for such Borrower in the exercise of due diligence to cure such Default, such additional period not to exceed one hundred twenty (120) days;
(xix) if there shall be a default under any of the other Loan Documents beyond any applicable cure periods contained in such documents, whether as to any Borrower, Mortgage Borrower, Senior Mezzanine Borrower, the Collateral, the Senior Mezzanine Collateral or any Individual Property, or if any other such event shall occur or condition shall exist, if the effect of such event or condition is to accelerate the maturity of any portion of the Debt or to permit Lender to accelerate the maturity of all or any portion of the Debt;
(xx) if the Liens created pursuant to any Loan Document shall cease to be a fully protected enforceable first priority security interest in the Collateral, or any portion of the Collateral is Transferred without Lender’s prior written consent except as permitted hereunderentry thereof; or
(xxi) if a Mortgage Loan Event of Default or Senior Mezzanine Loan Event of Default shall occur.
(b) Upon the occurrence of an Event of Default (other than an Event of Default described in clauses (vi) or (vii) above) and at any time thereafter, in addition to any other rights or remedies available to it pursuant to this Agreement and the other Loan Documents or at law or in equity, Lender may take such action, without notice or demand, that Lender deems advisable to protect and enforce its rights against Borrower and in and to all or any of the Collateral, including, without limitation, declaring the Debt to be immediately due and payable, and Lender may enforce or avail itself of any or all rights or remedies provided in the Loan Documents and may exercise all the rights and remedies of a secured party under the Uniform Commercial Code, as adopted and enacted by the State or States where any of the Collateral is located, against Borrower and any or all of the Collateral, including, without limitation, all rights or remedies available at law or in equity; and upon any Event of Default described in clauses (vi) or (vii) above, the Debt and all other obligations of Borrower hereunder and under the other Loan Documents shall immediately and automatically become due and payable, without notice or demand, and Borrower hereby expressly waives any such notice or demand, anything contained herein or in any other Loan Document to the contrary notwithstanding.
Appears in 2 contracts
Samples: Loan Agreement (Maguire Properties Inc), Loan Agreement (Maguire Properties Inc)
Event of Default. (a) Each of the following events shall constitute an event of default hereunder (an “If any Event of Default”):
Default shall occur and be continuing (i) if (A) any portion of the Debt is and not paid waived in full on the Maturity Date, (B) the Debt Service is not paid in full on or before the related Payment Date, or (C) any other portion of the Debt is not paid within five (5) days of when due;
(ii) if any of the Taxes or Other Charges are not paid (with respect to each or any Individual Property) prior to Delinquency;
(iii) if the Policies (with respect to each or any Individual Property) are not kept in full force and effect, or if certified copies of the Policies (for each Individual Property) are not delivered to Lender upon request (or certificates thereof, if a Policy shall be renewed and certified copies of the Policy are not immediately available upon such renewal (each Borrower agreeing in such instance to provide copies of the Policies to Lender promptly thereafteraccordance herewith));
(iv) if any Borrower Transfers or otherwise encumbers any portion of the Properties, the Collateral or the Senior Mezzanine Collateral, or there shall otherwise occur a Transfer without Lender’s prior consent Agent may exercise in violation of the provisions of addition to all other rights and remedies granted to it in this Agreement, the Pledge Holdings LLC Agreement or any other Loan Document;
(v) if any representation or warranty made by any Borrower or any other Loan Party herein or and in any other Loan DocumentTransaction Documents, or in any report, certificate, financial statement or other instrument, agreement or document or other material or written information furnished to Lender shall have been false or misleading in any material respect as of the date the representation or warranty was made (and, with respect to any such breach which is not the subject of any other subsection of this Section 8.1 and which is capable of being cured, such Borrower fails to remedy such condition within ten (10) days following notice to Borrower from Lender, in the case of any such breach which can be cured by the payment of a sum of money, or within thirty (30) days following notice from Lender in the case of any other such breach);
(vi) if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower shall make an assignment for the benefit of creditors; or if a receiver, liquidator or trustee shall be appointed for any Borrower, Senior Mezzanine Borrower or Mortgage Borrower, or if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower shall be adjudicated a bankrupt or insolvent, or if any petition for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by or against, consented to, or acquiesced in by, Borrower or Senior Mezzanine Borrower, or if any proceeding for the dissolution or liquidation of any Borrower, Senior Mezzanine Borrower or Mortgage Borrower shall be instituted; provided, however, if such appointment, adjudication, petition or proceeding was involuntary and not consented to by any Borrower, Senior Mezzanine Borrower or Mortgage Borrower, upon the same not being discharged, stayed or dismissed within ninety (90) days;
(vii) if any Operating Company, any Manager, Principal, Holdings or any Guarantor shall make an assignment for the benefit of creditors; or if a receiver, liquidator or trustee shall be appointed for any such Operating Company, any such Manager, Principal, Holdings or any such Guarantor, or if any Operating Company, any Manager, Principal, Holdings or any Guarantor shall be adjudicated a bankrupt or insolvent, or if any petition for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by or against, consented to, or acquiesced in by, any Operating Company, any Manager, Principal, Holdings or any Guarantor, or if any proceeding for the dissolution or liquidation of any Operating Company, any Manager, Principal, Holdings or any Guarantor shall be instituted; provided, however, if such appointment, adjudication, petition or proceeding was involuntary and not consented to by any such Operating Company, any such Manager, Principal, Holdings or any such Guarantor, upon the same not being discharged, stayed or dismissed within ninety (90) days;
(viii) if any Borrower attempts to assign its rights under this Agreement or any of the other Loan Documents or any interest herein or therein in contravention of the Loan Documents;
(ix) if any Borrower breaches any of its respective negative covenants contained in Section 5.2 or any covenant contained in Section 4.1.30 or Section 5.1.11 hereof (and, with respect to any such breach of any covenant set forth in Section 5.1.11 which is not the subject of any other subsection of this Section 8.1, such Borrower fails to remedy such condition within ten (10) days after notice to Borrower from Lender, in the case of any such Default under Section 5.1.11 which can be cured by the payment of a sum of money, or for thirty (30) days after notice from Lender in the case of any other such Default under Section 5.1.11);
(x) with respect to any term, covenant or provision set forth herein which specifically contains a notice requirement or grace period, if any Borrower shall be in default under such term, covenant or condition after the giving of such notice or the expiration of such grace period;
(xi) if any of the assumptions contained in the Insolvency Opinion delivered in connection with the Loan, or in the Additional Insolvency Opinion delivered subsequent to the closing of the Loan, is or shall become untrue in any material respect; or if any of the assumptions contained in the True Lease Opinion in connection with the Loan, or in the Additional True Lease Opinion delivered subsequent to the closing of the Loan, is or shall become untrue in any material respect;
(xii) if any Mortgage Borrower, any Operating Company or any Guarantor (Operating Lease) is in default of any of its material obligations under any Operating Lease (or under another lease and/or management agreement in substitution for such Operating Lease in accordance herewith) or under any such Operating Lease Guaranty (or under another operating lease guaranty in substitution for such Operating Lease Guaranty in accordance herewith) beyond any applicable notice and cure periods contained therein; or if any Operating Lease (or such other lease and/or management agreement) or any Operating Lease Guaranty (or such other operating lease guaranty) shall be surrendered or any Operating Lease or any Operating Lease Guaranty shall be terminated or canceled for any reason or under any circumstances whatsoever, except with the consent of Lender; or if any of the terms, covenants or conditions of any Operating Lease (or such other lease and/or management agreement) or any Operating Lease Guaranty (or such other operating lease guaranty) shall in any manner be modified, changed, supplemented, altered, restated or amended without the consent of Lender except as may otherwise expressly permitted in this Agreement;
(xiii) intentionally omitted;
(xiv) if any Affiliate of any Borrower that is or becomes a party to the Windstorm Insurance Intercreditor Agreement is in default of any of its material obligations under the Windstorm Insurance Intercreditor Agreement beyond any applicable notice and cure periods contained therein; or if the Windstorm Insurance Intercreditor Agreement shall be surrendered, terminated or canceled for any reason or under any circumstances whatsoever, except with the consent of Lender; or if any of the terms, covenants or conditions of the Windstorm Insurance Intercreditor Agreement shall in any manner be modified, changed, supplemented, altered, restated or amended without the consent of Lender;
(xv) if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower fails to comply with the covenants as to Prescribed Laws set forth in Section 5.1.1 hereof;
(xvi) if a material default has occurred and continues beyond any applicable cure period under any Management Agreement and if such default permits the Manager, the Operating Company or the Mortgage Borrower party thereto to terminate or cancel the Management Agreement in question;
(xvii) any Gaming License shall be refused, suspended, revoked, modified in a materially adverse manner or canceled or allowed to lapse or any proceeding is commenced by any Governmental Authority for the purpose of suspending, revoking or canceling any Gaming License in any materially adverse respect, or any Governmental Authority shall have appointed a conservator, supervisor or trustee to or for any of the Casino Components and, in each case of the foregoing, such action could reasonably be expected to (A) have an Individual Material Adverse Effect, (B) materially and adversely affect the continued operation of the Casino Components in the usual course of business and in substantially the same manner and to at least the same standard as was maintained prior to such action, or (C) result in any material decrease in the then expected cash flow and revenues to be derived from the Casino Components;
(xviii) if any Borrower shall continue to be in Default under any of the other terms, covenants or conditions of this Agreement not specified in subsections (i) to (xvii) above, for ten (10) days after notice to Borrower from Lender, in the case of any Default which can be cured by the payment of a sum of money, or for thirty (30) days after notice from Lender in the case of any other Default; provided, however, that if such non-monetary Default is susceptible of cure but cannot reasonably be cured within such thirty (30) day period and provided further that such Borrower shall have commenced to cure such Default within such thirty (30) day period and thereafter diligently and expeditiously proceeds to cure the same, such thirty (30) day period shall be extended for such time as is reasonably necessary for such Borrower in the exercise of due diligence to cure such Default, such additional period not to exceed one hundred twenty (120) days;
(xix) if there shall be a default under any of the other Loan Documents beyond any applicable cure periods contained in such documents, whether as to any Borrower, Mortgage Borrower, Senior Mezzanine Borrower, the Collateral, the Senior Mezzanine Collateral or any Individual Property, or if any other such event shall occur or condition shall exist, if the effect of such event or condition is to accelerate the maturity of any portion of the Debt or to permit Lender to accelerate the maturity of all or any portion of the Debt;
(xx) if the Liens created pursuant to any Loan Document shall cease to be a fully protected enforceable first priority security interest in the Collateral, or any portion of the Collateral is Transferred without Lender’s prior written consent except as permitted hereunder; or
(xxi) if a Mortgage Loan Event of Default or Senior Mezzanine Loan Event of Default shall occur.
(b) Upon the occurrence of an Event of Default (other than an Event of Default described in clauses (vi) or (vii) above) and at any time thereafter, in addition to any other rights or remedies available to it pursuant to this Agreement and the other Loan Documents or at law or in equity, Lender may take such action, without notice or demand, that Lender deems advisable to protect and enforce its rights against Borrower and in and to all or any of the Collateral, including, without limitation, declaring the Debt to be immediately due and payable, and Lender may enforce or avail itself of any or all rights or remedies provided in the Loan Documents and may exercise all the rights and remedies of a secured party under the Uniform Commercial Code, as adopted and enacted by UCC of the State of New York with respect to the Collateral described in Section 4(a) hereto. Without limiting the generality of the foregoing, PAG expressly agrees that in any such event Agent, without demand of performance or States where other demand, advertisement or notice of any kind (except the notice specified below of time and place of public or private sale) to or upon PAG or any other Person (all and each of which demands, advertisements or notices are hereby expressly, irrevocably and unconditionally waived), may forthwith collect, receive, appropriate and realize upon such Collateral in which PAG has granted a security interest to GECC with respect thereto, or any part thereof, or may forthwith sell, lease, assign, give option or options to purchase, or sell or otherwise dispose of and deliver such Collateral (or contract to do so), or any part thereof, in one or more parcels at public or private sale or sales, at any exchange or broker’s board or at any of the Agent’s offices or elsewhere at such prices as it may deem best, for cash or on credit or for future delivery without the assumption of any credit risk. PAG expressly acknowledges that (A) private sales may be less favorable to a seller than public sales but that private sales shall nevertheless be deemed commercially reasonable and otherwise permitted hereunder and (B) the GE Members may sell, lease, assign, give option or options to purchase, or sell or otherwise dispose of and deliver their Member Interests (or contract to do so) at the same time in one transaction or in a series of related transactions. In view of the fact that federal and state securities Laws and/or other applicable Laws may impose certain restrictions on the method by which a sale of such Collateral may be effected, PAG agrees that upon the occurrence of an Event of Default with respect to it, the Agent may, from time to time, attempt to sell all or any part of such Collateral in which PAG has granted a security interest to GECC relating to such Event of Default hereunder, by means of a private placement, restricting the prospective purchasers to those who will represent and agree that they are purchasing for investment only and not for distribution. In so doing, the Agent may solicit offers to buy such Collateral, or any part thereof, for cash, from a limited number of investors deemed by the Agent in its judgment, to be financially responsible parties who might be interested in purchasing such Collateral, and if the Agent solicits such offers, then the acceptance by the Agent of the highest offer obtained therefrom shall be deemed to be a commercially reasonable method of disposing of such Collateral. GECC or the Agent shall have the right upon any such public sale or sales, and, to the maximum extent not prohibited by applicable Law, upon any such private sale or sales, to purchase the whole or any part of such Collateral so sold, free of any right or equity of redemption, which equity of redemption PAG hereby irrevocably and unconditionally releases. GECC shall apply the net proceeds of any such collection, recovery, receipt, appropriation, realization or sale to the Secured Obligations in such order and manner as GECC may elect. Only after so paying over such net proceeds and after the payment by the Agent of any other amount required by any provision of Law, including Section 9-608(a)(1)(C) of the UCC of the State of New York, need GECC account for the surplus, if any, to PAG. To the maximum extent not prohibited by applicable Law, PAG hereby irrevocably and unconditionally waives all Claims against the Agent and/or GECC arising out of the repossession, retention or sale of such Collateral except in each case such as arise out of the gross negligence or willful misconduct of the Agent or GECC. Any notification of intended disposition of any of such Collateral required by Law will be deemed to be a reasonable authenticated notification of disposition if given at least ten (10) days prior to such disposition and such notice shall (i) describe GECC and PAG, (ii) describe such Collateral that is locatedthe subject of the intended disposition, (iii) state the method of the intended disposition, (iv) state that PAG is entitled to an accounting of the Secured Obligations and state the charge, if any, for an accounting and (v) state the time and place of any public disposition or the time after which any private sale is to be made. The Agent and/or GECC may disclaim any representations or warranties that might arise in connection with the Sale or other Transfer of such Collateral and has no obligation to provide any representations or warranties at such time except to advise the purchaser in writing of provisions of the Collateral Document or instruments to which it will succeed or be subject to. Except as expressly required by the UCC of the State of New York or by the equitable principles of good faith and fair dealing, the Agent and/or GECC shall have no duty as to any Collateral in its possession or control or in the possession or control of any agent or nominee of the Agent and/or GECC or as to any income thereon or as to the preservation of rights against Borrower and prior parties or any or all of other rights pertaining thereto. Notwithstanding the foregoing, the parties hereto agree that to the extent that PAG is the Managing Member (as defined in the Holdings LLC Agreement) at the time that GECC exercises its remedies with respect to any Holdings Member Interests in the Collateral, including, without limitation, all rights or remedies available at law or in equity; and upon any Event then the transferee of Default described in clauses (vi) or (vii) above, such Holdings Member Interests shall become the Debt and all other obligations of Borrower hereunder and under the other Loan Documents shall immediately and automatically become due and payable, without notice or demand, and Borrower hereby expressly waives any such notice or demand, anything contained herein or in any other Loan Document Managing Member only to the contrary notwithstandingextent permitted and as provided in the Holdings LLC Agreement.
Appears in 2 contracts
Samples: Co Obligation Fee, Indemnity and Security Agreement, Co Obligation Fee, Indemnity and Security Agreement (Penske Automotive Group, Inc.)
Event of Default. (a) Each of the following events shall constitute an event of default hereunder (an “Event of Default”):
(i) if (A) any portion of the Debt is not paid in full on the Maturity Date, (B) the Debt Service is not paid in full on or before the related Payment Date, or (C) any other portion of the Debt is not paid within five (5) days of when duethe applicable due date;
(ii) if any of the Taxes or Other Charges are not paid (with respect to each or any Individual Property) prior to Delinquencythe date when the same become delinquent, except to the extent that Borrower is contesting same in accordance with the terms of Section 5.1.2 hereof, or there are sufficient funds in the Tax and Insurance Escrow Fund to pay such Taxes or Other Charges and Lender fails to or refuses to release the same from the Tax and Insurance Escrow Fund;
(iii) if the Policies (with respect to each or any Individual Property) are not kept in full force and effect, or if certified copies of the Policies (for each Individual Property) are not delivered to Lender upon request within ten (or certificates thereof, if a Policy shall be renewed and certified copies 10) days of the Policy are not immediately available upon such renewal (each Borrower agreeing in such instance to provide copies of the Policies to Lender promptly thereafter))request;
(iv) if any Borrower Transfers transfers or otherwise encumbers any portion of the Properties, the Collateral or the Senior Mezzanine Collateral, or there shall otherwise occur a Transfer Property without Lender’s prior written consent in violation of (to extent such consent is required) or otherwise violates the provisions of Section 5.2.13 of this Loan Agreement, the Pledge Agreement or any other Loan Document;
(v) if any material representation or warranty made by any Borrower or any other Loan Party herein or in any other Loan Document, or in any report, certificate, financial statement or other instrument, agreement or document or other material or written information furnished to Lender shall have been false or misleading in any material respect as of the date the representation or warranty was made (and, with respect to any such breach which is not the subject of any other subsection of this Section 8.1 and which is capable of being cured, such Borrower fails to remedy such condition within ten (10) days following notice to Borrower from Lender, in the case of any such breach which can be cured by the payment of a sum of money, or within thirty (30) days following notice from Lender in the case of any other such breach)made;
(vi) if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower indemnitor or any guarantor under any guaranty or indemnity issued in connection with the Loan shall make an assignment for the benefit of creditors; or ;
(vii) if a receiver, liquidator or trustee shall be appointed for any Borrower, Senior Mezzanine Borrower or Mortgage Borrower, any guarantor or indemnitor under any guarantee or indemnity issued in connection with the Loan or if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower such guarantor or indemnitor shall be adjudicated a bankrupt or insolvent, or if any petition for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by or against, consented to, or acquiesced in by, Borrower or Senior Mezzanine Borrowersuch guarantor or indemnitor, or if any proceeding for the dissolution or liquidation of any Borrower, Senior Mezzanine Borrower or Mortgage Borrower such guarantor or indemnitor shall be instituted; provided, however, if such appointment, adjudication, petition or proceeding was involuntary and not consented to by any Borrower, Senior Mezzanine Borrower or Mortgage Borrowersuch guarantor or indemnitor, upon the same not being discharged, stayed or dismissed within ninety one hundred eighty (90) days;
(vii) if any Operating Company, any Manager, Principal, Holdings or any Guarantor shall make an assignment for the benefit of creditors; or if a receiver, liquidator or trustee shall be appointed for any such Operating Company, any such Manager, Principal, Holdings or any such Guarantor, or if any Operating Company, any Manager, Principal, Holdings or any Guarantor shall be adjudicated a bankrupt or insolvent, or if any petition for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by or against, consented to, or acquiesced in by, any Operating Company, any Manager, Principal, Holdings or any Guarantor, or if any proceeding for the dissolution or liquidation of any Operating Company, any Manager, Principal, Holdings or any Guarantor shall be instituted; provided, however, if such appointment, adjudication, petition or proceeding was involuntary and not consented to by any such Operating Company, any such Manager, Principal, Holdings or any such Guarantor, upon the same not being discharged, stayed or dismissed within ninety (90180) days;
(viii) if any Borrower attempts to assign its rights under this Agreement or any of the other Loan Documents or any interest herein or therein in contravention of the Loan Documents;
(ix) if any Borrower breaches any of its respective negative covenants contained in Section 5.2 or any covenant contained in Section 4.1.30 or Section 5.1.11 hereof (and, with respect to any such breach of any covenant set forth in Section 5.1.11 which is not the subject of any other subsection of this Section 8.1, such Borrower fails to remedy such condition within ten (10) days after notice to Borrower from Lender, in the case of any such Default under Section 5.1.11 which can be cured by the payment of a sum of money, or for thirty (30) days after notice from Lender in the case of any other such Default under Section 5.1.11)hereof;
(x) with respect to any term, covenant or provision set forth herein which specifically contains a notice requirement or grace period, if any Borrower shall be in default under such term, covenant or condition after the giving of such notice or the expiration of such grace period;
(xi) if any of the assumptions contained in the any Insolvency Opinion delivered in connection with the Loan, or in the Additional Insolvency Opinion delivered subsequent to the closing of the Loan, is or shall become untrue in any material respect; or if any of the assumptions contained in the True Lease Opinion in connection with the Loan, or in the Additional True Lease Opinion delivered subsequent to the closing of the Loan, is are or shall become untrue in any material respect;
(xii) if any Mortgage Borrower, any Operating Company or any Guarantor (Operating Lease) is in default of any of its material obligations under any Operating Lease (or under another lease and/or management agreement in substitution for such Operating Lease in accordance herewith) or under any such Operating Lease Guaranty (or under another operating lease guaranty in substitution for such Operating Lease Guaranty in accordance herewith) beyond any applicable notice and cure periods contained therein; or if any Operating Lease (or such other lease and/or management agreement) or any Operating Lease Guaranty (or such other operating lease guaranty) shall be surrendered or any Operating Lease or any Operating Lease Guaranty shall be terminated or canceled for any reason or under any circumstances whatsoever, except with the consent of Lender; or if any of the terms, covenants or conditions of any Operating Lease (or such other lease and/or management agreement) or any Operating Lease Guaranty (or such other operating lease guaranty) shall in any manner be modified, changed, supplemented, altered, restated or amended without the consent of Lender except as may otherwise expressly permitted in this Agreement;
(xiii) intentionally omitted;
(xiv) if any Affiliate of any Borrower that is or becomes a party to the Windstorm Insurance Intercreditor Agreement is in default of any of its material obligations under the Windstorm Insurance Intercreditor Agreement beyond any applicable notice and cure periods contained therein; or if the Windstorm Insurance Intercreditor Agreement shall be surrendered, terminated or canceled for any reason or under any circumstances whatsoever, except with the consent of Lender; or if any of the terms, covenants or conditions of the Windstorm Insurance Intercreditor Agreement shall in any manner be modified, changed, supplemented, altered, restated or amended without the consent of Lender;
(xv) if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower fails to comply with the covenants as to Prescribed Laws set forth in Section 5.1.1 hereof;
(xvi) if a material default has occurred and continues beyond any applicable cure period under any Management Agreement and if such default permits the Manager, the Operating Company or the Mortgage Borrower party thereto to terminate or cancel the Management Agreement in question;
(xvii) any Gaming License shall be refused, suspended, revoked, modified in a materially adverse manner or canceled or allowed to lapse or any proceeding is commenced by any Governmental Authority for the purpose of suspending, revoking or canceling any Gaming License in any materially adverse respect, or any Governmental Authority shall have appointed a conservator, supervisor or trustee to or for any of the Casino Components and, in each case of the foregoing, such action could reasonably be expected to (A) have an Individual Material Adverse Effect, (B) materially and adversely affect the continued operation of the Casino Components in the usual course of business and in substantially the same manner and to at least the same standard as was maintained prior to such action, or (C) result in any material decrease in the then expected cash flow and revenues to be derived from the Casino Components;
(xviii) if any Borrower shall continue to be in Default under any of the other terms, covenants or conditions of this Agreement not specified in subsections (i) to (xviixi) above, for ten (10) days after notice to Borrower from Lender, in the case of any Default which can be cured by the payment of a sum of money, or for thirty (30) days after notice from Lender in the case of any other Default; provided, however, that if such non-monetary Default is susceptible of cure but cannot reasonably be cured within such thirty (30) -day period and provided further that such Borrower shall have commenced to cure such Default within such thirty (30) -day period and thereafter diligently and expeditiously proceeds to cure the same, such thirty (30) -day period shall be extended for such time as is reasonably necessary for such Borrower in the exercise of due diligence to cure such Default, such additional period not to exceed one hundred twenty eighty (120180) days;; or
(xixxiii) if there shall be a default under any of the other Loan Documents beyond any applicable cure periods contained in such documents, whether as to any Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Borrower or the Collateral, the Senior Mezzanine Collateral or any Individual Property, or if any other such event shall occur or condition shall exist, if the effect of such event or condition is to accelerate the maturity of any portion of the Debt or to permit Lender to accelerate the maturity of all or any portion of the Debt;
(xx) if the Liens created pursuant to any Loan Document shall cease to be a fully protected enforceable first priority security interest in the Collateral, or any portion of the Collateral is Transferred without Lender’s prior written consent except as permitted hereunder; or
(xxi) if a Mortgage Loan Event of Default or Senior Mezzanine Loan Event of Default shall occur.
(b) Upon the occurrence of an Event of Default (other than an Event of Default described in clauses (vi), (vii) or (viiviii) above) and at any time thereafterthereafter Lender may, in addition to any other rights or remedies available to it pursuant to this Agreement and the other Loan Documents or at law or in equity, Lender may take such action, without notice or demand, that Lender deems advisable to protect and enforce its rights against Borrower and in and to all or any of the CollateralProperty, including, without limitation, declaring the Debt to be immediately due and payable, and Lender may enforce or avail itself of any or all rights or remedies provided in the Loan Documents and may exercise all the rights and remedies of a secured party under the Uniform Commercial Code, as adopted and enacted by the State or States where any of the Collateral is located, against Borrower and any or all of the CollateralProperty, including, without limitation, all rights or remedies available at law or in equity; and upon any Event of Default described in clauses (vi), (vii) or (viiviii) above, the Debt and all other obligations of Borrower hereunder and under the other Loan Documents shall immediately and automatically become due and payable, without notice or demand, and Borrower hereby expressly waives any such notice or demand, anything contained herein or in any other Loan Document to the contrary notwithstanding.
Appears in 2 contracts
Samples: Loan Agreement (Highlands REIT, Inc.), Loan Agreement (Inland Western Retail Real Estate Trust Inc)
Event of Default. In the event of an occurrence with respect to any Participant of any one or more of the following:
(a) Each if the whole or any material part of the following events Participating Interest of the Participant shall constitute be the subject of a lien, charge or attachment other than in accordance with the terms of this Agreement and such lien, charge or attachment shall not have been discharged within sixty days thereafter; or
(b) It has committed an act of bankruptcy, is insolvent, has proposed a compromising arrangement to its creditors generally, has had any petition for a receiving order in bankruptcy filed against it, has made a voluntary assignment in bankruptcy, has taken any proceedings with respect to a compromise or arrangement, has taken any proceeding to have itself declared bankrupt or wound-up, has taken any proceeding to have a receiver appointed in respect of any part of its assets, has had any encumbrancer take possession of any of its property and has had any execution or distress become enforceable or become levied upon any of its property; then:
(c) if such event occurs, such event shall be a default of default hereunder (an “Event such Participant under this Agreement and the other Participant, without prejudice to any other remedy it may have, shall have the right to purchase the Participating Interest of Default”):the defaulting Participant in accordance with the following:
(i) by giving concurrent written notice of its election to do so to the defaulting Participant and to the Manager (if (A) any portion of the Debt it is not paid in full on the Maturity Date, (B) the Debt Service is not paid in full on or before the related Payment Date, or (C) any other portion of the Debt is not paid within five (5) days of when duedefaulting Participant);
(ii) if any the completion of the Taxes purchase of the said defaulting Participating Interest shall take place at the time and place, and the defaulting Participant shall perform such acts and execute such documents, as the purchasing Participant may reasonably specify or Other Charges are not paid (with respect provide. The purchase price of the aforesaid Participating Interest to each the purchasing Participant shall be the fair market value thereof to be determined, within seventy five days of receipt by the defaulting Participant of the notice provided for herein, by an independent appraiser appointed by mutual agreement of the Participant or any Individual Property) prior failing such agreement, by arbitration pursuant to Delinquency;Article 15; and
(iii) if the Policies (with respect to each or any Individual Property) are not kept in full force and effect, or if certified copies of the Policies (for each Individual Property) are not delivered to Lender upon request (or certificates thereof, if a Policy shall be renewed and certified copies of the Policy are not immediately available upon such renewal (each Borrower agreeing in such instance to provide copies of the Policies to Lender promptly thereafter));
(iv) if any Borrower Transfers or otherwise encumbers any portion of the Properties, the Collateral or the Senior Mezzanine Collateral, or there shall otherwise occur a Transfer without Lender’s prior consent in violation of the provisions of this Agreement, the Pledge Agreement or any other Loan Document;
(v) if any representation or warranty made by any Borrower or any other Loan Party herein or in any other Loan Document, or in any report, certificate, financial statement or other instrument, agreement or document or other material or written information furnished to Lender shall have been false or misleading in any material respect as of the date the representation or warranty was made (and, with respect to any such breach which is not the subject payment of any other subsection of this Section 8.1 and which is capable of being cured, such Borrower fails to remedy such condition within ten (10) days following notice to Borrower from Lender, in the case of any such breach which can be cured by the payment of a sum of money, or within thirty (30) days following notice from Lender in the case of any other such breach);
(vi) if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower shall make an assignment for the benefit of creditors; or if a receiver, liquidator or trustee shall be appointed for any Borrower, Senior Mezzanine Borrower or Mortgage Borrower, or if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower shall be adjudicated a bankrupt or insolvent, or if any petition for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by or against, consented to, or acquiesced in by, Borrower or Senior Mezzanine Borrower, or if any proceeding for the dissolution or liquidation of any Borrower, Senior Mezzanine Borrower or Mortgage Borrower shall be instituted; provided, however, if such appointment, adjudication, petition or proceeding was involuntary and not consented to by any Borrower, Senior Mezzanine Borrower or Mortgage Borrower, upon the same not being discharged, stayed or dismissed within ninety (90) days;
(vii) if any Operating Company, any Manager, Principal, Holdings or any Guarantor shall make an assignment for the benefit of creditors; or if a receiver, liquidator or trustee shall be appointed for any such Operating Company, any such Manager, Principal, Holdings or any such Guarantor, or if any Operating Company, any Manager, Principal, Holdings or any Guarantor shall be adjudicated a bankrupt or insolvent, or if any petition for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by or against, consented to, or acquiesced in by, any Operating Company, any Manager, Principal, Holdings or any Guarantor, or if any proceeding for the dissolution or liquidation of any Operating Company, any Manager, Principal, Holdings or any Guarantor shall be instituted; provided, however, if such appointment, adjudication, petition or proceeding was involuntary and not consented to by any such Operating Company, any such Manager, Principal, Holdings or any such Guarantor, upon the same not being discharged, stayed or dismissed within ninety (90) days;
(viii) if any Borrower attempts to assign its rights under this Agreement or any of the other Loan Documents or any interest herein or therein in contravention of the Loan Documents;
(ix) if any Borrower breaches any of its respective negative covenants contained in Section 5.2 or any covenant contained in Section 4.1.30 or Section 5.1.11 hereof (and, with respect to any such breach of any covenant set forth in Section 5.1.11 which is not the subject of any other subsection of this Section 8.1, such Borrower fails to remedy such condition within ten (10) days after notice to Borrower from Lender, in the case of any such Default under Section 5.1.11 which can be cured by the payment of a sum of money, or for thirty (30) days after notice from Lender in the case of any other such Default under Section 5.1.11);
(x) with respect to any term, covenant or provision set forth herein which specifically contains a notice requirement or grace period, if any Borrower shall be in default under such term, covenant or condition after the giving of such notice or the expiration of such grace period;
(xi) if any of the assumptions contained in the Insolvency Opinion delivered in connection with the Loan, or in the Additional Insolvency Opinion delivered subsequent to the closing of the Loan, is or shall become untrue in any material respect; or if any of the assumptions contained in the True Lease Opinion in connection with the Loan, or in the Additional True Lease Opinion delivered subsequent to the closing of the Loan, is or shall become untrue in any material respect;
(xii) if any Mortgage Borrower, any Operating Company or any Guarantor (Operating Lease) is in default of any of its material obligations under any Operating Lease (or under another lease and/or management agreement in substitution for such Operating Lease in accordance herewith) or under any such Operating Lease Guaranty (or under another operating lease guaranty in substitution for such Operating Lease Guaranty in accordance herewith) beyond any applicable notice and cure periods contained therein; or if any Operating Lease (or such other lease and/or management agreement) or any Operating Lease Guaranty (or such other operating lease guaranty) shall be surrendered or any Operating Lease or any Operating Lease Guaranty shall be terminated or canceled for any reason or under any circumstances whatsoever, except with the consent of Lender; or if any of the terms, covenants or conditions of any Operating Lease (or such other lease and/or management agreement) or any Operating Lease Guaranty (or such other operating lease guaranty) shall in any manner be modified, changed, supplemented, altered, restated or amended without the consent of Lender except purchase price made as may otherwise expressly permitted in this Agreement;
(xiii) intentionally omitted;
(xiv) if any Affiliate of any Borrower that is or becomes a party to the Windstorm Insurance Intercreditor Agreement is in default of any of its material obligations under the Windstorm Insurance Intercreditor Agreement beyond any applicable notice and cure periods contained therein; or if the Windstorm Insurance Intercreditor Agreement shall be surrendered, terminated or canceled for any reason or under any circumstances whatsoever, except with the consent of Lender; or if any of the terms, covenants or conditions of the Windstorm Insurance Intercreditor Agreement shall in any manner be modified, changed, supplemented, altered, restated or amended without the consent of Lender;
(xv) if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower fails to comply with the covenants as to Prescribed Laws set forth in Section 5.1.1 hereof;
(xvi) if a material default has occurred and continues beyond any applicable cure period under any Management Agreement and if such default permits the Manager, the Operating Company or the Mortgage Borrower party thereto to terminate or cancel the Management Agreement in question;
(xvii) any Gaming License shall be refused, suspended, revoked, modified in a materially adverse manner or canceled or allowed to lapse or any proceeding is commenced by any Governmental Authority for the purpose of suspending, revoking or canceling any Gaming License in any materially adverse respect, or any Governmental Authority shall have appointed a conservator, supervisor or trustee to or for any of the Casino Components and, in each case of the foregoing, such action could reasonably be expected to (A) have an Individual Material Adverse Effect, (B) materially and adversely affect the continued operation of the Casino Components in the usual course of business and in substantially the same manner and to at least the same standard as was maintained prior to such action, or (C) result in any material decrease in the then expected cash flow and revenues to be derived from the Casino Components;
(xviii) if any Borrower shall continue to be in Default under any of the other terms, covenants or conditions of this Agreement not specified in subsections (i) to (xvii) above, for ten (10) days after notice to Borrower from Lender, in the case of any Default which can be cured by the payment of a sum of money, or for thirty (30) days after notice from Lender in the case of any other Default; provided, however, that if such non-monetary Default is susceptible of cure but cannot reasonably be cured within such thirty (30) day period and provided further that such Borrower shall have commenced to cure such Default within such thirty (30) day period and thereafter diligently and expeditiously proceeds to cure the same, such thirty (30) day period shall be extended for such time as is reasonably necessary for such Borrower in the exercise of due diligence to cure such Default, such additional period not to exceed one hundred twenty (120) days;
(xix) if there aforesaid shall be a default under any of perpetual bar both at law and in equity by the defaulting Participant and its successors and assigns against the other Loan Documents beyond any applicable cure periods contained in such documents, whether as to any Borrower, Mortgage Borrower, Senior Mezzanine Borrower, the Collateral, the Senior Mezzanine Collateral or any Individual Property, or if any other such event shall occur or condition shall exist, if the effect of such event or condition is to accelerate the maturity of any portion of the Debt or to permit Lender to accelerate the maturity of all or any portion of the Debt;
(xx) if the Liens created pursuant to any Loan Document shall cease to be a fully protected enforceable first priority security interest in the Collateral, or any portion of the Collateral is Transferred without Lender’s prior written consent except as permitted hereunder; or
(xxi) if a Mortgage Loan Event of Default or Senior Mezzanine Loan Event of Default shall occur.
(b) Upon the occurrence of an Event of Default (other than an Event of Default described in clauses (vi) or (vii) above) and at any time thereafter, in addition to any other rights or remedies available to it pursuant to this Agreement and the other Loan Documents or at law or in equity, Lender may take such action, without notice or demand, that Lender deems advisable to protect and enforce its rights against Borrower and in and to all or any of the Collateral, including, without limitation, declaring the Debt to be immediately due and payableParticipant, and Lender may enforce or avail itself of any or all rights or remedies provided in the Loan Documents its successors and may exercise all the rights and remedies of a secured party under the Uniform Commercial Code, as adopted and enacted by the State or States where any of the Collateral is located, against Borrower and any or all of the Collateral, including, without limitation, all rights or remedies available at law or in equity; and upon any Event of Default described in clauses (vi) or (vii) above, the Debt and all other obligations of Borrower hereunder and under the other Loan Documents shall immediately and automatically become due and payable, without notice or demand, and Borrower hereby expressly waives any such notice or demand, anything contained herein or in any other Loan Document to the contrary notwithstandingassigns.
Appears in 2 contracts
Samples: Option Agreement (Halo Resources LTD), Joint Venture Agreement (Halo Resources LTD)
Event of Default. (a) Each of the following events shall constitute an event of default hereunder (an “Event of Default”):
(i) if (A) any portion of the Debt is not paid in full on the Maturity Date, (B) the Debt Service any Monthly Interest Payment or any required monthly deposit to any Reserve Fund is not paid in full on or before the related Payment Date, or (C) any other portion of the Debt is not paid within five three (53) days of when dueBusiness Days following notice to Borrowers that the same is due and payable;
(ii) if any of the Taxes or Other Charges are not paid (with respect to each or any Individual Property) prior to Delinquencythe date upon which any interest or late charges shall begin to accrue thereon, subject to Section 7.2 of the Mortgage Loan Agreement or Section 7.2 hereof, as applicable;
(iii) if the Policies (with respect to each or any Individual Property) are not kept in full force and effect, or if certified copies of the Policies (for each Individual Property) are not delivered to Lender upon request (or certificates thereof, if a Policy shall be renewed and certified copies of the Policy are not immediately available upon such renewal (each Borrower agreeing in such instance to provide copies of the Policies to Lender promptly thereafter));
(iv) if any Borrower Transfers or otherwise encumbers any portion of the Properties, the Collateral or the Senior Mezzanine Collateralany interest therein, or there shall if any Mortgage Borrower Transfers or otherwise occur a encumbers any portion of any Property or any interest therein or the IP or any portion thereof, or any direct or indirect interest in any Transfer without Lender’s prior consent Restricted Party is Transferred, in each instance, in violation of the provisions of this Agreement, the Pledge Agreement or any other Loan Documentand not otherwise consented to by Lender;
(v) if any representation or warranty made by any Borrower or any other Loan Party herein or in any other Loan Document, or in any report, certificate, financial statement or other instrument, agreement or document or other material or written information furnished to Lender by or on behalf of any Borrower or any Restricted Party shall have been false or misleading in any material respect as of the date the representation or warranty was made (andmade, with respect to any provided, however, if such breach which representation or warranty is not the subject of any other subsection of this Section 8.1 and which is capable susceptible of being cured, and Lender has not theretofore materially adversely relied thereon, Borrowers shall have the right to cure such Borrower fails to remedy such condition representation or warranty within ten (10) days following Business Days of notice to Borrower from Lender, in the case of any such breach which can be cured by the payment of a sum of money, or within thirty (30) days following notice from Lender in the case of any other such breach)thereof;
(vi) if any BorrowerLoan Party, Senior Mezzanine Borrower HRHI or Mortgage Borrower any Guarantor shall make an assignment for the benefit of creditors; or any creditor (other than Lender);
(vii) if a receiver, liquidator or trustee shall be appointed for any BorrowerLoan Party, Senior Mezzanine Borrower or Mortgage Borrower, or if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower shall be adjudicated a bankrupt or insolvent, or if any petition for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, HRHI or any similar federal or state law, shall be filed by or against, consented to, or acquiesced in by, Borrower or Senior Mezzanine Borrower, or if any proceeding for the dissolution or liquidation of any Borrower, Senior Mezzanine Borrower or Mortgage Borrower shall be instituted; provided, however, if such appointment, adjudication, petition or proceeding was involuntary and not consented to by any Borrower, Senior Mezzanine Borrower or Mortgage Borrower, upon the same not being discharged, stayed or dismissed within ninety (90) days;
(vii) if any Operating Company, any Manager, Principal, Holdings or any Guarantor shall make an assignment for the benefit of creditors; or if a receiver, liquidator or trustee shall be appointed for any such Operating Company, any such Manager, Principal, Holdings or any such Guarantor, or if any Operating CompanyLoan Party, any Manager, Principal, Holdings HRHI or any Guarantor shall be adjudicated a bankrupt or insolvent, or if any petition for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by or against, consented to, or acquiesced in by, any Operating CompanyLoan Party, any Manager, Principal, Holdings HRHI or any Guarantor, or if any proceeding for the dissolution or liquidation of any Operating CompanyLoan Party, any Manager, Principal, Holdings HRHI or any Guarantor shall be instituted; provided, however, if such appointment, adjudication, petition or proceeding was involuntary and not consented to by any such Operating CompanyLoan Party, any such Manager, Principal, Holdings HRHI or any such Guarantor, upon the same not being discharged, stayed or dismissed within ninety (90) days, and provided that such appointment was not initiated by Lender;
(viii) if any Borrower attempts to assign its rights under this Agreement or any of the other Loan Documents or any interest herein or therein in contravention of the Loan Documents;
(ix) if any Borrower breaches any of its respective negative covenants contained in Section 5.2 hereof or any covenant contained in Section 4.1.30 or Section 5.1.11 hereof (andhereof, with respect to provided, however, that, unless otherwise addressed in any such other clause of this Section 8.1(a), a breach of any covenant set forth contained in Section 5.1.11 which is not the subject of any other subsection of this Section 8.14.1.30, such Borrower fails to remedy such condition within ten (10) days after notice to Borrower from Lender, in the case of any such Default under Section 5.1.11 which can be cured by the payment or Section 5.2 hereof shall not constitute an Event of a sum of moneyDefault if (A) such breach is inadvertent and non-recurring, or for (B) if such breach is curable, Borrowers shall promptly cure such breach within thirty (30) days after notice thereof from Lender, and (C) with respect to a material breach of any material covenant contained in Section 4.1.30 hereof, within fifteen (15) Business Days of the request of Lender, Borrowers deliver to Lender an Additional Insolvency Opinion, or a modification of the Insolvency Opinion, to the effect that such breach shall not in any way impair, negate or amend the opinions rendered in the Insolvency Opinion, which opinion or modification and the counsel delivering such opinion or modification shall be acceptable to Lender in the case of any other such Default under Section 5.1.11)its reasonable discretion;
(x) with respect to any term, covenant or provision set forth herein which specifically contains a notice requirement or grace period, if any Borrower shall be in default under such term, covenant or condition after the giving of such notice or the expiration of such grace period;
(xi) if any of the assumptions contained in the Insolvency Opinion delivered to Lender in connection with the Loan, or in the any Additional Insolvency Opinion delivered subsequent to the closing of the Loan, is or shall become untrue in any material respect; or if any of the assumptions contained in the True Lease Opinion in connection with the Loan, or in the Additional True Lease Opinion delivered subsequent to the closing of the Loan, is or shall become untrue in any material respect;
(xii) if any Mortgage Borrower, any Operating Company or any Guarantor (Operating Lease) is in default of any of its material obligations under any Operating Lease (or under another lease and/or management agreement in substitution for such Operating Lease in accordance herewith) or under any such Operating Lease Guaranty (or under another operating lease guaranty in substitution for such Operating Lease Guaranty in accordance herewith) beyond any applicable notice and cure periods contained therein; or if any Operating Lease (or such other lease and/or management agreement) or any Operating Lease Guaranty (or such other operating lease guaranty) shall be surrendered or any Operating Lease or any Operating Lease Guaranty shall be terminated or canceled for any reason or under any circumstances whatsoever, except with the consent of Lender; or if any of the terms, covenants or conditions of any Operating Lease (or such other lease and/or management agreement) or any Operating Lease Guaranty (or such other operating lease guaranty) shall in any manner be modified, changed, supplemented, altered, restated or amended without the consent of Lender except as may otherwise expressly permitted in this Agreement;
(xiii) intentionally omitted;
(xiv) if any Affiliate of any Borrower that is or becomes a party to the Windstorm Insurance Intercreditor Agreement is in default of any of its material obligations under the Windstorm Insurance Intercreditor Agreement beyond any applicable notice and cure periods contained therein; or if the Windstorm Insurance Intercreditor Agreement shall be surrendered, terminated or canceled for any reason or under any circumstances whatsoever, except with the consent of Lender; or if any of the terms, covenants or conditions of the Windstorm Insurance Intercreditor Agreement shall in any manner be modified, changed, supplemented, altered, restated or amended without the consent of Lender;
(xv) if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower fails to comply with the covenants as to Prescribed Laws set forth in Section 5.1.1 hereof;
(xvi) if a material default by any Mortgage Borrower has occurred and continues beyond any applicable cure period under any Management Agreement (or any Replacement Management Agreement) and if as a result of such default permits the ManagerManager thereunder terminates or cancels such Management Agreement (or any Replacement Management Agreement);
(xiii) if a material default by Hotel/Casino Borrower has occurred and continues beyond any applicable cure period under the Liquor Management Agreement (or any Replacement Liquor Management Agreement) and as a result of such default the Liquor Manager thereunder terminates or cancels such Liquor Management Agreement (or any Replacement Liquor Management Agreement);
(xiv) if any Borrower or any Mortgage Borrower fails to comply in any material respect with the covenants as to Prescribed Laws set forth in Section 5.1.1 hereof and such failure to comply continues after ten (10) Business Days notice thereof;
(xv) except as otherwise contemplated by the Loan Documents, if Hotel/Casino Borrower ceases to do business as a hotel and casino at a standard at least equal to Comparable Hotel/Casinos, including, without limitation, comparable food and beverage outlets and other amenities, (other than temporary cessation in connection with any diligent Restoration of the Hotel/Casino Property following a Casualty or Condemnation) and such failure continues after thirty (30) days notice from Lender thereof; provided, however, that if any such failure is susceptible of cure but cannot reasonably be cured within such thirty (30) day period, and provided, further, that Borrowers shall have caused Mortgage Borrowers to commence to cure such failure within such thirty (30) day period and shall thereafter diligently and expeditiously proceed to cure the same, such thirty (30) day period shall be extended for such time as is reasonably necessary for Mortgage Borrowers in the exercise of due diligence to cure such Default, such additional period not to exceed sixty (60) days, subject to Excusable Delay;
(xvi) if (A) there shall occur any default by HRHI or Hotel/Casino Borrower under the HRHI Lease in the observance or performance of any term, covenant or condition on its part to be observed or performed and such failure shall continue beyond the expiration of all applicable notice and cure periods under the HRHI Lease, (B) if, without Lender’s prior written consent, the Operating Company HRHI Lease shall be terminated, changed, modified or amended, other than ministerial non-monetary amendments or modifications, or (C) if, without Lender’s prior written consent, HRHI shall hold over at the Mortgage Borrower party thereto to terminate expiration or cancel earlier termination of the Management Agreement in questionHRHI Lease;
(xvii) if (A) there shall occur any default by HRHI under the Gaming Sublease in the observance or performance of any term, covenant or condition on the part of HRHI to be observed or performed and such failure shall continue beyond the expiration of all applicable notice and cure periods under the Gaming Sublease, (B) any event shall occur which would cause the Gaming Sublease to terminate without notice or action by the Gaming Operator or which would entitle the Gaming Operator to terminate the Gaming Sublease by giving notice to HRHI, (C) if HRHI shall waive, excuse, condone or in any way release or discharge the Gaming Operator of or from any of the Gaming Operator’s material obligations, covenants and/or conditions under the Gaming Sublease without the prior written consent of Lender, (D) if, without Lender’s prior written consent, HRHI shall terminate (or consent to or approve any such termination), change, modify or amend the Gaming Sublease, other than ministerial non-monetary amendments or modifications, (E) if HRHI shall fail to provide Gaming Employees as and to the extent required pursuant to Paragraph 7 of the HRHI Gaming Agreement, (F) if HRHI shall, without the consent of Mortgage Lender as provided in the HRHI Gaming Agreement, consent to or approve any matter requiring Mortgage Lender’s consent thereunder (other than a termination), in the event that either (1) Mortgage Lender has been materially damaged by such consent or approval or is reasonably likely to be materially damaged by such consent or approval with the further passage of time, or (2) HRHI is unable to rescind or void such consent or approval within thirty (30) days after notice from Mortgage Lender of its objection thereto, and/or (G) HRHI shall otherwise default under the Gaming Recognition Agreement or the HRHI Gaming Agreement and such default, if a monetary default, shall continue beyond the notice and cure period set forth in Section 8.1(a)(i)(C) hereof, or if a non-monetary default, shall continue beyond the notice and cure period set forth in Section 8.1(a)(xxiii) hereof;
(xviii) if at any time during the term of the Loan, for any reason (including, without limitation, the revocation, suspension or surrender of any required Governmental Approval), (A) the Gaming Operating Condition is not satisfied, provided, however, that if the Gaming Operating Condition is not satisfied at any time on or after February 2, 2008 through and including May 9, 2008, so long as (I) Mortgage Borrowers are diligently pursuing the satisfaction of the Gaming Operating Condition, (II) all Debt Service is being satisfied as and when due, and (III) no other Event of Default has occurred and is continuing, the failure of the Gaming Operating Condition to be satisfied during such period shall not constitute an Event of Default unless the Gaming Operating Condition shall remain unsatisfied beyond May 9, 2008; or (B) any Gaming License or finding of suitability held by the Gaming Operator shall be refusedmaterially adversely modified, denied, suspended, revoked, modified in a materially adverse manner revoked or canceled or allowed to lapse or if a notice of a material violation is issued under any Gaming License by the issuing agency or other Governmental Authority having jurisdiction, or any proceeding is commenced by any Governmental Authority for the purpose of modifying in any materially adverse respect, suspending, revoking or canceling any Gaming License in any materially adverse respect, in each case, which is not stayed within sixty (60) days after commencement thereof and the result of which is reasonably likely to be Mortgage Borrowers’ inability to continue to conduct gaming operations at the Hotel/Casino Property; provided, however, that during the course of any of the foregoing, substantially the same gaming operations are permitted to continue to operate at the Hotel/Casino Property, or any Governmental Authority shall have appointed a conservator, supervisor or trustee with respect to the Casino Component or the Hotel/Casino Property;
(xix) if at any time during the term of the Loan, for any reason (including, without limitation, the revocation, suspension or surrender of any required Governmental Approval), the alcoholic beverage services at the Hotel/Casino Components and, in each case of the foregoing, such action could reasonably be expected to Property (A) have an Individual Material Adverse Effect, (B) materially and adversely affect are not being managed by a Qualified Liquor Manager pursuant to the continued operation of the Casino Components in the usual course of business and in substantially the same manner and to at least the same standard as was maintained prior to such action, Liquor Management Agreement or (C) result in any material decrease in the then expected cash flow and revenues to be derived from the Casino Componentsa Replacement Liquor Management Agreement;
(xviiixx) if HRHI shall fail to provide liquor management services following an Event of Default or a foreclosure of the Mortgage as and to the extent required pursuant to Sections 5(a) or 5(b) of the Assignment of Liquor Management Agreement;
(xxi) in the event that Gaming Borrower shall ever become the Gaming Operator pursuant to Article XII hereof, if Gaming Borrower thereafter shall fail to provide gaming operation services for the Hotel/Casino Property following an Event of Default or a foreclosure of the Mortgage as and to the extent required pursuant to Section 12.1(e) hereof;
(xxii) in the event that Gaming Borrower, any other Mortgage Borrower or any Affiliate thereof shall ever become the Liquor Manager, if Gaming Borrower, such other Mortgage Borrower or such Affiliate thereof thereafter shall fail to provide liquor management services following an Event of Default or following the transfer of the Hotel/Casino Property to a Mortgage Lender Successor Owner as and to the extent required pursuant to Section 5.1.23(c) of the Mortgage Loan Agreement and Section 5.1.23(c) hereof;
(xxiii) if any Borrower shall continue to be in Default under any of the other terms, covenants or conditions of this Agreement or any other Loan Document, in each instance, not specified in subsections (i) to (xviixxii) above, for ten (10) days Business Days after notice to Borrower Borrowers from Lender, in the case of any Default which can be cured by the payment of a sum of money, or for thirty (30) days after notice from Lender in the case of any other Default; provided, however, that if any such non-monetary Default is susceptible of cure but cannot reasonably be cured within such thirty (30) day period period, and provided further that such Borrower Borrowers shall have commenced to cure such Default within such thirty (30) day period and thereafter diligently and expeditiously proceeds proceed to cure the same, such thirty (30) day period shall be extended for such time as is reasonably necessary for such Borrower Borrowers in the exercise of due diligence to cure such Default, such additional period not to exceed one hundred twenty ninety (12090) days, subject to Excusable Delay;
(xixxxiv) the occurrence of any event that is expressly specified to be an Event of Default in this Agreement or any other Loan Document;
(xxv) if the Liens created pursuant to the Pledge Agreement or any other Loan Document shall cease to be a fully perfected enforceable first priority security interest effective under the Gaming Laws or if there shall be a default under any of the other Loan Documents Pledge Agreement beyond any applicable notice and cure periods contained in such documents, whether as to any Borrower, Mortgage Borrower, Senior Mezzanine Borrower, the Collateral, the Senior Mezzanine Collateral or any Individual Property, or Pledge Agreement;
(xxvi) if any other such event shall occur or condition shall exist, if the effect of such event or condition is to accelerate the maturity of any portion of the Debt or to permit Lender to accelerate the maturity of all or any portion of the Debt;
(xx) if the Liens created pursuant to any Loan Document shall cease to be a fully protected enforceable first priority security interest in the Collateral, or any portion of the Collateral is Transferred without Lender’s prior written consent except as permitted hereunder; or
(xxixxvii) if a Mortgage Loan Event of Default or Senior Mezzanine Loan Event of Default shall occuroccur and be continuing.
(b) Upon the occurrence and during the continuance of an Event of Default (other than an Event of Default described in clauses (vi) or (vii) above) and at any time thereafter, in addition to any other rights or remedies available to it pursuant to this Agreement and the other Loan Documents or at law or in equity, to the extent permitted by applicable law, Lender may take such action, without notice or demand, that Lender deems advisable to protect and enforce its rights against Borrower Borrowers and in and to all or any of Property and/or the IP and/or the Collateral, including, without limitation, declaring the Debt to be immediately due and payable, and Lender may enforce or avail itself of any or all rights or remedies provided in the Loan Documents and may exercise all against Borrowers, any Property and/or the rights and remedies of a secured party under the Uniform Commercial Code, as adopted and enacted by the State or States where any of the Collateral is located, against Borrower and any or all of IP and/or the Collateral, including, without limitation, all rights or remedies available at law or in equity; and upon any Event of Default described in clauses (vi) or (vii) above, the Debt and all other obligations Other Obligations of Borrower Borrowers hereunder and under the other Loan Documents shall shall, to the extent permitted by applicable law, immediately and automatically become due and payable, without notice or demand, and each Borrower hereby expressly waives any such notice or demand, anything contained herein or in any other Loan Document to the contrary notwithstanding.
Appears in 2 contracts
Samples: First Mezzanine Loan Agreement (Hard Rock Hotel Holdings, LLC), First Mezzanine Loan Agreement (Morgans Hotel Group Co.)
Event of Default. (a) Each of the following events shall constitute an event of default hereunder (an An “Event of Default”):
(i) if (A) ” means any portion one of the Debt is not paid in full on following: (a) Customer’s failure to make, when due, any undisputed payment required under the Maturity Date, (B) the Debt Service is not paid in full on or before the related Payment Date, or (C) any other portion of the Debt is Agreement if not paid within five [***] following written notice to Customer that a payment is past due; (5b) days of when due;
(ii) if any of the Taxes or Other Charges are not paid (with respect to each or any Individual Property) prior to Delinquency;
(iii) if the Policies (with respect to each or any Individual Property) are not kept in full force and effect, or if certified copies of the Policies (for each Individual Property) are not delivered to Lender upon request (or certificates thereof, if a Policy shall be renewed and certified copies of the Policy are not immediately available upon such renewal (each Borrower agreeing in such instance to provide copies of the Policies to Lender promptly thereafter));
(iv) if any Borrower Transfers or otherwise encumbers any portion of the Properties, the Collateral or the Senior Mezzanine Collateral, or there shall otherwise occur a Transfer without Lender’s prior consent in violation of the provisions of this Agreement, the Pledge Agreement or any other Loan Document;
(v) if any representation or warranty made by any Borrower or any other Loan a Party herein or in any other Loan Document, or in any report, certificate, financial statement or other instrument, agreement or document or other material or written information furnished to Lender shall have been the Agreement is false or misleading in any material respect as when made or ceases to remain true in all material respects during the term of the Agreement, if not cured within [***] after written notice from the other Party; (c) Customer materially breaches the Lease or the credit support terms of a TC and fails to cure such breach within [***] of the date of written demand; (d) the representation or warranty was made failure by a Party to perform any material obligation set forth in the Agreement (and, with respect to any other than the events that are otherwise specifically covered as a separate Event of Default hereunder) where such breach which failure is not cured within [***] after receipt of written notice thereof; or (e) a Party, Rhodium Technologies LLC (but only as long as it remains guarantor under the Parent Guaranty or pledgor under the Pledge Agreement) and Air HPC LLC (but only as long as it remains subject of any other subsection of this Section 8.1 and which is capable of being cured, such Borrower fails to remedy such condition within ten the Equity Pledge): (10i) days following notice to Borrower from Lender, in the case of any such breach which can be cured by the payment of a sum of money, or within thirty (30) days following notice from Lender in the case of any other such breach);
(vi) if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower shall make makes an assignment or any general arrangement for the benefit of creditors; or if (ii) has a liquidator, administrator, receiver, liquidator trustee, conservator or trustee shall be similar official appointed for it or any Borrowersubstantial portion of its property or assets (iii) files a petition or otherwise commences, Senior Mezzanine Borrower authorizes or Mortgage Borroweracquiesces in the commencement of a proceeding or cause of action under any bankruptcy, or if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower shall be adjudicated a bankrupt or insolvent, or if any petition for bankruptcyinsolvency, reorganization or arrangement pursuant to federal bankruptcy lawsimilar law for the protection of creditors, or any similar federal has such petition filed against it; (iv) otherwise becomes bankrupt or state law, shall be filed by or against, consented to, or acquiesced in by, Borrower or Senior Mezzanine Borrower, or if any proceeding for the dissolution or liquidation of any Borrower, Senior Mezzanine Borrower or Mortgage Borrower shall be institutedinsolvent (however evidenced); provided, however, if such appointment, adjudication, petition or proceeding was involuntary and not consented (v) is generally unable to by any Borrower, Senior Mezzanine Borrower or Mortgage Borrower, upon the same not being discharged, stayed or dismissed within ninety (90) days;
(vii) if any Operating Company, any Manager, Principal, Holdings or any Guarantor shall make an assignment for the benefit of creditorspay its debts as they fall due; or if a receiver, liquidator or trustee shall be appointed for any such Operating Company, any such Manager, Principal, Holdings or any such Guarantor, or if any Operating Company, any Manager, Principal, Holdings or any Guarantor shall be adjudicated a bankrupt or insolvent, or if any petition for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by or against, consented to, or acquiesced in by, any Operating Company, any Manager, Principal, Holdings or any Guarantor, or if any proceeding for the dissolution or liquidation of any Operating Company, any Manager, Principal, Holdings or any Guarantor shall be instituted; provided, however, if such appointment, adjudication, petition or proceeding was involuntary and not consented to by any such Operating Company, any such Manager, Principal, Holdings or any such Guarantor, upon the same not being discharged, stayed or dismissed within ninety (90) days;
(viii) if any Borrower attempts to assign its rights under this Agreement or any of the other Loan Documents or any interest herein or therein in contravention of the Loan Documents;
(ix) if any Borrower breaches any of its respective negative covenants contained in Section 5.2 or any covenant contained in Section 4.1.30 or Section 5.1.11 hereof (and, with respect to any such breach of any covenant set forth in Section 5.1.11 which is not the subject of any other subsection of this Section 8.1, such Borrower fails to remedy such condition within ten (10) days after notice to Borrower from Lender, in the case of any such Default under Section 5.1.11 which can be cured by the payment of a sum of money, or for thirty (30) days after notice from Lender in the case of any other such Default under Section 5.1.11);
(x) with respect to any term, covenant or provision set forth herein which specifically contains a notice requirement or grace period, if any Borrower shall be in default under such term, covenant or condition after the giving of such notice or the expiration of such grace period;
(xi) if any of the assumptions contained in the Insolvency Opinion delivered in connection with the Loan, or in the Additional Insolvency Opinion delivered subsequent to the closing of the Loan, is or shall become untrue in any material respect; or if any of the assumptions contained in the True Lease Opinion in connection with the Loan, or in the Additional True Lease Opinion delivered subsequent to the closing of the Loan, is or shall become untrue in any material respect;
(xii) if any Mortgage Borrower, any Operating Company or any Guarantor (Operating Leasevi) is in default of any of its material obligations under any Operating Lease (or under another lease and/or management agreement in substitution for such Operating Lease in accordance herewith) or under any such Operating Lease Guaranty (or under another operating lease guaranty in substitution for such Operating Lease Guaranty in accordance herewith) beyond any applicable notice and cure periods contained therein; or if any Operating Lease (or such other lease and/or management agreement) or any Operating Lease Guaranty (or such other operating lease guaranty) shall be surrendered or any Operating Lease or any Operating Lease Guaranty shall be terminated or canceled for any reason or under any circumstances whatsoever, except with the consent of Lender; or if any of the terms, covenants or conditions of any Operating Lease (or such other lease and/or management agreement) or any Operating Lease Guaranty (or such other operating lease guaranty) shall in any manner be modified, changed, supplemented, altered, restated or amended without the consent of Lender except as may otherwise expressly permitted in this Agreement;
(xiii) intentionally omitted;
(xiv) if any Affiliate of any Borrower that is or becomes a party to the Windstorm Insurance Intercreditor Agreement is in default of any of its material obligations under the Windstorm Insurance Intercreditor Agreement beyond any applicable notice and cure periods contained therein; or if the Windstorm Insurance Intercreditor Agreement shall be surrendered, terminated or canceled for any reason or under any circumstances whatsoever, except with the consent of Lender; or if any of the terms, covenants or conditions of the Windstorm Insurance Intercreditor Agreement shall in any manner be modified, changed, supplemented, altered, restated or amended without the consent of Lender;
(xv) if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower fails to comply with the covenants as to Prescribed Laws set forth in Section 5.1.1 hereof;
(xvi) if a material default has occurred and continues beyond any applicable cure period under any Management Agreement and if such default permits the Manager, the Operating Company or the Mortgage Borrower party thereto to terminate or cancel the Management Agreement in question;
(xvii) any Gaming License shall be refused, suspended, revoked, modified in a materially adverse manner or canceled or allowed to lapse or any proceeding is commenced by any Governmental Authority for the purpose of suspending, revoking or canceling any Gaming License in any materially adverse respect, or any Governmental Authority shall have appointed a conservator, supervisor or trustee to or for any of the Casino Components and, in each case of the foregoing, such action could reasonably be expected to (A) have an Individual Material Adverse Effect, (B) materially and adversely affect the continued operation of the Casino Components in the usual course of business and in substantially the same manner and to at least the same standard as was maintained prior to such action, or (C) result in any material decrease in the then expected cash flow and revenues to be derived from the Casino Components;
(xviii) if any Borrower shall continue to be in Default under any of the other terms, covenants or conditions of this Agreement not specified in subsections (i) to (xvii) above, for ten (10) days after notice to Borrower from Lender, in the case of any Default which can be cured by the payment of a sum of money, or for thirty (30) days after notice from Lender in the case of any other Default; provided, however, that if such non-monetary Default is susceptible of cure but cannot reasonably be cured within such thirty (30) day period and provided further that such Borrower shall have commenced to cure such Default within such thirty (30) day period and thereafter diligently and expeditiously proceeds to cure the same, such thirty (30) day period shall be extended for such time as is reasonably necessary for such Borrower in the exercise of due diligence to cure such Default, such additional period not to exceed one hundred twenty (120) days;
(xix) if there shall be a default under any of the other Loan Documents beyond any applicable cure periods contained in such documents, whether as to any Borrower, Mortgage Borrower, Senior Mezzanine Borrower, the Collateral, the Senior Mezzanine Collateral or any Individual Property, or if any other such event shall occur or condition shall exist, if the effect of such event or condition is to accelerate the maturity of any portion of the Debt or to permit Lender to accelerate the maturity of all or any portion of the Debt;
(xx) if the Liens created pursuant to any Loan Document shall cease to be a fully protected enforceable first priority security interest in the Collateral, or any portion of the Collateral is Transferred without Lender’s prior written consent except as permitted hereunder; or
(xxi) if a Mortgage Loan Event of Default or Senior Mezzanine Loan Event of Default shall occur.
(b) Upon the occurrence of an Event of Default dissolved (other than an Event of Default described in clauses (vi) or (vii) above) and at any time thereafter, in addition to any other rights or remedies available to it pursuant to this Agreement a consolidation, amalgamation or merger). “Business Day” means any day except a Saturday, Sunday, or a Federal Reserve Bank holiday and the other Loan Documents or shall open at law or in equity, Lender may take such action, without notice or demand, that Lender deems advisable to protect 8:00 a.m. and enforce its rights against Borrower and in and to all or any of the Collateral, including, without limitation, declaring the Debt to be immediately due and payable, and Lender may enforce or avail itself of any or all rights or remedies provided in the Loan Documents and may exercise all the rights and remedies of a secured party under the Uniform Commercial Code, as adopted and enacted by the State or States where any of the Collateral is located, against Borrower and any or all of the Collateral, including, without limitation, all rights or remedies available close at law or in equity; and upon any Event of Default described in clauses (vi) or (vii) above, the Debt and all other obligations of Borrower hereunder and under the other Loan Documents shall immediately and automatically become due and payable, without notice or demand, and Borrower hereby expressly waives any such notice or demand, anything contained herein or in any other Loan Document to the contrary notwithstanding5:00 p.m. Central Prevailing Time.
Appears in 2 contracts
Samples: Master Retail Electricity Supply Agreement (SilverSun Technologies, Inc.), Master Retail Electricity Supply Agreement (Rhodium Enterprises, Inc.)
Event of Default. (a) Each Upon the occurrence and during the continuation of the following events shall constitute an event of default hereunder (an “Event of Default”):
, (ix) if all rights of each Grantor to exercise the voting and other consensual rights which it would otherwise be entitled to exercise pursuant hereto shall cease and all such rights shall thereupon become vested in the Collateral Agent who shall thereupon have the sole right to exercise such voting and other consensual rights; and (Ay) any portion except as otherwise specified in the Credit Agreement, all rights of such Grantor to receive the dividends, other distributions, principal and interest payments which it would otherwise be authorized to receive and retain pursuant hereto shall cease, and all such rights shall thereupon become vested in the Collateral Agent who shall thereupon have the sole right to receive such dividends, other distributions, principal and interest payments. All dividends, principal, interest payments and other distributions which are received by such Grantor contrary to the provisions of clause (y) above shall be received for the benefit of the Debt is not Collateral Agent, shall be segregated from other funds of such Grantor and shall be paid over to the Collateral Agent upon written demand in full on the Maturity Date, (B) the Debt Service is not paid in full on or before the related Payment Date, or (C) any other portion of the Debt is not paid within five (5) days of when due;
(ii) if any of the Taxes or Other Charges are not paid same form as so received (with respect any necessary endorsements). Any and all money and other property paid over to each or any Individual Property) prior to Delinquency;
(iii) if the Policies (with respect to each or any Individual Property) are not kept in full force and effect, or if certified copies of the Policies (for each Individual Property) are not delivered to Lender upon request (or certificates thereof, if a Policy shall be renewed and certified copies of the Policy are not immediately available upon such renewal (each Borrower agreeing in such instance to provide copies of the Policies to Lender promptly thereafter));
(iv) if any Borrower Transfers or otherwise encumbers any portion of the Properties, received by the Collateral or the Senior Mezzanine Collateral, or there shall otherwise occur a Transfer without Lender’s prior consent in violation of Agent pursuant to the provisions of this Section shall be retained by the Collateral Agent in an account to be established by the Collateral Agent upon receipt of such money or other property and shall be applied in accordance with the provisions of Section 16 of this Agreement. After all Events of Default have been cured or waived, the Pledge Agreement or any other Loan Document;
Collateral Agent shall promptly repay to each Grantor (vwithout interest) if any representation or warranty made by any Borrower or any other Loan Party herein or in any other Loan Documentall dividends, or in any reportinterest, certificate, financial statement principal or other instrument, agreement or document or other material or written information furnished distributions that such Grantor would otherwise be permitted to Lender shall have been false or misleading in any material respect as of the date the representation or warranty was made (and, with respect to any such breach which is not the subject of any other subsection of this Section 8.1 and which is capable of being cured, such Borrower fails to remedy such condition within ten (10) days following notice to Borrower from Lender, in the case of any such breach which can be cured by the payment of a sum of money, or within thirty (30) days following notice from Lender in the case of any other such breach);
(vi) if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower shall make an assignment for the benefit of creditors; or if a receiver, liquidator or trustee shall be appointed for any Borrower, Senior Mezzanine Borrower or Mortgage Borrower, or if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower shall be adjudicated a bankrupt or insolvent, or if any petition for bankruptcy, reorganization or arrangement retain pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by or against, consented to, or acquiesced in by, Borrower or Senior Mezzanine Borrower, or if any proceeding for the dissolution or liquidation terms of any Borrower, Senior Mezzanine Borrower or Mortgage Borrower shall be instituted; provided, however, if such appointment, adjudication, petition or proceeding was involuntary and not consented to by any Borrower, Senior Mezzanine Borrower or Mortgage Borrower, upon the same not being discharged, stayed or dismissed within ninety (90) days;
(vii) if any Operating Company, any Manager, Principal, Holdings or any Guarantor shall make an assignment for the benefit of creditors; or if a receiver, liquidator or trustee shall be appointed for any such Operating Company, any such Manager, Principal, Holdings or any such Guarantor, or if any Operating Company, any Manager, Principal, Holdings or any Guarantor shall be adjudicated a bankrupt or insolvent, or if any petition for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by or against, consented to, or acquiesced in by, any Operating Company, any Manager, Principal, Holdings or any Guarantor, or if any proceeding for the dissolution or liquidation of any Operating Company, any Manager, Principal, Holdings or any Guarantor shall be instituted; provided, however, if such appointment, adjudication, petition or proceeding was involuntary and not consented to by any such Operating Company, any such Manager, Principal, Holdings or any such Guarantor, upon the same not being discharged, stayed or dismissed within ninety (90) days;
(viii) if any Borrower attempts to assign its rights under this Agreement or any of the other Loan Documents or any interest herein or therein in contravention of the Loan Documents;
(ix) if any Borrower breaches any of its respective negative covenants contained in Section 5.2 or any covenant contained in Section 4.1.30 or Section 5.1.11 hereof (and, with respect to any such breach of any covenant set forth in Section 5.1.11 which is not the subject of any other subsection of this Section 8.1, such Borrower fails to remedy such condition within ten (10) days after notice to Borrower from Lender, in the case of any such Default under Section 5.1.11 which can be cured by the payment of a sum of money, or for thirty (30) days after notice from Lender in the case of any other such Default under Section 5.1.11);
(x) with respect to any term, covenant or provision set forth herein which specifically contains a notice requirement or grace period, if any Borrower shall be in default under such term, covenant or condition after the giving of such notice or the expiration of such grace period;
(xi) if any of the assumptions contained in the Insolvency Opinion delivered in connection with the Loan, or in the Additional Insolvency Opinion delivered subsequent to the closing of the Loan, is or shall become untrue in any material respect; or if any of the assumptions contained in the True Lease Opinion in connection with the Loan, or in the Additional True Lease Opinion delivered subsequent to the closing of the Loan, is or shall become untrue in any material respect;
(xii) if any Mortgage Borrower, any Operating Company or any Guarantor (Operating Lease) is in default of any of its material obligations under any Operating Lease (or under another lease and/or management agreement in substitution for such Operating Lease in accordance herewith) or under any such Operating Lease Guaranty (or under another operating lease guaranty in substitution for such Operating Lease Guaranty in accordance herewith) beyond any applicable notice and cure periods contained therein; or if any Operating Lease (or such other lease and/or management agreement) or any Operating Lease Guaranty (or such other operating lease guaranty) shall be surrendered or any Operating Lease or any Operating Lease Guaranty shall be terminated or canceled for any reason or under any circumstances whatsoever, except with the consent of Lender; or if any of the terms, covenants or conditions of any Operating Lease (or such other lease and/or management agreement) or any Operating Lease Guaranty (or such other operating lease guaranty) shall in any manner be modified, changed, supplemented, altered, restated or amended without the consent of Lender except as may otherwise expressly permitted in this Agreement;
(xiii) intentionally omitted;
(xiv) if any Affiliate of any Borrower that is or becomes a party to the Windstorm Insurance Intercreditor Agreement is in default of any of its material obligations under the Windstorm Insurance Intercreditor Agreement beyond any applicable notice and cure periods contained therein; or if the Windstorm Insurance Intercreditor Agreement shall be surrendered, terminated or canceled for any reason or under any circumstances whatsoever, except with the consent of Lender; or if any of the terms, covenants or conditions of the Windstorm Insurance Intercreditor Agreement shall in any manner be modified, changed, supplemented, altered, restated or amended without the consent of Lender;
(xv) if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower fails to comply with the covenants as to Prescribed Laws set forth in Section 5.1.1 hereof;
(xvi) if a material default has occurred and continues beyond any applicable cure period under any Management Agreement and if such default permits the Manager, the Operating Company or the Mortgage Borrower party thereto to terminate or cancel the Management Agreement in question;
(xvii) any Gaming License shall be refused, suspended, revoked, modified in a materially adverse manner or canceled or allowed to lapse or any proceeding is commenced by any Governmental Authority for the purpose of suspending, revoking or canceling any Gaming License in any materially adverse respect, or any Governmental Authority shall have appointed a conservator, supervisor or trustee to or for any of the Casino Components and, in each case of the foregoing, such action could reasonably be expected to (A) have an Individual Material Adverse Effect, (B) materially and adversely affect the continued operation of the Casino Components in the usual course of business and in substantially the same manner and to at least the same standard as was maintained prior to such action, or (C) result in any material decrease in the then expected cash flow and revenues to be derived from the Casino Components;
(xviii) if any Borrower shall continue to be in Default under any of the other terms, covenants or conditions of this Agreement not specified in subsections (i) to (xvii) above, for ten (10) days after notice to Borrower from Lender, in the case of any Default which can be cured by the payment of a sum of money, or for thirty (30) days after notice from Lender in the case of any other Default; provided, however, that if such non-monetary Default is susceptible of cure but cannot reasonably be cured within such thirty (30) day period and provided further that such Borrower shall have commenced to cure such Default within such thirty (30) day period and thereafter diligently and expeditiously proceeds to cure the same, such thirty (30) day period shall be extended for such time as is reasonably necessary for such Borrower in the exercise of due diligence to cure such Default, such additional period not to exceed one hundred twenty (120) days;
(xix) if there shall be a default under any of the other Loan Documents beyond any applicable cure periods contained in such documents, whether as to any Borrower, Mortgage Borrower, Senior Mezzanine Borrower, the Collateral, the Senior Mezzanine Collateral or any Individual Property, or if any other such event shall occur or condition shall exist, if the effect of such event or condition is to accelerate the maturity of any portion of the Debt or to permit Lender to accelerate the maturity of all or any portion of the Debt;
(xx) if the Liens created pursuant to any Loan Document shall cease to be a fully protected enforceable first priority security interest in the Collateral, or any portion of the Collateral is Transferred without Lender’s prior written consent except as permitted hereunder; or
(xxi) if a Mortgage Loan Event of Default or Senior Mezzanine Loan Event of Default shall occur.
paragraph (b) Upon the occurrence of an Event of Default (other than an Event of Default described above and that remain in clauses (vi) or (vii) above) and at any time thereafter, in addition to any other rights or remedies available to it pursuant to this Agreement and the other Loan Documents or at law or in equity, Lender may take such action, without notice or demand, that Lender deems advisable to protect and enforce its rights against Borrower and in and to all or any of the Collateral, including, without limitation, declaring the Debt to be immediately due and payable, and Lender may enforce or avail itself of any or all rights or remedies provided in the Loan Documents and may exercise all the rights and remedies of a secured party under the Uniform Commercial Code, as adopted and enacted by the State or States where any of the Collateral is located, against Borrower and any or all of the Collateral, including, without limitation, all rights or remedies available at law or in equity; and upon any Event of Default described in clauses (vi) or (vii) above, the Debt and all other obligations of Borrower hereunder and under the other Loan Documents shall immediately and automatically become due and payable, without notice or demand, and Borrower hereby expressly waives any such notice or demand, anything contained herein or in any other Loan Document to the contrary notwithstandingaccount.
Appears in 2 contracts
Samples: Security Agreement (Iconix Brand Group, Inc.), Security Agreement (Iconix Brand Group, Inc.)
Event of Default. (a) Each If any of the following events shall constitute an event of default hereunder (an “Event "Events of Default”):") shall occur and be continuing:
(ia) if (A) Any Borrower shall fail to pay any portion installment of the Debt is not paid in full on the Maturity Date, (B) the Debt Service is not paid in full on principal of any of its Advances or before the related Payment DateNotes when due, or (C) any other portion of the Debt is not paid within five (5) days of when due;
(ii) if interest on any of the Taxes its Advances or Other Charges are not paid (with respect to each or any Individual Property) prior to Delinquency;
(iii) if the Policies (with respect to each or any Individual Property) are not kept in full force and effect, or if certified copies of the Policies (for each Individual Property) are not delivered to Lender upon request (or certificates thereof, if a Policy shall be renewed and certified copies of the Policy are not immediately available upon such renewal (each Borrower agreeing in such instance to provide copies of the Policies to Lender promptly thereafter));
(iv) if any Borrower Transfers or otherwise encumbers any portion of the Properties, the Collateral or the Senior Mezzanine Collateral, or there shall otherwise occur a Transfer without Lender’s prior consent in violation of the provisions of this Agreement, the Pledge Agreement Notes or any other Loan Document;amount payable by it hereunder within five Business Days after the same shall be due; or
(vb) if any Any representation or warranty made or deemed made by any Borrower herein or by any Borrower (or any other Loan Party herein or of its officers) in any other Loan Document, or in any report, certificate, financial statement or other instrument, agreement or document or other material or written information furnished connection with this Agreement shall prove to Lender shall have been false or misleading incorrect in any material respect as when made or deemed made; or
(c) Any Borrower shall fail to perform or observe any other term, covenant or agreement contained in this Agreement on its part to be performed or observed and any such failure shall remain unremedied for 30 days after written notice thereof shall have been given to such Borrower by the Administrative Agent or by any Lender with a copy to the Administrative Agent; or
(d) The Company or any Principal Subsidiary shall fail to pay any Debt or Guaranty (excluding Debt incurred pursuant hereto) of the date Company or such Principal Subsidiary in an aggregate principal amount of $200,000,000 or more, at such time, or any installment of principal thereof or interest or premium thereon, when due (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise) and such failure shall continue after the representation applicable grace period, if any, specified in the agreement or warranty was made (and, with respect instrument relating to such Debt or Guaranty; or any other default under any agreement or instrument relating to any such breach which Debt, or any other event, shall occur and shall continue after the applicable grace period, if any, specified in such agreement or instrument, if the effect of such default or event is not to accelerate the subject maturity of such Debt; or any such Debt shall be required to be prepaid (other than by a regularly scheduled required prepayment), prior to the stated maturity thereof, as a result of either (i) any default under any agreement or instrument relating to any such Debt or (ii) the occurrence of any other event (other than an issuance, sale or other disposition of stock or other assets, or an incurrence or issuance of Indebtedness or other obligations, giving rise to a repayment or prepayment obligation in respect of such Debt) the effect of which would otherwise be to accelerate the maturity of such Debt; provided that, notwithstanding any provision contained in this subsection (d) to the contrary, to the extent that pursuant to the terms of any agreement or instrument relating to any Debt or Guaranty referred to in this Section 8.1 and which is capable of being cured, such Borrower fails to remedy such condition within ten subsection (10d) days following notice to Borrower from Lender, (or in the case of any such Guaranty, relating to any obligations Guaranteed thereby), any sale, pledge or disposal of Margin Stock, or utilization of the proceeds of such sale, pledge or disposal, would result in a breach which can of any covenant contained therein or otherwise give rise to a default or event of default thereunder and/or acceleration of the maturity of the Debt or obligations extended pursuant thereto, or payment pursuant to any Guaranty, and as a result of such terms or of such sale, pledge, disposal, utilization, breach, default, event of default or acceleration or nonpayment under such Guaranty, or the provisions thereof relating thereto, this Agreement or any Advance hereunder would otherwise be cured subject to the margin requirements or any other restriction under Regulation U issued by the payment Board of a sum Governors of moneythe Federal Reserve System, then such breach, default, event of default or acceleration, or within thirty nonpayment under any Guaranty, shall not constitute a default or Event of Default under this subsection (30) days following notice from Lender in the case of any other such breachd);; or
(vii) if The Company or any Borrower, Senior Mezzanine Borrower Principal Subsidiary shall (A) generally not pay its debts as such debts become due; or Mortgage Borrower shall (B) admit in writing its inability to pay its debts generally; or (C) make an a general assignment for the benefit of creditors; or if a receiver, liquidator or trustee (ii) any proceeding shall be appointed for instituted or consented to by the Company or any Borrower, Senior Mezzanine Borrower or Mortgage Borrower, or if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower shall be adjudicated Principal Subsidiary seeking to adjudicate it a bankrupt or insolvent, or if seeking liquidation, winding up, reorganization, arrangement, adjustment, protection, relief, or composition of it or its debts under any petition for law relating to bankruptcy, insolvency or reorganization or arrangement pursuant to federal bankruptcy lawrelief of debtors, or any similar federal seeking the entry of an order for relief or state lawthe appointment of a receiver, shall be filed by or against, consented totrustee, or acquiesced in by, Borrower other similar official for it or Senior Mezzanine Borrower, for any substantial part of its property; or if (iii) any such proceeding for shall have been instituted against the dissolution Company or liquidation of any Borrower, Senior Mezzanine Borrower or Mortgage Borrower Principal Subsidiary and either such proceeding shall not be instituted; provided, however, if such appointment, adjudication, petition or proceeding was involuntary and not consented to by any Borrower, Senior Mezzanine Borrower or Mortgage Borrower, upon the same not being discharged, stayed or dismissed within ninety (90) days;
(vii) if any Operating Company, any Manager, Principal, Holdings or any Guarantor shall make an assignment for the benefit of creditors; or if a receiver, liquidator or trustee shall be appointed for any such Operating Company, any such Manager, Principal, Holdings or any such Guarantor, or if any Operating Company, any Manager, Principal, Holdings or any Guarantor shall be adjudicated a bankrupt or insolvent, or if any petition for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by or against, consented to, or acquiesced in by, any Operating Company, any Manager, Principal, Holdings or any Guarantor, or if any proceeding for the dissolution or liquidation of any Operating Company, any Manager, Principal, Holdings or any Guarantor shall be instituted; provided, however, if such appointment, adjudication, petition or proceeding was involuntary and not consented to by any such Operating Company, any such Manager, Principal, Holdings or any such Guarantor, upon the same not being discharged, stayed or dismissed within ninety (90) days;
(viii) if any Borrower attempts to assign its rights under this Agreement 60 consecutive days or any of the actions referred to above sought in such proceeding (including the entry of an order for relief against it or the appointment of a receiver, trustee, custodian or other Loan Documents similar official for it or any interest herein or therein in contravention of the Loan Documents;
(ix) if any Borrower breaches any substantial part of its respective negative covenants contained in Section 5.2 property) shall occur; or (iv) the Company or any covenant contained in Section 4.1.30 or Section 5.1.11 hereof (and, with respect Principal Subsidiary shall take any corporate action to any such breach of any covenant set forth in Section 5.1.11 which is not the subject of any other subsection of this Section 8.1, such Borrower fails to remedy such condition within ten (10) days after notice to Borrower from Lender, in the case of any such Default under Section 5.1.11 which can be cured by the payment of a sum of money, or for thirty (30) days after notice from Lender in the case of any other such Default under Section 5.1.11);
(x) with respect to any term, covenant or provision set forth herein which specifically contains a notice requirement or grace period, if any Borrower shall be in default under such term, covenant or condition after the giving of such notice or the expiration of such grace period;
(xi) if authorize any of the assumptions contained in the Insolvency Opinion delivered in connection with the Loan, or in the Additional Insolvency Opinion delivered subsequent to the closing of the Loan, is or shall become untrue in any material respect; or if any of the assumptions contained in the True Lease Opinion in connection with the Loan, or in the Additional True Lease Opinion delivered subsequent to the closing of the Loan, is or shall become untrue in any material respect;
(xii) if any Mortgage Borrower, any Operating Company or any Guarantor (Operating Lease) is in default of any of its material obligations under any Operating Lease (or under another lease and/or management agreement in substitution for such Operating Lease in accordance herewith) or under any such Operating Lease Guaranty (or under another operating lease guaranty in substitution for such Operating Lease Guaranty in accordance herewith) beyond any applicable notice and cure periods contained therein; or if any Operating Lease (or such other lease and/or management agreement) or any Operating Lease Guaranty (or such other operating lease guaranty) shall be surrendered or any Operating Lease or any Operating Lease Guaranty shall be terminated or canceled for any reason or under any circumstances whatsoever, except with the consent of Lender; or if any of the terms, covenants or conditions of any Operating Lease (or such other lease and/or management agreement) or any Operating Lease Guaranty (or such other operating lease guaranty) shall in any manner be modified, changed, supplemented, altered, restated or amended without the consent of Lender except as may otherwise expressly permitted actions set forth above in this Agreement;
subsection (xiii) intentionally omitted;
(xiv) if any Affiliate of any Borrower that is or becomes a party to the Windstorm Insurance Intercreditor Agreement is in default of any of its material obligations under the Windstorm Insurance Intercreditor Agreement beyond any applicable notice and cure periods contained therein; or if the Windstorm Insurance Intercreditor Agreement shall be surrendered, terminated or canceled for any reason or under any circumstances whatsoever, except with the consent of Lender; or if any of the terms, covenants or conditions of the Windstorm Insurance Intercreditor Agreement shall in any manner be modified, changed, supplemented, altered, restated or amended without the consent of Lender;
(xv) if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower fails to comply with the covenants as to Prescribed Laws set forth in Section 5.1.1 hereof;
(xvi) if a material default has occurred and continues beyond any applicable cure period under any Management Agreement and if such default permits the Manager, the Operating Company or the Mortgage Borrower party thereto to terminate or cancel the Management Agreement in question;
(xvii) any Gaming License shall be refused, suspended, revoked, modified in a materially adverse manner or canceled or allowed to lapse or any proceeding is commenced by any Governmental Authority for the purpose of suspending, revoking or canceling any Gaming License in any materially adverse respect, or any Governmental Authority shall have appointed a conservator, supervisor or trustee to or for any of the Casino Components and, in each case of the foregoing, such action could reasonably be expected to (A) have an Individual Material Adverse Effect, (B) materially and adversely affect the continued operation of the Casino Components in the usual course of business and in substantially the same manner and to at least the same standard as was maintained prior to such action, or (C) result in any material decrease in the then expected cash flow and revenues to be derived from the Casino Components;
(xviii) if any Borrower shall continue to be in Default under any of the other terms, covenants or conditions of this Agreement not specified in subsections (i) to (xvii) above, for ten (10) days after notice to Borrower from Lender, in the case of any Default which can be cured by the payment of a sum of money, or for thirty (30) days after notice from Lender in the case of any other Default; provided, however, that if such non-monetary Default is susceptible of cure but cannot reasonably be cured within such thirty (30) day period and provided further that such Borrower shall have commenced to cure such Default within such thirty (30) day period and thereafter diligently and expeditiously proceeds to cure the same, such thirty (30) day period shall be extended for such time as is reasonably necessary for such Borrower in the exercise of due diligence to cure such Default, such additional period not to exceed one hundred twenty (120) days;
(xix) if there shall be a default under any of the other Loan Documents beyond any applicable cure periods contained in such documents, whether as to any Borrower, Mortgage Borrower, Senior Mezzanine Borrower, the Collateral, the Senior Mezzanine Collateral or any Individual Property, or if any other such event shall occur or condition shall exist, if the effect of such event or condition is to accelerate the maturity of any portion of the Debt or to permit Lender to accelerate the maturity of all or any portion of the Debt;
(xx) if the Liens created pursuant to any Loan Document shall cease to be a fully protected enforceable first priority security interest in the Collateral, or any portion of the Collateral is Transferred without Lender’s prior written consent except as permitted hereundere); or
(xxif) if a Mortgage Loan Event Any judgment or order of Default any court for the payment of money in excess of $100,000,000 shall be rendered against the Company or Senior Mezzanine Loan Event of Default any Principal Subsidiary and either (i) enforcement proceedings shall occur.
(b) Upon the occurrence of an Event of Default have been commenced and are continuing or have been completed by any creditor upon such judgment or order (other than an Event any enforcement proceedings consisting of Default described the mere obtaining and filing of a judgment lien or obtaining of a garnishment or similar order so long as no foreclosure, levy or similar process in clauses (virespect of such lien, or payment over in respect of such garnishment or similar order, has commenced and is continuing or has been completed) or (viiii) there shall be any period of 30 consecutive days during which a stay of execution or of enforcement proceedings (other than those referred to in the parenthesis in clause (i) above) and at any time thereafterin respect of such judgment or order, in addition to any other rights or remedies available to it pursuant to this Agreement and the other Loan Documents or at law or in equity, Lender may take such action, without notice or demand, that Lender deems advisable to protect and enforce its rights against Borrower and in and to all or any of the Collateral, including, without limitation, declaring the Debt to be immediately due and payable, and Lender may enforce or avail itself of any or all rights or remedies provided in the Loan Documents and may exercise all the rights and remedies by reason of a secured party under pending appeal, bonding or otherwise, shall not be in effect; or
(i) Any Termination Event with respect to a Plan shall have occurred and, 30 days after notice thereof shall have been given to the Uniform Commercial Code, as adopted and enacted Company by the State or States where any of the Collateral is located, against Borrower and any or all of the Collateral, including, without limitation, all rights or remedies available at law or in equity; and upon any Event of Default described in clauses (vi) or (vii) above, the Debt and all other obligations of Borrower hereunder and under the other Loan Documents shall immediately and automatically become due and payable, without notice or demand, and Borrower hereby expressly waives any such notice or demand, anything contained herein or in any other Loan Document to the contrary notwithstanding.Administrative
Appears in 2 contracts
Samples: Revolving Credit and Competitive Advance Facility Agreement (El Paso Energy Corp/De), Revolving Credit and Competitive Advance Facility Agreement (El Paso CGP Co)
Event of Default. (a) Each The occurrence of any one or more of the following events shall constitute an event of default hereunder (an “Event of Default”)::
(ia) if (A) any portion of monthly Debt Service payment or the Debt payment due on the Maturity Date is not paid in full on the Maturity Datewhen due, (B) any deposit to any of the Debt Service Accounts required hereunder or under the other Loan Documents is not paid in full on or before the related Payment Date, made when due or (C) any other portion of the Debt is not paid within when due and, with respect to the payments referred to in clauses (B) and (C) only, such non-payment continues for five (5) days Business Days following notice to Borrower that the same is due and payable; except, in each case, to the extent sums sufficient to pay such Debt Service or any other portion of when duethe Debt have been deposited with Lender for such specific purpose in accordance with the terms of this Agreement and Lender’s access to such sums is not restricted or constrained by Borrower or its Affiliates;
(iib) if any of the Taxes or Other Charges are not paid (with respect to each or any Individual Property) prior to Delinquencythe date on which penalties and interest would be due except to the extent (A) sums sufficient to pay the Taxes or Other Charges in question had been reserved hereunder prior to the applicable due date for the Taxes or Other Charges in question for the express purpose of paying the Taxes or Other Charges in question and Lender failed to pay the Taxes or Other Charges in question when required hereunder, (B) Lender’s access to such sums was not restricted or constrained by Borrower or its Affiliates and (C) no other Event of Default is continuing;
(iiic) if the Policies (with respect to each or any Individual Property) are not kept in full force and effect, effect or if certified copies evidence of the Policies (for each Individual Property) are same is not delivered to Lender upon request (or certificates thereof, if a Policy shall be renewed and certified copies of the Policy are not immediately available upon such renewal (each Borrower agreeing as provided in such instance to provide copies of the Policies to Lender promptly thereafter))Section 7.1 hereof;
(ivd) if any Borrower Transfers or otherwise encumbers any portion of the Propertiesrepresentations or covenants contained in Article 5 are breached or violated; provided, that, (A) with respect to any failure to comply with the Collateral requirements relating to trade and operational indebtedness set forth in Section 5.1(a)(vii) hereof, it shall only be an Event of Default if Borrower does not cure such failure within fifteen (15) days after notice thereof from Lender to Borrower and (B) except as provided in (A) of this clause (d) with respect to trade and operational indebtedness, any such breach or violation shall not constitute an Event of Default (1) if such breach or violation is inadvertent and non-recurring, (2) if such breach or violation is curable, Borrower shall promptly cure such breach within thirty (30) days from the Senior Mezzanine Collateral, earlier of (I) Borrower’s knowledge of such breach or there violation or (II) notice thereof from Lender and (3) Borrower shall otherwise have within such thirty (30) day period delivered to Lender a New Non-Consolidation Opinion or an update from the law firm under the most recent Non-Consolidation Opinion previously delivered to Lender to the effect that such breach or violation does not negate or impair the Non-Consolidation Opinion previously delivered to Lender;
(e) if (A) a Prohibited Transfer shall occur a Transfer without Lender’s prior consent in violation of the provisions of this Agreement, the Pledge Agreement or (B) any other Loan Documentrepresentation or covenants contained in Section 6.6 hereof is breached or violated in any material respect unless, with respect to this clause (B), (I) such breach or violation was immaterial, inadvertent and non-recurring and (II) Borrower corrects (or causes to be corrected) such failure within thirty (30) days of obtaining knowledge thereof;
(vf) if there is a breach of any of the covenants contained within any of Section 4.19 and Section 4.24 in any material respect, which breach continues for a period of thirty (30) days after Borrower’s receipt of notice from Lender;
(g) if any representation or warranty made by any Borrower herein (other than the representations or any other Loan Party herein warranties described in clause (e) of this Section 10.1), in the Guaranty or in the Environmental Indemnity or in any other Loan Documentcertificate, or in any report, certificate, financial statement or other instrument, agreement instrument or document or other material or written information furnished to Lender by or on behalf of Borrower in connection with the Loan shall have been false or misleading in any material adverse respect as of the date the when made; provided that if such untrue representation or warranty was made (and, with respect to any such breach which is not the subject of any other subsection of this Section 8.1 and which is capable susceptible of being cured, Borrower shall have the right to cure such representation or warranty within thirty (30) days of receipt of notice from Lender;
(h) if (i) Borrower, any SPE Component Entity or Guarantor shall commence any case, proceeding or other action (A) under any Creditors Rights Laws seeking to have an order for relief entered with respect to it, or seeking to adjudicate it a bankrupt or insolvent, or seeking reorganization, liquidation or dissolution, or (B) seeking appointment of a receiver, trustee, custodian, conservator or other similar official for it or for all or substantially all of its assets, or Borrower, any SPE Component Entity or Guarantor shall make a general assignment for the benefit of its creditors; (ii) there shall be commenced against Borrower, any SPE Component Entity or Guarantor any case, proceeding or other action of a nature referred to in clause (i) above (other than any case, action or proceeding already constituting an Event of Default by operation of the other provisions of this subsection) which (A) results in the entry of an order for relief or any such adjudication or appointment or (B) remains undismissed, undischarged or unbonded for a period of ninety (90) days; (iii) there shall be commenced against Borrower, any SPE Component Entity or Guarantor any case, proceeding or other action seeking issuance of a warrant of attachment, execution, distraint or similar process against all or substantially all of its assets (other than any case, action or proceeding already constituting an Event of Default by operation of the other provisions of this subsection) which results in the entry of any order for any such relief which shall not have been vacated, discharged, or stayed or bonded pending appeal within ninety (90) days from the entry thereof; (iv) Borrower, any SPE Component Entity, any Affiliated Manager or Guarantor shall collude with respect to, approve of, or acquiesce in, any of the actions set forth in clause (i), (ii), or (iii) above; (v) Borrower, any SPE Component Entity or Guarantor shall admit in writing its inability to pay its debts as they become due; (vi) Borrower or any SPE Component Entity is substantively consolidated with any other entity in connection with any proceeding under the Bankruptcy Code or any other Creditors Rights Laws involving Guarantor or its subsidiaries and/or Affiliates; or (vii) a Bankruptcy Event occurs (provided, that if there is any inconsistency between the other provisions of this subclause (i) and the definition of Bankruptcy Event, the other provisions of this subclause (i) shall control);
(i) if Borrower shall be in default beyond applicable notice and grace periods under any other mortgage, deed of trust, deed to secure debt or other security agreement covering any part of the Property whether it be superior or junior in lien to the Security Instrument;
(j) if the Property becomes subject to any mechanic’s, materialman’s or other lien other than a lien for any Taxes not then due and payable and the lien shall remain undischarged of record (by payment, bonding or otherwise) for a period of thirty (30) days after Borrower first receives notice of the same;
(k) if any federal tax lien is filed against Borrower, any SPE Component Entity, Guarantor or the Property and same is not discharged of record (by payment, bonding or otherwise) within thirty (30) days after Borrower first receives notice of the same;
(l) if Borrower shall fail to deliver to Lender, within ten (10) Business Days after request by Lender, the estoppel certificates required by Section 4.13(a) hereof and such failure continues for five (5) Business Days after Borrower’s receipt of notice thereof from Lender;
(m) if any default occurs under any guaranty or indemnity executed in connection herewith (including, without limitation, the Environmental Indemnity and/or the Guaranty) and such default continues after the expiration of applicable grace periods, if any;
(n) if any of the factual assumptions as to Borrower and/or any SPE Component Entity contained in the Non-Consolidation Opinion, or in any New Non-Consolidation Opinion (including, without limitation, in any schedules thereto and/or certificates delivered in connection therewith) are untrue or shall become untrue as a result of Borrower’s and/or any SPE Component Entity’s violation of Article 5 hereof in any material respect and, provided no action has been filed with respect to Borrower or any SPE Component Entity under any Creditor Rights Law prior to the time that Lender becomes aware of the untrue assumption, Borrower shall fail to deliver to Lender within ten (10) Business Days after Lender’s request a New Non-Consolidation Opinion without such assumption;
(o) if Borrower defaults under the Management Agreement beyond the expiration of applicable notice and grace periods, if any, thereunder (and the Manager terminates the same) or if the Management Agreement is canceled, terminated or surrendered, expires pursuant to its terms or otherwise ceased to be in full force and effect, unless, in each such case, Borrower, within thirty (30) days of such cancellation, termination, surrender, expiration or cessation, enters into a Qualified Management Agreement with a Qualified Manager in accordance with the applicable terms and provisions hereof;
(p) if Borrower fails to remedy appoint a New Manager within ten (10) Business Days of the request of Lender and/or fails to comply with any limitations on instructing the Manager and such failure continues for more than ten (10) Business Days after notice from Lender, each as required by and in accordance with, as applicable, the terms and provisions of, this Agreement, the Assignment of Management Agreement and the Security Instrument;
(q) With respect to any default or breach of any term, covenant or condition of this Agreement not specified in subsections (a) through (p) above or not otherwise specifically specified as an Event of Default in this Agreement, if the same is not cured (i) within ten (10) days following after notice to Borrower from Lender, Lender (in the case of any such breach default which can be cured by the payment of a sum of money, ) or within thirty (30ii) days following notice from Lender in the case of any other such breach);
(vi) if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower shall make an assignment for the benefit of creditors; or if a receiver, liquidator or trustee shall be appointed for any Borrower, Senior Mezzanine Borrower or Mortgage Borrower, or if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower shall be adjudicated a bankrupt or insolvent, or if any petition for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by or against, consented to, or acquiesced in by, Borrower or Senior Mezzanine Borrower, or if any proceeding for the dissolution or liquidation of any Borrower, Senior Mezzanine Borrower or Mortgage Borrower shall be instituted; provided, however, if such appointment, adjudication, petition or proceeding was involuntary and not consented to by any Borrower, Senior Mezzanine Borrower or Mortgage Borrower, upon the same not being discharged, stayed or dismissed within ninety (90) days;
(vii) if any Operating Company, any Manager, Principal, Holdings or any Guarantor shall make an assignment for the benefit of creditors; or if a receiver, liquidator or trustee shall be appointed for any such Operating Company, any such Manager, Principal, Holdings or any such Guarantor, or if any Operating Company, any Manager, Principal, Holdings or any Guarantor shall be adjudicated a bankrupt or insolvent, or if any petition for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by or against, consented to, or acquiesced in by, any Operating Company, any Manager, Principal, Holdings or any Guarantor, or if any proceeding for the dissolution or liquidation of any Operating Company, any Manager, Principal, Holdings or any Guarantor shall be instituted; provided, however, if such appointment, adjudication, petition or proceeding was involuntary and not consented to by any such Operating Company, any such Manager, Principal, Holdings or any such Guarantor, upon the same not being discharged, stayed or dismissed within ninety (90) days;
(viii) if any Borrower attempts to assign its rights under this Agreement or any of the other Loan Documents or any interest herein or therein in contravention of the Loan Documents;
(ix) if any Borrower breaches any of its respective negative covenants contained in Section 5.2 or any covenant contained in Section 4.1.30 or Section 5.1.11 hereof (and, with respect to any such breach of any covenant set forth in Section 5.1.11 which is not the subject of any other subsection of this Section 8.1, such Borrower fails to remedy such condition within ten (10) days after notice to Borrower from Lender, in the case of any such Default under Section 5.1.11 which can be cured by the payment of a sum of money, or for thirty (30) days after notice from Lender (in the case of any other such Default under Section 5.1.11default or breach);
(x) ; provided, that, with respect to any term, covenant default or provision set forth herein which specifically contains a notice requirement or grace periodbreach specified in subsection (ii), if any Borrower shall be in default under such term, covenant or condition after the giving of such notice or the expiration of such grace period;
(xi) if any of the assumptions contained in the Insolvency Opinion delivered in connection with the Loan, or in the Additional Insolvency Opinion delivered subsequent to the closing of the Loan, is or shall become untrue in any material respect; or if any of the assumptions contained in the True Lease Opinion in connection with the Loan, or in the Additional True Lease Opinion delivered subsequent to the closing of the Loan, is or shall become untrue in any material respect;
(xii) if any Mortgage Borrower, any Operating Company or any Guarantor (Operating Lease) is in default of any of its material obligations under any Operating Lease (or under another lease and/or management agreement in substitution for such Operating Lease in accordance herewith) or under any such Operating Lease Guaranty (or under another operating lease guaranty in substitution for such Operating Lease Guaranty in accordance herewith) beyond any applicable notice and cure periods contained therein; or if any Operating Lease (or such other lease and/or management agreement) or any Operating Lease Guaranty (or such other operating lease guaranty) shall be surrendered or any Operating Lease or any Operating Lease Guaranty shall be terminated or canceled for any reason or under any circumstances whatsoever, except with the consent of Lender; or if any of the terms, covenants or conditions of any Operating Lease (or such other lease and/or management agreement) or any Operating Lease Guaranty (or such other operating lease guaranty) shall in any manner be modified, changed, supplemented, altered, restated or amended without the consent of Lender except as may otherwise expressly permitted in this Agreement;
(xiii) intentionally omitted;
(xiv) if any Affiliate of any Borrower that is or becomes a party to the Windstorm Insurance Intercreditor Agreement is in default of any of its material obligations under the Windstorm Insurance Intercreditor Agreement beyond any applicable notice and cure periods contained therein; or if the Windstorm Insurance Intercreditor Agreement shall be surrendered, terminated or canceled for any reason or under any circumstances whatsoever, except with the consent of Lender; or if any of the terms, covenants or conditions of the Windstorm Insurance Intercreditor Agreement shall in any manner be modified, changed, supplemented, altered, restated or amended without the consent of Lender;
(xv) if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower fails to comply with the covenants as to Prescribed Laws set forth in Section 5.1.1 hereof;
(xvi) if a material default has occurred and continues beyond any applicable cure period under any Management Agreement and if such default permits the Manager, the Operating Company or the Mortgage Borrower party thereto to terminate or cancel the Management Agreement in question;
(xvii) any Gaming License shall be refused, suspended, revoked, modified in a materially adverse manner or canceled or allowed to lapse or any proceeding is commenced by any Governmental Authority for the purpose of suspending, revoking or canceling any Gaming License in any materially adverse respect, or any Governmental Authority shall have appointed a conservator, supervisor or trustee to or for any of the Casino Components and, in each case of the foregoing, such action could reasonably be expected to (A) have an Individual Material Adverse Effect, (B) materially and adversely affect the continued operation of the Casino Components in the usual course of business and in substantially the same manner and to at least the same standard as was maintained prior to such action, or (C) result in any material decrease in the then expected cash flow and revenues to be derived from the Casino Components;
(xviii) if any Borrower shall continue to be in Default under any of the other terms, covenants or conditions of this Agreement not specified in subsections (i) to (xvii) above, for ten (10) days after notice to Borrower from Lender, in the case of any Default which can be cured by the payment of a sum of money, or for thirty (30) days after notice from Lender in the case of any other Default; provided, however, that if such non-monetary Default is susceptible of cure but cannot reasonably be cured within such thirty (30) day period and provided further that such Borrower shall have commenced to cure such Default the same within such thirty (30) day period and thereafter diligently and expeditiously proceeds to cure the same, such thirty (30) day period shall be extended for such time so long as is reasonably necessary for such it shall require Borrower in the exercise of due diligence to cure the same, it being agreed that no such Default, such additional extension shall be for a period not to exceed in excess of one hundred twenty (120) days;; or
(xixr) if there shall be a any default not specified above exists under any of the other Loan Documents beyond any applicable cure periods contained in such documents, whether as to any Borrower, Mortgage Borrower, Senior Mezzanine Borrower, the Collateral, the Senior Mezzanine Collateral or any Individual Property, Loan Documents or if any other such event shall occur or condition shall exist, if the effect of such event or condition is to accelerate the maturity of any portion of the Debt or to permit Lender to accelerate the maturity of all or any portion of the Debt;
(xx) if the Liens created pursuant to any Loan Document shall cease to be a fully protected enforceable first priority security interest in the Collateral, or any portion of the Collateral is Transferred without Lender’s prior written consent except as permitted hereunder; or
(xxi) if a Mortgage Loan Event of Default or Senior Mezzanine Loan Event of Default shall occur.
(b) Upon the occurrence of an Event of Default (other than an Event of Default described in clauses (vi) or (vii) above) and at any time thereafter, in addition to any other rights or remedies available to it pursuant to this Agreement and the other Loan Documents or at law or in equity, Lender may take such action, without notice or demand, that Lender deems advisable to protect and enforce its rights against Borrower and in and to all or any of the Collateral, including, without limitation, declaring the Debt to be immediately due and payable, and Lender may enforce or avail itself of any or all rights or remedies provided in the Loan Documents and may exercise all the rights and remedies of a secured party under the Uniform Commercial Code, as adopted and enacted by the State or States where any of the Collateral is located, against Borrower and any or all of the Collateral, including, without limitation, all rights or remedies available at law or in equity; and upon any Event of Default described in clauses (vi) or (vii) above, the Debt and all other obligations of Borrower hereunder and under the other Loan Documents shall immediately and automatically become due and payable, without notice or demand, and Borrower hereby expressly waives any such notice or demand, anything contained herein or in any other Loan Document to the contrary notwithstanding.
Appears in 2 contracts
Samples: Loan Agreement (American Realty Capital New York City REIT, Inc.), Loan Agreement (American Realty Capital New York City REIT, Inc.)
Event of Default. An Event of Default under this Agreement shall be deemed to exist upon the occurrence of any one or more of the following events:
(a) Each Failure by either Party to make payment of any amounts due to the following events shall constitute an event of default hereunder (an “Event of Default”):
(i) if (A) any portion of the Debt is not paid in full on the Maturity Date, (B) the Debt Service is not paid in full on or before the related Payment Date, or (C) any other portion of the Debt is not paid within five (5) days of when due;
(ii) if any of the Taxes or Other Charges are not paid (with respect to each or any Individual Property) prior to Delinquency;
(iii) if the Policies (with respect to each or any Individual Property) are not kept in full force and effect, or if certified copies of the Policies (for each Individual Property) are not delivered to Lender upon request (or certificates thereof, if a Policy shall be renewed and certified copies of the Policy are not immediately available upon such renewal (each Borrower agreeing in such instance to provide copies of the Policies to Lender promptly thereafter));
(iv) if any Borrower Transfers or otherwise encumbers any portion of the Properties, the Collateral or the Senior Mezzanine Collateral, or there shall otherwise occur a Transfer without Lender’s prior consent in violation of the provisions of Party under this Agreement, the Pledge Agreement or any other Loan Document;
(v) if any representation or warranty made by any Borrower or any other Loan Party herein or in any other Loan Document, or in any report, certificate, financial statement or other instrument, agreement or document or other material or written information furnished to Lender shall have been false or misleading in any material respect as and that failure continues for a period of the date the representation or warranty was made (and, with respect to any such breach which is not the subject of any other subsection of this Section 8.1 and which is capable of being cured, such Borrower fails to remedy such condition within ten (10) days following notice to Borrower from Lender, in the case of any such breach which can be cured by the payment of a sum of money, or within thirty (30) days following after written notice of non-payment; or
(b) Failure by either Party to perform fully any other material provision of this Agreement, and (i) such failure continues for a period of thirty (30) days after written notice of such non-performance from Lender the other Party is received, or (ii) if within such thirty (30) day period the non-performing Party commences and proceeds with due diligence to cure the failure and the failure is not cured within ninety (90) days after written notice of nonperformance from the other Party is received or such longer period of time agreed to by the Parties in writing as being necessary for the case Party to cure the failure with all due diligence; or
(c) If by order of a court of competent jurisdiction, a receiver or liquidator or trustee of either Party or of all or any of the property of either Party shall be appointed, and such receiver or liquidator or trustee shall not have been discharged within a period of sixty (60) days after its appointment; or if by decree of such a court, either Party shall be adjudicated bankrupt or insolvent or any substantial part of the property of such Party shall have been sequestered, or such decree shall have continued undischarged and unstayed for a period of sixty (60) days after the entry thereof; or if a petition to declare bankruptcy or to reorganize Buyer or Seller pursuant to any of the provisions of any other Canadian or United States federal, provincial or state bankruptcy law shall be filed against such breach);Party and shall not be dismissed within sixty (60) days after such filing; or
(vid) If either Party shall file a voluntary petition in bankruptcy under any provision of any Canadian or United States federal, provincial or state bankruptcy law or shall consent to the filing of any bankruptcy or reorganization petition against it under any similar law; or if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower either Party shall make an assignment for the benefit of its creditors; or if a receiver, liquidator or trustee either Party shall be appointed for any Borrower, Senior Mezzanine Borrower or Mortgage Borrower, or if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower shall be adjudicated a bankrupt or insolvent, or if any petition for bankruptcy, reorganization or arrangement pursuant admit in writing its inability to federal bankruptcy law, or any similar federal or state law, shall be filed by or against, consented to, or acquiesced in by, Borrower or Senior Mezzanine Borrower, or if any proceeding for the dissolution or liquidation of any Borrower, Senior Mezzanine Borrower or Mortgage Borrower shall be instituted; provided, however, if such appointment, adjudication, petition or proceeding was involuntary and not consented to by any Borrower, Senior Mezzanine Borrower or Mortgage Borrower, upon the same not being discharged, stayed or dismissed within ninety (90) days;
(vii) if any Operating Company, any Manager, Principal, Holdings or any Guarantor shall make an assignment for the benefit of creditorspay its debts generally as they become due; or if either Party shall consent to the appointment of a receiverreceiver or receivers, or trustee or trustees, or liquidator or trustee shall be appointed for any such Operating Company, any such Manager, Principal, Holdings liquidators of it or any such Guarantor, or if any Operating Company, any Manager, Principal, Holdings or any Guarantor shall be adjudicated a bankrupt or insolvent, or if any petition for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by or against, consented to, or acquiesced in by, any Operating Company, any Manager, Principal, Holdings or any Guarantor, or if any proceeding for the dissolution or liquidation of any Operating Company, any Manager, Principal, Holdings or any Guarantor shall be instituted; provided, however, if such appointment, adjudication, petition or proceeding was involuntary and not consented to by any such Operating Company, any such Manager, Principal, Holdings or any such Guarantor, upon the same not being discharged, stayed or dismissed within ninety (90) days;
(viii) if any Borrower attempts to assign its rights under this Agreement or any of the other Loan Documents or any interest herein or therein in contravention of the Loan Documents;
(ix) if any Borrower breaches any of its respective negative covenants contained in Section 5.2 or any covenant contained in Section 4.1.30 or Section 5.1.11 hereof (and, with respect to any such breach of any covenant set forth in Section 5.1.11 which is not the subject of any other subsection of this Section 8.1, such Borrower fails to remedy such condition within ten (10) days after notice to Borrower from Lender, in the case of any such Default under Section 5.1.11 which can be cured by the payment of a sum of money, or for thirty (30) days after notice from Lender in the case of any other such Default under Section 5.1.11);
(x) with respect to any term, covenant or provision set forth herein which specifically contains a notice requirement or grace period, if any Borrower shall be in default under such term, covenant or condition after the giving of such notice or the expiration of such grace period;
(xi) if any of the assumptions contained in the Insolvency Opinion delivered in connection with the Loan, or in the Additional Insolvency Opinion delivered subsequent to the closing of the Loan, is or shall become untrue in any material respect; or if any of the assumptions contained in the True Lease Opinion in connection with the Loan, or in the Additional True Lease Opinion delivered subsequent to the closing of the Loan, is or shall become untrue in any material respect;
(xii) if any Mortgage Borrower, any Operating Company or any Guarantor (Operating Lease) is in default of any of its material obligations under any Operating Lease (or under another lease and/or management agreement in substitution for such Operating Lease in accordance herewith) or under any such Operating Lease Guaranty (or under another operating lease guaranty in substitution for such Operating Lease Guaranty in accordance herewith) beyond any applicable notice and cure periods contained therein; or if any Operating Lease (or such other lease and/or management agreement) or any Operating Lease Guaranty (or such other operating lease guaranty) shall be surrendered or any Operating Lease or any Operating Lease Guaranty shall be terminated or canceled for any reason or under any circumstances whatsoever, except with the consent of Lender; or if any of the terms, covenants or conditions of any Operating Lease (or such other lease and/or management agreement) or any Operating Lease Guaranty (or such other operating lease guaranty) shall in any manner be modified, changed, supplemented, altered, restated or amended without the consent of Lender except as may otherwise expressly permitted in this Agreement;
(xiii) intentionally omitted;
(xiv) if any Affiliate of any Borrower that is or becomes a party to the Windstorm Insurance Intercreditor Agreement is in default of any of its material obligations under the Windstorm Insurance Intercreditor Agreement beyond any applicable notice and cure periods contained therein; or if the Windstorm Insurance Intercreditor Agreement shall be surrendered, terminated or canceled for any reason or under any circumstances whatsoever, except with the consent of Lender; or if any of the terms, covenants or conditions of the Windstorm Insurance Intercreditor Agreement shall in any manner be modified, changed, supplemented, altered, restated or amended without the consent of Lender;
(xv) if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower fails to comply with the covenants as to Prescribed Laws set forth in Section 5.1.1 hereof;
(xvi) if a material default has occurred and continues beyond any applicable cure period under any Management Agreement and if such default permits the Manager, the Operating Company or the Mortgage Borrower party thereto to terminate or cancel the Management Agreement in question;
(xvii) any Gaming License shall be refused, suspended, revoked, modified in a materially adverse manner or canceled or allowed to lapse or any proceeding is commenced by any Governmental Authority for the purpose of suspending, revoking or canceling any Gaming License in any materially adverse respect, or any Governmental Authority shall have appointed a conservator, supervisor or trustee to or for any of the Casino Components and, in each case of the foregoing, such action could reasonably be expected to (A) have an Individual Material Adverse Effect, (B) materially and adversely affect the continued operation of the Casino Components in the usual course of business and in substantially the same manner and to at least the same standard as was maintained prior to such action, or (C) result in any material decrease in the then expected cash flow and revenues to be derived from the Casino Components;
(xviii) if any Borrower shall continue to be in Default under any of the other terms, covenants or conditions of this Agreement not specified in subsections (i) to (xvii) above, for ten (10) days after notice to Borrower from Lender, in the case of any Default which can be cured by the payment of a sum of money, or for thirty (30) days after notice from Lender in the case of any other Default; provided, however, that if such non-monetary Default is susceptible of cure but cannot reasonably be cured within such thirty (30) day period and provided further that such Borrower shall have commenced to cure such Default within such thirty (30) day period and thereafter diligently and expeditiously proceeds to cure the same, such thirty (30) day period shall be extended for such time as is reasonably necessary for such Borrower in the exercise of due diligence to cure such Default, such additional period not to exceed one hundred twenty (120) days;
(xix) if there shall be a default under any of the other Loan Documents beyond any applicable cure periods contained in such documents, whether as to any Borrower, Mortgage Borrower, Senior Mezzanine Borrower, the Collateral, the Senior Mezzanine Collateral or any Individual Property, or if any other such event shall occur or condition shall exist, if the effect of such event or condition is to accelerate the maturity of any portion of the Debt or to permit Lender to accelerate the maturity of all or any portion of the Debt;
(xx) if the Liens created pursuant to any Loan Document shall cease to be a fully protected enforceable first priority security interest in the Collateral, or any portion of the Collateral is Transferred without Lender’s prior written consent except as permitted hereunder; or
(xxi) if a Mortgage Loan Event of Default or Senior Mezzanine Loan Event of Default shall occur.
(b) Upon the occurrence of an Event of Default (other than an Event of Default described in clauses (vi) or (vii) above) and at any time thereafter, in addition to any other rights or remedies available to it pursuant to this Agreement and the other Loan Documents or at law or in equity, Lender may take such action, without notice or demand, that Lender deems advisable to protect and enforce its rights against Borrower and in and to all or any of the Collateral, including, without limitation, declaring the Debt to be immediately due and payable, and Lender may enforce or avail itself of any or all rights or remedies provided in the Loan Documents and may exercise all the rights and remedies part of a secured party under the Uniform Commercial Code, as adopted and enacted by the State or States where any of the Collateral is located, against Borrower and any or all of the Collateral, including, without limitation, all rights or remedies available at law or in equity; and upon any Event of Default described in clauses (vi) or (vii) above, the Debt and all other obligations of Borrower hereunder and under the other Loan Documents shall immediately and automatically become due and payable, without notice or demand, and Borrower hereby expressly waives any such notice or demand, anything contained herein or in any other Loan Document to the contrary notwithstandingits property.
Appears in 2 contracts
Samples: Natural Gas Sale and Purchase Agreement (Energy West Inc), Natural Gas Sale and Purchase Agreement (Energy West Inc)
Event of Default. (a) Each The occurrence of any one or more of the following events shall constitute an event of default hereunder (an “Event of Default”)::
(a) if Borrower shall fail to (i) if pay when due (A) any portion sums which by the express terms of this Agreement and the Debt is not paid in full other Loan Documents require immediate or prompt payment without any grace period or (B) sums which are payable on the Maturity Date, (B) the Debt Service is not paid in full on or before the related Payment Date, or (Cii) any other portion of the Debt is not paid pay within five (5) days when due (A) any monthly Debt Service and any amount required to be paid into the Reserve Funds or (B) any other sums payable under the Note, this Agreement or any of when duethe other Loan Documents;
(iib) if any of the Taxes or Other Charges are is not paid (when the same is due and payable except to the extent sums sufficient to pay such Taxes and Other Charges have been deposited with respect Lender in accordance with the terms of this Agreement and Lender’s access to each such sums is not restricted or constrained in any Individual Property) prior to Delinquencymanner;
(iiic) if the Policies (with respect to each or any Individual Property) are not kept in full force and effect, effect or if certified copies evidence of the Policies (for each Individual Property) are same is not delivered to Lender upon request (or certificates thereof, if a Policy shall be renewed and certified copies of the Policy are not immediately available upon such renewal (each Borrower agreeing as provided in such instance to provide copies of the Policies to Lender promptly thereafter))Section 7.1 hereof;
(ivd) if any Borrower Transfers or otherwise encumbers any portion of the Propertiesrepresentations, the Collateral warranties and/or covenants contained in Article 5 or the Senior Mezzanine Collateral, Article 6 hereof are breached or there shall otherwise occur a Transfer without Lender’s prior consent in violation of the provisions of this Agreement, the Pledge Agreement or any other Loan Documentviolated;
(ve) if any representation or warranty made by any Borrower of, or with respect to, Borrower, Sponsor, Guarantor or any other Loan Party herein member, general partner, principal or beneficial owner of any of the foregoing, made herein, in the Guaranty or in the Environmental Indemnity or in any other Loan Documentguaranty, or in any certificate, report, certificate, financial statement or other instrument, agreement instrument or document or other material or written information furnished to Lender shall have been false or misleading in any material adverse respect as of the date the representation when made;
(f) if (i) Borrower, any SPE Component Entity, Sponsor or warranty was made Guarantor shall commence any case, proceeding or other action (and, A) under any Creditors’ Rights Laws seeking to have an order for relief entered with respect to it, or seeking to adjudicate it a bankrupt or insolvent, or seeking reorganization, or (B) seeking appointment of a receiver, trustee, custodian, conservator or other similar official for it or for all or any substantial part of its assets, or Borrower or any managing member or general partner of Borrower, any SPE Component Entity, Sponsor or Guarantor shall make a general assignment for the benefit of its creditors; (ii) there shall be commenced against Borrower or any managing member or general partner of Borrower, any SPE Component Entity, Sponsor or Guarantor any case, proceeding or other action of a nature referred to in clause (i) above which (A) results in the entry of an order for relief or any such breach adjudication or appointment or (B) remains undismissed, undischarged or unbonded for a period of sixty (60) days; (iii) there shall be commenced against Borrower, any SPE Component Entity, Sponsor or Guarantor any case, proceeding or other action seeking issuance of a warrant of attachment, execution, distraint or similar process against all or any substantial part of its assets which results in the entry of any order for any such relief which shall not have been vacated, discharged, or stayed or bonded pending appeal within sixty (60) days from the entry thereof; (iv) Borrower, any SPE Component Entity, Sponsor or Guarantor shall take any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the acts set forth in clause (i), (ii), or (iii) above; or (v) Borrower, any SPE Component Entity, Sponsor or Guarantor shall generally not, or shall be unable to, or shall admit in writing its inability to, pay its debts as they become due;
(g) if Borrower shall be in default beyond applicable notice and grace periods under any other mortgage, deed of trust, deed to secure debt or other security agreement covering any part of the Property whether it be superior or junior in lien to the Security Instrument;
(h) if the Property becomes subject to any mechanic’s, materialman’s or other lien other than a lien for any Taxes not then due and payable and the lien shall remain undischarged of record (by payment, bonding or otherwise) for a period of thirty (30) days;
(i) if any federal tax lien is filed against Borrower, any SPE Component Entity, Sponsor, Guarantor or the Property and same is not the subject discharged of any other subsection of this Section 8.1 and which is capable of being curedrecord (by payment, such Borrower fails to remedy such condition within ten (10bonding or otherwise) days following notice to Borrower from Lender, in the case of any such breach which can be cured by the payment of a sum of money, or within thirty (30) days following notice from Lender in the case of any other such breach)after same is filed;
(vij) if Borrower shall fail to comply with the covenants in Article 15 or otherwise fails to deliver to Lender, within twenty (20) days after request by Lender, the estoppel certificates required by Section 4.13(a) or (c) hereof;
(k) if any Borrowerdefault occurs under any guaranty or indemnity executed in connection herewith (including, Senior Mezzanine Borrower or Mortgage Borrower shall make an assignment for without limitation, the benefit Environmental Indemnity and/or the Guaranty) and such default continues after the expiration of creditors; or if a receiver, liquidator or trustee shall be appointed for any Borrower, Senior Mezzanine Borrower or Mortgage Borrower, or if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower shall be adjudicated a bankrupt or insolvent, or if any petition for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by or against, consented to, or acquiesced in by, Borrower or Senior Mezzanine Borrower, or if any proceeding for the dissolution or liquidation of any Borrower, Senior Mezzanine Borrower or Mortgage Borrower shall be instituted; provided, howeverapplicable grace periods, if such appointment, adjudication, petition or proceeding was involuntary and not consented to by any Borrower, Senior Mezzanine Borrower or Mortgage Borrower, upon the same not being discharged, stayed or dismissed within ninety (90) daysany;
(vii) if any Operating Company, any Manager, Principal, Holdings or any Guarantor shall make an assignment for the benefit of creditors; or if a receiver, liquidator or trustee shall be appointed for any such Operating Company, any such Manager, Principal, Holdings or any such Guarantor, or if any Operating Company, any Manager, Principal, Holdings or any Guarantor shall be adjudicated a bankrupt or insolvent, or if any petition for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by or against, consented to, or acquiesced in by, any Operating Company, any Manager, Principal, Holdings or any Guarantor, or if any proceeding for the dissolution or liquidation of any Operating Company, any Manager, Principal, Holdings or any Guarantor shall be instituted; provided, however, if such appointment, adjudication, petition or proceeding was involuntary and not consented to by any such Operating Company, any such Manager, Principal, Holdings or any such Guarantor, upon the same not being discharged, stayed or dismissed within ninety (90) days;
(viii) if any Borrower attempts to assign its rights under this Agreement or any of the other Loan Documents or any interest herein or therein in contravention of the Loan Documents;
(ix) if any Borrower breaches any of its respective negative covenants contained in Section 5.2 or any covenant contained in Section 4.1.30 or Section 5.1.11 hereof (and, with respect to any such breach of any covenant set forth in Section 5.1.11 which is not the subject of any other subsection of this Section 8.1, such Borrower fails to remedy such condition within ten (10) days after notice to Borrower from Lender, in the case of any such Default under Section 5.1.11 which can be cured by the payment of a sum of money, or for thirty (30) days after notice from Lender in the case of any other such Default under Section 5.1.11);
(x) with respect to any term, covenant or provision set forth herein which specifically contains a notice requirement or grace period, if any Borrower shall be in default under such term, covenant or condition after the giving of such notice or the expiration of such grace period;
(xil) if any of the assumptions contained in the Insolvency Opinion delivered in connection with the LoanNon-Consolidation Opinion, or in the Additional Insolvency any New Non-Consolidation Opinion delivered subsequent to the closing of the Loan, is or shall become are untrue in any material respect; or if any of the assumptions contained in the True Lease Opinion in connection with the Loan, or in the Additional True Lease Opinion delivered subsequent to the closing of the Loan, is or shall become untrue in any material respect;
(xiim) if Borrower shall fail to deliver to Lender within thirty (30) days after request by Lender any Required Financial Item;
(n) if Borrower defaults under the Management Agreement beyond the expiration of applicable notice and grace periods, if any, thereunder or if the Management Agreement is canceled, terminated or surrendered or expires pursuant to its terms, unless in such case Borrower shall enter into a new management agreement with a Qualified Manager in accordance with the applicable terms and provisions hereof;
(o) if any Mortgage Borrower, any Operating Company or any Guarantor representation and/or covenant herein relating to ERISA matters is breached;
(Operating Leasep) is in default if (i) Borrower defaults under the Property Documents beyond the expiration of any of its material obligations under any Operating Lease (or under another lease and/or management agreement in substitution for such Operating Lease in accordance herewith) or under any such Operating Lease Guaranty (or under another operating lease guaranty in substitution for such Operating Lease Guaranty in accordance herewith) beyond any applicable notice and cure periods contained therein; grace periods, if any, thereunder, (ii) any of the Property Documents are amended, supplemented, replaced, restated or otherwise modified without Lender’s prior written consent or if Borrower consents to a transfer of any Operating party’s interest thereunder without Lender’s prior written consent, (iii) any Property Document is canceled, terminated, surrendered or expires pursuant to its terms, unless in such case Borrower enters into a replacement thereof in accordance with the applicable terms and provisions hereof or (iv) a Property Document Event occurs;
(q) if Borrower shall fail to observe, perform or discharge any of Borrower’s obligations, covenants, conditions or agreements under the Interest Rate Protection Agreement and otherwise comply with the covenants set forth in Section 2.8 hereof;
(r) if (A) Borrower shall fail in the payment of any rent, additional rent or other charge mentioned in or made payable by the Ground Lease as and when such rent or other charge is payable (unless waived by the landlord under the Ground Lease) and Borrower does not cure such failure prior to the expiration of any grace period as expressly provided for in the Ground Lease, (B) there shall occur any default by Borrower, as tenant under the Ground Lease, in the observance or performance of any term, covenant or condition of the Ground Lease on the part of Borrower, to be observed or performed (unless waived by the landlord under the Ground Lease) and Borrower does not cure such other lease and/or management agreementfailure prior to the expiration of any grace period as expressly provided for in the Ground Lease, (C) if any one or any Operating more of the events referred to in the Ground Lease Guaranty shall occur which would cause the Ground Lease to terminate without notice or action by the landlord under the Ground Lease or which would entitle the landlord to terminate the Ground Lease and the term thereof by giving notice to Borrower, as tenant thereunder (or such other operating lease guarantyunless waived by the landlord under the Ground Lease), (D) if the leasehold estate created by the Ground Lease shall be surrendered or any Operating the Ground Lease or any Operating Lease Guaranty shall be terminated or canceled for any reason or under any circumstances whatsoever, except with the consent of Lender; whatsoever or (E) if any of the terms, covenants or conditions of any Operating the Ground Lease (or such other lease and/or management agreement) or any Operating Lease Guaranty (or such other operating lease guaranty) shall in any manner be modified, changed, supplemented, altered, restated or amended without the consent of Lender except as may otherwise expressly permitted in by this Agreement;
(xiiis) intentionally omittedif (i) any Lease is canceled, terminated, surrendered or expires pursuant to its terms, unless in such case Borrower enters into a replacement thereof in accordance with the applicable terms and provisions hereof or (ii) a Lease Event occurs;
(xivt) if any Affiliate of any Borrower that is or becomes a party to the Windstorm Insurance Intercreditor Agreement is in default of any of its material obligations under the Windstorm Insurance Intercreditor Agreement beyond any applicable notice and cure periods contained therein; or if the Windstorm Insurance Intercreditor Agreement shall be surrendered, terminated or canceled for any reason or under any circumstances whatsoever, except with the consent of Lender; or if any of the terms, covenants or conditions of the Windstorm Insurance Intercreditor Agreement shall in any manner be modified, changed, supplemented, altered, restated or amended without the consent of Lender;
(xv) if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower fails to comply with the covenants as to Prescribed Laws set forth in Section 5.1.1 hereof;
(xvi) if a material default has occurred and continues beyond any applicable cure period under any Management Agreement and if such default permits the Manager, the Operating Company or the Mortgage Borrower party thereto to terminate or cancel the Management Agreement in question;
(xvii) any Gaming License shall be refused, suspended, revoked, modified in a materially adverse manner or canceled or allowed to lapse or any proceeding is commenced by any Governmental Authority for the purpose of suspending, revoking or canceling any Gaming License in any materially adverse respect, or any Governmental Authority shall have appointed a conservator, supervisor or trustee to or for any of the Casino Components and, in each case of the foregoing, such action could reasonably be expected to (A) have an Individual Material Adverse Effect, (B) materially and adversely affect the continued operation of the Casino Components in the usual course of business and in substantially the same manner and to at least the same standard as was maintained prior to such action, or (C) result in any material decrease in the then expected cash flow and revenues to be derived from the Casino Components;
(xviii) if any Borrower shall continue to be in Default default under any of the other termsterm, covenants covenant or conditions condition of this Agreement not specified in subsections (a) through (r) above or not otherwise specifically specified as an Event of Default herein, (i) to (xvii) above, for more than ten (10) days after notice to Borrower from Lender, in the case of any Default default which can be cured by the payment of a sum of money, money or (ii) for thirty (30) days after notice from Lender Lender, in the case of any other Default; provideddefault, however, provided that if such non-monetary Default is susceptible of cure but default cannot reasonably be cured within such thirty (30) day period and provided further that such Borrower shall have commenced to cure such Default default within such thirty (30) day period and thereafter diligently and expeditiously proceeds to cure the same, such thirty (30) day period shall be extended for such time so long as is reasonably necessary for such it shall require Borrower in the exercise of due diligence to cure such Defaultdefault, it being agreed that no such additional extension shall be for a period not in excess of ninety (90) days (subject to exceed one hundred twenty (120) days;further extension by Lender, in Lender’s sole discretion); and/or
(xixu) if there shall be a default under any of the other Loan Documents beyond any applicable cure periods contained in such documentsLoan Documents, whether as to any Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Borrower or the Collateral, the Senior Mezzanine Collateral or any Individual Property, or if any other such event shall occur or condition shall exist, if the effect of such event or condition is to accelerate the maturity of any portion of the Debt or to permit Lender to accelerate the maturity of all or any portion of the Debt;
(xx) if the Liens created pursuant to any Loan Document shall cease to be a fully protected enforceable first priority security interest in the Collateral, or any portion of the Collateral is Transferred without Lender’s prior written consent except as permitted hereunder; or
(xxi) if a Mortgage Loan Event of Default or Senior Mezzanine Loan Event of Default shall occur.
(b) Upon the occurrence of an Event of Default (other than an Event of Default described in clauses (vi) or (vii) above) and at any time thereafter, in addition to any other rights or remedies available to it pursuant to this Agreement and the other Loan Documents or at law or in equity, Lender may take such action, without notice or demand, that Lender deems advisable to protect and enforce its rights against Borrower and in and to all or any of the Collateral, including, without limitation, declaring the Debt to be immediately due and payable, and Lender may enforce or avail itself of any or all rights or remedies provided in the Loan Documents and may exercise all the rights and remedies of a secured party under the Uniform Commercial Code, as adopted and enacted by the State or States where any of the Collateral is located, against Borrower and any or all of the Collateral, including, without limitation, all rights or remedies available at law or in equity; and upon any Event of Default described in clauses (vi) or (vii) above, the Debt and all other obligations of Borrower hereunder and under the other Loan Documents shall immediately and automatically become due and payable, without notice or demand, and Borrower hereby expressly waives any such notice or demand, anything contained herein or in any other Loan Document to the contrary notwithstanding.
Appears in 2 contracts
Samples: Loan Agreement (American Realty Capital Trust III, Inc.), Loan Agreement (American Realty Capital Trust III, Inc.)
Event of Default. (a) Each of the following events shall constitute an event of default hereunder (an “Event of Default”):
(i) if (A) any portion of the Debt is not paid in full on the Maturity Date, (B) the Debt Service is not paid in full on or before the related Payment Date, (C) any required deposits to the Cash Management Account or the Blocked Account are not paid in full on or before the date due, or (CD) any other portion of the Debt is not paid within five (5) days of when due;
(ii) if any of the Taxes or Other Charges are not paid (with respect to each or any Individual Property) prior to Delinquency;
(iii) if the Policies (with respect to each or any Individual Property) are not kept in full force and effect, or if certified copies of the Policies (for each Individual Property) are not delivered to Lender upon request (or certificates thereof, if a Policy shall be renewed and certified copies of the Policy are not immediately available upon such renewal (each Borrower agreeing in such instance to provide copies of the Policies to Lender promptly thereafter));
(iv) if any Borrower Transfers or otherwise encumbers any portion of the Properties, the Collateral or the Senior Mezzanine Collateral, or there shall otherwise occur a Transfer without Lender’s prior consent in each case, if the same is in violation of the provisions of this Agreement, the Pledge Agreement or any other Loan DocumentArticle 6 of the Mortgage;
(v) if any representation or warranty made by any Borrower or any other Loan Party herein or in any other Loan Document, or in any report, certificate, financial statement or other instrument, agreement or document or other material or written information furnished to Lender shall have been false or misleading in any material respect as of the date the representation or warranty was made (and, with respect to any such breach which is not the subject of any other subsection of this Section 8.1 and which is capable of being cured, such Borrower fails to remedy such condition within ten (10) days following notice to Borrower from Lender, in the case of any such breach which can be cured by the payment of a sum of money, or within thirty (30) days following notice from Lender in the case of any other such breach);
(vi) if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower shall make an assignment for the benefit of creditors; or if a receiver, liquidator or trustee shall be appointed for any Borrower, Senior Mezzanine Borrower or Mortgage Borrower, or if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower shall be adjudicated a bankrupt or insolvent, or if any petition for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by or against, consented to, or acquiesced in by, Borrower or Senior Mezzanine Borrower, or if any proceeding for the dissolution or liquidation of any Borrower, Senior Mezzanine Borrower or Mortgage Borrower shall be instituted; provided, however, if such appointment, adjudication, petition or proceeding was involuntary and not consented to by any Borrower, Senior Mezzanine Borrower or Mortgage Borrower, upon the same not being discharged, stayed or dismissed within ninety (90) days;
(vii) if any Operating Company, any Manager, Principal, Holdings or any Guarantor shall make an assignment for the benefit of creditors; or if a receiver, liquidator or trustee shall be appointed for any such Operating Company, any such Manager, Principal, Holdings or any such Guarantor, or if any Operating Company, any Manager, Principal, Holdings or any Guarantor shall be adjudicated a bankrupt or insolvent, or if any petition for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by or against, consented to, or acquiesced in by, any Operating Company, any Manager, Principal, Holdings or any Guarantor, or if any proceeding for the dissolution or liquidation of any Operating Company, any Manager, Principal, Holdings or any Guarantor shall be instituted; provided, however, if such appointment, adjudication, petition or proceeding was involuntary and not consented to by any such Operating Company, any such Manager, Principal, Holdings or any such Guarantor, upon the same not being discharged, stayed or dismissed within ninety (90) days;
(viii) if any Borrower attempts to assign its rights under this Agreement or any of the other Loan Documents or any interest herein or therein in contravention of the Loan Documents;
(ix) if any Borrower breaches any of its respective negative covenants contained in Section 5.2 or any covenant contained in Section 4.1.30 or Section 5.1.11 hereof (and, with respect to any such breach of any covenant set forth in Section 5.1.11 which is not the subject of any other subsection of this Section 8.1, such Borrower fails to remedy such condition within ten (10) days after notice to Borrower from Lender, in the case of any such Default under Section 5.1.11 which can be cured by the payment of a sum of money, or for thirty (30) days after notice from Lender in the case of any other such Default under Section 5.1.11);
(x) with respect to any term, covenant or provision set forth herein which specifically contains a notice requirement or grace period, if any Borrower shall be in default under such term, covenant or condition after the giving of such notice or the expiration of such grace period;
(xi) if any of the assumptions contained in the Insolvency Opinion delivered in connection with the Loan, or in the Additional Insolvency Opinion delivered subsequent to the closing of the Loan, is or shall become untrue in any material respect; or if any of the assumptions contained in the True Lease Opinion in connection with the Loan, or in the Additional True Lease Opinion delivered subsequent to the closing of the Loan, is or shall become untrue in any material respect;
(xii) if any Mortgage Borrower, any Operating Company or any Guarantor (Operating Lease) is in default of any of its material obligations under any Operating Lease (or under another lease and/or management agreement in substitution for such Operating Lease in accordance herewith) or under any such Operating Lease Guaranty (or under another operating lease guaranty in substitution for such Operating Lease Guaranty in accordance herewith) beyond any applicable notice and cure periods contained therein; or if any Operating Lease (or such other lease and/or management agreement) or any Operating Lease Guaranty (or such other operating lease guaranty) shall be surrendered or any Operating Lease or any Operating Lease Guaranty shall be terminated or canceled for any reason or under any circumstances whatsoever, except with the consent of Lender; or if any of the terms, covenants or conditions of any Operating Lease (or such other lease and/or management agreement) or any Operating Lease Guaranty (or such other operating lease guaranty) shall in any manner be modified, changed, supplemented, altered, restated or amended without the consent of Lender except as may otherwise expressly permitted in this Agreement;
(xiii) intentionally omittedif HOC, any Borrower or any IP Licensor is in default of any of its material obligations under any of any IP Licenses beyond any applicable notice and cure periods contained therein; or if any of the IP Licenses shall be surrendered, terminated or canceled for any reason or under any circumstances whatsoever, except with the prior written consent of Lender; or if any of the terms, covenants or conditions of any IP Licenses shall in any material respect be modified, changed, supplemented, altered, restated or amended without the prior written consent of Lender;
(xiv) if any Affiliate of any Borrower that is or becomes a party to the Windstorm Insurance Intercreditor Agreement is in default of any of its material obligations under the Windstorm Insurance Intercreditor Agreement beyond any applicable notice and cure periods contained therein; or if the Windstorm Insurance Intercreditor Agreement shall be surrendered, terminated or canceled for any reason or under any circumstances whatsoever, except with the consent of Lender; or if any of the terms, covenants or conditions of the Windstorm Insurance Intercreditor Agreement shall in any manner be modified, changed, supplemented, altered, restated or amended without the consent of Lender;
(xv) if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower fails to comply with the covenants as to Prescribed Laws set forth in Section 5.1.1 hereof;
(xvi) if a material default has occurred and continues beyond any applicable cure period under any Management Agreement and if such default permits the Manager, the Operating Company or the Mortgage Borrower party thereto to terminate or cancel the Management Agreement in question;
(xvii) any Gaming License shall be refused, suspended, revoked, modified in a materially adverse manner or canceled or allowed to lapse or any proceeding is commenced by any Governmental Authority for the purpose of suspending, revoking or canceling any Gaming License in any materially adverse respect, or any Governmental Authority shall have appointed a conservator, supervisor or trustee to or for any of the Casino Components and, in each case of the foregoing, such action could reasonably be expected to (A) have an Individual Material Adverse Effect, (B) materially and adversely affect the continued operation of the Casino Components in the usual course of business and in substantially the same manner and to at least the same standard as was maintained prior to such action, or (C) result in any material decrease in the then expected cash flow and revenues to be derived from the Casino Components;
(xviii) if any Borrower shall continue to be in Default under any of the other terms, covenants or conditions of this Agreement not specified in subsections (i) to (xvii) above, for ten (10) days after notice to Borrower from Lender, in the case of any Default which can be cured by the payment of a sum of money, or for thirty (30) days after notice from Lender in the case of any other Default; provided, however, that if such non-monetary Default is susceptible of cure but cannot reasonably be cured within such thirty (30) day period and provided further that such Borrower shall have commenced to cure such Default within such thirty (30) day period and thereafter diligently and expeditiously proceeds to cure the same, such thirty (30) day period shall be extended for such time as is reasonably necessary for such Borrower in the exercise of due diligence to cure such Default, such additional period not to exceed one hundred twenty (120) days;; or
(xix) if there shall be a default under any of the other Loan Documents beyond any applicable cure periods contained in such documents, whether as to any Borrower, Mortgage Borrower, Senior Mezzanine Borrower, the Collateral, the Senior Mezzanine Collateral Borrower or any Individual Property, or if any other such event shall occur or condition shall exist, if the effect of such event or condition is to accelerate the maturity of any portion of the Debt or to permit Lender to accelerate the maturity of all or any portion of the Debt;
(xx) if the Liens created pursuant to any Loan Document shall cease to be a fully protected enforceable first priority security interest in the Collateral, or any portion of the Collateral is Transferred without Lender’s prior written consent except as permitted hereunder; or
(xxi) if a Mortgage Loan Event of Default or Senior Mezzanine Loan Event of Default shall occur.
(b) Upon the occurrence of an Event of Default (other than an Event of Default described in clauses clause (vi) or (vii) above) and at any time thereafter, in addition to any other rights or remedies available to it pursuant to this Agreement and the other Loan Documents or at law or in equity, Lender may take such action, without notice or demand, that Lender deems advisable to protect and enforce its rights against Borrower and in and to all or any of the CollateralIndividual Property, including, without limitation, declaring the Debt to be immediately due and payable, and Lender may enforce or avail itself of any or all rights or remedies provided in the Loan Documents and may exercise all the rights and remedies of a secured party under the Uniform Commercial Code, as adopted and enacted by the State or States where any of the Collateral is located, against Borrower and any or all of the CollateralProperties, including, without limitation, all rights or remedies available at law or in equity; and upon any Event of Default described in clauses clause (vi) or (vii) above, the Debt and all other obligations of Borrower hereunder and under the other Loan Documents shall immediately and automatically become due and payable, without notice or demand, and Borrower hereby expressly waives any such notice or demand, anything contained herein or in any other Loan Document to the contrary notwithstanding.
Appears in 2 contracts
Samples: Loan Agreement, Loan Agreement (Harrahs Entertainment Inc)
Event of Default. (a) Each of the following events shall constitute an event of default hereunder (an “to the extent not caused by a Buyer Event of Default”):
, an Emergency or a Force Majeure Event) be a "Project Company Event of Default" which if not cured within the time permitted in this Clause (i) if (A) any portion any), shall give rise to the right on the part of the Debt is not paid Buyer to terminate this Agreement in full on accordance with Clause 17.3 (Termination Notices): any assignment or transfer by the Maturity DateProject Company of all or any of its rights, benefits or obligations hereunder to a third party in breach of Clause 21.4 (B) Assignment and Other Dealings); the Debt Service is not paid in full Project Company fails to achieve the Commercial Operation Date on or before the related Payment Commercial Operation Longstop Date; Abandonment; subject to Clause 5.3(b) (Failure to Commission at or Above Minimum Capacity), a Commissioning Failure; the Project Company is subject to an Insolvency Event; the Project Company is in breach of Clause 12.1 (Anti-Corruption) or 12.2 (Anti-Corruption Warranties); revocation or lapse of any Authorisation arising from a breach by the Project Company of such Authorisation which prevents the Project Company's ability to lawfully (A) perform its obligations under this Agreement; (B) (prior to the Commercial Operation Date) Construct the Facility; and/or (C) (on and from the Commercial Operation Date) Operate and/or Maintain the Facility and/or generate Energy and deliver such Energy to the Delivery Point; the Implementation Agreement and/or Grid Connection Agreement is terminated as a result of any other portion default of the Debt is not paid within five (5) days of when due;
(ii) if any Project Company or Shareholders thereunder; the land rights necessary for the Construction, Operation and Maintenance of the Taxes or Other Charges Facility on the Site are not paid (no longer in force in accordance with respect to each or any Individual Property) prior to Delinquency;
(iii) if the Policies (with respect to each or any Individual Property) are not kept in full force and effectapplicable Law, or if certified copies of the Policies (for each Individual Property) are not delivered to Lender upon request (or certificates thereof, if a Policy shall be renewed and certified copies of the Policy are not immediately available upon such renewal (each Borrower agreeing in such instance to provide copies of the Policies to Lender promptly thereafter));
(iv) if any Borrower Transfers or otherwise encumbers any portion of the Properties, the Collateral or the Senior Mezzanine Collateral, or there shall otherwise occur a Transfer without Lender’s prior consent in violation of the provisions of this Agreement, the Pledge Land Agreement or any other Loan Document;
(v) if any representation or warranty made by any Borrower or any other Loan Party herein or in any other Loan Document, or in any report, certificate, financial statement or other instrument, agreement or document or other material or written information furnished to Lender shall have has been false or misleading in any material respect as of the date the representation or warranty was made (and, with respect to any such breach which is not the subject of any other subsection of this Section 8.1 and which is capable of being cured, such Borrower fails to remedy such condition within ten (10) days following notice to Borrower from Lender, in the case of any such breach which can be cured by the payment of a sum of money, or within thirty (30) days following notice from Lender in the case of any other such breach);
(vi) if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower shall make an assignment for the benefit of creditors; or if a receiver, liquidator or trustee shall be appointed for any Borrower, Senior Mezzanine Borrower or Mortgage Borrower, or if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower shall be adjudicated a bankrupt or insolvent, or if any petition for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by or against, consented to, or acquiesced in by, Borrower or Senior Mezzanine Borrower, or if any proceeding for the dissolution or liquidation of any Borrower, Senior Mezzanine Borrower or Mortgage Borrower shall be instituted; provided, however, if such appointment, adjudication, petition or proceeding was involuntary and not consented to by any Borrower, Senior Mezzanine Borrower or Mortgage Borrower, upon the same not being discharged, stayed or dismissed within ninety (90) days;
(vii) if any Operating Company, any Manager, Principal, Holdings or any Guarantor shall make an assignment for the benefit of creditors; or if a receiver, liquidator or trustee shall be appointed for any such Operating Company, any such Manager, Principal, Holdings or any such Guarantor, or if any Operating Company, any Manager, Principal, Holdings or any Guarantor shall be adjudicated a bankrupt or insolvent, or if any petition for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by or against, consented to, or acquiesced in by, any Operating Company, any Manager, Principal, Holdings or any Guarantor, or if any proceeding for the dissolution or liquidation of any Operating Company, any Manager, Principal, Holdings or any Guarantor shall be instituted; provided, however, if such appointment, adjudication, petition or proceeding was involuntary and not consented to by any such Operating Company, any such Manager, Principal, Holdings or any such Guarantor, upon the same not being discharged, stayed or dismissed within ninety (90) days;
(viii) if any Borrower attempts to assign its rights under this Agreement or any of the other Loan Documents or any interest herein or therein in contravention of the Loan Documents;
(ix) if any Borrower breaches any of its respective negative covenants contained in Section 5.2 or any covenant contained in Section 4.1.30 or Section 5.1.11 hereof (and, with respect to any such breach of any covenant set forth in Section 5.1.11 which is not the subject of any other subsection of this Section 8.1, such Borrower fails to remedy such condition within ten (10) days after notice to Borrower from Lender, in the case of any such Default under Section 5.1.11 which can be cured by the payment of a sum of money, or for thirty (30) days after notice from Lender in the case of any other such Default under Section 5.1.11);
(x) with respect to any term, covenant or provision set forth herein which specifically contains a notice requirement or grace period, if any Borrower shall be in default under such term, covenant or condition after the giving of such notice or the expiration of such grace period;
(xi) if any of the assumptions contained in the Insolvency Opinion delivered in connection with the Loan, or in the Additional Insolvency Opinion delivered subsequent to the closing of the Loan, is or shall become untrue in any material respect; or if any of the assumptions contained in the True Lease Opinion in connection with the Loan, or in the Additional True Lease Opinion delivered subsequent to the closing of the Loan, is or shall become untrue in any material respect;
(xii) if any Mortgage Borrower, any Operating Company or any Guarantor (Operating Lease) is in default of any of its material obligations under any Operating Lease (or under another lease and/or management agreement in substitution for such Operating Lease in accordance herewith) or under any such Operating Lease Guaranty (or under another operating lease guaranty in substitution for such Operating Lease Guaranty in accordance herewith) beyond any applicable notice and cure periods contained therein; or if any Operating Lease (or such other lease and/or management agreement) or any Operating Lease Guaranty (or such other operating lease guaranty) shall be surrendered or any Operating Lease or any Operating Lease Guaranty shall be terminated or canceled for any reason or under any circumstances whatsoever, except with the consent of Lender; or if any of the terms, covenants or conditions of any Operating Lease (or such other lease and/or management agreement) or any Operating Lease Guaranty (or such other operating lease guaranty) shall in any manner be modified, changed, supplemented, altered, restated or amended without the consent of Lender except as may otherwise expressly permitted in this Agreement;
(xiii) intentionally omitted;
(xiv) if any Affiliate of any Borrower that is or becomes a party to the Windstorm Insurance Intercreditor Agreement is in default of any of its material obligations under the Windstorm Insurance Intercreditor Agreement beyond any applicable notice and cure periods contained therein; or if the Windstorm Insurance Intercreditor Agreement shall be surrendered, terminated or canceled for any reason or under any circumstances whatsoever, except with the consent of Lender; or if any of the terms, covenants or conditions of the Windstorm Insurance Intercreditor Agreement shall in any manner be modified, changed, supplemented, altered, restated or amended without the consent of Lender;
(xv) if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower fails to comply with the covenants as to Prescribed Laws set forth in Section 5.1.1 hereof;
(xvi) if a material default has occurred and continues beyond any applicable cure period under any Management Agreement and if such default permits the Manager, the Operating Company or the Mortgage Borrower party thereto to terminate or cancel the Management Agreement in question;
(xvii) any Gaming License shall be refused, suspended, revoked, modified in a materially adverse manner or canceled or allowed to lapse or any proceeding is commenced by any Governmental Authority for the purpose of suspending, revoking or canceling any Gaming License in any materially adverse respect, or any Governmental Authority shall have appointed a conservator, supervisor or trustee to or for any of the Casino Components andterminated, in each case as a result of any default of the foregoing, such action could reasonably be expected to (A) have an Individual Material Adverse Effect, (B) materially and adversely affect the continued operation of the Casino Components in the usual course of business and in substantially the same manner and to at least the same standard as was maintained prior to such action, Project Company; or (C) result in any material decrease in breach by the then expected cash flow and revenues to be derived from the Casino Components;
(xviii) if any Borrower shall continue to be in Default under any of the other terms, covenants or conditions Project Company of this Agreement (other than breaches expressly provided for in this Clause 17.1(a)), which is not specified remedied within fifteen (15) Business Days following notice by the Buyer stating that a breach of this Agreement has occurred and identifying the breach in subsections question. Each of the following shall (ito the extent not caused by a Project Company Event of Default or a Force Majeure Event) be a "Buyer Event of Default" which if not cured within the time permitted, shall give rise to the right on the part of the Project Company to terminate this Agreement in accordance with Clause 17.3 (xvii) aboveTermination Notices): the Project Company fails to achieve the Commercial Operation Date on or before the Commercial Operation Longstop Date as a result of the Buyer's breach of this Agreement; subject to Clause 9.2 (Billing and Payment), for ten (10) days after notice the Buyer fails to Borrower from Lender, make a payment in the case full of any Default which can be cured undisputed amount due to the Project Company under this Agreement not later than twenty (20) Business Days of its Due Date or fails to pay a disputed amount not later than twenty (20) Business Days of the resolution of the Dispute in accordance with Clause 9.3(a)(ii) (Disputed Payments); the Buyer is subject to an Insolvency Event; the Buyer is in breach of Clauses 12.1 (Anti-Corruption) or 12.2 (Anti-Corruption Warranties); any assignment or transfer by the payment of a sum of money, or for thirty (30) days after notice from Lender in the case of any other Default; provided, however, that if such non-monetary Default is susceptible of cure but cannot reasonably be cured within such thirty (30) day period and provided further that such Borrower shall have commenced to cure such Default within such thirty (30) day period and thereafter diligently and expeditiously proceeds to cure the same, such thirty (30) day period shall be extended for such time as is reasonably necessary for such Borrower in the exercise of due diligence to cure such Default, such additional period not to exceed one hundred twenty (120) days;
(xix) if there shall be a default under any of the other Loan Documents beyond any applicable cure periods contained in such documents, whether as to any Borrower, Mortgage Borrower, Senior Mezzanine Borrower, the Collateral, the Senior Mezzanine Collateral or any Individual Property, or if any other such event shall occur or condition shall exist, if the effect of such event or condition is to accelerate the maturity of any portion of the Debt or to permit Lender to accelerate the maturity Buyer of all or any portion of its rights, benefits or obligations hereunder to a third party in breach of Clause 21.4 (Assignment and Other Dealings); revocation or lapse of any Authorisation arising from any breach by the Buyer of such Authorisation (including any failure by the Buyer to perform or observe any of the Debt;
(xx) if conditions to which such Authorisation may be subject); where the Liens created pursuant to any Loan Document shall cease to be a fully protected enforceable first priority security interest Government is responsible for procuring the Site, the land rights necessary for the Construction, Operation and Maintenance of the Facility on the Site are no longer in the Collateralforce in accordance with applicable Law, or the Land Agreement is terminated in each case as a result of any portion default of the Collateral is Transferred without Lender’s prior written consent except as permitted hereunderBuyer or the Landowner; or
(xxi) if a Mortgage Loan Event any other material breach by the Buyer of Default or Senior Mezzanine Loan Event of Default shall occur.
(b) Upon the occurrence of an Event of Default this Agreement (other than an the breaches expressly provided for in this Clause 17.1(b)), which is not remedied within fifteen (15) Business Days following notice by the Project Company stating that a material breach of this Agreement has occurred and identifying the breach in question; the Grid Connection Agreement is terminated as a result of any default by the Network Operator thereunder; the Implementation Agreement is terminated as a result of a Government Default; or a Frustrating Change in Law occurs. If a Prolonged Force Majeure Event of Default described in clauses occurs provided that such Prolonged Force Majeure Event is continuing either Party may terminate this Agreement upon twenty (vi20) or (vii) above) and at any time thereafterBusiness Days' notice to the other Party, in addition to any other rights or remedies available to it pursuant to this Agreement and the other Loan Documents or at law or in equity, Lender may take such action, without notice or demand, that Lender deems advisable to protect and enforce its rights against Borrower and in and to all or any which case Clause 17.4 (Consequences of the Collateral, including, without limitation, declaring the Debt to be immediately due and payable, and Lender may enforce or avail itself of any or all rights or remedies provided in the Loan Documents and may exercise all the rights and remedies of a secured party under the Uniform Commercial Code, as adopted and enacted by the State or States where any of the Collateral is located, against Borrower and any or all of the Collateral, including, without limitation, all rights or remedies available at law or in equity; and upon any Event of Default described in clauses (viTermination) or (vii) above, the Debt and all other obligations of Borrower hereunder and under the other Loan Documents shall immediately and automatically become due and payable, without notice or demand, and Borrower hereby expressly waives any such notice or demand, anything contained herein or in any other Loan Document to the contrary notwithstandingapply.
Appears in 2 contracts
Event of Default. (a) Each of the following events shall constitute an event of default hereunder (each, an “"Event of Default”"):
(i) if (A) any portion of the Debt is not paid in full on the Maturity Date, (B) the Debt Service is not paid in full on or before the related Payment Date, or (C) any other portion of the Debt is not paid within five (5) days of when due;
(ii) if any of the Taxes or Other Charges are not paid when the same are due and payable, subject to Borrower's right to contest Taxes and Other Charges in accordance with Section 5.1(b) hereof, provided that such event shall not have been cured within five (with respect to each or any Individual Property5) prior to Delinquencydays;
(iii) if the Policies (with respect to each or any Individual Property) are not kept in full force and effect, or if certified copies of the Policies (for each Individual Property) certificates are not delivered to Lender upon request within five (or certificates thereof, if a Policy shall be renewed and certified copies of the Policy are not immediately available upon such renewal (each Borrower agreeing in such instance to provide copies of the Policies to Lender promptly thereafter))5) Business Days following request;
(iv) if any if, without Lender's prior written consent, (A) Borrower Transfers transfers or otherwise encumbers all or any portion of the Properties, the Collateral Property other than as may be permitted hereunder or the Senior Mezzanine Collateral, (B) any direct or there shall otherwise occur a Transfer without Lender’s prior consent indirect interest in violation of the provisions of this Agreement, the Pledge Agreement Borrower is transferred or any other Loan Documentassigned except as expressly permitted under Section 6.1(j) hereof;
(v) if any representation or warranty made by any Borrower or any other Loan Party herein or in any other Loan Document, or in any report, certificate, financial statement or other instrument, agreement or document furnished by Borrower in connection with this Agreement or any other material or written information furnished to Lender Loan Document, shall have been be false or misleading in any material respect as of the date the representation or warranty was made (and, with respect to any such breach which is not the subject of any other subsection of this Section 8.1 and which is capable of being cured, such Borrower fails to remedy such condition within ten (10) days following notice to Borrower from Lender, in the case of any such breach which can be cured by the payment of a sum of money, or within thirty (30) days following notice from Lender in the case of any other such breach)made;
(vi) if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower shall make an assignment for the benefit of creditors; , or if Borrower shall generally not be paying its debts as they become due;
(vii) if a receiver, liquidator or trustee shall be appointed for any Borrower, Senior Mezzanine Borrower or Mortgage Borrower, or if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower shall be adjudicated a bankrupt or insolvent, or if any petition for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by or against, consented to, or acquiesced in by, Borrower or Senior Mezzanine Borrower, or if any proceeding for the dissolution or liquidation of any Borrower, Senior Mezzanine Borrower or Mortgage Borrower shall be instituted; provided, however, and if such appointment, adjudication, petition or proceeding was involuntary and not consented to by any Borrower, Senior Mezzanine Borrower or Mortgage Borrower, upon the same is not being discharged, stayed or dismissed within ninety sixty (90) days;
(vii) if any Operating Company, any Manager, Principal, Holdings or any Guarantor shall make an assignment for the benefit of creditors; or if a receiver, liquidator or trustee shall be appointed for any such Operating Company, any such Manager, Principal, Holdings or any such Guarantor, or if any Operating Company, any Manager, Principal, Holdings or any Guarantor shall be adjudicated a bankrupt or insolvent, or if any petition for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by or against, consented to, or acquiesced in by, any Operating Company, any Manager, Principal, Holdings or any Guarantor, or if any proceeding for the dissolution or liquidation of any Operating Company, any Manager, Principal, Holdings or any Guarantor shall be instituted; provided, however, if such appointment, adjudication, petition or proceeding was involuntary and not consented to by any such Operating Company, any such Manager, Principal, Holdings or any such Guarantor, upon the same not being discharged, stayed or dismissed within ninety (9060) days;
(viii) if any Borrower attempts to assign its respective rights under this Agreement in contravention of the Loan Documents or any of the other Loan Documents or any interest herein or therein in contravention of the Loan Documentstherein;
(ix) if any Borrower breaches defaults in any of its respective negative covenants contained in Section 5.2 6.1 or any covenant contained in Section 4.1.30 or Section 5.1.11 hereof (and, with respect to any such breach of any covenant set forth in Section 5.1.11 which is not the subject of any other subsection of this Section 8.1, such Borrower fails to remedy such condition within ten (104.1(dd) days after notice to Borrower from Lender, in the case of any such Default under Section 5.1.11 which can be cured by the payment of a sum of money, or for thirty (30) days after notice from Lender in the case of any other such Default under Section 5.1.11)hereof;
(x) with respect if an Event of Default as defined or described in any of the other Loan Documents occurs, whether as to Borrower or the Property, or if any other such event shall occur or condition shall exist, if the effect of such event or condition is to accelerate the maturity of any portion of the Debt or to permit Lender to accelerate the maturity of all or any portion of the Debt;
(xi) if Borrower shall be in default of its obligations to make deposits into the Required Repair Fund or the Tax and Insurance Escrow Fund or the Capital Reserve Fund, provided that such event shall not have been cured within five (5) days;
(xii) if Borrower shall be in default under any term, covenant or provision set forth herein which specifically contains a notice requirement or grace period, if any Borrower shall be in default under such term, covenant or condition period after the giving of such notice or the expiration of such grace period;
(xi) if any of the assumptions contained in the Insolvency Opinion delivered in connection with the Loan, or in the Additional Insolvency Opinion delivered subsequent to the closing of the Loan, is or shall become untrue in any material respect; or if any of the assumptions contained in the True Lease Opinion in connection with the Loan, or in the Additional True Lease Opinion delivered subsequent to the closing of the Loan, is or shall become untrue in any material respect;
(xii) if any Mortgage Borrower, any Operating Company or any Guarantor (Operating Lease) is in default of any of its material obligations under any Operating Lease (or under another lease and/or management agreement in substitution for such Operating Lease in accordance herewith) or under any such Operating Lease Guaranty (or under another operating lease guaranty in substitution for such Operating Lease Guaranty in accordance herewith) beyond any applicable notice and cure periods contained therein; or if any Operating Lease (or such other lease and/or management agreement) or any Operating Lease Guaranty (or such other operating lease guaranty) shall be surrendered or any Operating Lease or any Operating Lease Guaranty shall be terminated or canceled for any reason or under any circumstances whatsoever, except with the consent of Lender; or if any of the terms, covenants or conditions of any Operating Lease (or such other lease and/or management agreement) or any Operating Lease Guaranty (or such other operating lease guaranty) shall in any manner be modified, changed, supplemented, altered, restated or amended without the consent of Lender except as may otherwise expressly permitted in this Agreement;or
(xiii) intentionally omitted;
(xiv) if any Affiliate of any Borrower that is or becomes a party to the Windstorm Insurance Intercreditor Agreement is in default of any of its material obligations under the Windstorm Insurance Intercreditor Agreement beyond any applicable notice and cure periods contained therein; or if the Windstorm Insurance Intercreditor Agreement shall be surrendered, terminated or canceled for any reason or under any circumstances whatsoever, except with the consent of Lender; or if any of the terms, covenants or conditions of the Windstorm Insurance Intercreditor Agreement shall in any manner be modified, changed, supplemented, altered, restated or amended without the consent of Lender;
(xv) if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower fails to comply with the covenants as to Prescribed Laws set forth in Section 5.1.1 hereof;
(xvi) if a material default has occurred and continues beyond any applicable cure period under any Management Agreement and if such default permits the Manager, the Operating Company or the Mortgage Borrower party thereto to terminate or cancel the Management Agreement in question;
(xvii) any Gaming License shall be refused, suspended, revoked, modified in a materially adverse manner or canceled or allowed to lapse or any proceeding is commenced by any Governmental Authority for the purpose of suspending, revoking or canceling any Gaming License in any materially adverse respect, or any Governmental Authority shall have appointed a conservator, supervisor or trustee to or for any of the Casino Components and, in each case of the foregoing, such action could reasonably be expected to (A) have an Individual Material Adverse Effect, (B) materially and adversely affect the continued operation of the Casino Components in the usual course of business and in substantially the same manner and to at least the same standard as was maintained prior to such action, or (C) result in any material decrease in the then expected cash flow and revenues to be derived from the Casino Components;
(xviii) if any Borrower shall continue to be in Default under any of the other terms, covenants or conditions of this Agreement not specified in subsections (i) to (xviixii) above, for ten fifteen (1015) days after notice to Borrower from Lender, in the case of any Default which can be cured by the payment of a sum of money, or for thirty (30) days after notice from Lender in the case of any other Default; provided, however, that if such non-monetary Default is susceptible of cure but cannot reasonably be cured within such thirty (30) -day period and provided further that such Borrower shall have commenced to cure such Default within such thirty (30) -day period and thereafter diligently and expeditiously proceeds to cure the same, such thirty (30) -day period shall be extended for such an additional period of time as is reasonably necessary for such Borrower in the exercise of due diligence to cure such Default, such additional period not to exceed one hundred twenty sixty (12060) days;
(xix) if there shall be a default under any of the other Loan Documents beyond any applicable cure periods contained in such documents, whether as to any Borrower, Mortgage Borrower, Senior Mezzanine Borrower, the Collateral, the Senior Mezzanine Collateral or any Individual Property, or if any other such event shall occur or condition shall exist, if the effect of such event or condition is to accelerate the maturity of any portion of the Debt or to permit Lender to accelerate the maturity of all or any portion of the Debt;
(xx) if the Liens created pursuant to any Loan Document shall cease to be a fully protected enforceable first priority security interest in the Collateral, or any portion of the Collateral is Transferred without Lender’s prior written consent except as permitted hereunder; or
(xxi) if a Mortgage Loan Event of Default or Senior Mezzanine Loan Event of Default shall occur.
(b) Upon the occurrence of an Event of Default (other than an Event of Default described in clauses (vi), (vii) or (viiviii) above) and at any time thereafterthereafter Lender may, in addition to any other rights or remedies available to it pursuant to this Agreement and the other Loan Documents or at law or in equity, Lender may take such action, without notice or demand, that Lender deems advisable to protect and enforce its rights against Borrower and in and to all or any of the CollateralProperty, including, without limitation, including declaring the Debt to be immediately due and payable, and Lender may enforce or avail itself of any or all rights or remedies provided in the Loan Documents and may exercise all the rights and remedies of a secured party under the Uniform Commercial Code, as adopted and enacted by the State or States where any of the Collateral is located, against Borrower and any or all of the CollateralProperty, including, without limitation, including all rights or remedies available at law or in equity; and upon any Event of Default described in clauses (vi), (vii) or (viiviii) above, the Debt and all other obligations of Borrower hereunder and under the other Loan Documents shall immediately and automatically become due and payable, without notice or demand, and Borrower hereby expressly waives any such notice or demand, anything contained herein or in any other Loan Document to the contrary notwithstanding.
Appears in 2 contracts
Samples: Loan Agreement (Prime Group Realty Trust), Loan Agreement (Prime Group Realty Trust)
Event of Default. (a) Each The occurrence of any of the following events shall constitute an event of default hereunder (an “"Event of Default”):") hereunder:
(i) if any default in the prompt and complete payment and performance of the Note; or (Aii) any portion default in the prompt and complete payment and performance of the Debt any term, condition or covenant in favor of Secured Party contained in this Agreement or in any other agreement or instrument delivered pursuant thereto or hereto; in each case where such default is not paid cured within any applicable cure period which may be granted in full on the Maturity DateNote or any such agreement or instrument with respect to such default or, (B) the Debt Service if no specific cure period is granted with respect to such default, where such default is not paid in full on cured within ten Business Days after notice thereof from Secured Party or before the related Payment Date, his successors or (C) any other portion of the Debt is not paid within five (5) days of when dueassigns;
(iib) if any the Bankruptcy of the Taxes Debtor or Other Charges are not paid (with respect to each or any Individual Property) prior to Delinquencythe Company;
(iiic) if the Policies (with respect transfer of property by the Debtor or the Company under circumstances that would entitle a trustee in bankruptcy or similar fiduciary to each or any Individual Property) are not kept in full force and effectavoid such transfer under the federal bankruptcy laws, as amended, or if certified copies under any other laws, whether federal or state, for the relief of the Policies (for each Individual Property) are not delivered to Lender upon request (debtors, now or certificates thereof, if a Policy shall be renewed and certified copies of the Policy are not immediately available upon such renewal (each Borrower agreeing in such instance to provide copies of the Policies to Lender promptly thereafter))hereafter existing;
(ivd) if any Borrower Transfers or otherwise encumbers any portion the cessation of the Properties, the Collateral or the Senior Mezzanine Collateral, or there shall otherwise occur Company to be a Transfer without Lender’s prior consent in violation of the provisions of this Agreement, the Pledge Agreement or any other Loan Documentgoing concern;
(ve) if any representation or warranty made by any Borrower Debtor to Secured Party hereunder should prove to be false or any other Loan Party herein or misleading;
(f) if final judgment for the payment of money in any other Loan Document, or in any report, certificate, financial statement or other instrument, agreement or document or other material or written information furnished to Lender excess of $100,000.00 shall have been false rendered by any court of competent jurisdiction against Debtor or misleading in any material respect as the Company and the same has not been discharged or varied or execution thereunder stayed, whether pursuant to appeal or otherwise, within 30 days of the date the representation or warranty was made (and, with respect to any such breach which is not the subject of any other subsection of this Section 8.1 and which is capable of being cured, such Borrower fails to remedy such condition within ten (10) days following notice to Borrower from Lender, in the case of any such breach which can be cured by the payment of a sum of money, or within thirty (30) days following notice from Lender in the case of any other such breach);
(vi) if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower shall make an assignment for the benefit of creditors; or if a receiver, liquidator or trustee shall be appointed for any Borrower, Senior Mezzanine Borrower or Mortgage Borrowerentry thereof, or if any Borrowerfinal order, Senior Mezzanine Borrower ruling or Mortgage Borrower shall be adjudicated a bankrupt or insolvent, or if any petition for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by or against, consented to, or acquiesced in by, Borrower or Senior Mezzanine Borrower, or if any proceeding for the dissolution or liquidation direction of any Borrower, Senior Mezzanine Borrower or Mortgage Borrower shall be instituted; provided, however, if such appointment, adjudication, petition or proceeding was involuntary and not consented to by any Borrower, Senior Mezzanine Borrower or Mortgage Borrower, upon the same not being discharged, stayed or dismissed within ninety (90) days;
(vii) if any Operating Company, any Manager, Principal, Holdings or any Guarantor shall make an assignment for the benefit of creditors; or if a receiver, liquidator or trustee shall be appointed for any such Operating Company, any such Manager, Principal, Holdings or any such Guarantor, or if any Operating Company, any Manager, Principal, Holdings or any Guarantor shall be adjudicated a bankrupt or insolvent, or if any petition for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by or against, consented to, or acquiesced in by, any Operating Company, any Manager, Principal, Holdings or any Guarantor, or if any proceeding for the dissolution or liquidation of any Operating Company, any Manager, Principal, Holdings or any Guarantor shall be instituted; provided, however, if such appointment, adjudication, petition or proceeding was involuntary and not consented to by any such Operating Company, any such Manager, Principal, Holdings or any such Guarantor, upon the same not being discharged, stayed or dismissed within ninety (90) days;
(viii) if any Borrower attempts to assign its rights under this Agreement or any of the other Loan Documents or any interest herein or therein in contravention of the Loan Documents;
(ix) if any Borrower breaches any of its respective negative covenants contained in Section 5.2 or any covenant contained in Section 4.1.30 or Section 5.1.11 hereof (and, competent authority is issued with respect to any such breach of any covenant set forth in Section 5.1.11 which is not Debtor or the subject of any other subsection of this Section 8.1, such Borrower fails to remedy such condition within ten (10) days after notice to Borrower from Lender, Company that materially adversely affects Debtor or the Company or that requires a substantial or material adverse change in the case business or affairs of any such Default under Section 5.1.11 which can be cured by the payment of a sum of money, or for thirty (30) days after notice from Lender in the case of any other such Default under Section 5.1.11);
(x) with respect to any term, covenant or provision set forth herein which specifically contains a notice requirement or grace period, if any Borrower shall be in default under such term, covenant or condition after the giving of such notice Debtor or the expiration of such grace period;
(xi) if any of the assumptions contained in the Insolvency Opinion delivered in connection with the Loan, or in the Additional Insolvency Opinion delivered subsequent to the closing of the Loan, is or shall become untrue in any material respect; or if any of the assumptions contained in the True Lease Opinion in connection with the Loan, or in the Additional True Lease Opinion delivered subsequent to the closing of the Loan, is or shall become untrue in any material respect;
(xii) if any Mortgage Borrower, any Operating Company or any Guarantor (Operating Lease) is in default material disposition of any of its material obligations under any Operating Lease (or under another lease and/or management agreement in substitution for such Operating Lease in accordance herewith) or under any such Operating Lease Guaranty (or under another operating lease guaranty in substitution for such Operating Lease Guaranty in accordance herewith) beyond any applicable notice and cure periods contained therein; or if any Operating Lease (or such other lease and/or management agreement) or any Operating Lease Guaranty (or such other operating lease guaranty) shall be surrendered or any Operating Lease or any Operating Lease Guaranty shall be terminated or canceled for any reason or under any circumstances whatsoever, except with the consent of Lender; or if any assets of the terms, covenants Debtor or conditions of any Operating Lease (or such other lease and/or management agreement) or any Operating Lease Guaranty (or such other operating lease guaranty) shall in any manner be modified, changed, supplemented, altered, restated or amended without the consent of Lender except as may otherwise expressly permitted in this Agreement;Company; or
(xiii) intentionally omitted;
(xiv) if any Affiliate of any Borrower that is or becomes a party to the Windstorm Insurance Intercreditor Agreement is in default of any of its material obligations under the Windstorm Insurance Intercreditor Agreement beyond any applicable notice and cure periods contained therein; or if the Windstorm Insurance Intercreditor Agreement shall be surrendered, terminated or canceled for any reason or under any circumstances whatsoever, except with the consent of Lender; or if any of the terms, covenants or conditions of the Windstorm Insurance Intercreditor Agreement shall in any manner be modified, changed, supplemented, altered, restated or amended without the consent of Lender;
(xv) if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower fails to comply with the covenants as to Prescribed Laws set forth in Section 5.1.1 hereof;
(xvi) if a material default has occurred and continues beyond any applicable cure period under any Management Agreement and if such default permits the Manager, the Operating Company or the Mortgage Borrower party thereto to terminate or cancel the Management Agreement in question;
(xvii) any Gaming License shall be refused, suspended, revoked, modified in a materially adverse manner or canceled or allowed to lapse or any proceeding is commenced by any Governmental Authority for the purpose of suspending, revoking or canceling any Gaming License in any materially adverse respect, or any Governmental Authority shall have appointed a conservator, supervisor or trustee to or for any of the Casino Components and, in each case of the foregoing, such action could reasonably be expected to (A) have an Individual Material Adverse Effect, (B) materially and adversely affect the continued operation of the Casino Components in the usual course of business and in substantially the same manner and to at least the same standard as was maintained prior to such action, or (C) result in any material decrease in the then expected cash flow and revenues to be derived from the Casino Components;
(xviii) if any Borrower shall continue to be in Default under any of the other terms, covenants or conditions of this Agreement not specified in subsections (i) to (xvii) above, for ten (10) days after notice to Borrower from Lender, in the case of any Default which can be cured by the payment of a sum of money, or for thirty (30) days after notice from Lender in the case of any other Default; provided, however, that if such non-monetary Default is susceptible of cure but cannot reasonably be cured within such thirty (30) day period and provided further that such Borrower shall have commenced to cure such Default within such thirty (30) day period and thereafter diligently and expeditiously proceeds to cure the same, such thirty (30) day period shall be extended for such time as is reasonably necessary for such Borrower in the exercise of due diligence to cure such Default, such additional period not to exceed one hundred twenty (120) days;
(xixg) if there shall be a default under any of the other Loan Documents beyond any applicable cure periods contained in such documents, whether as to any Borrower, Mortgage Borrower, Senior Mezzanine Borrower, the Collateral, the Senior Mezzanine Collateral or any Individual Property, or if any other such event shall occur or condition shall exist, if the effect of such event or condition is to accelerate the maturity of any portion of the Debt or to permit Lender to accelerate the maturity of all or any portion of the Debt;
(xx) if the Liens created pursuant to any Loan Document shall cease to be a fully protected enforceable first priority security interest materially adverse change in the Collateral, financial condition of Debtor or any portion of the Collateral is Transferred without Lender’s prior written consent except as permitted hereunder; or
(xxi) if a Mortgage Loan Event of Default or Senior Mezzanine Loan Event of Default shall occurCompany.
(b) Upon the occurrence of an Event of Default (other than an Event of Default described in clauses (vi) or (vii) above) and at any time thereafter, in addition to any other rights or remedies available to it pursuant to this Agreement and the other Loan Documents or at law or in equity, Lender may take such action, without notice or demand, that Lender deems advisable to protect and enforce its rights against Borrower and in and to all or any of the Collateral, including, without limitation, declaring the Debt to be immediately due and payable, and Lender may enforce or avail itself of any or all rights or remedies provided in the Loan Documents and may exercise all the rights and remedies of a secured party under the Uniform Commercial Code, as adopted and enacted by the State or States where any of the Collateral is located, against Borrower and any or all of the Collateral, including, without limitation, all rights or remedies available at law or in equity; and upon any Event of Default described in clauses (vi) or (vii) above, the Debt and all other obligations of Borrower hereunder and under the other Loan Documents shall immediately and automatically become due and payable, without notice or demand, and Borrower hereby expressly waives any such notice or demand, anything contained herein or in any other Loan Document to the contrary notwithstanding.
Appears in 2 contracts
Samples: Security Agreement (Liberty Digital Inc), Security Agreement (Liberty Digital Inc)
Event of Default. (a) Each of the following events shall constitute an event of default hereunder (an “"Event of Default”"):
(i) if (A) any portion of the Debt is not paid in full on the Maturity Date, (B) the Debt Service is not paid in full on or before the related Payment Date, or (C) any other portion of the Debt is not paid within five (5) days of when due;
(ii) if any of the Taxes or Other Charges are not paid (with respect to each or any Individual Property) prior to Delinquencywhen the same are due and payable;
(iii) if the Policies (with respect to each or any Individual Property) are not kept in full force and effect, or if certified copies of the Policies (for each Individual Property) are not delivered to Lender upon request (or certificates thereof, if a Policy shall be renewed and certified copies of the Policy are not immediately available upon such renewal (each Borrower agreeing in such instance to provide copies of the Policies to Lender promptly thereafter))request;
(iv) if any Borrower Transfers transfers or otherwise encumbers any portion of the Properties, the Collateral or the Senior Mezzanine Collateral, or there shall otherwise occur a Transfer Property without Lender’s 's prior written consent in violation of or otherwise violates the provisions of Section 5.2.13 of this Agreement, the Pledge Agreement or any other Loan Document;
(v) if any representation or warranty made by any Borrower or any other Loan Party herein or in any other Loan Document, or in any report, certificate, financial statement or other instrument, agreement or document or other material or written information furnished to Lender shall have been false or misleading in any material respect as of the date the representation or warranty was made (and, with respect to any such breach which is not the subject of any other subsection of this Section 8.1 and which is capable of being cured, such Borrower fails to remedy such condition within ten (10) days following notice to Borrower from Lender, in the case of any such breach which can be cured by the payment of a sum of money, or within thirty (30) days following notice from Lender in the case of any other such breach)made;
(vi) if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower any guarantor under any guaranty issued in connection with the Loan shall make an assignment for the benefit of creditors; or ;
(vii) if a receiver, liquidator or trustee shall be appointed for any Borrower, Senior Mezzanine Borrower or Mortgage Borrower, any guarantor under any guarantee issued in connection with the Loan or if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower such guarantor shall be adjudicated a bankrupt or insolvent, or if any petition for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by or against, consented to, or acquiesced in by, Borrower or Senior Mezzanine Borrowersuch guarantor, or if any proceeding for the dissolution or liquidation of any Borrower, Senior Mezzanine Borrower or Mortgage Borrower such guarantor shall be instituted; provided, however, if such appointment, adjudication, petition or proceeding was involuntary and not consented to by any Borrower, Senior Mezzanine Borrower or Mortgage Borrowersuch guarantor, upon the same not being discharged, stayed or dismissed within ninety thirty (90) days;
(vii) if any Operating Company, any Manager, Principal, Holdings or any Guarantor shall make an assignment for the benefit of creditors; or if a receiver, liquidator or trustee shall be appointed for any such Operating Company, any such Manager, Principal, Holdings or any such Guarantor, or if any Operating Company, any Manager, Principal, Holdings or any Guarantor shall be adjudicated a bankrupt or insolvent, or if any petition for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by or against, consented to, or acquiesced in by, any Operating Company, any Manager, Principal, Holdings or any Guarantor, or if any proceeding for the dissolution or liquidation of any Operating Company, any Manager, Principal, Holdings or any Guarantor shall be instituted; provided, however, if such appointment, adjudication, petition or proceeding was involuntary and not consented to by any such Operating Company, any such Manager, Principal, Holdings or any such Guarantor, upon the same not being discharged, stayed or dismissed within ninety (9030) days;
(viii) if any Borrower attempts to assign its rights under this Agreement or any of the other Loan Documents or any interest herein or therein in contravention of the Loan Documents;
(ix) if any Borrower breaches any of its respective the negative covenants contained in Section 5.2 or any covenant contained in Section 4.1.30 or Section 5.1.11 hereof (and, with respect to any such breach of any covenant set forth in Section 5.1.11 which is not the subject of any other subsection of this Section 8.1, such Borrower fails to remedy such condition within ten (10) days after notice to Borrower from Lender, in the case of any such Default under Section 5.1.11 which can be cured by the payment of a sum of money, or for thirty (30) days after notice from Lender in the case of any other such Default under Section 5.1.11)hereof;
(x) with respect to any term, covenant or provision set forth herein which specifically contains a notice requirement or grace period, if any Borrower shall be in default under such term, covenant or condition after the giving of such notice or the expiration of such grace period;
(xi) if any of the assumptions contained in the Insolvency Opinion delivered in connection with the Loan, or in the Additional Insolvency Opinion delivered subsequent to the closing of the Loan, is or shall become untrue in any material respect; or if any of the assumptions contained in the True Lease Opinion in connection with the Loan, or in the Additional True Lease Opinion delivered subsequent to the closing of the Loan, is or shall become untrue in any material respect[intentionally deleted];
(xii) if any Mortgage Borrower, any Operating Company or any Guarantor (Operating Lease) is in default of any of its material obligations under any Operating Lease (or under another lease and/or management agreement in substitution for such Operating Lease in accordance herewith) or under any such Operating Lease Guaranty (or under another operating lease guaranty in substitution for such Operating Lease Guaranty in accordance herewith) beyond any applicable notice and cure periods contained therein; or if any Operating Lease (or such other lease and/or management agreement) or any Operating Lease Guaranty (or such other operating lease guaranty) shall be surrendered or any Operating Lease or any Operating Lease Guaranty shall be terminated or canceled for any reason or under any circumstances whatsoever, except with the consent of Lender; or if any of the terms, covenants or conditions of any Operating Lease (or such other lease and/or management agreement) or any Operating Lease Guaranty (or such other operating lease guaranty) shall in any manner be modified, changed, supplemented, altered, restated or amended without the consent of Lender except as may otherwise expressly permitted in this Agreement[intentionally deleted];
(xiii) intentionally omitted;
(xiv) if any Affiliate of any Borrower that is or becomes a party to the Windstorm Insurance Intercreditor Agreement is in default of any of its material obligations under the Windstorm Insurance Intercreditor Agreement beyond any applicable notice and cure periods contained therein; or if the Windstorm Insurance Intercreditor Agreement shall be surrendered, terminated or canceled for any reason or under any circumstances whatsoever, except with the consent of Lender; or if any of the terms, covenants or conditions of the Windstorm Insurance Intercreditor Agreement shall in any manner be modified, changed, supplemented, altered, restated or amended without the consent of Lender;
(xv) if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower fails to comply with the covenants as to Prescribed Laws set forth in Section 5.1.1 hereof;
(xvi) if a material default has occurred and continues beyond any applicable cure period under any Management Agreement and if such default permits the Manager, the Operating Company or the Mortgage Borrower party thereto to terminate or cancel the Management Agreement in question;
(xvii) any Gaming License shall be refused, suspended, revoked, modified in a materially adverse manner or canceled or allowed to lapse or any proceeding is commenced by any Governmental Authority for the purpose of suspending, revoking or canceling any Gaming License in any materially adverse respect, or any Governmental Authority shall have appointed a conservator, supervisor or trustee to or for any of the Casino Components and, in each case of the foregoing, such action could reasonably be expected to (A) have an Individual Material Adverse Effect, (B) materially and adversely affect the continued operation of the Casino Components in the usual course of business and in substantially the same manner and to at least the same standard as was maintained prior to such action, or (C) result in any material decrease in the then expected cash flow and revenues to be derived from the Casino Components;
(xviii) if any Borrower shall continue to be in Default under any of the other terms, covenants or conditions of this Agreement not specified in subsections (i) to (xviix) above, for ten (10) days after notice to Borrower from Lender, in the case of any Default which can be cured by the payment of a sum of money, or for thirty (30) days after notice from Lender in the case of any other Default; provided, however, that if such non-monetary Default is susceptible of cure but cannot reasonably be cured within such thirty (30) -day period and provided further that such Borrower shall have commenced to cure such Default within such thirty (30) -day period and thereafter diligently and expeditiously proceeds to cure the same, such thirty (30) -day period shall be extended for such time as is reasonably necessary for such Borrower in the exercise of due diligence to cure such Default, such additional period not to exceed one hundred twenty sixty (12060) days;; or
(xixxiv) if there shall be a default under any of the other Loan Documents beyond any applicable cure periods contained in such documents, whether as to any Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Borrower or the Collateral, the Senior Mezzanine Collateral or any Individual Property, or if any other such event shall occur or condition shall exist, if the effect of such event or condition is to accelerate the maturity of any portion of the Debt or to permit Lender to accelerate the maturity of all or any portion of the Debt;
(xx) if the Liens created pursuant to any Loan Document shall cease to be a fully protected enforceable first priority security interest in the Collateral, or any portion of the Collateral is Transferred without Lender’s prior written consent except as permitted hereunder; or
(xxi) if a Mortgage Loan Event of Default or Senior Mezzanine Loan Event of Default shall occur.
(b) Upon the occurrence of an Event of Default (other than an Event of Default described in clauses (vi) or (vii) above) and at any time thereafterthereafter Lender may, in addition to any other rights or remedies available to it pursuant to this Agreement and the other Loan Documents or at law or in equity, Lender may take such action, without further notice or demand, that Lender deems advisable to protect and enforce its rights against Borrower and in and to all or any of the CollateralProperty, including, without limitation, declaring the Debt to be immediately due and payable, and Lender may enforce or avail itself of any or all rights or remedies provided in the Loan Documents and may exercise all the rights and remedies of a secured party under the Uniform Commercial Code, as adopted and enacted by the State or States where any of the Collateral is located, against Borrower and any or all of the CollateralProperty, including, without limitation, all rights or remedies available at law or in equity; and upon any Event of Default described in clauses (vi), (vii) or (viiviii) above, the Debt and all other obligations of Borrower hereunder and under the other Loan Documents shall immediately and automatically become due and payable, without notice or demand, and Borrower hereby expressly waives any such notice or demand, anything contained herein or in any other Loan Document to the contrary notwithstanding.
Appears in 2 contracts
Samples: Loan Agreement (Glimcher Realty Trust), Loan Agreement (Glimcher Realty Trust)
Event of Default. (a) Each The occurrence of any one or more of the following events shall constitute an event of default hereunder (an “Event of Default”)::
(a) if Borrower shall fail to (i) if pay when due (A) any portion sums which by the express terms of this Agreement and the other Loan Documents require immediate or prompt payment without any grace period, (B) any monthly Debt is not Service and any amount required to be paid in full into the Reserve Funds or (C) sums which are payable on the Maturity Date, (B) the Debt Service is not paid in full on or before the related Payment Date, or (Cii) any other portion of the Debt is not paid pay within five (5) days following written notice any other sums payable under this Agreement or any of when duethe other Loan Documents;
(iib) if any of the Taxes or Other Charges are is not paid (with respect to each or any Individual Property) prior to Delinquencydelinquency except to the extent sums sufficient to pay such Taxes and Other Charges have been deposited with Lender in accordance with the terms of this Agreement and Lender’s access to such sums is not restricted or constrained in any manner;
(iiic) if (i) the Policies (with respect to each or any Individual Property) are not kept in full force and effecteffect or (ii) within five (5) days following written notice, or if certified copies evidence of the Policies (for each Individual Property) are same is not delivered to Lender upon request (or certificates thereof, if a Policy shall be renewed and certified copies of the Policy are not immediately available upon such renewal (each Borrower agreeing as provided in such instance to provide copies of the Policies to Lender promptly thereafter))Section 7.1 hereof;
(ivd) if any Borrower Transfers or otherwise encumbers any portion of the Propertiesrepresentations or covenants contained in Article 5 hereof are breached or violated; provided, however, if (1) Lender determines that such breach of covenant or representation (i) was not made in bad faith, (ii) is capable of being cured, (iii) is not material and (iv) Lender would not be prejudiced by permitting Borrower to cure the Collateral same, and (2) at the request of Lender, Borrower provides a non-consolidation opinion addressing such breach, Lender will permit Borrower (30) days after written notice thereof to cure such misrepresentation or the Senior Mezzanine Collateral, or there shall otherwise occur a Transfer without Lender’s prior consent in violation breach of the provisions warranty before it becomes an Event of this Agreement, the Pledge Agreement or any other Loan DocumentDefault hereunder;
(ve) a Sale or Pledge occurs that is not a Permitted Transfer;
(f) if any representation or warranty made by any Borrower of, or with respect to, Borrower, Guarantor or any other Loan Party herein member, general partner, principal or beneficial owner of any of the foregoing, made herein, in the Guaranty or in any other Loan Documentthe Environmental Indemnity, or in any certificate, report, certificate, financial statement or other instrument, agreement instrument or document or other material or written information furnished to Lender shall have been false or misleading in any material adverse respect as of the date the representation when made;
(g) if (i) Borrower, any SPE Component Entity or warranty was made Guarantor shall commence any case, proceeding or other action (and, A) under any Creditors Rights Laws seeking to have an order for relief entered with respect to it, or seeking to adjudicate it a bankrupt or insolvent, or seeking reorganization, or (B) seeking appointment of a receiver, trustee, custodian, conservator or other similar official for it or for all or any substantial part of its assets, or Borrower or any managing member or general partner of Borrower, any SPE Component Entity or Guarantor shall make a general assignment for the benefit of its creditors; (ii) there shall be commenced against Borrower or any managing member or general partner of Borrower, any SPE Component Entity or Guarantor any case, proceeding or other action of a nature referred to in clause (i) above which (A) results in the entry of an order for relief or any such breach adjudication or appointment or (B) remains undismissed, undischarged or unbonded for a period of ninety (90) days; (iii) there shall be commenced against Borrower, any SPE Component Entity or Guarantor any case, proceeding or other action seeking issuance of a warrant of attachment, execution, distraint or similar process against all or any substantial part of its assets which results in the entry of any order for any such relief which shall not have been vacated, discharged, or stayed or bonded pending appeal within ninety (90) days from the entry thereof; (iv) Borrower, any SPE Component Entity or Guarantor shall take any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the acts set forth in clause (i), (ii), or (iii) above, which result in the actual commencement of any of the acts set forth in clauses (i), (ii) or (iii) above; or (v) Borrower, any SPE Component Entity or Guarantor shall generally not, or shall be unable to, or shall admit in writing its inability to, pay its debts as they become due;
(h) if Borrower shall be in default beyond applicable notice and grace periods under any other mortgage, deed of trust, deed to secure debt or other security agreement covering any part of the Property whether it be superior or junior in lien to the Security Instrument;
(i) subject to Borrower’s right to contest pursuant to Sections 4.5(b) and 4.16(b) hereof, if the Property becomes subject to any mechanic’s, materialman’s or other lien other than a lien for any Taxes not then due and payable and the lien shall remain undischarged of record (by payment, bonding or otherwise) for a period of thirty (30) days;
(j) if any federal tax lien is filed against Borrower, any SPE Component Entity, Guarantor or the Property and same is not discharged of record (by payment, bonding or otherwise) within thirty (30) days after same is filed;
(k) if Borrower shall fail to comply with the subject of any other subsection of this Section 8.1 and which is capable of being cured, such Borrower covenants in Article 15 or otherwise fails to remedy such condition deliver to Lender, in each case within ten (10) days following after request by Lender, the estoppel certificates required by Section 4.13(a) or (c) hereof;
(l) if any default occurs under any guaranty or indemnity executed in connection herewith (including, without limitation, the Environmental Indemnity and/or the Guaranty) and such default continues after the expiration of applicable grace periods, if any;
(m) if any of the assumptions contained in the Non-Consolidation Opinion, or in any New Non-Consolidation Opinion are untrue or shall become untrue in any material respect;
(n) if Borrower shall fail to deliver to Lender within thirty (30) days after request by Lender any Required Financial Item;
(o) if Borrower enters into a Management Agreement in violation of Section 4.15 hereof or if Borrower defaults under the Management Agreement beyond the expiration of applicable notice and grace periods, if any, thereunder or if the Management Agreement is canceled, terminated or surrendered or expires pursuant to its terms, unless in such case Borrower shall enter into a new management agreement with a Qualified Manager in accordance with the applicable terms and provisions hereof;
(p) if any representation and/or covenant herein relating to ERISA matters is breached;
(q) if (i) Borrower defaults under any REA or Material Agreements beyond the expiration of applicable notice and grace periods, if any, thereunder, (ii) any REA or Material Agreements are amended, supplemented, replaced, restated or otherwise modified without Lender’s prior written consent or if Borrower consents to a transfer of any party’s interest thereunder without Lender’s prior written consent (but only to the extent that any such action under the applicable REA or Material Agreement requires Borrower’s consent);
(r) intentionally omitted;
(s) if Borrower shall continue to be in default under any term, covenant or condition of this Agreement not specified in subsections (a) through (r) above or not otherwise specifically specified as an Event of Default herein, (i) for more than ten (10) Business Days after notice from Lender, in the case of any such breach default which can be cured by the payment of a sum of money, money or within thirty (30ii) days following notice from Lender in the case of any other such breach);
(vi) if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower shall make an assignment for the benefit of creditors; or if a receiver, liquidator or trustee shall be appointed for any Borrower, Senior Mezzanine Borrower or Mortgage Borrower, or if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower shall be adjudicated a bankrupt or insolvent, or if any petition for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by or against, consented to, or acquiesced in by, Borrower or Senior Mezzanine Borrower, or if any proceeding for the dissolution or liquidation of any Borrower, Senior Mezzanine Borrower or Mortgage Borrower shall be instituted; provided, however, if such appointment, adjudication, petition or proceeding was involuntary and not consented to by any Borrower, Senior Mezzanine Borrower or Mortgage Borrower, upon the same not being discharged, stayed or dismissed within ninety (90) days;
(vii) if any Operating Company, any Manager, Principal, Holdings or any Guarantor shall make an assignment for the benefit of creditors; or if a receiver, liquidator or trustee shall be appointed for any such Operating Company, any such Manager, Principal, Holdings or any such Guarantor, or if any Operating Company, any Manager, Principal, Holdings or any Guarantor shall be adjudicated a bankrupt or insolvent, or if any petition for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by or against, consented to, or acquiesced in by, any Operating Company, any Manager, Principal, Holdings or any Guarantor, or if any proceeding for the dissolution or liquidation of any Operating Company, any Manager, Principal, Holdings or any Guarantor shall be instituted; provided, however, if such appointment, adjudication, petition or proceeding was involuntary and not consented to by any such Operating Company, any such Manager, Principal, Holdings or any such Guarantor, upon the same not being discharged, stayed or dismissed within ninety (90) days;
(viii) if any Borrower attempts to assign its rights under this Agreement or any of the other Loan Documents or any interest herein or therein in contravention of the Loan Documents;
(ix) if any Borrower breaches any of its respective negative covenants contained in Section 5.2 or any covenant contained in Section 4.1.30 or Section 5.1.11 hereof (and, with respect to any such breach of any covenant set forth in Section 5.1.11 which is not the subject of any other subsection of this Section 8.1, such Borrower fails to remedy such condition within ten (10) days after notice to Borrower from Lender, in the case of any such Default under Section 5.1.11 which can be cured by the payment of a sum of money, or for thirty (30) days after notice from Lender in the case of any other such Default under Section 5.1.11);
(x) with respect to any term, covenant or provision set forth herein which specifically contains a notice requirement or grace period, if any Borrower shall be in default under such term, covenant or condition after the giving of such notice or the expiration of such grace period;
(xi) if any of the assumptions contained in the Insolvency Opinion delivered in connection with the Loan, or in the Additional Insolvency Opinion delivered subsequent to the closing of the Loan, is or shall become untrue in any material respect; or if any of the assumptions contained in the True Lease Opinion in connection with the Loan, or in the Additional True Lease Opinion delivered subsequent to the closing of the Loan, is or shall become untrue in any material respect;
(xii) if any Mortgage Borrower, any Operating Company or any Guarantor (Operating Lease) is in default of any of its material obligations under any Operating Lease (or under another lease and/or management agreement in substitution for such Operating Lease in accordance herewith) or under any such Operating Lease Guaranty (or under another operating lease guaranty in substitution for such Operating Lease Guaranty in accordance herewith) beyond any applicable notice and cure periods contained therein; or if any Operating Lease (or such other lease and/or management agreement) or any Operating Lease Guaranty (or such other operating lease guaranty) shall be surrendered or any Operating Lease or any Operating Lease Guaranty shall be terminated or canceled for any reason or under any circumstances whatsoever, except with the consent of Lender; or if any of the terms, covenants or conditions of any Operating Lease (or such other lease and/or management agreement) or any Operating Lease Guaranty (or such other operating lease guaranty) shall in any manner be modified, changed, supplemented, altered, restated or amended without the consent of Lender except as may otherwise expressly permitted in this Agreement;
(xiii) intentionally omitted;
(xiv) if any Affiliate of any Borrower that is or becomes a party to the Windstorm Insurance Intercreditor Agreement is in default of any of its material obligations under the Windstorm Insurance Intercreditor Agreement beyond any applicable notice and cure periods contained therein; or if the Windstorm Insurance Intercreditor Agreement shall be surrendered, terminated or canceled for any reason or under any circumstances whatsoever, except with the consent of Lender; or if any of the terms, covenants or conditions of the Windstorm Insurance Intercreditor Agreement shall in any manner be modified, changed, supplemented, altered, restated or amended without the consent of Lender;
(xv) if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower fails to comply with the covenants as to Prescribed Laws set forth in Section 5.1.1 hereof;
(xvi) if a material default has occurred and continues beyond any applicable cure period under any Management Agreement and if such default permits the Manager, the Operating Company or the Mortgage Borrower party thereto to terminate or cancel the Management Agreement in question;
(xvii) any Gaming License shall be refused, suspended, revoked, modified in a materially adverse manner or canceled or allowed to lapse or any proceeding is commenced by any Governmental Authority for the purpose of suspending, revoking or canceling any Gaming License in any materially adverse respect, or any Governmental Authority shall have appointed a conservator, supervisor or trustee to or for any of the Casino Components and, in each case of the foregoing, such action could reasonably be expected to (A) have an Individual Material Adverse Effect, (B) materially and adversely affect the continued operation of the Casino Components in the usual course of business and in substantially the same manner and to at least the same standard as was maintained prior to such action, or (C) result in any material decrease in the then expected cash flow and revenues to be derived from the Casino Components;
(xviii) if any Borrower shall continue to be in Default under any of the other terms, covenants or conditions of this Agreement not specified in subsections (i) to (xvii) above, for ten (10) days after notice to Borrower from Lender, in the case of any Default which can be cured by the payment of a sum of moneyother default, or for thirty (30) days after notice from Lender in the case of any other Default; provided, however, provided that if such non-monetary Default is susceptible of cure but default cannot reasonably be cured within such thirty (30) day period and provided further that such Borrower shall have commenced to cure such Default default within such thirty (30) day period and thereafter diligently and expeditiously proceeds to cure the same, such thirty (30) day period shall be extended for such time so long as is reasonably necessary for such it shall require Borrower in the exercise of due diligence to cure such Defaultdefault, it being agreed that no such additional extension shall be for a period not in excess of ninety (90) days (subject to exceed one hundred twenty (120) days;further extension by Lender, in Lender’s sole discretion); and/or
(xixt) if there shall be a default under any of the other Loan Documents beyond any applicable cure periods contained in such documentsLoan Documents, whether as to any Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Borrower or the Collateral, the Senior Mezzanine Collateral or any Individual Property, or if any other such event shall occur or condition shall exist, if the effect of such event or condition is to accelerate the maturity of any portion of the Debt or to permit Lender to accelerate the maturity of all or any portion of the Debt;
(xx) if the Liens created pursuant to any Loan Document shall cease to be a fully protected enforceable first priority security interest in the Collateral, or any portion of the Collateral is Transferred without Lender’s prior written consent except as permitted hereunder; or
(xxi) if a Mortgage Loan Event of Default or Senior Mezzanine Loan Event of Default shall occur.
(b) Upon the occurrence of an Event of Default (other than an Event of Default described in clauses (vi) or (vii) above) and at any time thereafter, in addition to any other rights or remedies available to it pursuant to this Agreement and the other Loan Documents or at law or in equity, Lender may take such action, without notice or demand, that Lender deems advisable to protect and enforce its rights against Borrower and in and to all or any of the Collateral, including, without limitation, declaring the Debt to be immediately due and payable, and Lender may enforce or avail itself of any or all rights or remedies provided in the Loan Documents and may exercise all the rights and remedies of a secured party under the Uniform Commercial Code, as adopted and enacted by the State or States where any of the Collateral is located, against Borrower and any or all of the Collateral, including, without limitation, all rights or remedies available at law or in equity; and upon any Event of Default described in clauses (vi) or (vii) above, the Debt and all other obligations of Borrower hereunder and under the other Loan Documents shall immediately and automatically become due and payable, without notice or demand, and Borrower hereby expressly waives any such notice or demand, anything contained herein or in any other Loan Document to the contrary notwithstanding.
Appears in 2 contracts
Samples: Loan Agreement, Loan Agreement (Consolidated Tomoka Land Co)
Event of Default. Subject to any applicable cure period provided for in the Loan Agreement or in this Deed of Trust, or if no cure period has been specified, then 30 days after Beneficiary has provided written notice to Trustor with respect thereto (aany such cure periods to run concurrently, and not consecutively, with any other cure periods provided herein or by law) Each any of the following events shall be deemed to be an "Event of Default" hereunder:
8.1.1 The occurrence of one or more "Events of Default" (as defined in Section 8.1 of the Loan Agreement) shall constitute an event of default hereunder (an “Event of Default”):
(i) if (A) any portion Default under this Deed of the Debt is not paid in full on the Maturity Date, (B) the Debt Service is not paid in full on or before the related Payment Date, or (C) any other portion of the Debt is not paid within five (5) days of when dueTrust;
(ii) if 8.1.2 Failure of Trustor to perform any of the Taxes or Other Charges are not paid (with respect to each or any Individual Property) prior to Delinquency;
(iii) if the Policies (with respect to each or any Individual Property) are not kept terms, covenants and conditions in full force and effect, or if certified copies this Deed of the Policies (for each Individual Property) are not delivered to Lender upon request (or certificates thereof, if a Policy shall be renewed and certified copies of the Policy are not immediately available upon such renewal (each Borrower agreeing in such instance to provide copies of the Policies to Lender promptly thereafter));
(iv) if any Borrower Transfers or otherwise encumbers any portion of the Properties, the Collateral or the Senior Mezzanine Collateral, or there shall otherwise occur a Transfer without Lender’s prior consent in violation of the provisions of this Agreement, the Pledge Agreement or any other Loan Document;
(v) if any representation or warranty made by any Borrower or any other Loan Party herein or in any other Loan Document, or in any report, certificate, financial statement or other instrument, agreement or document or other material or written information furnished to Lender shall have been false or misleading in any material respect as of the date the representation or warranty was made (and, with respect to any such breach which is not the subject of any other subsection of this Section 8.1 and which is capable of being cured, such Borrower fails to remedy such condition within ten (10) days following notice to Borrower from Lender, in the case of any such breach which can be cured by the payment of a sum of money, or within thirty (30) days following notice from Lender in the case of any other such breach);
(vi) if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower shall make an assignment for the benefit of creditors; or if a receiver, liquidator or trustee shall be appointed for any Borrower, Senior Mezzanine Borrower or Mortgage Borrower, or if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower shall be adjudicated a bankrupt or insolvent, or if any petition for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by or against, consented to, or acquiesced in by, Borrower or Senior Mezzanine Borrower, or if any proceeding for the dissolution or liquidation of any Borrower, Senior Mezzanine Borrower or Mortgage Borrower shall be instituted; provided, however, if such appointment, adjudication, petition or proceeding was involuntary and not consented to by any Borrower, Senior Mezzanine Borrower or Mortgage Borrower, upon the same not being discharged, stayed or dismissed within ninety (90) days;
(vii) if any Operating Company, any Manager, Principal, Holdings or any Guarantor shall make an assignment for the benefit of creditors; or if a receiver, liquidator or trustee shall be appointed for any such Operating Company, any such Manager, Principal, Holdings or any such Guarantor, or if any Operating Company, any Manager, Principal, Holdings or any Guarantor shall be adjudicated a bankrupt or insolvent, or if any petition for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by or against, consented to, or acquiesced in by, any Operating Company, any Manager, Principal, Holdings or any Guarantor, or if any proceeding for the dissolution or liquidation of any Operating Company, any Manager, Principal, Holdings or any Guarantor shall be instituted; provided, however, if such appointment, adjudication, petition or proceeding was involuntary and not consented to by any such Operating Company, any such Manager, Principal, Holdings or any such Guarantor, upon the same not being discharged, stayed or dismissed within ninety (90) days;
(viii) if any Borrower attempts to assign its rights under this Agreement Trust or any of the other Loan Documents Documents;
8.1.3 Any statement, representation or warranty given by Trustor to Trustee or Beneficiary in any interest herein or therein in contravention of the Loan Documents, in connection with the Loan Agreement or in any other document provided by Trustor, including this Deed of Trust, is found to be materially false or misleading;
(ix) if 8.1.4 A material default under or the institution of foreclosure or other proceedings to enforce, any Borrower breaches lien or Permitted Lien of any of its respective negative covenants contained in Section 5.2 kind upon the Property or any covenant contained portion thereof. In addition, to the maximum extent permitted by applicable law, it shall be an Event of Default hereunder if Trustor, or any other "borrower" (as that term is defined in Section 4.1.30 or Section 5.1.11 hereof (andNRS 106.310) who may send a notice pursuant to NRS 106.380(1), with respect to any such breach this Deed of any covenant set forth in Section 5.1.11 which is not the subject of any other subsection of this Section 8.1Trust, such Borrower fails (i) delivers, sends by mail or otherwise gives, purports to remedy such condition within ten (10) days after notice deliver, send by mail or otherwise give, to Borrower from Lender, in the case of any such Default under Section 5.1.11 which can be cured by the payment of a sum of money, or for thirty (30) days after notice from Lender in the case of any other such Default under Section 5.1.11);
(x) with respect to any term, covenant or provision set forth herein which specifically contains a notice requirement or grace period, if any Borrower shall be in default under such term, covenant or condition after the giving of such notice or the expiration of such grace period;
(xi) if any of the assumptions contained in the Insolvency Opinion delivered in connection with the Loan, or in the Additional Insolvency Opinion delivered subsequent to the closing of the Loan, is or shall become untrue in any material respect; or if any of the assumptions contained in the True Lease Opinion in connection with the Loan, or in the Additional True Lease Opinion delivered subsequent to the closing of the Loan, is or shall become untrue in any material respect;
(xii) if any Mortgage Borrower, any Operating Company or any Guarantor (Operating Lease) is in default of any of its material obligations under any Operating Lease (or under another lease and/or management agreement in substitution for such Operating Lease in accordance herewith) or under any such Operating Lease Guaranty (or under another operating lease guaranty in substitution for such Operating Lease Guaranty in accordance herewith) beyond any applicable notice and cure periods contained therein; or if any Operating Lease (or such other lease and/or management agreement) or any Operating Lease Guaranty (or such other operating lease guaranty) shall be surrendered or any Operating Lease or any Operating Lease Guaranty shall be terminated or canceled for any reason or under any circumstances whatsoever, except with the consent of Lender; or if any of the terms, covenants or conditions of any Operating Lease (or such other lease and/or management agreement) or any Operating Lease Guaranty (or such other operating lease guaranty) shall in any manner be modified, changed, supplemented, altered, restated or amended without the consent of Lender except as may otherwise expressly permitted in this Agreement;
(xiii) intentionally omitted;
(xiv) if any Affiliate of any Borrower that is or becomes a party to the Windstorm Insurance Intercreditor Agreement is in default of any of its material obligations under the Windstorm Insurance Intercreditor Agreement beyond any applicable notice and cure periods contained therein; or if the Windstorm Insurance Intercreditor Agreement shall be surrendered, terminated or canceled for any reason or under any circumstances whatsoever, except with the consent of Lender; or if any of the terms, covenants or conditions of the Windstorm Insurance Intercreditor Agreement shall in any manner be modified, changed, supplemented, altered, restated or amended without the consent of Lender;
(xv) if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower fails to comply with the covenants as to Prescribed Laws set forth in Section 5.1.1 hereof;
(xvi) if a material default has occurred and continues beyond any applicable cure period under any Management Agreement and if such default permits the Manager, the Operating Company or the Mortgage Borrower party thereto to terminate or cancel the Management Agreement in question;
(xvii) any Gaming License shall be refused, suspended, revoked, modified in a materially adverse manner or canceled or allowed to lapse or any proceeding is commenced by any Governmental Authority for the purpose of suspending, revoking or canceling any Gaming License in any materially adverse respect, or any Governmental Authority shall have appointed a conservator, supervisor or trustee to or for any of the Casino Components and, in each case of the foregoing, such action could reasonably be expected to Beneficiary (A) have any notice of an Individual Material Adverse Effect, (B) materially and adversely affect election to terminate the continued operation of the Casino Components in the usual course this Deed of business and in substantially the same manner and to at least the same standard Trust as was maintained prior to such action, or (C) result in security for any material decrease in the then expected cash flow and revenues to be derived from the Casino Components;
(xviii) if any Borrower shall continue to be in Default under any of the other terms, covenants or conditions of this Agreement not specified in subsections (i) to (xvii) above, for ten (10) days after notice to Borrower from Lender, in the case of any Default which can be cured by the payment of a sum of money, or for thirty (30) days after notice from Lender in the case of any other Default; provided, however, that if such non-monetary Default is susceptible of cure but cannot reasonably be cured within such thirty (30) day period and provided further that such Borrower shall have commenced to cure such Default within such thirty (30) day period and thereafter diligently and expeditiously proceeds to cure the same, such thirty (30) day period shall be extended for such time as is reasonably necessary for such Borrower in the exercise of due diligence to cure such Default, such additional period not to exceed one hundred twenty (120) days;
(xix) if there shall be a default under any of the other Loan Documents beyond any applicable cure periods contained in such documents, whether as to any Borrower, Mortgage Borrower, Senior Mezzanine Borrower, the Collateral, the Senior Mezzanine Collateral or any Individual Property, or if any other such event shall occur or condition shall exist, if the effect of such event or condition is to accelerate the maturity of any portion of the Debt or to permit Lender to accelerate the maturity of all or any portion of the Debt;
(xx) if the Liens created pursuant to any Loan Document shall cease to be a fully protected enforceable first priority security interest in the Collateral, or any portion of the Collateral is Transferred without Lender’s prior written consent except as permitted hereunder; or
(xxi) if a Mortgage Loan Event of Default or Senior Mezzanine Loan Event of Default shall occur.
(b) Upon the occurrence of an Event of Default (other than an Event of Default described in clauses (vi) or (vii) above) and at any time thereafter, in addition to any other rights or remedies available to it pursuant to this Agreement and the other Loan Documents or at law or in equity, Lender may take such action, without notice or demand, that Lender deems advisable to protect and enforce its rights against Borrower and in and to all or any of the Collateralsecured obligation, including, without limitation, declaring the Debt any obligation to repay any "future advance" (as defined in NRS 106.320) of "principal" (as defined in NRS 106.345), or (B) any other notice pursuant to NRS 106.380(1), (ii) records a statement pursuant to NRS 106.380(3), or (iii) causes this Deed of Trust, any secured obligation, Beneficiary to be immediately due and payablesubject to NRS 106.380(2), and Lender may enforce or avail itself of any or all rights or remedies provided in the Loan Documents and may exercise all the rights and remedies of a secured party under the Uniform Commercial Code, as adopted and enacted by the State or States where any of the Collateral is located, against Borrower and any or all of the Collateral, including, without limitation, all rights or remedies available at law or in equity; and upon any Event of Default described in clauses (vi106.380(3) or (vii) above, the Debt and all other obligations of Borrower hereunder and under the other Loan Documents 106.400 shall immediately and automatically become due and payable, without notice or demand, and Borrower hereby expressly waives any such notice or demand, anything contained herein or be in any other Loan Document to the contrary notwithstandingdefault hereunder.
Appears in 2 contracts
Samples: Deed of Trust, Security Agreement and Fixture Filing With Assignment of Rents (Fitzgeralds Gaming Corp), Deed of Trust, Security Agreement and Fixture Filing (Fitzgeralds Gaming Corp)
Event of Default. (a) Each of the following events shall constitute an event of default hereunder (an “Event of Default”):
(i) if (A) any portion of the Debt is not paid in full on the Maturity Date, (B) the Debt Service is not paid in full on or before the related Payment Date, or (C) any other portion of the Debt is not paid within five (5) days of the date when duedue (except that Borrower shall not be afforded such 5-day cure period for the portion of the Debt due and payable on the Maturity Date);
(ii) if any of the Taxes (other than Taxes being contested pursuant to Section 5.1.2 of this Agreement) are not paid when the same are due and payable or Other Charges are not paid within five (with respect to each or any Individual Property5) prior to Delinquencydays after Borrower receives notice of same;
(iii) if the Policies (with respect to each or any Individual Property) are not kept in full force and effect, or if certified copies of the Policies (for each Individual Property) are not delivered to Lender upon request (or certificates thereof, if a Policy shall be renewed and certified copies of the Policy are not immediately available upon such renewal (each Borrower agreeing in such instance to provide copies of the Policies to Lender promptly thereafter))request;
(iv) if any Borrower Transfers or otherwise encumbers any portion of the Properties, the Collateral or the Senior Mezzanine Collateral, or there shall otherwise occur a Transfer Property without Lender’s prior written consent in violation of the provisions of this Agreement, the Pledge Agreement or any other Loan Documentthe Mortgage;
(v) if any material representation or warranty made by any Borrower or any other Loan Party Guarantor herein or in any other Loan Document, or in any report, certificate, financial statement or other instrument, agreement or document or other material or written information furnished to Lender shall have been false or misleading in any material respect as of the date the representation or warranty was made (and, with respect to any such breach which is not the subject of any other subsection of this Section 8.1 and which is capable of being cured, such Borrower fails to remedy such condition within ten (10) days following notice to Borrower from Lender, in the case of any such breach which can be cured by the payment of a sum of money, or within thirty (30) days following notice from Lender in the case of any other such breach)made;
(vi) if any Borrower, Senior Mezzanine Borrower Borrower, Guarantor or Mortgage Borrower any other guarantor under any guaranty issued in connection with the Loan shall make an assignment for the benefit of creditors; or ;
(vii) if a receiver, liquidator or trustee shall be appointed for any Borrower, Senior Mezzanine Borrower or Mortgage Borrower, Guarantor or any other guarantor under any guarantee issued in connection with the Loan or if any Borrower, Senior Mezzanine Borrower Borrower, Guarantor or Mortgage Borrower such other guarantor shall be adjudicated a bankrupt or insolvent, or if any petition for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by or against, consented to, or acquiesced in by, Borrower or Senior Borrower, Mezzanine Borrower, Guarantor or such other guarantor, or if any proceeding for the dissolution or liquidation of any Borrower, Senior Mezzanine Borrower Borrower, Guarantor or Mortgage Borrower such other guarantor shall be instituted; provided, however, if such appointment, adjudication, petition or proceeding was involuntary and not consented to by any Borrower, Senior Mezzanine Borrower or Mortgage Borrower, upon the same not being discharged, stayed Guarantor or dismissed within ninety (90) days;
(vii) if any Operating Company, any Manager, Principal, Holdings or any Guarantor shall make an assignment for the benefit of creditors; or if a receiver, liquidator or trustee shall be appointed for any such Operating Company, any such Manager, Principal, Holdings or any such Guarantor, or if any Operating Company, any Manager, Principal, Holdings or any Guarantor shall be adjudicated a bankrupt or insolvent, or if any petition for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by or against, consented to, or acquiesced in by, any Operating Company, any Manager, Principal, Holdings or any Guarantor, or if any proceeding for the dissolution or liquidation of any Operating Company, any Manager, Principal, Holdings or any Guarantor shall be instituted; provided, however, if such appointment, adjudication, petition or proceeding was involuntary and not consented to by any such Operating Company, any such Manager, Principal, Holdings or any such Guarantorother guarantor, upon the same not being discharged, stayed or dismissed within ninety (90) days;
(viii) if any Borrower attempts to assign its rights under this Agreement or any of the other Loan Documents or any interest herein or therein in contravention of the Loan Documents;
(ix) if any Borrower breaches any of its respective negative covenants contained in Section 5.2 or any covenant contained in Section 4.1.30 or Section 5.1.11 hereof (and, with respect to any such breach of any covenant set forth in Section 5.1.11 which is not the subject of any other subsection of this Section 8.1, such Borrower fails to remedy such condition within ten (10) days after notice to Borrower from Lender, in the case of any such Default under Section 5.1.11 which can be cured by the payment of a sum of money, or for thirty (30) days after notice from Lender in the case of any other such Default under Section 5.1.11)4.1.30;
(x) with respect to any term, covenant or provision set forth herein which specifically contains a notice requirement or grace period, if any Borrower shall be in default under such term, covenant or condition after the giving of such notice or the expiration of such grace period;
(xi) if any of the assumptions contained in the Insolvency Opinion delivered to Lender in connection with the Loan, or in the any Additional Insolvency Opinion delivered subsequent to the closing of the Loan, is or shall become untrue in any material respect; or if any of the assumptions contained in the True Lease Opinion in connection with the Loan, or in the Additional True Lease Opinion delivered subsequent to the closing of the Loan, is or shall become untrue in any material respect;
(xii) if any Mortgage BorrowerBorrower fails to pay the Administration Fee, any Operating Company or any Guarantor portion or installment thereof, within five (Operating Lease5) is in default of any of its material obligations under any Operating Lease (or under another lease and/or management agreement in substitution for such Operating Lease in accordance herewith) or under any such Operating Lease Guaranty (or under another operating lease guaranty in substitution for such Operating Lease Guaranty in accordance herewith) beyond any applicable notice and cure periods contained therein; or if any Operating Lease (or such other lease and/or management agreement) or any Operating Lease Guaranty (or such other operating lease guaranty) shall be surrendered or any Operating Lease or any Operating Lease Guaranty shall be terminated or canceled for any reason or under any circumstances whatsoever, except with the consent of Lender; or if any days of the terms, covenants or conditions of any Operating Lease (or such other lease and/or management agreement) or any Operating Lease Guaranty (or such other operating lease guaranty) shall in any manner be modified, changed, supplemented, altered, restated or amended without the consent of Lender except as may otherwise expressly permitted in this Agreementdate when due;
(xiii) intentionally omittedIf Borrower fails to deposit with Lender the cash deposit or Letter of Credit required in accordance with Section 2.12.2 hereof;
(xiv) if any Affiliate of any Borrower that is or becomes a party fails to the Windstorm Insurance Intercreditor Agreement is in default of any of its material obligations under the Windstorm Insurance Intercreditor Agreement beyond any applicable notice and cure periods contained therein; or if the Windstorm Insurance Intercreditor Agreement shall be surrendered, terminated or canceled for any reason or under any circumstances whatsoever, except materially comply with the consent of Lender; or if any of the terms, covenants or conditions of the Windstorm Insurance Intercreditor Agreement shall in any manner be modified, changed, supplemented, altered, restated or amended without the consent of LenderConstruction Schedule;
(xv) if any Borrowerthe Completion of the Improvements has not occurred on or prior to the Required Completion Date, Senior Mezzanine Borrower subject to Force Majeure or Mortgage Borrower fails if Lender or the Construction Consultant determines that Completion of the Improvements cannot occur on or prior to comply with the covenants as to Prescribed Laws set forth in Section 5.1.1 hereofRequired Completion Date;
(xvi) if any voucher or invoice is fraudulently submitted by Borrower or in connection with any Advance for services performed or for materials used in or furnished for the Property;
(xvii) if there is any cessation at any time in construction of the Project Improvements for more than twenty (20) consecutive Business Days, other than as a result of Force Majeure;
(xviii) if Borrower expressly confesses in writing to Lender its inability to continue or complete construction of the Project Improvements in accordance with this Agreement;
(xix) if Lender, the Construction Consultant or their representatives are not permitted at all reasonable times upon not less than three (3) Business Days notice to enter upon the Property, inspect the Improvements and the construction thereof and all materials, fixtures and articles used or to be used in the construction and to examine all the Plans and Specifications, or if Borrower shall fail to furnish to Lender or its authorized representative, when requested upon not less than five (5) Business Days notice, copies of the Plans and Specifications;
(xx) if a material adverse change in Borrower’s financial condition shall occur which would, in Lender’s reasonable determination, materially and adversely affect Borrower’s ability to perform its obligations under this Agreement or any other document evidencing or securing the Loan beyond any applicable notice and grace periods expressly set forth in the Loan Documents;
(xxi) if the conditions precedent to the Final Advance have not been satisfied on or prior to the Required Completion Date;
(xxii) If the Guarantor fails to maintain the Required Liquidity and the Required Net Worth covenants specified in the Guaranty of Completion or if the Guarantor shall default under the Guaranty of Completion or the Guaranty of Recourse Carveouts;
(xxiii) if a material default has occurred and continues beyond any applicable cure period under any the Management Agreement (or any Replacement Management Agreement) and if such default permits the Manager, the Operating Company or the Mortgage Borrower party thereto Manager thereunder to terminate or cancel the Management Agreement in question(or any Replacement Management Agreement);
(xviixxiv) any Gaming License if Borrower shall continue to be refused, suspended, revoked, modified in a materially adverse manner or canceled or allowed to lapse or any proceeding is commenced by any Governmental Authority for the purpose of suspending, revoking or canceling any Gaming License in any materially adverse respect, or any Governmental Authority shall have appointed a conservator, supervisor or trustee to or for Default under any of the Casino Components andterms, covenants or conditions of Section 9.1 hereof, or fails to cooperate with Lender in connection with a Securitization pursuant to the provisions of Section 9.1 hereof, in each either case for three (3) Business Days after notice to Borrower from Lender;
(xxv) if an Event of Default (as defined in the Building Loan Agreement) shall have occurred;
(xxvi) if there shall be default by Borrower or Guarantor under any of the foregoingother Loan Documents, beyond applicable cure periods, if any, contained in such action could reasonably be expected documents, whether as to Borrower, Guarantor or the Property, or if any other such event shall occur or condition shall exist, if the effect of such other default, event or condition is to accelerate the maturity of all or any portion of the Debt or to permit Lender to accelerate the maturity of all or any portion of the Debt;
(xxvii) if (A) have an Individual Material Adverse Effecta breach or default by Borrower under any condition or obligation contained in the Ground Lease shall occur, (B) materially and adversely affect there occurs any event or condition that gives the continued operation of Ground Lessor under the Casino Components in Ground Lease a right to terminate or cancel the usual course of business and in substantially Ground Lease, (C) the same manner and to at least Ground Lease shall be surrendered or the same standard as was maintained prior to such actionGround Lease shall be terminated or cancelled for any reason or under any circumstances whatsoever, or (CD) result any of the terms, covenants or conditions of the Ground Lease shall in any material decrease in manner be modified, changed, supplemented, altered, or amended without the then expected cash flow and revenues to be derived from the Casino Componentsprior written consent of Lender;
(xviiixxviii) if (A) a breach or default by Borrower or Storage Facility Tenant under any condition or obligation contained in the Storage Facility Master Lease shall occur, (B) there occurs any event or condition that gives the Borrower or the Storage Facility Tenant under the Storage Facility Master Lease a right to terminate or cancel the Storage Facility Master Lease, (C) the Storage Facility Master Lease shall be surrendered or the Storage Facility Master Lease shall be terminated or cancelled for any reason or under any circumstances whatsoever, except as specifically permitted herein, or (D) any of the terms, covenants or conditions of the Storage Facility Master Lease shall in any manner be modified, changed, supplemented, altered, or amended without the prior written consent of Lender;
(xxix) if Guarantor or Storage Facility Tenant shall dissolve or cease to exist during the term of the Loan, except in compliance with the provisions of Section 5.2.15 or Section 5.1,44(e) hereof, respectively;
(xxx) if the Initial Advance Conditions are not satisfied by the Required Initial Advance Date; or
(xxxi) if Borrower shall continue to be in Default under any of the other terms, covenants or conditions of this Agreement not specified in subsections (i) to (xviixxx) above, for ten twenty (1020) days after notice to Borrower from Lender, in the case of any Default which can be cured by the payment of a sum of money, or for thirty (30) days after notice from Lender in the case of any other Default; provided, however, that if such non-monetary Default is susceptible of cure but cannot reasonably be cured within such thirty (30) day period and provided further that such Borrower shall have commenced to cure such Default within such thirty (30) day period and thereafter diligently and expeditiously proceeds to cure the same, such thirty (30) day period shall be extended for such time as is reasonably necessary for such Borrower in the exercise of due diligence to cure such Default, such additional period not to exceed one hundred twenty sixty (12060) days;
(xix) if there shall be a default under any of the other Loan Documents beyond any applicable cure periods contained in such documents, whether as to any Borrower, Mortgage Borrower, Senior Mezzanine Borrower, the Collateral, the Senior Mezzanine Collateral or any Individual Property, or if any other such event shall occur or condition shall exist, if the effect of such event or condition is to accelerate the maturity of any portion of the Debt or to permit Lender to accelerate the maturity of all or any portion of the Debt;
(xx) if the Liens created pursuant to any Loan Document shall cease to be a fully protected enforceable first priority security interest in the Collateral, or any portion of the Collateral is Transferred without Lender’s prior written consent except as permitted hereunder; or
(xxi) if a Mortgage Loan Event of Default or Senior Mezzanine Loan Event of Default shall occur.
(b) Upon the occurrence of an Event of Default (other than an Event of Default described in clauses (vi), (vii) or (viiviii) above) and at any time thereafter, in addition to any other rights or remedies available to it pursuant to this Agreement and the other Loan Documents or at law or in equity, Lender may take such action, without notice or demand, that Lender deems advisable to protect and enforce its rights against Borrower and in and to all or any of the CollateralProperty, including, without limitation, declaring the Debt to be immediately due and payable, and Lender may enforce or avail itself of any or all rights or remedies provided in the Loan Documents and may exercise all the rights and remedies of a secured party under the Uniform Commercial Code, as adopted and enacted by the State or States where any of the Collateral is located, against Borrower and any or all of the CollateralProperty, including, without limitation, all rights or remedies available at law or in equity; and upon any Event of Default described in clauses (vi), (vii) or (viiviii) above, the Debt and all other obligations Other Obligations of Borrower hereunder and under the other Loan Documents shall immediately and automatically become due and payable, without notice or demand, and Borrower hereby expressly waives any such notice or demand, anything contained herein or in any other Loan Document to the contrary notwithstanding.
Appears in 2 contracts
Samples: Project Loan Agreement (Acadia Realty Trust), Project Loan Agreement (Acadia Realty Trust)
Event of Default. (a) Each Any one or more of the following events shall constitute an event of default hereunder (an “Event of Default”):” hereunder without any advance notice to Borrower unless specified herein:
7.1.1 Borrower fails to pay any installment on the Note or any other monetary obligation payable by Borrower under the Loan Documents within 10 days after such payment is due.
7.1.2 Borrower, GEN or Operator (where applicable) fails to comply with any covenant set forth in §5.10, §5.11 or Article 6 of this Agreement.
7.1.3 Borrower fails to observe and perform any other covenant, condition or agreement under the Loan Documents to be performed by Borrower and [i) if (A) any portion ] continuance of such failure for a period of 30 days after written notice thereof is given to the Borrower by the Lender; or [ii] if, by reason of the Debt nature of such default the same cannot be remedied within the said 30 days, Borrower fails to proceed with reasonable diligence (reasonably satisfactory to Lender) after receipt of the notice to cure the same or, in any event, fails to cure such default within 60 days after receipt of the notice. The foregoing notice and cure provisions do not apply to any Event of Default otherwise specifically described in any other subsection of §7.1.
7.1.4 [i] The filing by Borrower, Operator or GEN of a petition under 11 U.S.C. or the commencement of a bankruptcy or similar proceeding by it; [ii] the failure by Borrower, Operator or GEN within 60 days to dismiss any involuntary bankruptcy petition or other commencement of a bankruptcy, reorganization or similar proceeding against it or to lift or stay any execution, garnishment or attachment of the Facility; [iii] the entry of an order for relief under 11 U.S.C. in respect of Borrower, Operator or GEN; [iv] assignment by Borrower, Operator or GEN for the benefit of its creditors; [v] the entry by Borrower, Operator or GEN into an agreement of composition with its creditors; [vi] the approval by a court of competent jurisdiction of a petition applicable to Borrower, Operator or GEN in any proceeding for its reorganization instituted under the provisions of any state or federal bankruptcy, insolvency, or similar laws; or [vii] appointment by final order, judgment or decree of a court of competent jurisdiction of a receiver of the whole or any substantial part of the properties of Borrower, Operator or GEN (provided such receiver shall not have been removed or discharged within 60 days of the date of his qualification).
7.1.5 [i] Any receiver, administrator, custodian or other person takes possession or control of all or part of the Facility and continues in possession for 60 days; [ii] any writ against all or part of the Facility is not paid released within 60 days; [iii] any judgment is rendered or proceedings are instituted against all or part of the Facility or Borrower, Operator or GEN which affect all or part of the Facility and which is undismissed for 60 days (except as otherwise provided in full on this section); [iv] all or a substantial part of the Maturity Dateassets of Borrower, (B) Operator or GEN are attached, seized, subjected to a writ or distress warrant, or are levied upon, or come into the Debt Service possession of any receiver, trustee, custodian, or assignee for the benefit of creditors and are not released within 60 days; [v] Borrower, Operator or GEN is enjoined, restrained, or in any way prevented by court order, or any proceeding is filed or commenced seeking to enjoin, restrain, or in any way prevent it from conducting all or a substantial part of its business or affairs and such proceeding is not paid in full on released within 60 days; or before the related Payment Date[vi] if a notice of lien, levy, or (C) any other portion assessment is filed of the Debt is not paid within five (5) days of when due;
(ii) if any of the Taxes or Other Charges are not paid (record with respect to each all or any Individual Property) prior to Delinquency;
(iii) if the Policies (with respect to each or any Individual Property) are not kept in full force and effect, or if certified copies part of the Policies (for each Individual Property) are property of Borrower, Operator or GEN and is not delivered to Lender upon request (or certificates thereof, if a Policy shall be renewed and certified copies of the Policy are not immediately available upon such renewal (each Borrower agreeing in such instance to provide copies of the Policies to Lender promptly thereafter));dismissed within 30 days.
(iv) if any Borrower Transfers or otherwise encumbers any portion of the Properties, the Collateral or the Senior Mezzanine Collateral, or there shall otherwise occur a Transfer without Lender’s prior consent in violation of the provisions of this Agreement, the Pledge Agreement or any other Loan Document;
(v) if any 7.1.6 Any representation or warranty made by Borrower, Operator or GEN in the Loan Documents, Guaranty Documents, any Borrower guaranty of or any other Loan Party herein or in any other Loan Documentsecurity for the Secured Obligations, or in any report, certificate, application, financial statement or other instrumentinstrument furnished by Borrower, agreement Operator or document GEN pursuant hereto or other material thereto shall prove to be false, misleading or written information furnished to Lender shall have been false or misleading incorrect in any material respect as of the date made.
7.1.7 The Bed Cap is breached, taking into account any reduction resulting from the representation loss of a Facility that Borrower closes in its discretion, but excluding any reductions associated with a casualty or warranty was made (and, with respect to any such breach which is not the subject condemnation of any other subsection of this Section 8.1 and which is capable of being curedFacility, such Borrower fails to remedy such condition within ten (10) days following notice to Borrower from Lender, in the case of any such breach which can be cured by the payment of provided that a sum of money, or within thirty (30) days following notice from Lender in the case of any other such breach);
(vi) if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower shall make an assignment for the benefit of creditors; or if a receiver, liquidator or trustee shall be appointed for any Borrower, Senior Mezzanine Borrower or Mortgage Borrower, or if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower shall be adjudicated a bankrupt or insolvent, or if any petition for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by or against, consented to, or acquiesced in by, Borrower or Senior Mezzanine Borrower, or if any proceeding for the dissolution or liquidation of any Borrower, Senior Mezzanine Borrower or Mortgage Borrower shall be instituted; provided, however, if such appointment, adjudication, petition or proceeding was involuntary and not consented to by any Borrower, Senior Mezzanine Borrower or Mortgage Borrower, upon the same not being discharged, stayed or dismissed within ninety (90) days;
(vii) if any Operating Company, any Manager, Principal, Holdings or any Guarantor shall make an assignment for the benefit of creditors; or if a receiver, liquidator or trustee shall be appointed for any such Operating Company, any such Manager, Principal, Holdings or any such Guarantor, or if any Operating Company, any Manager, Principal, Holdings or any Guarantor shall be adjudicated a bankrupt or insolvent, or if any petition for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by or against, consented to, or acquiesced in by, any Operating Company, any Manager, Principal, Holdings or any Guarantor, or if any proceeding for the dissolution or liquidation of any Operating Company, any Manager, Principal, Holdings or any Guarantor shall be instituted; provided, however, if such appointment, adjudication, petition or proceeding was involuntary and not consented to by any such Operating Company, any such Manager, Principal, Holdings or any such Guarantor, upon the same not being discharged, stayed or dismissed within ninety (90) days;
(viii) if any Borrower attempts to assign its rights under this Agreement or any of the other Loan Documents or any interest herein or therein in contravention of the Loan Documents;
(ix) if any Borrower breaches any of its respective negative covenants contained in Section 5.2 or any covenant contained in Section 4.1.30 or Section 5.1.11 hereof (and, with respect to any such breach of any covenant set forth in Section 5.1.11 which is not the subject of any other subsection of this Section 8.1, such Borrower fails to remedy such condition within ten (10) days after notice to Borrower from Lender, in the case of any such Default under Section 5.1.11 which can be cured by the payment of a sum of money, or for thirty (30) days after notice from Lender in the case of any other such Default under Section 5.1.11);
(x) with respect to any term, covenant or provision set forth herein which specifically contains a notice requirement or grace period, if any Borrower shall be in default under such term, covenant or condition after the giving of such notice or the expiration of such grace period;
(xi) if any of the assumptions contained in the Insolvency Opinion delivered in connection with the Loan, or in the Additional Insolvency Opinion delivered subsequent to the closing of the Loan, is or shall become untrue in any material respect; or if any of the assumptions contained in the True Lease Opinion in connection with the Loan, or in the Additional True Lease Opinion delivered subsequent to the closing of the Loan, is or shall become untrue in any material respect;
(xii) if any Mortgage Borrower, any Operating Company or any Guarantor (Operating Lease) is in default of any of its material obligations under any Operating Lease (or under another lease and/or management agreement in substitution for such Operating Lease in accordance herewith) or under any such Operating Lease Guaranty (or under another operating lease guaranty in substitution for such Operating Lease Guaranty in accordance herewith) beyond any applicable notice and cure periods contained therein; or if any Operating Lease (or such other lease and/or management agreement) or any Operating Lease Guaranty (or such other operating lease guaranty) shall be surrendered or any Operating Lease or any Operating Lease Guaranty shall be terminated or canceled for any reason or under any circumstances whatsoever, except with the consent of Lender; or if any of the terms, covenants or conditions of any Operating Lease (or such other lease and/or management agreement) or any Operating Lease Guaranty (or such other operating lease guaranty) shall in any manner be modified, changed, supplemented, altered, restated or amended without the consent of Lender except as may otherwise expressly permitted in this Agreement;
(xiii) intentionally omitted;
(xiv) if any Affiliate of any Borrower that is or becomes a party to the Windstorm Insurance Intercreditor Agreement is in default of any of its material obligations under the Windstorm Insurance Intercreditor Agreement beyond any applicable notice and cure periods contained therein; or if the Windstorm Insurance Intercreditor Agreement shall be surrendered, terminated or canceled for any reason or under any circumstances whatsoever, except with the consent of Lender; or if any of the terms, covenants or conditions of the Windstorm Insurance Intercreditor Agreement shall in any manner be modified, changed, supplemented, altered, restated or amended without the consent of Lender;
(xv) if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower fails to comply with the covenants as to Prescribed Laws set forth in Section 5.1.1 hereof;
(xvi) if a material default has occurred and continues beyond any applicable cure period under any Management Agreement and if such default permits the Manager, the Operating Company or the Mortgage Borrower party thereto to terminate or cancel the Management Agreement in question;
(xvii) any Gaming License shall be refused, suspended, revoked, modified in a materially adverse manner or canceled or allowed to lapse or any proceeding is commenced by any Governmental Authority for the purpose of suspending, revoking or canceling any Gaming License in any materially adverse respect, or any Governmental Authority shall have appointed a conservator, supervisor or trustee to or for any of the Casino Components and, in each case of the foregoing, such action could reasonably be expected to (A) have an Individual Material Adverse Effect, (B) materially and adversely affect the continued operation of the Casino Components in the usual course of business and in substantially the same manner and to at least the same standard as was maintained prior to such action, or (C) result in any material decrease in the then expected cash flow and revenues to be derived from the Casino Components;
(xviii) if any Borrower shall continue to be in Default under any of the other terms, covenants or conditions of this Agreement not specified in subsections subclause (i) to (xvii) above, for ten (10) days after notice to Borrower from Lender, in the case of any Default which can be cured by the payment of a sum of money, or for thirty (30) days after notice from Lender in the case of any other Default; provided, however, that if such non-monetary Default is susceptible of cure but cannot reasonably be cured within such thirty (30) day period and provided further that such Borrower shall have commenced to cure such Default within such thirty (30) day period and thereafter diligently and expeditiously proceeds to cure the same, such thirty (30) day period shall be extended for such time as is reasonably necessary for such Borrower in the exercise of due diligence to cure such Default, such additional period not to exceed one hundred twenty (120) days;
(xix) if there shall be a default under any of the other Loan Documents beyond any applicable cure periods contained in such documents, whether as to any Borrower, Mortgage Borrower, Senior Mezzanine Borrower, the Collateral, the Senior Mezzanine Collateral or any Individual Property, or if any other such event definition of Bed Cap shall occur or condition shall exist, if the effect of such event or condition is to accelerate the maturity of any portion of the Debt or to permit Lender to accelerate the maturity of all or any portion of the Debt;
(xx) if the Liens created pursuant to any Loan Document shall cease to be a fully protected enforceable first priority security interest in the Collateral, or any portion of the Collateral is Transferred without Lender’s prior written consent except as permitted hereunder; or
(xxi) if a Mortgage Loan Event of Default or Senior Mezzanine Loan Event of Default shall occur.
(b) Upon the occurrence of not constitute an Event of Default (other than unless such breach concurrently affects a “substantial number” of Facilities. A “substantial number” of Facilities shall be a number of Facilities with an Event aggregate appraised value, as of Default described in clauses (vi) the date hereof, of $50,000,000 or (vii) above) more.
7.1.8 Borrower, Operator, GEN or any Affiliate defaults on any indebtedness or obligation to Lender or any Lender Affiliate, any agreement with Lender or any Lender Affiliate or any Affiliate Obligation, or Borrower, Operator or GEN defaults on any Material Obligation, and at any time thereafterapplicable grace or cure period with respect to default under such indebtedness, in addition to any other rights obligation or remedies available to it pursuant to this Agreement and the other Loan Documents or at law or in equity, Lender may take agreement expires without such action, without notice or demand, that Lender deems advisable to protect and enforce its rights against Borrower and in and default having been cured. This provision applies to all such indebtedness, obligations and agreements as they may be amended, modified, extended, or any of the Collateral, including, without limitation, declaring the Debt renewed from time to be immediately due and payable, and Lender may enforce or avail itself of any or all rights or remedies provided in the Loan Documents and may exercise all the rights and remedies of a secured party under the Uniform Commercial Code, as adopted and enacted by the State or States where any of the Collateral is located, against Borrower and any or all of the Collateral, including, without limitation, all rights or remedies available at law or in equity; and upon any Event of Default described in clauses (vi) or (vii) above, the Debt and all other obligations of Borrower hereunder and under the other Loan Documents shall immediately and automatically become due and payable, without notice or demand, and Borrower hereby expressly waives any such notice or demand, anything contained herein or in any other Loan Document to the contrary notwithstandingtime.
Appears in 2 contracts
Samples: Loan Agreement (Genesis Healthcare, Inc.), Loan Agreement (Genesis Healthcare, Inc.)
Event of Default. (a) Each Upon the occurrence and during the continuance of any “Event of Default” under the Master Agreement, the Lender shall have and may exercise the same rights, powers, and remedies with respect to the Collateral that the Grantor may exercise, which rights, powers, and remedies are incorporated herein by this reference for all purposes. In furtherance and not in limitation of the following events foregoing, the Lender shall constitute an have all rights, remedies and recourses with respect to the Collateral granted in the Master Agreement and any other instrument executed in connection therewith, or existing at common law or equity (including specifically those granted by the Uniform Commercial Code as adopted in the District of Columbia, the right of offset, the right to sell the Collateral at public or private sale, and the right to receive distributions to Grantor, and such rights and remedies (i) shall be cumulative and concurrent, (ii) may be pursued separately, successively or concurrently against the Grantor and any other party obligated under the Obligations, or against the Collateral, or any other security for the Obligations, at the sole discretion of the Lender, (iii) may be exercised as often as occasion therefor shall arise, it being agreed by Grantor that the exercise or failure to exercise any of same shall in no event be construed as a waiver or release thereof or of default hereunder any other right, remedy or recourse, and (iv) are intended to be and shall be, non-exclusive. If the proceeds of sale, collection or other realization of or upon the Collateral are insufficient to cover the costs and expenses of such realization and the payment in full of the Obligations, the Grantor shall remain liable for any deficiency (subject to the applicable non-recourse provisions of the Master Agreement). Upon the occurrence and continuance of an “Event of Default”):
(i) if (A) any portion of ” under the Debt is not paid in full on the Maturity Date, (B) the Debt Service is not paid in full on or before the related Payment Date, or (C) any other portion of the Debt is not paid within five (5) days of when due;
(ii) if any of the Taxes or Other Charges are not paid (with respect to each or any Individual Property) prior to Delinquency;
(iii) if the Policies (with respect to each or any Individual Property) are not kept in full force and effect, or if certified copies of the Policies (for each Individual Property) are not delivered to Lender upon request (or certificates thereof, if a Policy shall be renewed and certified copies of the Policy are not immediately available upon such renewal (each Borrower agreeing in such instance to provide copies of the Policies to Lender promptly thereafter));
(iv) if any Borrower Transfers or otherwise encumbers any portion of the Properties, the Collateral or the Senior Mezzanine Collateral, or there shall otherwise occur a Transfer without Lender’s prior consent in violation of the provisions of this Master Agreement, the Pledge Agreement or any other Loan Document;
(v) if any representation or warranty made by any Borrower or any other Loan Party herein or in any other Loan Document, or in any report, certificate, financial statement or other instrument, agreement or document or other material or written information furnished to Lender shall have been false or misleading in any material respect as of the date the representation or warranty was made (and, with respect to any such breach which is not the subject of any other subsection of this Section 8.1 and which is capable of being cured, such Borrower fails to remedy such condition within ten (10) days following notice to Borrower from Lender, in the case of any such breach which can be cured sale by the payment Lender of a sum of money, or within thirty (30) days following notice from Lender in the case of any other such breach);
(vi) if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower shall make an assignment for the benefit of creditors; or if a receiver, liquidator or trustee shall be appointed for any Borrower, Senior Mezzanine Borrower or Mortgage Borrower, or if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower shall be adjudicated a bankrupt or insolvent, or if any petition for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by or against, consented to, or acquiesced in by, Borrower or Senior Mezzanine Borrower, or if any proceeding for the dissolution or liquidation of any Borrower, Senior Mezzanine Borrower or Mortgage Borrower shall be instituted; provided, however, if such appointment, adjudication, petition or proceeding was involuntary and not consented to by any Borrower, Senior Mezzanine Borrower or Mortgage Borrower, upon the same not being discharged, stayed or dismissed within ninety (90) days;
(vii) if any Operating Company, any Manager, Principal, Holdings or any Guarantor shall make an assignment for the benefit of creditors; or if a receiver, liquidator or trustee shall be appointed for any such Operating Company, any such Manager, Principal, Holdings or any such Guarantor, or if any Operating Company, any Manager, Principal, Holdings or any Guarantor shall be adjudicated a bankrupt or insolvent, or if any petition for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by or against, consented to, or acquiesced in by, any Operating Company, any Manager, Principal, Holdings or any Guarantor, or if any proceeding for the dissolution or liquidation of any Operating Company, any Manager, Principal, Holdings or any Guarantor shall be instituted; provided, however, if such appointment, adjudication, petition or proceeding was involuntary and not consented to by any such Operating Company, any such Manager, Principal, Holdings or any such Guarantor, upon the same not being discharged, stayed or dismissed within ninety (90) days;
(viii) if any Borrower attempts to assign its rights under this Agreement or any of the other Loan Documents or any interest herein or therein in contravention of the Loan Documents;
(ix) if any Borrower breaches any of its respective negative covenants contained in Section 5.2 or any covenant contained in Section 4.1.30 or Section 5.1.11 hereof (and, with respect to any such breach of any covenant set forth in Section 5.1.11 which is not the subject of any other subsection of this Section 8.1, such Borrower fails to remedy such condition within ten (10) days after notice to Borrower from Lender, in the case of any such Default under Section 5.1.11 which can be cured by the payment of a sum of money, or for thirty (30) days after notice from Lender in the case of any other such Default under Section 5.1.11);
(x) with respect to any term, covenant or provision set forth herein which specifically contains a notice requirement or grace period, if any Borrower shall be in default under such term, covenant or condition after the giving of such notice or the expiration of such grace period;
(xi) if any of the assumptions contained in the Insolvency Opinion delivered in connection with the Loan, or in the Additional Insolvency Opinion delivered subsequent to the closing of the Loan, is or shall become untrue in any material respect; or if any of the assumptions contained in the True Lease Opinion in connection with the Loan, or in the Additional True Lease Opinion delivered subsequent to the closing of the Loan, is or shall become untrue in any material respect;
(xii) if any Mortgage Borrower, any Operating Company or any Guarantor (Operating Lease) is in default of any of its material obligations under any Operating Lease (or under another lease and/or management agreement in substitution for such Operating Lease in accordance herewith) or under any such Operating Lease Guaranty (or under another operating lease guaranty in substitution for such Operating Lease Guaranty in accordance herewith) beyond any applicable notice and cure periods contained therein; or if any Operating Lease (or such other lease and/or management agreement) or any Operating Lease Guaranty (or such other operating lease guaranty) shall be surrendered or any Operating Lease or any Operating Lease Guaranty shall be terminated or canceled for any reason or under any circumstances whatsoever, except with the consent of Lender; or if any of the terms, covenants or conditions of any Operating Lease (or such other lease and/or management agreement) or any Operating Lease Guaranty (or such other operating lease guaranty) shall in any manner be modified, changed, supplemented, altered, restated or amended without the consent of Lender except as may otherwise expressly permitted in this Agreement;
(xiii) intentionally omitted;
(xiv) if any Affiliate of any Borrower that is or becomes a party to the Windstorm Insurance Intercreditor Agreement is in default of any of its material obligations under the Windstorm Insurance Intercreditor Agreement beyond any applicable notice and cure periods contained therein; or if the Windstorm Insurance Intercreditor Agreement shall be surrendered, terminated or canceled for any reason or under any circumstances whatsoever, except with the consent of Lender; or if any of the terms, covenants or conditions of the Windstorm Insurance Intercreditor Agreement shall in any manner be modified, changed, supplemented, altered, restated or amended without the consent of Lender;
(xv) if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower fails to comply with the covenants as to Prescribed Laws set forth in Section 5.1.1 hereof;
(xvi) if a material default has occurred and continues beyond any applicable cure period under any Management Agreement and if such default permits the Manager, the Operating Company or the Mortgage Borrower party thereto to terminate or cancel the Management Agreement in question;
(xvii) any Gaming License shall be refused, suspended, revoked, modified in a materially adverse manner or canceled or allowed to lapse or any proceeding is commenced by any Governmental Authority for the purpose of suspending, revoking or canceling any Gaming License in any materially adverse respect, or any Governmental Authority shall have appointed a conservator, supervisor or trustee to or for any of the Casino Components and, in each case of the foregoing, such action could reasonably be expected to (A) have an Individual Material Adverse Effect, (B) materially and adversely affect the continued operation of the Casino Components in the usual course of business and in substantially the same manner and to at least the same standard as was maintained prior to such action, or (C) result in any material decrease in the then expected cash flow and revenues to be derived from the Casino Components;
(xviii) if any Borrower shall continue to be in Default under any of the other terms, covenants or conditions of this Agreement not specified in subsections (i) to (xvii) above, for ten (10) days after notice to Borrower from Lender, in the case of any Default which can be cured by the payment of a sum of money, or for thirty (30) days after notice from Lender in the case of any other Default; provided, however, that if such non-monetary Default is susceptible of cure but cannot reasonably be cured within such thirty (30) day period and provided further that such Borrower shall have commenced to cure such Default within such thirty (30) day period and thereafter diligently and expeditiously proceeds to cure the same, such thirty (30) day period shall be extended for such time as is reasonably necessary for such Borrower in the exercise of due diligence to cure such Default, such additional period not to exceed one hundred twenty (120) days;
(xix) if there shall be a default under any of the other Loan Documents beyond any applicable cure periods contained in such documents, whether as to any Borrower, Mortgage Borrower, Senior Mezzanine Borrower, the Collateral, the Senior Mezzanine Collateral or any Individual Property, or if any other such event shall occur or condition shall exist, if the effect of such event or condition is to accelerate the maturity of any portion of the Debt or to permit Lender to accelerate the maturity of all or any portion of the Debt;
(xx) if the Liens created pursuant to any Loan Document shall cease to be a fully protected enforceable first priority security interest in the Collateral, or any portion of the Collateral is Transferred without Lender’s prior written consent except as permitted hereunder; or
(xxi) if a Mortgage Loan Event of Default or Senior Mezzanine Loan Event of Default shall occur.
(b) Upon the occurrence of an Event of Default (other than an Event of Default described in clauses (vi) or (vii) above) and at any time thereafter, in addition to any other rights or remedies available to it pursuant to this Agreement and the other Loan Documents or at law or in equity, Lender may take such action, without notice or demand, that Lender deems advisable to protect and enforce its rights against Borrower and in and to all or any of the Collateral, which may be elected at the option and in the complete discretion of the Lender, the Collateral so sold may be retained by the Lender until the selling price is paid by the purchaser, but the Lender shall not incur any liability in case of failure of the purchaser to take up and pay for the Collateral so sold. In case of any such failure, such Collateral so sold may be again similarly sold. After deducting all costs or expenses of every kind (including, without limitation, declaring the Debt to be immediately due reasonable attorneys’ fees and payablelegal expenses incurred by the Lender), and the Lender shall apply the residue of the proceeds of any sale or sales in such manner as the Lender may enforce or avail itself of any or all rights or remedies provided in the Loan Documents and may exercise all the rights and remedies of a secured party under the Uniform Commercial Code, as adopted and enacted by the State or States where any of the Collateral is located, against Borrower and any or all of the Collateral, including, without limitation, all rights or remedies available at law or in equity; and upon any Event of Default described in clauses (vi) or (vii) above, the Debt and all other obligations of Borrower hereunder and under the other Loan Documents shall immediately and automatically become due and payable, without notice or demand, and Borrower hereby expressly waives any such notice or demand, anything contained herein or in any other Loan Document to the contrary notwithstandingdeem advisable.
Appears in 2 contracts
Samples: Master Credit Facility Agreement (Mid America Apartment Communities Inc), Master Credit Facility Agreement (Mid America Apartment Communities Inc)
Event of Default. (a) Each of the following events shall constitute an event of default hereunder (an “Event of Default”):
(i) if (A) any portion of the Debt Indebtedness is not paid in full on the Maturity Date, (B) any regularly scheduled monthly payment of interest due under the Debt Service Notes is not paid in full on or before the related fifth (5th) calendar day following the applicable Payment DateDate (or, if such fifth (5th) calendar day is not a Business Day, on or before the immediately preceding Business Day), (C) any other portion prepayment of principal due under this Agreement or the Debt Notes is not paid within five on or before the fifth (55th) days of calendar day following the date the same is due (or, if such fifth (5th) calendar day is not a Business Day, on or before the immediately preceding Business Day), (D) the Yield Maintenance Premium is not paid when due, (E) any deposit to the Holding Account is not made when due, and such failure continuing for ten (10) Business Days after Lender delivers written notice thereof to Borrower, or (F) except as to any amount included in (A), (B), (C) or (D) of this clause (i), any other amount payable pursuant to this Agreement, the Notes or any other Loan Document is not paid in full when due and payable in accordance with the provisions of the applicable Loan Document, with such failure continuing for ten (10) Business Days after Lender delivers written notice thereof to Borrower;
(ii) subject to Borrower’s right to contest as set forth in Section 7.3, if any of the Taxes Impositions or Other Charges are not paid (with respect to each or any Individual Property) prior to Delinquencythe imposition of any interest, penalty, charge or expense for the non-payment thereof;
(iii) if the Policies (with respect to each or any Individual Property) insurance policies required by Section 6.1 are not kept in full force and effect, effect or if certified copies of the Policies (for each Individual Property) any of such insurance policies are not delivered to Lender upon request within fifteen (or certificates thereof, if a Policy shall be renewed and certified copies 15) days of the Policy are not immediately available upon effective date of such renewal (each Borrower agreeing in such instance to provide copies of the Policies to Lender promptly thereafter))insurance policies;
(iv) if if, except as permitted pursuant to this Agreement, any Borrower Transfers of the following shall occur: (a) any Transfer of any direct or otherwise encumbers indirect legal, beneficial or equitable interest in all or any portion of the PropertiesProperty, (b) any Transfer of any direct or indirect interest in Borrower, Master Lessee, Maryland Loan Guarantor any other SPE Entity or Guarantor, (c) Borrower (or in the Collateral or the Senior Mezzanine Collateral, or there shall otherwise occur a Transfer without Lender’s prior consent in violation case of the provisions of this AgreementMaryland Property, the Pledge Agreement Maryland Loan Guarantor) fails to remove any Lien or encumbrance (other than a Permitted Encumbrance) on all or any portion of the Property (other than a Permitted Encumbrance) within thirty (30) days after Lender delivers written notice thereof to Borrower, (d) any pledge, hypothecation, creation of a security interest in or other encumbrance of any direct or indirect interests in Borrower, Maryland Loan DocumentGuarantor, Master Lessee, any other SPE Entity or Guarantor or (e) the filing of a declaration of condominium with respect to the Property;
(v) if any representation or warranty made by any Borrower or any other Maryland Loan Party Guarantor herein or by Borrower, Maryland Loan Guarantor or Guarantor in any other Loan Document, or in any report, certificate, financial statement or other instrument, agreement or document or other material or written information furnished to Lender shall have been false or misleading in any material respect as of the date the representation or warranty was made, unless, if the representation or warranty is of a nature that can be made (andto be true and correct as of the then-current date, with respect to any such breach which and is not the subject likely to have a Material Adverse Effect and was not intentionally false or misleading in any material respect when made, then same does not constitute an Event of any other subsection of this Section 8.1 Default if Borrower makes such representation or warranty true and which is capable of being cured, such Borrower fails to remedy such condition within ten (10) days following notice to Borrower from Lender, in the case of any such breach which can be cured by the payment of a sum of money, or correct and not misleading within thirty (30) days following after written notice thereof from Lender in the case of any other such breach)Lenders;
(vi) if any Borrower, Senior Mezzanine Borrower Maryland Loan Guarantor, Master Lessee, any other SPE Entity or Mortgage Borrower Guarantor shall make an assignment for the benefit of creditors; or ;
(vii) if a receiver, liquidator or trustee shall be appointed for any Borrower, Senior Mezzanine Borrower Maryland Loan Guarantor, Master Lessee, any other SPE Entity or Mortgage Guarantor or Borrower, or if any BorrowerMaryland Loan Guarantor, Senior Mezzanine Borrower or Mortgage Borrower shall be adjudicated a bankrupt or insolvent, or if any petition for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by or against, consented to, or acquiesced in by, Borrower or Senior Mezzanine Borrower, or if any proceeding for the dissolution or liquidation of any Borrower, Senior Mezzanine Borrower or Mortgage Borrower shall be instituted; provided, however, if such appointment, adjudication, petition or proceeding was involuntary and not consented to by any Borrower, Senior Mezzanine Borrower or Mortgage Borrower, upon the same not being discharged, stayed or dismissed within ninety (90) days;
(vii) if any Operating CompanyMaster Lessee, any Manager, Principal, Holdings other SPE Entity or any Guarantor shall make an assignment for the benefit of creditors; or if a receiver, liquidator or trustee shall be appointed for any such Operating Company, any such Manager, Principal, Holdings or any such Guarantor, or if any Operating Company, any Manager, Principal, Holdings or any Guarantor shall be adjudicated a bankrupt or insolvent, or if any petition for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by or against, consented to, or acquiesced in by, any Operating CompanyBorrower, Maryland Loan Guarantor, Master Lessee, any Manager, Principal, Holdings other SPE Entity or any Guarantor, or if any proceeding for the dissolution or liquidation of any Operating CompanyBorrower, Maryland Loan Guarantor, Master Lessee, any Manager, Principal, Holdings other SPE Entity or any Guarantor shall be instituted; provided, however, if such appointment, adjudication, petition or proceeding was involuntary and not consented to by any such Operating CompanyBorrower, Maryland Loan Guarantor, Master Lessee, any such Manager, Principal, Holdings other SPE Entity or any such Guarantor, Guarantor upon the same not being discharged, stayed or dismissed within ninety one hundred (90120) days;
(viii) if Borrower, Maryland Loan Guarantor, any Borrower other SPE Entity or Guarantor, as applicable, attempts to assign its rights under this Agreement or any of the other Loan Documents or any interest herein or therein in contravention of the Loan Documents;
(ix) if any Borrower breaches any of its respective negative covenants contained in Section 5.2 or any covenant contained in Section 4.1.30 or Section 5.1.11 hereof (and, with respect to any such breach of any covenant set forth in Section 5.1.11 which is not the subject of any other subsection of this Section 8.1, such Borrower fails to remedy such condition within ten (10) days after notice to Borrower from Lender, in the case of any such Default under Section 5.1.11 which can be cured by the payment of a sum of money, or for thirty (30) days after notice from Lender in the case of any other such Default under Section 5.1.11);
(x) with respect to any term, covenant or provision set forth herein (other than the other subsections of this Section 17.l) which specifically contains a notice requirement or grace period, if Borrower, Maryland Loan Guarantor, any Borrower other SPE Entity or Guarantor shall be in default under such term, covenant or condition after the giving of such notice or the expiration of such grace period;
(xix) if any of the assumptions contained in the Insolvency Non-Consolidation Opinion, in any Additional Non-Consolidation Opinion or in any other non-consolidation opinion delivered to Lender in connection with the Loan, or in the Additional Insolvency Opinion any other non-consolidation opinion delivered subsequent to the closing of the Loan, is or shall become untrue untrue;
(xi) if Borrower or Maryland Loan Guarantor shall fail to comply with any covenants set forth in any material respect; Section 5.1.4, Section 5.2.9 or if any of the assumptions contained in the True Lease Opinion in connection with the Loan, or in the Additional True Lease Opinion delivered subsequent to the closing of the Loan, is or shall become untrue in any material respectSection 5.2.21;
(xii) if any Mortgage Borrower, any Operating Company or any Guarantor (Operating Lease) is in default of any of its material obligations under any Operating Lease (or under another lease and/or management agreement in substitution for such Operating Lease in accordance herewith) or under any such Operating Lease Guaranty (or under another operating lease guaranty in substitution for such Operating Lease Guaranty in accordance herewith) beyond any applicable notice and cure periods contained therein; or if any Operating Lease (or such other lease and/or management agreement) or any Operating Lease Guaranty (or such other operating lease guaranty) shall be surrendered or any Operating Lease or any Operating Lease Guaranty shall be terminated or canceled for any reason or under any circumstances whatsoever, except with the consent of Lender; or if any of the terms, covenants or conditions of any Operating Lease (or such other lease and/or management agreement) or any Operating Lease Guaranty (or such other operating lease guaranty) shall in any manner be modified, changed, supplemented, altered, restated or amended without the consent of Lender except as may otherwise expressly permitted provided clause (xi) above, if Borrower or Maryland Loan Guarantor shall fail to comply with any covenants set forth in this AgreementArticle V or Section XI with such failure continuing for ten (10) Business Days after Lender delivers written notice thereof to Borrower;
(xiii) intentionally omittedif Borrower (or in the case of the Maryland Property, Maryland Loan Guarantor) shall fail to comply with any covenants set forth in Section 3(d) or Section 8 of the Security Instrument with such failure continuing for ten (10) Business Days after Lender delivers written notice thereof to Borrower;
(xiv) if Borrower or Maryland Loan Guarantor shall fail to deposit any Affiliate of any Borrower that is or becomes a party sums required to be deposited in the Windstorm Insurance Intercreditor Agreement is in default of any of its material obligations under the Windstorm Insurance Intercreditor Agreement beyond any applicable notice and cure periods contained therein; or if the Windstorm Insurance Intercreditor Agreement shall be surrendered, terminated or canceled for any reason or under any circumstances whatsoever, except with the consent of Lender; or if any of the terms, covenants or conditions of the Windstorm Insurance Intercreditor Agreement shall in any manner be modified, changed, supplemented, altered, restated or amended without the consent of LenderCollateral Accounts pursuant to Article XVI when due;
(xv) if this Agreement or any other Loan Document or any Lien granted hereunder or thereunder, in whole or in part, shall terminate or shall cease to be effective or shall cease to be a legally valid, binding and enforceable obligation of Borrower, Senior Mezzanine Borrower Maryland Loan Guarantor or Mortgage Borrower fails Guarantor, or any Lien securing the Indebtedness shall, in whole or in part, cease to comply be a perfected first priority Lien, subject to the Permitted Encumbrances (except in any of the foregoing cases in accordance with the covenants as to Prescribed Laws set forth in Section 5.1.1 hereofterms hereof or under any other Loan Document or by reason of any affirmative act of Lender);
(xvi) except as expressly permitted pursuant to the Loan Documents, if a material default has occurred Borrower (or in the case of the Maryland Property, Maryland Loan Guarantor) or Master Lessee grants any easement, covenant or restriction (other than the Permitted Encumbrances) over the Property and continues beyond any applicable cure period under any Management Agreement and if such default permits the Managereasement, the Operating Company covenant or the Mortgage Borrower party thereto restriction is not terminated within thirty (30) days after Lender delivers written notice thereof to terminate or cancel the Management Agreement in questionBorrower;
(xvii) any Gaming License if the Master Lease shall be refusedmaterially modified without the prior written consent of Lender, suspended, revoked, modified in a materially adverse manner or canceled or allowed to lapse or any proceeding is commenced by any Governmental Authority for the purpose of suspending, revoking or canceling any Gaming License in any materially adverse respect, or any Governmental Authority shall have appointed a conservator, supervisor or trustee to or for any of the Casino Components and, in each case of the foregoing, such action could reasonably be expected to (A) have an Individual Material Adverse Effect, (B) materially and adversely affect the continued operation of the Casino Components in the usual course of business and in substantially the same manner and to at least the same standard except as was maintained prior to such action, or (C) result in any material decrease in the then expected cash flow and revenues to be derived from the Casino Componentsexpressly permitted hereunder;
(xviii) if Borrower (or in the case of the Maryland Property, Maryland Loan Guarantor) shall be in default in any material obligation on the part of Borrower (or in the case of the Maryland Property, Maryland Loan Guarantor) beyond any applicable notice periods and cure periods pursuant to the terms of the Master Lease and such default is reasonably likely to have a Material Adverse Effect;
(xix) if the Master Lease shall terminate;
(xx) if Borrower or Maryland Loan Guarantor shall continue to be in Default under any of the other terms, covenants or conditions of this Agreement or of any Loan Document not specified in subsections clauses (i) to through (xviixix) above, for ten (10) days after notice to Borrower from Lender, in the case of any Default which can be cured by the payment of a sum of money, or for thirty (30) days after notice from Lender in the case of any other DefaultLender; provided, however, that if such non-monetary Default is susceptible of cure but cannot reasonably be cured within such thirty (30) day period and provided further provided, further, that such Borrower or Maryland Loan Guarantor, as applicable, shall have commenced to cure such Default within such thirty (30) day period and thereafter diligently and expeditiously proceeds to cure the same, such thirty (30) day period shall be extended for such time as is reasonably necessary for such Borrower or Maryland Loan Guarantor, as applicable, in the exercise of due diligence to cure such Default, such additional period not to exceed one hundred twenty ninety (12090) days;
(xix) if there shall be a default under any of the other Loan Documents beyond any applicable cure periods contained in such documents, whether as to any Borrower, Mortgage Borrower, Senior Mezzanine Borrower, the Collateral, the Senior Mezzanine Collateral or any Individual Property, or if any other such event shall occur or condition shall exist, if the effect of such event or condition is to accelerate the maturity of any portion of the Debt or to permit Lender to accelerate the maturity of all or any portion of the Debt;
(xx) if the Liens created pursuant to any Loan Document shall cease to be a fully protected enforceable first priority security interest in the Collateral, or any portion of the Collateral is Transferred without Lender’s prior written consent except as permitted hereunder; or
(xxi) if a Mortgage Loan Event of Default or Senior Mezzanine Loan Event of Default shall occur.
(b) Upon Unless waived in writing by Lender, upon the occurrence and during the continuance of an Event of Default (other than an Event of Default described in clauses (via)(vi), (vii) or (viiviii) above) and at any time thereafterLender may, without notice or demand, in addition to any other rights or remedies available to it pursuant to this Agreement and the other Loan Documents or at law or in equity, Lender may take such action, without notice or demand, action that Lender deems advisable to protect and enforce its rights against Borrower and Maryland Loan Guarantor and in and to all or any of the CollateralProperty, including, without limitation, (i) declaring the Debt to be immediately due and payablepayable the entire Principal Amount together with interest thereon and all other sums due by Borrower and Maryland Loan Guarantor under the Loan Documents, (ii) collecting interest on the Principal Amount at the Default Rate whether or not Lender elects to accelerate the Notes and Lender may enforce (iii) enforcing or avail availing itself of any or all rights or remedies provided set forth in the Loan Documents against Borrower, Maryland Loan Guarantor and may exercise all the rights and remedies of a secured party under the Uniform Commercial Code, as adopted and enacted by the State or States where any of the Collateral is located, against Borrower and any or all of the CollateralProperty, including, without limitation, all rights or remedies available at law or in equity; and upon any Event of Default described in clauses (via)(vi) or (viia)(vii) above, the Debt Indebtedness and all other obligations of Borrower and Maryland Loan Guarantor hereunder and under the other Loan Documents shall immediately and automatically become due and payable, without notice or demand, and Borrower and Maryland Loan Guarantor each hereby expressly waives any such notice or demand, anything contained herein or in any other Loan Document to the contrary notwithstanding. The foregoing provisions shall not be construed as a waiver by Lender of its right to pursue any other remedies available to it under this Agreement, the Security Instrument or any other Loan Document. Any payment hereunder may be enforced and recovered in whole or in part at such time by one or more of the remedies provided to Lender in the Loan Documents.
Appears in 2 contracts
Samples: Loan and Security Agreement (BlueLinx Holdings Inc.), Loan and Security Agreement (BlueLinx Holdings Inc.)
Event of Default. (a) Each of the following events described in clauses (i) through (viii) of this Section 11(a) shall constitute an event of default hereunder (an “"Event of Default”):."
(i) if (A) default shall occur in the payment of any portion principal, interest or other sums due under this Note or the Other Note in any such case, when and as the same all become due and payable, whether at maturity or by acceleration or as part of any payment or prepayment or otherwise, in each case, as provided in this Note or the Debt is not paid in full on the Maturity Date, (B) the Debt Service is not paid in full on or before the related Payment Date, or (C) any other portion of the Debt is not paid within five (5) days of when due;Other Note ; or
(ii) if the Borrower shall default in the due observance or performance of any other covenant, condition or agreement on the part of the Taxes Borrower to be observed or performed pursuant to the terms hereof, the Warrants, the Registration Rights Agreement, the Security Agreement or the Other Charges are not paid Note (with respect collectively, the "DOCUMENTS"), and such default shall continue for 10 days after the date the Borrower is required to each observe or any Individual Property) prior to Delinquency;perform such covenant, condition or agreement; or
(iii) if the Policies (with respect to each any representation, warranty or any Individual Property) are not kept in full force and effect, certification made by or if certified copies on behalf of the Policies (for each Individual Property) are not delivered to Lender upon request (or certificates thereof, if a Policy shall be renewed and certified copies Borrower in any of the Policy are not immediately available upon such renewal (each Borrower agreeing Documents or in such instance to provide copies of the Policies to Lender promptly thereafter));any certificate or other document delivered pursuant hereto or thereto shall have been incorrect in any material respect when made; or
(iv) if any Borrower Transfers or otherwise encumbers any portion of the Properties, the Collateral or the Senior Mezzanine Collateral, or there shall otherwise should occur a Transfer without Lender’s prior consent in violation of default which is not cured within the provisions of this Agreementapplicable grace period, the Pledge Agreement or if any, under any other Loan Document;indebtedness of Borrower to any other person or entity; or
(v) if by order of a court of competent jurisdiction, any representation trustee receiver or warranty made by any Borrower liquidator of Borrower's property, or any other Loan Party herein or in any other Loan Documentsubstantial part thereof, or in any report, certificate, financial statement of Borrower shall be appointed and such order shall not be discharged or other instrument, agreement or document or other material or written information furnished to Lender shall have been false or misleading in any material respect as of dismissed within sixty (60) days after the date the representation or warranty was made (and, with respect to any of such breach which is not the subject of any other subsection of this Section 8.1 and which is capable of being cured, such Borrower fails to remedy such condition within ten (10) days following notice to Borrower from Lender, in the case of any such breach which can be cured by the payment of a sum of money, or within thirty (30) days following notice from Lender in the case of any other such breach);appointment; or
(vi) if Borrower shall commence a voluntary case under any Borrowerapplicable bankruptcy, Senior Mezzanine insolvency or other similar law now or hereafter in effect, or shall consent to the entry of an order for relief in an involuntary case under any such law or to the appointment of or taking possession by any receiver, liquidator, assignee, trustee, custodian or sequestrator (or other similar official) of Borrower or Mortgage of any substantial part of its property, or if Borrower shall make an any general assignment for the benefit of creditors; or if a receiver, liquidator or trustee shall be appointed for any Borrower, Senior Mezzanine Borrower or Mortgage Borrower, or if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower shall be adjudicated a bankrupt or insolvent, fail generally to pay its debts as such debts become due or if any petition for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by or against, consented to, or acquiesced in by, Borrower or Senior Mezzanine Borrower, or if any proceeding for the dissolution or liquidation of any Borrower, Senior Mezzanine Borrower or Mortgage Borrower shall be institutedtake any material action to facilitate the foregoing; provided, however, if such appointment, adjudication, petition or proceeding was involuntary and not consented to by any Borrower, Senior Mezzanine Borrower or Mortgage Borrower, upon the same not being discharged, stayed or dismissed within ninety (90) days;or
(vii) if any Operating Companyof the creditors of Borrower shall commence against Borrower an involuntary case under any applicable bankruptcy, any Manager, Principal, Holdings insolvency or any Guarantor other similar law now or hereafter in effect and if such case shall make an assignment for not be discharged or dismissed within sixty (60) days after the benefit of creditors; or if a receiver, liquidator or trustee shall be appointed for any date on which such Operating Company, any such Manager, Principal, Holdings or any such Guarantorcase was commenced, or if any Operating Company, any Manager, Principal, Holdings or any Guarantor Borrower shall be adjudicated a bankrupt or an insolvent, or if file a petition under any petition for bankruptcyother reorganization, reorganization arrangement, composition, readjustment, liquidation or arrangement pursuant to federal bankruptcy law, or dissolution provision under any similar federal or state law, shall be filed by statute, rule, regulation or against, consented to, code now or acquiesced hereafter in by, effect or file an answer admitting to any Operating Company, any Manager, Principal, Holdings or any Guarantor, or if any proceeding for of the dissolution or liquidation material allegations of any Operating Company, any Manager, Principal, Holdings or any Guarantor shall be institutedsuch petition filed against it; provided, however, if such appointment, adjudication, petition or proceeding was involuntary and not consented to by any such Operating Company, any such Manager, Principal, Holdings or any such Guarantor, upon the same not being discharged, stayed or dismissed within ninety (90) days;or
(viii) if any Borrower attempts to assign its rights under this Agreement or any of the other Loan Documents or any interest herein or therein in contravention of the Loan Documents;
(ix) if any Borrower breaches any of its respective negative covenants contained in Section 5.2 or any covenant contained in Section 4.1.30 or Section 5.1.11 hereof (and, with respect to any such breach of any covenant set forth in Section 5.1.11 which is not the subject of any other subsection of this Section 8.1, such Borrower fails to remedy such condition within ten (10) days after notice to Borrower from Lender, in the case of any such Default under Section 5.1.11 which can be cured by judgment for the payment of a sum money shall be rendered against Borrower and Borrower shall not discharge the same or cause it to be discharged within sixty (60) days from the date of moneyentry thereof, or for thirty (30) days after notice from Lender in the case of any other such Default under Section 5.1.11);
(x) with respect to any term, covenant shall not appeal therefrom or provision set forth herein which specifically contains a notice requirement or grace period, if any Borrower shall be in default under such term, covenant or condition after the giving of such notice or the expiration of such grace period;
(xi) if any of the assumptions contained in the Insolvency Opinion delivered in connection with the Loan, or in the Additional Insolvency Opinion delivered subsequent to the closing of the Loan, is or shall become untrue in any material respect; or if any of the assumptions contained in the True Lease Opinion in connection with the Loan, or in the Additional True Lease Opinion delivered subsequent to the closing of the Loan, is or shall become untrue in any material respect;
(xii) if any Mortgage Borrower, any Operating Company or any Guarantor (Operating Lease) is in default of any of its material obligations under any Operating Lease (or under another lease and/or management agreement in substitution for such Operating Lease in accordance herewith) or under any such Operating Lease Guaranty (or under another operating lease guaranty in substitution for such Operating Lease Guaranty in accordance herewith) beyond any applicable notice and cure periods contained therein; or if any Operating Lease (or such other lease and/or management agreement) or any Operating Lease Guaranty (or such other operating lease guaranty) shall be surrendered or any Operating Lease or any Operating Lease Guaranty shall be terminated or canceled for any reason or under any circumstances whatsoever, except with the consent of Lender; or if any of the terms, covenants or conditions of any Operating Lease (or such other lease and/or management agreement) or any Operating Lease Guaranty (or such other operating lease guaranty) shall in any manner be modified, changed, supplemented, altered, restated or amended without the consent of Lender except as may otherwise expressly permitted in this Agreement;
(xiii) intentionally omitted;
(xiv) if any Affiliate of any Borrower that is or becomes a party to the Windstorm Insurance Intercreditor Agreement is in default of any of its material obligations under the Windstorm Insurance Intercreditor Agreement beyond any applicable notice and cure periods contained therein; or if the Windstorm Insurance Intercreditor Agreement shall be surrendered, terminated or canceled for any reason or under any circumstances whatsoever, except with the consent of Lender; or if any of the terms, covenants or conditions of the Windstorm Insurance Intercreditor Agreement shall in any manner be modified, changed, supplemented, altered, restated or amended without the consent of Lender;
(xv) if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower fails to comply with the covenants as to Prescribed Laws set forth in Section 5.1.1 hereof;
(xvi) if a material default has occurred and continues beyond any applicable cure period under any Management Agreement and if such default permits the Manager, the Operating Company or the Mortgage Borrower party thereto to terminate or cancel the Management Agreement in question;
(xvii) any Gaming License shall be refused, suspended, revoked, modified in a materially adverse manner or canceled or allowed to lapse or any proceeding is commenced by any Governmental Authority for the purpose of suspending, revoking or canceling any Gaming License in any materially adverse respect, or any Governmental Authority shall have appointed a conservator, supervisor or trustee to or for any of the Casino Components and, in each case of the foregoing, such action could reasonably be expected to (A) have an Individual Material Adverse Effect, (B) materially and adversely affect the continued operation of the Casino Components in the usual course of business and in substantially the same manner and to at least the same standard as was maintained prior to such action, or (C) result in any material decrease in the then expected cash flow and revenues to be derived from the Casino Components;
(xviii) if any Borrower shall continue to be in Default under any of the other termsorder, covenants decree or conditions of this Agreement not specified in subsections (i) to (xvii) above, for ten (10) days after notice to Borrower from Lender, in the case of any Default process upon which can be cured by the payment of a sum of money, or for thirty (30) days after notice from Lender in the case of any other Default; provided, however, that if such non-monetary Default is susceptible of cure but cannot reasonably be cured within such thirty (30) day period and provided further that such Borrower shall have commenced to cure such Default within such thirty (30) day period and thereafter diligently and expeditiously proceeds to cure the same, such thirty (30) day period shall be extended for such time as is reasonably necessary for such Borrower in the exercise of due diligence to cure such Default, such additional period not to exceed one hundred twenty (120) days;
(xix) if there shall be a default under any of the other Loan Documents beyond any applicable cure periods contained in such documents, whether as to any Borrower, Mortgage Borrower, Senior Mezzanine Borrower, the Collateral, the Senior Mezzanine Collateral or any Individual Property, or if any other such event shall occur or condition shall exist, if the effect of such event or condition is to accelerate the maturity of any portion of the Debt or to permit Lender to accelerate the maturity of all or any portion of the Debt;
(xx) if the Liens created pursuant to any Loan Document shall cease to be which such judgment was granted, based or entered and secure a fully protected enforceable first priority security interest in the Collateral, or any portion stay of the Collateral is Transferred without Lender’s prior written consent except as permitted hereunder; or
(xxi) if a Mortgage Loan Event of Default or Senior Mezzanine Loan Event of Default shall occurexecution pending such appeal.
(b) Xxxxxxxx agrees that upon the occurrence and during the continuance of any Event of Default, the unpaid Principal Amount then outstanding on this Note, together with accrued and unpaid interest, and all other expenses, including, among other things, reasonable attorney fees and expenses incurred by Xxxxxx in protecting Xxxxxx's interests, enforcing Xxxxxx's rights and remedies and otherwise attempting to collect or in collecting or enforcing payment hereof whether or not suit is brought, and, if suit brought, then through all appellate actions, shall immediately become due and payable, without presentment, demand, protest or notice of any kind, all of which are hereby expressly waived, and Lender shall be able to exercise any and all rights and remedies available to Lender in such event under this Note, under each of the other Documents, at law, in equity, or otherwise.
(c) Upon the occurrence of an Event any one or more Events of Default (other than an Event of Default described in clauses (vi) or (vii) above) and at any time thereafterDefault, in addition to any other rights or remedies available to it pursuant to this Agreement and the other Loan Documents or at law or in equity, Lender may take such action, without notice or demand, that Lender deems advisable proceed to protect and enforce its rights against Borrower hereunder and in and to all or any under each of the Collateralother Documents by suit in equity, including, without limitation, declaring the Debt to be immediately due and payable, and Lender may enforce or avail itself of any or all rights or remedies provided in the Loan Documents and may exercise all the rights and remedies of a secured party under the Uniform Commercial Code, as adopted and enacted by the State or States where any of the Collateral is located, against Borrower and any or all of the Collateral, including, without limitation, all rights or remedies available action at law or by other appropriate proceeding, whether for the specific performance of any covenant or agreement contained in equity; and upon any Event of Default described in clauses (vi) or (vii) above, the Debt and all other obligations of Borrower hereunder this Note and under each of the other Loan Documents shall immediately and automatically become due and payable, without notice or demand, and Borrower hereby expressly waives any such notice or demand, anything contained herein or in aid of the exercise of any power granted in this Note or under each of the other Documents, or may proceed to enforce the payment of this Note and performance under each of the other Documents, or to enforce any other Loan Document to legal or equitable right of the contrary notwithstandingLender hereunder or thereunder.
Appears in 2 contracts
Samples: Promissory Note (Dreamlife Inc), Promissory Note (Dreamlife Inc)
Event of Default. (a) Each of the following events shall constitute an event of default hereunder (an “Event of Default”):
(i) if (A) any portion of the Debt is not paid in full on the Maturity Date, when due;
(Bii) the Debt Service is not paid in full on or before the related Payment Date, or (C) if any other portion Other Obligation of the Debt a monetary nature is not paid within five (5) days of when duethe applicable due date; in accordance with the terms and conditions of this Agreement and the other Loan Documents;
(iiiii) if any of the Taxes or Other Charges are not paid (with respect to each by or any Individual Property) on behalf of the Mortgage Borrowers prior to Delinquencythe date when the same become delinquent, except to the extent that (x) there then are sufficient funds in the Tax and Insurance Escrow Fund established pursuant to the Mortgage Loan Agreement to pay such Taxes and (y) Mortgage Lender wrongfully fails to or refuses to release the same from the Tax and Insurance Escrow Fund;
(iiiiv) if the Policies (with respect to each or any Individual Property) are not kept in full force and effect, or if certified copies of the Policies or certificates of insurance (for each Individual Propertyin accordance with the requirements of the Mortgage Loan Agreement) relating to such Policies are not delivered to Lender upon request (or certificates thereof, if a Policy shall be renewed and certified copies of the Policy are not immediately available upon such renewal (each Borrower agreeing in such instance to provide copies of the Policies to Lender promptly thereafter))request;
(ivv) if any Borrower Transfers or otherwise encumbers any portion of the Properties, the Collateral or any Mortgage Borrower Transfers or otherwise encumbers all or any portion of the Senior Mezzanine CollateralProperty or Properties owned by such Mortgage Borrower or any interest therein, or there shall otherwise occur a Transfer without Lender’s prior consent any interest in any Restricted Party is Transferred, in each instance, in violation of the provisions of this Agreement, the Mortgage Loan Agreement or the Pledge Agreement or any other Loan Document or other Mortgage Loan Document, or any Transfer is made in violation of the provisions of Section 5.2.10 hereof or as set forth in the Mortgage Loan Agreement;
(vvi) if any representation or warranty made by any Borrower or any other Loan Party herein or in any other Loan Document, or in any report, certificate, financial statement or other instrument, agreement or document or other material or written information furnished to Lender shall have been false or misleading in any material respect as of the date the representation or warranty was made (and, with respect to any such breach which is not the subject of any other subsection of this Section 8.1 and which is capable of being cured, such Borrower fails to remedy such condition within ten (10) days following notice to Borrower from Lender, in the case of any such breach which can be cured by the payment of a sum of money, or within thirty (30) days following notice from Lender in the case of any other such breach)deemed remade;
(vivii) if any Borrower, Senior Mezzanine any Mortgage Borrower, Principal, any general partner of any Mortgage Borrower or Mortgage Borrower Guarantor or any other guarantor under any guaranty issued in connection with the Loan shall make an assignment for the benefit of creditors; or ;
(viii) if a receiver, liquidator or trustee shall be appointed for any Borrower, Senior Mezzanine Borrower or any Mortgage Borrower, any general partner or managing member of any Mortgage Borrower, Principal or Guarantor or any other guarantor under any guaranty issued in connection with the Loan, or if any Borrower, Senior Mezzanine Borrower any Mortgage Borrower, any general partner or managing member of any Mortgage Borrower Borrower, Principal or Guarantor or such other guarantor shall be adjudicated a bankrupt or insolvent, or if any petition for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by or against, consented to, or acquiesced in by, Borrower Borrower, any Mortgage Borrower, any general partner or Senior Mezzanine managing member of any Mortgage Borrower, Principal or Guarantor or such other guarantor, or if any proceeding for the dissolution or liquidation of any Borrower, Senior Mezzanine Borrower any Mortgage Borrower, Principal or Mortgage Borrower Guarantor or such other guarantor shall be instituted; provided, however, if such appointment, adjudication, petition or proceeding was involuntary and not consented to by any Borrower, Senior Mezzanine Borrower or any Mortgage Borrower, any general partner or managing member of any Mortgage Borrower, Principal or Guarantor or such other guarantor, upon the same not being discharged, stayed or dismissed within ninety one hundred twenty (90120) days;
(viiix) if any Operating Company, any Manager, Principal, Holdings or any Guarantor shall make an assignment for the benefit of creditors; or if a receiver, liquidator or trustee shall be appointed for any such Operating Company, any such Manager, Principal, Holdings or any such Guarantor, or if any Operating Company, any Manager, Principal, Holdings or any Guarantor shall be adjudicated a bankrupt or insolvent, or if any petition for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by or against, consented to, or acquiesced in by, any Operating Company, any Manager, Principal, Holdings or any Guarantor, or if any proceeding for the dissolution or liquidation of any Operating Company, any Manager, Principal, Holdings or any Guarantor shall be instituted; provided, however, if such appointment, adjudication, petition or proceeding was involuntary and not consented to by any such Operating Company, any such Manager, Principal, Holdings or any such Guarantor, upon the same not being discharged, stayed or dismissed within ninety (90) days;
(viii) if any Borrower attempts to assign its rights under this Agreement or any of the other Loan Documents or any interest herein or therein in contravention of the Loan Documents;
(ixx) if any final judgment for the payment of money (i) in excess of $200,000 is rendered against Borrower, (ii) in excess of $200,000 is rendered against any Mortgage Borrower in each case where such Mortgage Borrower owns one or more Properties having an aggregate Allocated Loan Amount of less than Three Million Dollars ($3,000,000), (iii) in excess of 10% of the Allocated Loan Amount with respect to a Mortgage Borrower if such Mortgage Borrower owns a Property or Properties having an aggregate Allocated Loan Amount equal to or greater than Three Million Dollars ($3,000,000), is rendered against Borrower or any Mortgage Borrower, as the case may be or (iv) in an aggregate amount in excess of Two Million Dollars, if such judgments in such aggregate amount have been rendered against two or more Mortgage Borrowers at any time, and such Borrower or Mortgage Borrower, as the case may be, in each case, does not or Mortgage Borrowers, as the case may be, do not discharge the same or cause it to be discharged or vacated within ninety (90) days from the entry thereof, or does not appeal therefrom or from the order, decree or process upon which or pursuant to which said judgment was granted, based or entered, and does not secure a stay of execution pending such appeal within ninety (90) days after the entry thereof;
(xi) if (i) Borrower breaches any of its respective negative covenants contained in Section 5.2 or any covenant contained in Section 4.1.30 or Section 5.1.11 hereof (and, with respect to any such breach of any covenant set forth in Section 5.1.11 which is not the subject of any other subsection of this Section 8.1, such Borrower fails to remedy such condition deliver any financial statements within ten (10) days after notice the dates required for such delivery pursuant to Borrower from Lender, in the case of any such Default under Section 5.1.11 which can be cured by hereof or (ii) any Mortgage Borrower breaches any of its respective negative covenants contained in Section 5.2 of the payment Mortgage Loan Agreement or any covenant contained in Section 4.1.30 of a sum of money, the Mortgage Loan Agreement or for thirty fails to deliver any financial statements within ten (3010) days after notice from Lender in the case dates required for such delivery pursuant to Section 5.1.11 of any other such Default under Section 5.1.11)the Mortgage Loan Agreement;
(xxii) with respect to any term, covenant or provision set forth herein which specifically contains a notice requirement or and/or grace period, if any Borrower shall be in default under such term, covenant or condition after the giving of such notice or and the expiration of such grace period, as applicable;
(xixiii) if any of the factual assumptions relating to the conduct of the Borrower or the Guarantor prior to the date hereof contained in the Insolvency Opinion delivered to Lender in connection with the Loan, or in the Additional Insolvency Opinion delivered subsequent to the closing of the Loan, is or shall become untrue in any material respect; or if any of the assumptions contained in the True Lease Opinion in connection with the Loan, or in the Additional True Lease Opinion delivered subsequent to the closing of the Loan, is or shall become untrue in any material respect;
(xii) if any Mortgage Borrower, any Operating Company or any Guarantor (Operating Lease) is in default of any of its material obligations under any Operating Lease (or under another lease and/or management agreement in substitution for such Operating Lease in accordance herewith) or under any such Operating Lease Guaranty (or under another operating lease guaranty in substitution for such Operating Lease Guaranty in accordance herewith) beyond any applicable notice and cure periods contained therein; or if any Operating Lease (or such other lease and/or management agreement) or any Operating Lease Guaranty (or such other operating lease guaranty) shall be surrendered or any Operating Lease or any Operating Lease Guaranty shall be terminated or canceled for any reason or under any circumstances whatsoever, except with the consent of Lender; or if any of the terms, covenants or conditions of any Operating Lease (or such other lease and/or management agreement) or any Operating Lease Guaranty (or such other operating lease guaranty) shall in any manner be modified, changed, supplemented, altered, restated or amended without the consent of Lender except as may otherwise expressly permitted in this Agreement;
(xiii) intentionally omitted;
(xiv) if any Affiliate of any Borrower that is or becomes a party to the Windstorm Insurance Intercreditor Agreement is in default of any of its material obligations under the Windstorm Insurance Intercreditor Agreement beyond any applicable notice and cure periods contained therein; or if the Windstorm Insurance Intercreditor Agreement shall be surrendered, terminated or canceled for any reason or under any circumstances whatsoever, except with the consent of Lender; or if any of the terms, covenants or conditions of the Windstorm Insurance Intercreditor Agreement shall in any manner be modified, changed, supplemented, altered, restated or amended without the consent of Lender;
(xv) if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower fails to comply with the covenants as to Prescribed Laws set forth in Section 5.1.1 hereof;
(xvi) if a material default has occurred and continues beyond any applicable cure period under any Management Agreement (or any Replacement Management Agreement as the case may be) and if such default permits the Manager, Manager thereunder to remove such Property from the Operating Company application of the Management Agreement (or Replacement Management Agreement as the Mortgage Borrower party thereto to case may be) or terminate or cancel the such Management Agreement in question(or any Replacement Management Agreement as the case may be); provided that the foregoing shall not relate to any real property not owned by any of the Mortgage Borrowers;
(xviixv) any Gaming License if Borrower shall continue to be refused, suspended, revoked, modified in a materially adverse manner or canceled or allowed to lapse or any proceeding is commenced by any Governmental Authority for the purpose of suspending, revoking or canceling any Gaming License in any materially adverse respect, or any Governmental Authority shall have appointed a conservator, supervisor or trustee to or for Default under any of the Casino Components andterms, covenants or conditions of Section 9.1 hereof, or fails to cooperate with Lender in each case connection with a Securitization pursuant to the provisions of Section 9.1 hereof, for five (5) Business Days after notice to Borrower from Lender, provided, however, if such Default is susceptible of cure but cannot reasonably be cured within such period and provided further that Borrower shall have commenced to cure such Default within such period and thereafter diligently and expeditiously proceeds to cure the foregoingsame, such action could five (5) Business Day period shall be extended for such time as is reasonably be expected to (A) have an Individual Material Adverse Effect, (B) materially and adversely affect the continued operation of the Casino Components necessary for Borrower in the usual course exercise of business and in substantially the same manner and due diligence to at least the same standard as was maintained prior cure such Default, such additional period not to such action, or exceed ten (C10) result in any material decrease in the then expected cash flow and revenues to be derived from the Casino ComponentsBusiness Days;
(xviiixvi) if any Borrower shall continue to be in Default under any of the other terms, covenants or conditions of this Agreement not specified in subsections clauses (i) to (xviixv) above, for ten (10) days after notice to Borrower from Lender, in the case of any Default which can be cured by the payment of a sum of money, or for thirty (30) days after notice from Lender in the case of any other Default; provided, however, that if such non-monetary Default is susceptible of cure but cannot reasonably be cured within such thirty (30) day period and provided further that such Borrower shall have commenced to cure such Default within such thirty (30) day period and thereafter diligently and expeditiously proceeds to cure the same, such thirty (30) day period shall be extended for such time as is reasonably necessary for such Borrower in the exercise of due diligence to cure such Default, such additional period not to exceed one hundred twenty (120) days;
(xixxvii) if there shall be a default under any of the other Loan Documents beyond any applicable notice and cure periods contained in such documents, whether as to any Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Borrower or the Collateral, the Senior Mezzanine Collateral or any Individual Property, or if any other such event shall occur or condition shall exist, if the effect of such event or condition is to accelerate the maturity of any portion of the Debt or to permit Lender to accelerate the maturity of all or any portion of the Debt;
(xxxviii) if any Property becomes subject to any mechanic’s, materialman’s or other Lien, other than a Lien for local real estate taxes and assessments not then due and payable, and such Lien shall remain undischarged of record (by payment, bonding or otherwise) for a period of thirty (30) days after any applicable Mortgage Borrower or the Manager has actual knowledge of the existence of such Lien;
(xix) if the Liens created pursuant to any Loan Document shall cease to be a fully protected perfected, enforceable first priority security interest interests in the Collateral, or any portion of the Collateral is Transferred without Lender’s prior written consent except as permitted hereunder; or
(xxixx) if a Mortgage Loan Event of Default or Senior Mezzanine Loan Event of Default shall occur.
(b) Upon the occurrence of an Event of Default (other than an Event of Default described in clauses (vivii) or (viiviii) above) and at any time thereafter, while such Event of Default is continuing, in addition to any other rights or remedies available to it pursuant to this Agreement and the other Loan Documents or at law or in equityequity but subject to Section 9.4, Lender may take such action, without notice or demand, that Lender deems advisable to protect and enforce its rights against Borrower and in and to all or any of the Collateral, including, without limitation, declaring the Debt Obligations to be immediately due and payable, and Lender may enforce or avail itself of any or all rights or remedies provided in the Loan Documents and may exercise all the rights and remedies of a secured party under the Uniform Commercial Code, as adopted and enacted by the State or States where any of the Collateral is located, located against Borrower and any or all of the Collateral, including, without limitation, all rights or remedies available at law or in equity; and upon any Event of Default described in clauses (vivii) or (viiviii) above, the Debt and all other obligations Other Obligations of Borrower hereunder and under the other Loan Documents shall immediately and automatically become due and payable, without notice or demand, and Borrower hereby expressly waives any such notice or demand, anything contained herein or in any other Loan Document to the contrary notwithstanding.
Appears in 2 contracts
Samples: Mezzanine Loan Agreement (Cole Credit Property Trust Inc), Mezzanine Loan Agreement (Cole Credit Property Trust III, Inc.)
Event of Default. (a) Each The occurrence of any one or more of the following events shall constitute an event of default hereunder (an “Event of Default”)::
(a) if Borrower shall fail to (i) if (A) pay when due any portion of the Debt is not paid in full sums which are payable on the Maturity Date, (B) the Debt Service is not paid in full on or before the related Payment Date, or (Cii) pay when due any other portion sums payable under the Note, this Agreement or any of the Debt is not paid within five other Loan Documents if such failure continues for three (53) days of when duefollowing the due date for such payment;
(iib) if any of the Taxes representations or Other Charges covenants contained in Article 4 or Article 5 hereof are not paid (with respect to each breached or any Individual Property) prior to Delinquencyviolated;
(iii) if the Policies (with respect to each or any Individual Property) are not kept in full force and effect, or if certified copies of the Policies (for each Individual Property) are not delivered to Lender upon request (or certificates thereof, if a Policy shall be renewed and certified copies of the Policy are not immediately available upon such renewal (each Borrower agreeing in such instance to provide copies of the Policies to Lender promptly thereafter));
(iv) if any Borrower Transfers or otherwise encumbers any portion of the Properties, the Collateral or the Senior Mezzanine Collateral, or there shall otherwise occur a Transfer without Lender’s prior consent in violation of the provisions of this Agreement, the Pledge Agreement or any other Loan Document;
(vc) if any representation or warranty made by of, or with respect to, Borrower, any Borrower Guarantor or any other Loan Party member, general partner, principal or beneficial owner of any of the foregoing, made herein or in any other Loan DocumentDocuments, or in any certificate, report, certificate, financial statement or other instrument, agreement instrument or document or other material or written information furnished to Lender shall have been false or misleading in any material adverse respect as when made or would otherwise constitute a Material Adverse Effect;
(d) any one or more of the date Loan Documents shall be canceled, terminated, revoked or rescinded otherwise than in accordance with the representation terms thereof or warranty was made with the express prior written consent of the Lender, or any action at law, suit in equity or other legal proceeding to cancel, revoke or rescind any of the Loan Documents shall be commenced by or on behalf of Borrower or any Guarantor, or any governmental authority of competent jurisdiction shall issue a judgment, order, decree or ruling to the effect that, any one or more of the Loan Documents is illegal, invalid or unenforceable in accordance with the terms thereof; or Borrower or any Guarantor denies that it has any liability or obligation under any Loan Document, or purports to revoke, terminate or rescind any Loan Document;
(ande) if (i) Borrower or any Guarantor shall commence any case, proceeding or other action (A) under any Creditors Rights Laws seeking to have an order for relief entered with respect to it, or seeking to adjudicate it bankrupt or insolvent, or seeking reorganization, or (B) seeking appointment of a receiver, trustee, custodian, conservator or other similar official for it or for all or any substantial part of its assets, or Borrower or any Guarantor shall make a general assignment for the benefit of its creditors; (ii) there shall be commenced against Borrower or any Guarantor any case, proceeding or other action of a nature referred to in clause (i) above which (A) results in the entry of an order for relief or any such adjudication or appointment or (B) remains undismissed, undischarged or unbonded for a period of sixty (60) days; (iii) there shall be commenced against Borrower or any Guarantor any case, proceeding or other action seeking issuance of a warrant of attachment, execution, distraint or similar process against all or any substantial part of its assets which results in the entry of any order for any such relief which shall not have been vacated, discharged, or stayed or bonded pending appeal within sixty (60) days from the entry thereof; (iv) Borrower or any Guarantor shall take any action in furtherance of, or indicating its consent in writing or in any legal proceeding to, approval of, or acquiescence in, any of the acts set forth in clause (i), (ii) or (iii) above; or (v) Borrower or any Guarantor shall generally not, or shall be unable to, or shall admit in writing its inability to, pay its debts as they become due;
(f) if (i) Borrower or any Guarantor fails to pay any amount due on the Indebtedness evidence by the Senior Loan Documents or any of its other Indebtedness (including principal, interest and any premium or fee thereon, but excluding Indebtedness evidenced by this Agreement and the other Loan Documents) (whether by scheduled maturity, required prepayment, acceleration, demand, or otherwise), and such failure continues beyond the applicable cure period, if any, (ii) a default occurs under any agreement or instrument evidencing any such Indebtedness, or under which any Borrower or any Guarantor has outstanding at the time, any such Indebtedness and such default continues beyond the applicable cure period, if any, or (iii) any such Indebtedness shall be declared to be due and payable, or required to be prepaid, prior to the stated maturity thereof as a result of a default or other similar adverse event;
(g) if Borrower or any of its Affiliates shall be in default under any of its obligations under the Diversus Management Agreement or any other agreement entered into in connection with the Standby Purchase Agreement;
(h) if Borrower or any Guarantor shall have rendered against it a money judgment as finally determined by a court of competent jurisdiction with respect to any such breach litigation, arbitration or mediation, in an amount equal to or greater than $500,000 (net of insurance issued by unrelated third parties), or which would reasonably be expected to result in a Material Adverse Effect;
(i) if any federal tax lien is filed against Borrower and same is not the subject discharged of any other subsection of this Section 8.1 and which is capable of being curedrecord (by payment, such Borrower fails to remedy such condition within ten (10bonding or otherwise) days following notice to Borrower from Lender, in the case of any such breach which can be cured by the payment of a sum of money, or within thirty (30) days following notice from Lender in the case of any other such breach)after same is filed;
(vij) if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower shall make an assignment for fail to deliver to Lender any Required Financial Item when the benefit of creditors; or if a receiver, liquidator or trustee shall be appointed for any Borrower, Senior Mezzanine Borrower or Mortgage Borrowersame is due, or if any Borrowerno due date is specified therefor, Senior Mezzanine Borrower or Mortgage Borrower shall be adjudicated a bankrupt or insolvent, or if any petition for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by or against, consented to, or acquiesced in by, Borrower or Senior Mezzanine Borrower, or if any proceeding for the dissolution or liquidation of any Borrower, Senior Mezzanine Borrower or Mortgage Borrower shall be instituted; provided, however, if such appointment, adjudication, petition or proceeding was involuntary and not consented to by any Borrower, Senior Mezzanine Borrower or Mortgage Borrower, upon the same not being discharged, stayed or dismissed within ninety (90) days;
(vii) if any Operating Company, any Manager, Principal, Holdings or any Guarantor shall make an assignment for the benefit of creditors; or if a receiver, liquidator or trustee shall be appointed for any such Operating Company, any such Manager, Principal, Holdings or any such Guarantor, or if any Operating Company, any Manager, Principal, Holdings or any Guarantor shall be adjudicated a bankrupt or insolvent, or if any petition for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by or against, consented to, or acquiesced in by, any Operating Company, any Manager, Principal, Holdings or any Guarantor, or if any proceeding for the dissolution or liquidation of any Operating Company, any Manager, Principal, Holdings or any Guarantor shall be instituted; provided, however, if such appointment, adjudication, petition or proceeding was involuntary and not consented to by any such Operating Company, any such Manager, Principal, Holdings or any such Guarantor, upon the same not being discharged, stayed or dismissed within ninety (90) days;
(viii) if any Borrower attempts to assign its rights under this Agreement or any of the other Loan Documents or any interest herein or therein in contravention of the Loan Documents;
(ix) if any Borrower breaches any of its respective negative covenants contained in Section 5.2 or any covenant contained in Section 4.1.30 or Section 5.1.11 hereof (and, with respect to any such breach of any covenant set forth in Section 5.1.11 which is not the subject of any other subsection of this Section 8.1, such Borrower fails to remedy such condition within ten (10) days after notice to Borrower from Lender, in the case of any such Default under Section 5.1.11 which can be cured by the payment of a sum of money, or for thirty (30) days after notice from Lender in the case of any other such Default under Section 5.1.11);
(x) with respect to any term, covenant or provision set forth herein which specifically contains a notice requirement or grace period, if any Borrower shall be in default under such term, covenant or condition after the giving of such notice or the expiration of such grace period;
(xi) if any of the assumptions contained in the Insolvency Opinion delivered in connection with the Loan, or in the Additional Insolvency Opinion delivered subsequent to the closing of the Loan, is or shall become untrue in any material respect; or if any of the assumptions contained in the True Lease Opinion in connection with the Loan, or in the Additional True Lease Opinion delivered subsequent to the closing of the Loan, is or shall become untrue in any material respect;
(xii) if any Mortgage Borrower, any Operating Company or any Guarantor (Operating Lease) is in default of any of its material obligations under any Operating Lease (or under another lease and/or management agreement in substitution for such Operating Lease in accordance herewith) or under any such Operating Lease Guaranty (or under another operating lease guaranty in substitution for such Operating Lease Guaranty in accordance herewith) beyond any applicable notice and cure periods contained therein; or if any Operating Lease (or such other lease and/or management agreement) or any Operating Lease Guaranty (or such other operating lease guaranty) shall be surrendered or any Operating Lease or any Operating Lease Guaranty shall be terminated or canceled for any reason or under any circumstances whatsoever, except with the consent of Lender; or if any of the terms, covenants or conditions of any Operating Lease (or such other lease and/or management agreement) or any Operating Lease Guaranty (or such other operating lease guaranty) shall in any manner be modified, changed, supplemented, altered, restated or amended without the consent of Lender except as may otherwise expressly permitted in this Agreement;
(xiii) intentionally omitted;
(xiv) if any Affiliate of any Borrower that is or becomes a party to the Windstorm Insurance Intercreditor Agreement is in default of any of its material obligations under the Windstorm Insurance Intercreditor Agreement beyond any applicable notice and cure periods contained therein; or if the Windstorm Insurance Intercreditor Agreement shall be surrendered, terminated or canceled for any reason or under any circumstances whatsoever, except with the consent of Lender; or if any of the terms, covenants or conditions of the Windstorm Insurance Intercreditor Agreement shall in any manner be modified, changed, supplemented, altered, restated or amended without the consent of written request by Lender;
(xvk) if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower fails Person other than those Persons named in Schedule 4.3 shall hold the legal and beneficial title to comply with the covenants as to Prescribed Laws set forth in Section 5.1.1 hereof;
(xvi) if a material default has occurred and continues beyond any applicable cure period under any Management Agreement and if such default permits the Manager, the Operating Company or the Mortgage Borrower party thereto to terminate or cancel the Management Agreement in question;
(xvii) any Gaming License shall be refused, suspended, revoked, modified in a materially adverse manner or canceled or allowed to lapse or any proceeding is commenced by any Governmental Authority for the purpose of suspending, revoking or canceling any Gaming License in any materially adverse respect, or any Governmental Authority shall have appointed a conservator, supervisor or trustee to or for any of the Casino Components and, in each case Capital Stock of the foregoing, such action could reasonably be expected to Borrower (A) have an Individual Material Adverse Effect, (B) materially and adversely affect the continued operation of the Casino Components in the usual course of business and in substantially the same manner and to at least the same standard as was maintained prior to such action, or (C) result in any material decrease in the then expected cash flow and revenues to be derived from the Casino Components;
(xviii) if any Borrower shall continue to be in Default under any of the other terms, covenants or conditions of this Agreement not specified in subsections (i) to (xvii) above, for ten (10) days after notice to Borrower from Lender, in the case of any Default which can be cured than by the payment reason of a sum of money, or for thirty (30) days after notice from Lender in the case of any other Default; provided, however, that if such non-monetary Default is susceptible of cure but cannot reasonably be cured within such thirty (30) day period and provided further that such Borrower shall have commenced to cure such Default within such thirty (30) day period and thereafter diligently and expeditiously proceeds to cure the same, such thirty (30) day period shall be extended for such time as is reasonably necessary for such Borrower in the exercise of due diligence to cure such Default, such additional period not to exceed one hundred twenty (120) days;
(xix) if there shall be a default under any of the other Loan Documents beyond any applicable cure periods contained in such documents, whether as to any Borrower, Mortgage Borrower, Senior Mezzanine Borrower, the Collateral, the Senior Mezzanine Collateral or any Individual Property, or if any other such event shall occur or condition shall exist, if the effect transfer of such event or condition Capital Stock by any such Person to an Affiliate of such Person; provided that Lender is to accelerate the maturity of any portion of the Debt or to permit Lender to accelerate the maturity of all or any portion of the Debt;
(xx) if the Liens created pursuant to any Loan Document shall cease to be a fully protected enforceable first priority security interest in the Collateral, or any portion of the Collateral is Transferred without Lender’s given prior written consent except as permitted hereundernotice of such transfer, together with an amended form of Schedule 4.3 reflecting such transfer); or
(xxil) if a Mortgage Loan Event of Default any event, development or Senior Mezzanine Loan Event of Default circumstance shall occur.
(b) Upon the occurrence of an Event of Default (other than an Event of Default described in clauses (vi) or (vii) above) and at any time thereafterhave occurred that, in addition to any other rights or remedies available to it pursuant to this Agreement and the other Loan Documents or at law or in equityreasonable judgment of Lender and/or the Standby Purchaser, Lender may take such action, without notice or demand, that Lender deems advisable to protect and enforce its rights against Borrower and in and to all or any of the Collateral, including, without limitation, declaring the Debt to be immediately due and payable, and Lender may enforce or avail itself of any or all rights or remedies provided in the Loan Documents and may exercise all the rights and remedies of could constitute a secured party under the Uniform Commercial Code, as adopted and enacted by the State or States where any of the Collateral is located, against Borrower and any or all of the Collateral, including, without limitation, all rights or remedies available at law or in equity; and upon any Event of Default described in clauses (vi) or (vii) above, the Debt and all other obligations of Borrower hereunder and under the other Loan Documents shall immediately and automatically become due and payable, without notice or demand, and Borrower hereby expressly waives any such notice or demand, anything contained herein or in any other Loan Document to the contrary notwithstandingMaterial Adverse Effect.
Appears in 2 contracts
Samples: Loan Agreement (Positive Physicians Holdings,inc.), Loan Agreement (Positive Physicians Holdings,inc.)
Event of Default. (a) Each of the following events shall constitute an event of default hereunder (an “Event of Default”):), subject to Section 5.3 hereof:
(i) if (A) any portion of the Debt, including, without limitation, the payment of the Monthly Debt Service Payment Amount, is not paid in full on the Maturity Date, (B) the Debt Service date on which it is not paid in full on or before the related Payment Date, or (C) any other portion of the Debt is not paid within five (5) days of when due;
(ii) if any of the Taxes or Other Charges are not paid (with respect to each or any Individual Property) prior to Delinquencythe date when the same become delinquent, except to the extent that (x) Borrower or Major Tenant is contesting the same in accordance with the terms of Section 5.1.2 hereof, or (y) during a Cash Sweep Period caused solely by a DSCR Trigger Event, there are sufficient funds in the Tax and Insurance Escrow Account (after deducting funds deposited into such account in respect of Premiums) to pay such Taxes or Other Charges and Lender fails to or refuses to pay the same to the extent required under this Agreement;
(iii) if the Policies (with respect to each or any Individual Property) are not kept in full force and effect, or if certified copies of the Policies (for each Individual Property) are not delivered to Lender upon request (or certificates thereof, if a Policy shall be renewed and certified copies of the Policy are not immediately available upon such renewal (each Borrower agreeing in such instance to provide copies of the Policies to Lender promptly thereafter));
(iv) if any Borrower Transfers or otherwise encumbers any portion of the Properties, the Collateral or the Senior Mezzanine Collateral, or there shall otherwise occur a Transfer Property without Lender’s prior written consent in violation (to extent such consent is required) or otherwise violates any of the provisions of this Agreement, the Pledge Agreement or any other Loan Documentrestrictions on Transfer under Section 5.2.10 herein;
(v) if any representation or warranty made by any Borrower or any other Loan Party herein or in any other Loan DocumentDocument (including, without limitation, any representation or covenant contained in Section 4.1.30 hereof), or in any report, certificate, financial statement or other instrument, agreement or document or other material or written information furnished to Lender by or on behalf of Borrower shall have been false or misleading in any material respect as of the date the representation or warranty was made (andmade, provided that, with respect to any this clause (v), if such breach which (1) was inadvertent or unintentional and is susceptible of cure, (2) should not increase the subject risk of substantive consolidation of the assets and liabilities of Borrower with those of any other subsection Person as evidenced by a bankruptcy opinion reasonably acceptable to Lender, and (3) if the representation relates to Borrower’s, Guarantor’s or Major Tenant’s financial condition at the Closing Date, does not materially impair Borrower’s or Guarantor’s ability to perform its obligations hereunder or under the other Loan Documents, then such breach shall not constitute an Event of this Section 8.1 and which is capable of being cured, Default if Borrower cures such Borrower fails to remedy such condition breach within ten five (105) days following Business Days after Lender’s written notice to Borrower from Lender, in the case of any such breach which can be cured by the payment of a sum of money, or within thirty (30) days following notice from Lender in the case of any other such breach);
(vi) if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower any Principal shall make an assignment for the benefit of creditors; or ;
(vii) if a receiver, liquidator or trustee shall be appointed for any (A) Borrower, Senior Mezzanine Borrower any Principal, Guarantor or Mortgage Borrowerany other guarantor or indemnitor under any guarantee issued in connection with the Loan shall commence any case, proceeding or other action (I) under any existing or future law of any jurisdiction, domestic or foreign, relating to bankruptcy, insolvency, reorganization, conservatorship or relief of debtors, seeking to have an order for relief entered with respect to it, or if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower shall be adjudicated seeking to adjudicate it a bankrupt or insolvent, or if any petition for bankruptcyseeking reorganization, reorganization arrangement, adjustment, winding-up, liquidation, dissolution, composition or arrangement pursuant other relief with respect to federal bankruptcy lawit or its debts, or (II) seeking appointment of a receiver, trustee, custodian, conservator or other similar official for it or for all or any similar federal substantial part of its assets, or state lawthe Borrower, any Principal, Guarantor or any other guarantor or indemnitor shall make a general assignment for the benefit of its creditors; or (B) there shall be filed by or against, consented to, or acquiesced in by, Borrower or Senior Mezzanine commenced against Borrower, any Principal, Guarantor or if any other guarantor or indemnitor any case, proceeding for the dissolution or liquidation other action of any Borrower, Senior Mezzanine Borrower or Mortgage Borrower shall be instituted; provided, however, if such appointment, adjudication, petition or proceeding was involuntary and a nature referred to in clause (A) above that is not consented to by any Borrower, Senior Mezzanine Borrower or Mortgage Borrower, upon the same not being discharged, stayed or dismissed within ninety (90) days;
days of filing (vii) if any Operating Companyprovided, any Manager, Principal, Holdings or any Guarantor shall make an assignment for the benefit of creditors; or if a receiver, liquidator or trustee shall be appointed for any such Operating Company, any such Manager, Principal, Holdings or any such Guarantor, or if any Operating Company, any Manager, Principal, Holdings or any Guarantor shall be adjudicated a bankrupt or insolvent, or if any petition for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by or against, consented to, or acquiesced in by, any Operating Company, any Manager, Principal, Holdings or any Guarantor, or if any proceeding for the dissolution or liquidation of any Operating Company, any Manager, Principal, Holdings or any Guarantor shall be instituted; providedfurther, however, if such appointmentthat with respect to Guarantor or any other guarantor or indemnitor, adjudication, petition it shall be at Lender’s option to determine whether any of the foregoing shall be an Event of Default); or proceeding was involuntary and not consented to by any such Operating Company(C) there shall be commenced against the Borrower, any such Manager, Principal, Holdings Guarantor or any such Guarantorother guarantor or indemnitor any case, upon proceeding or other action seeking issuance of a warrant of attachment, execution, distraint or similar process against all or any substantial part of its assets; or (D) the same not being dischargedBorrower, stayed any Principal, Guarantor or dismissed within ninety any other guarantor or indemnitor shall take any action in furtherance of, or indicating its consent to, approval of, any of the acts set forth in clause (90A), (B), or (C) daysabove;
(viii) if any Borrower attempts to assign its rights under this Agreement or any of the other Loan Documents or any interest herein or therein in contravention of the Loan Documents;
(ix) if any Borrower breaches any of its respective negative covenants covenant contained in Section 5.2 or any covenant contained in Section 4.1.30 or Section 5.1.11 hereof (and, with respect to any such breach of any covenant set forth in Section 5.1.11 which is not the subject of any other subsection of this Section 8.1, such Borrower fails to remedy such condition within ten (10) days after notice to Borrower from Lender, in the case of any such Default under Section 5.1.11 which can be cured by the payment of a sum of money, or for thirty (30) days after notice from Lender in the case of any other such Default under Section 5.1.11)hereof;
(x) with respect to any term, covenant or provision set forth herein which specifically contains a notice requirement or grace period, if any Borrower shall be in default under such term, covenant or condition after the giving of such notice or the expiration of such grace period;
(xi) if any of the assumptions contained in the Insolvency Opinion delivered in connection with the Loan, material terms of any Major Lease are amended or in the Additional Insolvency Opinion delivered subsequent to the closing of the Loan, is or shall become untrue in any material respect; or if any of the assumptions contained in the True Lease Opinion in connection with the Loan, or in the Additional True Lease Opinion delivered subsequent to the closing of the Loan, is or shall become untrue in any material respectmodified without Lender’s prior written consent;
(xii) if any Mortgage Borrower, any Operating Company or any Guarantor (Operating Lease) is in there shall be a default by Borrower under the terms of any of its material obligations under any Operating Major Lease (or under another lease and/or management agreement in substitution for such Operating Lease in accordance herewith) or under any such Operating Lease Guaranty (or under another operating lease guaranty in substitution for such Operating Lease Guaranty in accordance herewith) beyond any applicable notice and cure periods contained therein; or if any Operating which default could permit the Tenant thereunder to (x) terminate such Major Lease and/or (or y) offset Rent under such other lease and/or management agreement) or any Operating Major Lease Guaranty (or such other operating lease guaranty) shall be surrendered or any Operating Lease or any Operating Lease Guaranty shall be terminated or canceled for any reason or under any circumstances whatsoever, except with in an amount which would result in the consent of Lender; or if any of the terms, covenants or conditions of any Operating Lease (or such other lease and/or management agreement) or any Operating Lease Guaranty (or such other operating lease guaranty) shall in any manner be modified, changed, supplemented, altered, restated or amended without the consent of Lender except as may otherwise expressly permitted in this AgreementDebt Service Coverage Ratio to fall below 1.50 to 1:00;
(xiii) intentionally omitted;
(xiv) if any Affiliate of any Borrower that is or becomes a party shall continue to the Windstorm Insurance Intercreditor Agreement is be in default of any of its material obligations Default under the Windstorm Insurance Intercreditor Agreement beyond any applicable notice and cure periods contained therein; or if the Windstorm Insurance Intercreditor Agreement shall be surrendered, terminated or canceled for any reason or under any circumstances whatsoever, except with the consent of Lender; or if any of the terms, covenants or conditions of Section 9.1 hereof, or fails to cooperate with Lender in connection with a Securitization pursuant to the Windstorm Insurance Intercreditor Agreement shall in any manner be modifiedprovisions of Section 9.1 hereof, changed, supplemented, altered, restated or amended without the consent of for five (5) Business Days after notice to Borrower from Lender;
(xv) if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower fails to comply with the covenants as to Prescribed Laws set forth in Section 5.1.1 hereof;
(xvi) if a material default has occurred and continues beyond any applicable cure period under any Management Agreement and if such default permits the Manager, the Operating Company or the Mortgage Borrower party thereto to terminate or cancel the Management Agreement in question;
(xvii) any Gaming License shall be refused, suspended, revoked, modified in a materially adverse manner or canceled or allowed to lapse or any proceeding is commenced by any Governmental Authority for the purpose of suspending, revoking or canceling any Gaming License in any materially adverse respect, or any Governmental Authority shall have appointed a conservator, supervisor or trustee to or for any of the Casino Components and, in each case of the foregoing, such action could reasonably be expected to (A) have an Individual Material Adverse Effect, (B) materially and adversely affect the continued operation of the Casino Components in the usual course of business and in substantially the same manner and to at least the same standard as was maintained prior to such action, or (C) result in any material decrease in the then expected cash flow and revenues to be derived from the Casino Components;
(xviii) if any Borrower shall continue to be in Default under any of the other terms, covenants or conditions of this Agreement not specified in subsections (i) to (xviixiv) above, for ten (10) days after notice to Borrower from Lender, in the case of any Default which can be cured by the payment of a sum of money, or for thirty (30) days after notice from Lender in the case of any other Default; provided, however, that if Lender determines that such non-monetary Default is susceptible of cure but cannot reasonably be cured within such thirty (30) day period and provided further that such Borrower shall have commenced to cure such Default within such thirty (30) day period and thereafter diligently and expeditiously proceeds to cure the same, such thirty (30) day period shall be extended for such time as is reasonably necessary for such Borrower in the exercise of due diligence to cure such Default, such additional period not to exceed one hundred twenty ninety (12090) days;
(xixxvi) if there shall be a default under any of the other Loan Documents beyond any applicable cure periods contained in such documents, whether as to any Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Borrower or the Collateral, the Senior Mezzanine Collateral or any Individual Property, or if any other such event shall occur or condition shall exist, if the effect of such default, event or condition is to accelerate the maturity of any portion of the Debt or to permit Lender to accelerate the maturity of all or any portion of the Debt;
(xxxvii) Borrower shall be in default under any other deed of trust, mortgage or security agreement covering any part of the Property whether it be superior or junior in priority to the Security Instrument or this Agreement (it not being implied by this clause that any such encumbrance will be permitted);
(xviii) if Borrower fails to comply in all material respects with the Liens created pursuant to any Loan Document shall cease to be a fully protected enforceable first priority security interest in the Collateral, or any portion terms and conditions of the Collateral is Transferred without Lender’s prior written consent except as permitted hereunderREA and such failure continues beyond the expiration of any applicable notice and/or cure periods set forth therein;
(xix) if Borrower fails to comply in all material respects with the terms and conditions of the TIF Agreement and such failure continues beyond the expiration of any applicable notice and/or cure periods set forth therein; or
(xxixx) if Borrower fails (i) to comply in all material respects with the terms and conditions of the CRA Agreement and such failure continues beyond the expiration of any applicable notice and/or cure periods set forth therein or (ii) to deliver to Lender copies of any material notice thereunder, including, without limitation, any notice of default or notice of required “PILOT” payment (as defined in the CRA) as and when required pursuant to Section 5.1.28(b) hereof. With exception for clause (a)(i) above, the notice rights and/or cure periods in this Section 8.1 are hereby supplemented and/or extended, as the case may be, to the extent that the Major Tenant under the Major Tenant Lease is afforded a Mortgage Loan Event notice and opportunity to cure a particular default which is also a default hereunder but for which there is no notice, or a more limited period of Default or Senior Mezzanine Loan Event of Default shall occurnotice and opportunity to cure hereunder than under the Major Tenant Lease. For example, if the Major Tenant has ten (10) business days to cure a particular non-monetary default, but the Borrower is only afforded five (5) business days, then the Borrower’s cure period would be automatically extended to ten (10) business days to be consistent with the Major Tenant Lease.
(b) Upon the occurrence of an Event of Default (other than an Event of Default described in clauses (vi), (vii) or (viiviii) above) and at any time thereafter, in addition to any other rights or remedies available to it pursuant to this Agreement and the other Loan Documents or at law or in equity, Lender may take such action, without notice or demand, that Lender deems advisable to protect and enforce its rights against Borrower and in and to all or any of the CollateralProperty, including, without limitation, including declaring the Debt to be immediately due and payable, and Lender may enforce or avail itself of any or all rights or remedies provided in the Loan Documents and may exercise all the rights and remedies of a secured party under the Uniform Commercial Code, as adopted and enacted by the State or States where any of the Collateral is located, against Borrower and any or all of the CollateralProperty, including, without limitation, including all rights or remedies available at law or in equity; and upon any Event of Default described in clauses (vi), (vii) or (viiviii) above, the Debt and all other obligations Other Obligations of Borrower hereunder and under the other Loan Documents shall immediately and automatically become due and payable, without notice or demand, and Borrower hereby expressly waives any such notice or demand, anything contained herein or in any other Loan Document to the contrary notwithstanding.
(c) With respect to any Event of Default that pertains to Guarantor (the “Defaulting Party”) such as a Bankruptcy Action with respect to Guarantor, Borrower may cure the same by replacing the Defaulting Party with a Qualified Replacement Guarantor within thirty (30) days thereafter in accordance with the provisions herein which, but for such Event of Default, would permit the replacement(s). It shall be a condition to such replacement, that Borrower delivers, or causes to be delivered, a re-affirmation by the Qualified Replacement Guarantor of the obligations under the Guaranty and the Environmental Indemnity, and any other agreement to which Defaulting Party is a party.
Appears in 2 contracts
Samples: Loan Agreement (Rodin Global Property Trust, Inc.), Loan Agreement (Rodin Global Property Trust, Inc.)
Event of Default. (a) Each With respect to a Party, it shall be an "Event of Default" if any of the following events shall constitute an event of default hereunder occur and be continuing:
(an “Event of Default”):
a) such Party shall fail to pay in full (i) if any amounts owed under 3.1
(Aa) and 5.1 within fifteen (15) days after the same becomes due and payable or (ii) any portion amount owed hereunder (other than amounts referred to in clause (i)) when the same becomes due and payable;
(b) with respect to MESC, MESH and Cogen Subsidiary, such Party shall fail to perform or comply with (i) any term of the Debt is not paid in full Sections 6.1 and 11.1 on the Maturity Date, its part to be performed or observed and (B) the Debt Service is not paid in full on or before the related Payment Date, or (Cii) any other portion of the Debt is not paid within five (5) days of when due;
(ii) if any of the Taxes material term, covenant or Other Charges are not paid (with respect agreement contained in this Agreement on its part to each be performed or any Individual Property) prior to Delinquency;
(iii) if the Policies (with respect to each or any Individual Property) are not kept in full force and effect, or if certified copies of the Policies (for each Individual Property) are not delivered to Lender upon request (or certificates thereof, if a Policy shall be renewed and certified copies of the Policy are not immediately available upon such renewal (each Borrower agreeing in such instance to provide copies of the Policies to Lender promptly thereafter));
(iv) if any Borrower Transfers or otherwise encumbers any portion of the Properties, the Collateral or the Senior Mezzanine Collateral, or there shall otherwise occur a Transfer without Lender’s prior consent in violation of the provisions of this Agreement, the Pledge Agreement or any other Loan Document;
(v) if any representation or warranty made by any Borrower or any other Loan Party herein or in any other Loan Document, or in any report, certificate, financial statement or other instrument, agreement or document or other material or written information furnished to Lender shall have been false or misleading in any material respect as of the date the representation or warranty was made (observed and, with respect to any such breach which is not the subject of any other subsection of this Section 8.1 and which is capable of being cured, such Borrower fails to remedy such condition within ten (10) days following notice to Borrower from Lender, in the case of any such breach which can be cured by the payment of a sum of money, or within thirty clause (30) days following notice from Lender in the case of any other such breachii);
(vi) if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower shall make an assignment for the benefit of creditors; or if a receiver, liquidator or trustee shall be appointed for any Borrower, Senior Mezzanine Borrower or Mortgage Borrower, or if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower shall be adjudicated a bankrupt or insolvent, or if any petition for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by or against, consented to, or acquiesced in by, Borrower or Senior Mezzanine Borrower, or if any proceeding for the dissolution or liquidation of any Borrower, Senior Mezzanine Borrower or Mortgage Borrower shall be instituted; provided, however, if such appointment, adjudication, petition or proceeding was involuntary and not consented to by any Borrower, Senior Mezzanine Borrower or Mortgage Borrower, upon the same not being discharged, stayed or dismissed within ninety (90) days;
(vii) if any Operating Company, any Manager, Principal, Holdings or any Guarantor shall make an assignment for the benefit of creditors; or if a receiver, liquidator or trustee shall be appointed for any such Operating Company, any such Manager, Principal, Holdings or any such Guarantor, or if any Operating Company, any Manager, Principal, Holdings or any Guarantor shall be adjudicated a bankrupt or insolvent, or if any petition for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by or against, consented to, or acquiesced in by, any Operating Company, any Manager, Principal, Holdings or any Guarantor, or if any proceeding for the dissolution or liquidation of any Operating Company, any Manager, Principal, Holdings or any Guarantor shall be instituted; provided, however, if such appointment, adjudication, petition or proceeding was involuntary and not consented to by any such Operating Company, any such Manager, Principal, Holdings or any such Guarantor, upon the same not being discharged, stayed or dismissed within ninety (90) days;
(viii) if any Borrower attempts to assign its rights under this Agreement or any of the other Loan Documents or any interest herein or therein in contravention of the Loan Documents;
(ix) if any Borrower breaches any of its respective negative covenants contained in Section 5.2 or any covenant contained in Section 4.1.30 or Section 5.1.11 hereof (and, with respect to any such breach of any covenant set forth in Section 5.1.11 which is not the subject of any other subsection of this Section 8.1, such Borrower fails to remedy such condition within ten (10) days after notice to Borrower from Lender, in the case of any such Default under Section 5.1.11 which can be cured by the payment of a sum of money, or failure shall remain unremedied for thirty (30) days after notice from Lender in the case of any other such Default under Section 5.1.11)thereof;
(xc) with respect to SERI and SEI, such Party shall fail to perform or comply with any other material term, covenant or provision set forth herein which specifically contains a notice requirement or grace period, if any Borrower shall be in default under such term, covenant or condition after the giving of such notice or the expiration of such grace period;
(xi) if any of the assumptions agreement contained in the Insolvency Opinion delivered in connection with the Loan, or in the Additional Insolvency Opinion delivered subsequent to the closing of the Loan, is or shall become untrue in any material respect; or if any of the assumptions contained in the True Lease Opinion in connection with the Loan, or in the Additional True Lease Opinion delivered subsequent to the closing of the Loan, is or shall become untrue in any material respect;
(xii) if any Mortgage Borrower, any Operating Company or any Guarantor (Operating Lease) is in default of any of this Agreement on its material obligations under any Operating Lease (or under another lease and/or management agreement in substitution for such Operating Lease in accordance herewith) or under any such Operating Lease Guaranty (or under another operating lease guaranty in substitution for such Operating Lease Guaranty in accordance herewith) beyond any applicable notice and cure periods contained therein; or if any Operating Lease (or such other lease and/or management agreement) or any Operating Lease Guaranty (or such other operating lease guaranty) shall be surrendered or any Operating Lease or any Operating Lease Guaranty shall be terminated or canceled for any reason or under any circumstances whatsoever, except with the consent of Lender; or if any of the terms, covenants or conditions of any Operating Lease (or such other lease and/or management agreement) or any Operating Lease Guaranty (or such other operating lease guaranty) shall in any manner be modified, changed, supplemented, altered, restated or amended without the consent of Lender except as may otherwise expressly permitted in this Agreement;
(xiii) intentionally omitted;
(xiv) if any Affiliate of any Borrower that is or becomes a party to the Windstorm Insurance Intercreditor Agreement is in default of any of its material obligations under the Windstorm Insurance Intercreditor Agreement beyond any applicable notice and cure periods contained therein; or if the Windstorm Insurance Intercreditor Agreement shall be surrendered, terminated or canceled for any reason or under any circumstances whatsoever, except with the consent of Lender; or if any of the terms, covenants or conditions of the Windstorm Insurance Intercreditor Agreement shall in any manner be modified, changed, supplemented, altered, restated or amended without the consent of Lender;
(xv) if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower fails to comply with the covenants as to Prescribed Laws set forth in Section 5.1.1 hereof;
(xvi) if a material default has occurred and continues beyond any applicable cure period under any Management Agreement and if such default permits the Manager, the Operating Company or the Mortgage Borrower party thereto to terminate or cancel the Management Agreement in question;
(xvii) any Gaming License shall be refused, suspended, revoked, modified in a materially adverse manner or canceled or allowed to lapse or any proceeding is commenced by any Governmental Authority for the purpose of suspending, revoking or canceling any Gaming License in any materially adverse respect, or any Governmental Authority shall have appointed a conservator, supervisor or trustee to or for any of the Casino Components and, in each case of the foregoing, such action could reasonably be expected to (A) have an Individual Material Adverse Effect, (B) materially and adversely affect the continued operation of the Casino Components in the usual course of business and in substantially the same manner and to at least the same standard as was maintained prior to such action, or (C) result in any material decrease in the then expected cash flow and revenues part to be derived from the Casino Components;
(xviii) if any Borrower performed or observed and such failure shall continue to be in Default under any of the other terms, covenants or conditions of this Agreement not specified in subsections (i) to (xvii) above, for ten (10) days after notice to Borrower from Lender, in the case of any Default which can be cured by the payment of a sum of money, or remain unremedied for thirty (30) days after notice from Lender in the case of any other Default; provided, however, that if such non-monetary Default is susceptible of cure but cannot reasonably be cured within such thirty (30) day period and provided further that such Borrower shall have commenced to cure such Default within such thirty (30) day period and thereafter diligently and expeditiously proceeds to cure the same, such thirty (30) day period shall be extended for such time as is reasonably necessary for such Borrower in the exercise of due diligence to cure such Default, such additional period not to exceed one hundred twenty (120) daysthereof;
(xixd) if there shall be a default under any of the other Loan Documents beyond any applicable cure periods contained in such documentswith respect to MESC, whether as to any Borrower, Mortgage Borrower, Senior Mezzanine Borrower, the Collateral, the Senior Mezzanine Collateral or any Individual Property, or if any other such event shall occur or condition shall existMESH and Cogen Subsidiary, if the effect of such event or condition is to accelerate the maturity of Releases shall for any portion of the Debt or to permit Lender to accelerate the maturity of all or any portion of the Debt;
(xx) if the Liens created pursuant to any Loan Document shall reason cease to be a fully protected valid and enforceable first priority security interest in the Collateralor if MESC, MESH, Cogen Subsidiary or any portion holder of Senior Debt that has executed a Release shall challenge the validity or enforceability of the Collateral is Transferred without Lender’s prior written consent except as permitted hereunderReleases; or
(xxie) with respect to MESC, MESH and Cogen Subsidiary, if a Mortgage Loan Security Interest shall for any reason cease to be valid and enforceable or if MESC, MESH, Cogen Subsidiary or any holder of Senior Debt that has executed a Release shall challenge the validity or enforceability of the Security Interests. Any Event of Default or Senior Mezzanine Loan Event of Default which has been waived by all the Parties hereto shall occur.
(b) Upon the occurrence of an Event of Default (other than an Event of Default described in clauses (vi) or (vii) above) and at any time thereafter, in addition to any other rights or remedies available to it pursuant to this Agreement and the other Loan Documents or at law or in equity, Lender may take such action, without notice or demand, that Lender deems advisable to protect and enforce its rights against Borrower and in and to all or any of the Collateral, including, without limitation, declaring the Debt not be considered to be immediately due continuing from and payable, and Lender may enforce or avail itself after the time as of any or all rights or remedies provided in the Loan Documents and may exercise all the rights and remedies of a secured party under the Uniform Commercial Code, as adopted and enacted by the State or States where any of the Collateral is located, against Borrower and any or all of the Collateral, including, without limitation, all rights or remedies available at law or in equity; and upon any Event of Default described in clauses (vi) or (vii) above, the Debt and all other obligations of Borrower hereunder and under the other Loan Documents shall immediately and automatically which such waiver has become due and payable, without notice or demand, and Borrower hereby expressly waives any such notice or demand, anything contained herein or in any other Loan Document to the contrary notwithstandingeffective.
Appears in 2 contracts
Samples: Cogeneration Development Agreement (Southern Co), Cogeneration Development Agreement (Southern Co)
Event of Default. (a) Each of the following events shall constitute an event of default hereunder (an “Event of Default” and each of the events in clauses (viii), (ix) and (x) shall constitute a “Bankruptcy Event of Default”)::
(i) if the suspension (or threatened suspension) from trading or the failure (or threatened failure) of the Common Stock to be trading or listed (as applicable) on an Eligible Market for a period of five (5) consecutive Trading Days;
(ii) the Company’s (A) any portion failure to cure a Conversion Failure or fail to delivery Warrant Shares by the Warrant Share Delivery Date (as such terms are defined in the Warrants) by delivery of the Debt is not paid in full on the Maturity Date, (B) the Debt Service is not paid in full on or before the related Payment Date, or (C) any other portion required number of the Debt is not paid shares of Common Stock within five (5) days Trading Days after the applicable Conversion Date or date of when due;
delivery of the Notice of Exercise (iias defined in the Warrants) if (as the case may be) or (B) notice, written or oral, to any holder of the Notes or Warrants, including, without limitation, by way of public announcement or through any of its agents, at any time, of its intention not to comply, as required, with a request for conversion of any Notes into shares of Common Stock that is requested in accordance with the Taxes provisions of the Notes, other than pursuant to Section 3(d), or Other Charges are not paid (a request for exercise of any Warrants for shares of Common Stock in accordance with respect to each or any Individual Property) prior to Delinquencythe provisions of the Warrants;
(iii) if except to the Policies extent the Company is in compliance with Section 11(b) below, at any time following the tenth (with respect 10th) consecutive day that the Holder’s Authorized Share Allocation (as defined in Section 11(a) below) is less than (A) the number of shares of Common Stock that the Holder would be entitled to each receive upon a conversion of the full Conversion Amount of this Note (without regard to any limitations on conversion set forth in Section 3(d) or any Individual Propertyotherwise), and (B) are not kept the number of shares of Common Stock that the Holder would be entitled to receive upon exercise in full force and effect, or if certified copies of the Policies Holder’s Warrants (for each Individual Property) are not delivered without regard to Lender upon request (or certificates thereof, if a Policy shall be renewed and certified copies of any limitations on exercise set forth in the Policy are not immediately available upon such renewal (each Borrower agreeing in such instance to provide copies of the Policies to Lender promptly thereafter)Warrants);
(iv) if the Company’s or any Borrower Transfers Subsidiary’s failure to pay to the Holder any amount of Principal, Interest, Late Charges or otherwise encumbers any portion of the Propertiesother amounts when and as due under this Note (including, without limitation, the Collateral Company’s or the Senior Mezzanine Collateral, any Subsidiary’s failure to pay any redemption payments or there shall otherwise occur a Transfer without Lender’s prior consent in violation of the provisions of this Agreement, the Pledge Agreement amounts hereunder) or any other Loan DocumentTransaction Document (as defined in the Purchase Agreement) or any other agreement, document, certificate or other instrument delivered in connection with the transactions contemplated hereby and thereby, except, in the case of a failure to pay Interest and Late Charges when and as due, in which case only if such failure remains uncured for a period of at least five (5) Trading Days;
(v) if at any representation or warranty made time from and after the date that is one hundred twenty (120) days following the Issuance Date, the Company fails to have an effective shelf registration statement, which, as of such time of determination, has an available dollar offering amount of securities then issuable by the Company thereunder (as reduced by any Borrower limitations on any such issuances by any law, rule or regulations applicable thereto, whether pursuant to the 1933 Act, the Principal Market or otherwise, including, without limitation, the “baby shelf rules” set forth in Instruction I.B.6(a) to Form S-3 of the 1933 Act), if applicable (the “Available Shelf Capacity”) of no less than 100% of the Conversion Amount as of such time of determination;
(vi) the Company fails to remove any restrictive legend on any certificate or any other Loan Party herein shares of Common Stock issued to the Holder upon conversion or exercise (as the case may be) of any Securities (as defined in the Purchase Agreement) acquired by the Holder under the Purchase Agreement (including this Note) as and when required by such Securities or the Purchase Agreement, unless otherwise then prohibited by applicable federal securities laws, and any other Loan Documentsuch failure remains uncured for at least five (5) days;
(vii) the occurrence of any default under, redemption of or acceleration prior to maturity of at least an aggregate of $500,000 of Indebtedness (as defined in any report, certificate, financial statement or other instrument, agreement or document or other material or written information furnished to Lender shall have been false or misleading in any material respect as the Purchase Agreement) of the date the representation Company or warranty was made (andany of its Subsidiaries, other than with respect to any such breach which is Other Notes;
(viii) bankruptcy, insolvency, reorganization or liquidation proceedings or other proceedings for the relief of debtors shall be instituted by or against the Company or any Subsidiary and, if instituted against the Company or any Subsidiary by a third party, shall not the subject of any other subsection of this Section 8.1 and which is capable of being cured, such Borrower fails to remedy such condition within ten (10) days following notice to Borrower from Lender, in the case of any such breach which can be cured by the payment of a sum of money, or dismissed within thirty (30) days following notice from Lender in of their initiation;
(ix) the commencement by the Company or any Subsidiary of a voluntary case or proceeding under any applicable federal, state or foreign bankruptcy, insolvency, reorganization or other similar law or of any other such breach);
(vi) if any Borrower, Senior Mezzanine Borrower case or Mortgage Borrower shall make an assignment for the benefit of creditors; or if a receiver, liquidator or trustee shall be appointed for any Borrower, Senior Mezzanine Borrower or Mortgage Borrower, or if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower shall proceeding to be adjudicated a bankrupt or insolvent, or if the consent by it to the entry of a decree, order, judgment or other similar document in respect of the Company or any petition for Subsidiary in an involuntary case or proceeding under any applicable federal, state or foreign bankruptcy, insolvency, reorganization or arrangement pursuant other similar law or to federal the commencement of any bankruptcy or insolvency case or proceeding against it, or the filing by it of a petition or answer or consent seeking reorganization or relief under any applicable federal, state or foreign law, or the consent by it to the filing of such petition or to the appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee, sequestrator or other similar official of the Company or any similar federal Subsidiary or state law, shall be filed by or against, consented toof any substantial part of its property, or acquiesced in by, Borrower or Senior Mezzanine Borrower, or if any proceeding for the dissolution or liquidation making by it of any Borrower, Senior Mezzanine Borrower or Mortgage Borrower shall be instituted; provided, however, if such appointment, adjudication, petition or proceeding was involuntary and not consented to by any Borrower, Senior Mezzanine Borrower or Mortgage Borrower, upon the same not being discharged, stayed or dismissed within ninety (90) days;
(vii) if any Operating Company, any Manager, Principal, Holdings or any Guarantor shall make an assignment for the benefit of creditors; , or if the execution of a receivercomposition of debts, liquidator or trustee shall be appointed for the occurrence of any other similar federal, state or foreign proceeding, or the admission by it in writing of its inability to pay its debts generally as they become due, the taking of corporate action by the Company or any Subsidiary in furtherance of any such Operating Company, action or the taking of any such Manager, Principal, Holdings action by any Person to commence a Uniform Commercial Code foreclosure sale or any such Guarantorother similar action under federal, state or if any Operating Companyforeign law;
(x) the entry by a court of (i) a decree, any Managerorder, Principal, Holdings judgment or other similar document in respect of the Company or any Guarantor shall be adjudicated Subsidiary of a voluntary or involuntary case or proceeding under any applicable federal, state or foreign bankruptcy, insolvency, reorganization or other similar law or (ii) a decree, order, judgment or other similar document adjudging the Company or any Subsidiary as bankrupt or insolvent, or if approving as properly filed a petition seeking liquidation, reorganization, arrangement, adjustment or composition of or in respect of the Company or any petition for bankruptcySubsidiary under any applicable federal, reorganization state or arrangement pursuant to federal bankruptcy lawforeign law or (iii) a decree, order, judgment or other similar document appointing a custodian, receiver, liquidator, assignee, trustee, sequestrator or other similar official of the Company or any Subsidiary or of any substantial part of its property, or any similar federal or state law, shall be filed by or against, consented to, or acquiesced in by, any Operating Company, any Manager, Principal, Holdings or any Guarantor, or if any proceeding for ordering the dissolution winding up or liquidation of its affairs, and the continuance of any Operating Companysuch decree, any Managerorder, Principal, Holdings judgment or other similar document or any Guarantor shall be institutedsuch other decree, order, judgment or other similar document unstayed and in effect for a period of thirty (30) consecutive days;
(xi) a final judgment or judgments for the payment of money aggregating in excess of $500,000 are rendered against the Company and/or any of its Subsidiaries and which judgments are not, within thirty (30) days after the entry thereof, bonded, discharged, settled or stayed pending appeal, or are not discharged within thirty (30) days after the expiration of such stay; provided, however, if any judgment which is covered by insurance or an indemnity from a credit worthy party shall not be included in calculating the $500,000 amount set forth above so long as the Company provides the Holder a written statement from such appointment, adjudication, petition insurer or proceeding was involuntary indemnity provider (which written statement shall be reasonably satisfactory to the Holder) to the effect that such judgment is covered by insurance or an indemnity and not consented to by any the Company or such Operating Company, any Subsidiary (as the case may be) will receive the proceeds of such Manager, Principal, Holdings insurance or any indemnity within thirty (30) days of the issuance of such Guarantor, upon the same not being discharged, stayed or dismissed within ninety (90) daysjudgment;
(viiixii) if the Company and/or any Borrower attempts Subsidiary, individually or in the aggregate, either (i) fails to assign its rights under this Agreement pay, when due, or within any applicable grace period, any payment with respect to any Indebtedness in excess of the $500,000 due to any third party (other Loan Documents or any interest herein or therein in contravention of the Loan Documents;
(ix) if any Borrower breaches any of its respective negative covenants contained in Section 5.2 or any covenant contained in Section 4.1.30 or Section 5.1.11 hereof (andthan, with respect to any unsecured Indebtedness only, payments contested by the Company and/or such Subsidiary (as the case may be) in good faith by proper proceedings and with respect to which adequate reserves have been set aside for the payment thereof in accordance with GAAP) or is otherwise in breach or violation of any covenant agreement for monies owed or owing in an amount in excess of $500,000, which breach or violation permits the other party thereto to declare a default or otherwise accelerate amounts due thereunder, or (ii) suffer to exist any other circumstance or event that would, with or without the passage of time or the giving of notice, result in a default or event of default under any agreement binding the Company or any Subsidiary, which default or event of default would or is likely to have a material adverse effect on the business, assets, operations (including results thereof), liabilities, properties, condition (including financial condition) or prospects of the Company or any of its Subsidiaries, individually or in the aggregate;
(xiii) other than as specifically set forth in Section 5.1.11 which is not the subject of any other subsection another clause of this Section 8.14(a), the Company or any Subsidiary breaches any representation, warranty, covenant or other term or condition of any Transaction Document, except, in the case of a breach of a covenant or other term or condition that is curable, only if such Borrower fails breach remains uncured for a period of ten (10) consecutive Trading Days;
(xiv) a false or inaccurate certification (including a false or inaccurate deemed certification) by the Company that either (A) the Equity Conditions are satisfied, (B) there has been no Equity Conditions Failure, or (C) as to remedy whether any Event of Default has occurred;
(xv) any breach or failure in any respect by the Company or any Subsidiary to comply with any provision of Section 14 of this Note (such condition within breach or failure, a “Covenant Breach”), except, in the case of a Covenant Breach that is curable, only if such breach remains uncured for a period of five (5) consecutive Trading Days;
(xvi) The failure of the applicable Registration Statement (as defined in the Registration Rights Agreement) to be filed with the SEC on or prior to the date that is ten (10) days after notice to Borrower from Lender, the applicable Filing Date (as defined in the case Registration Rights Agreement) or the failure of any such Default under Section 5.1.11 which can the applicable Registration Statement to be cured declared effective by the payment of a sum of money, SEC on or for thirty (30) days after notice from Lender in the case of any other such Default under Section 5.1.11);
(x) with respect to any term, covenant or provision set forth herein which specifically contains a notice requirement or grace period, if any Borrower shall be in default under such term, covenant or condition after the giving of such notice or the expiration of such grace period;
(xi) if any of the assumptions contained in the Insolvency Opinion delivered in connection with the Loan, or in the Additional Insolvency Opinion delivered subsequent prior to the closing of the Loan, is or shall become untrue in any material respect; or if any of the assumptions contained in the True Lease Opinion in connection with the Loan, or in the Additional True Lease Opinion delivered subsequent to the closing of the Loan, is or shall become untrue in any material respect;
(xii) if any Mortgage Borrower, any Operating Company or any Guarantor (Operating Lease) is in default of any of its material obligations under any Operating Lease (or under another lease and/or management agreement in substitution for such Operating Lease in accordance herewith) or under any such Operating Lease Guaranty (or under another operating lease guaranty in substitution for such Operating Lease Guaranty in accordance herewith) beyond any applicable notice and cure periods contained therein; or if any Operating Lease (or such other lease and/or management agreement) or any Operating Lease Guaranty (or such other operating lease guaranty) shall be surrendered or any Operating Lease or any Operating Lease Guaranty shall be terminated or canceled for any reason or under any circumstances whatsoever, except with the consent of Lender; or if any of the terms, covenants or conditions of any Operating Lease (or such other lease and/or management agreement) or any Operating Lease Guaranty (or such other operating lease guaranty) shall in any manner be modified, changed, supplemented, altered, restated or amended without the consent of Lender except as may otherwise expressly permitted in this Agreement;
(xiii) intentionally omitted;
(xiv) if any Affiliate of any Borrower date that is or becomes a party to the Windstorm Insurance Intercreditor Agreement is in default of any of its material obligations under the Windstorm Insurance Intercreditor Agreement beyond any applicable notice and cure periods contained therein; or if the Windstorm Insurance Intercreditor Agreement shall be surrendered, terminated or canceled for any reason or under any circumstances whatsoever, except with the consent of Lender; or if any of the terms, covenants or conditions of the Windstorm Insurance Intercreditor Agreement shall in any manner be modified, changed, supplemented, altered, restated or amended without the consent of Lender;
(xv) if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower fails to comply with the covenants as to Prescribed Laws set forth in Section 5.1.1 hereof;
(xvi) if a material default has occurred and continues beyond any applicable cure period under any Management Agreement and if such default permits the Manager, the Operating Company or the Mortgage Borrower party thereto to terminate or cancel the Management Agreement in question;
(xvii) any Gaming License shall be refused, suspended, revoked, modified in a materially adverse manner or canceled or allowed to lapse or any proceeding is commenced by any Governmental Authority for the purpose of suspending, revoking or canceling any Gaming License in any materially adverse respect, or any Governmental Authority shall have appointed a conservator, supervisor or trustee to or for any of the Casino Components and, in each case of the foregoing, such action could reasonably be expected to (A) have an Individual Material Adverse Effect, (B) materially and adversely affect the continued operation of the Casino Components in the usual course of business and in substantially the same manner and to at least the same standard as was maintained prior to such action, or (C) result in any material decrease in the then expected cash flow and revenues to be derived from the Casino Components;
(xviii) if any Borrower shall continue to be in Default under any of the other terms, covenants or conditions of this Agreement not specified in subsections (i) to (xvii) above, for ten (10) days after notice to Borrower from Lender, the applicable Effectiveness Date (as defined in the case Registration Rights Agreement);
(xvii) While the applicable Registration Statement is required to be maintained effective pursuant to the terms of the Registration Rights Agreement, the effectiveness of the applicable Registration Statement lapses for any Default which can be cured by reason (including, without limitation, the payment issuance of a sum stop order) or such Registration Statement (or the prospectus contained therein) is unavailable to any holder of moneyRegistrable Securities (as defined in the Registration Rights Agreement) for sale of all of such holder’s Registrable Securities in accordance with the terms of the Registration Rights Agreement, and such lapse or unavailability continues for a period of fifteen (15) consecutive days or for more than an aggregate of twenty five (25) days in any 365 day period;
(xviii) Gxxxx Xxxxxxx, the current Chief Executive Officer of the Company, dies, becomes incapacitated or departs from the Company or ceases to be actively involved in the management of the Company (such event, a “Key Person Event”), unless the Company appoints a replacement full-time Chief Executive Officer within thirty (30) days after notice from Lender in of the case of any other Default; providedKey Person Event, however, that if such non-monetary Default is susceptible of cure but cannot reasonably be cured within such thirty (30) day period and provided further that such Borrower shall have commenced to cure such Default within such thirty (30) day period and thereafter diligently and expeditiously proceeds to cure the same, such thirty (30) day period which replacement Chief Executive Officer shall be extended for such time as is reasonably necessary for such Borrower in acceptable to the exercise of due diligence to cure such Default, such additional period not to exceed one hundred twenty (120) daysRequired Holders;
(xix) if there shall be a default under any of the other Loan Documents beyond any applicable cure periods contained in such documents, whether as to any Borrower, Mortgage Borrower, Senior Mezzanine Borrower, the Collateral, the Senior Mezzanine Collateral or any Individual Property, or if any other such event shall occur or condition shall exist, if the effect of such event or condition is to accelerate the maturity of any portion of the Debt or to permit Lender to accelerate the maturity of all or any portion of the Debt;
(xx) if the Liens created pursuant to any Loan Document shall cease to be a fully protected enforceable first priority security interest in the Collateral, or any portion of the Collateral is Transferred without Lender’s prior written consent except as permitted hereunder; or
(xxi) if a Mortgage Loan Event of Default or Senior Mezzanine Loan Event of Default shall occur.
(b) Upon the occurrence of an Event of Default (other than an Event of Default described as defined in clauses (vithe Other Notes) or (vii) above) and at any time thereafter, in addition occurs with respect to any other rights or remedies available to it pursuant to this Agreement and the other Loan Documents or at law or in equity, Lender may take such action, without notice or demand, that Lender deems advisable to protect and enforce its rights against Borrower and in and to all or any of the Collateral, including, without limitation, declaring the Debt to be immediately due and payable, and Lender may enforce or avail itself of any or all rights or remedies provided in the Loan Documents and may exercise all the rights and remedies of a secured party under the Uniform Commercial Code, as adopted and enacted by the State or States where any of the Collateral is located, against Borrower and any or all of the Collateral, including, without limitation, all rights or remedies available at law or in equity; and upon any Event of Default described in clauses (vi) or (vii) above, the Debt and all other obligations of Borrower hereunder and under the other Loan Documents shall immediately and automatically become due and payable, without notice or demand, and Borrower hereby expressly waives any such notice or demand, anything contained herein or in any other Loan Document to the contrary notwithstandingOther Notes.
Appears in 2 contracts
Samples: Security Agreement (Esports Entertainment Group, Inc.), Security Agreement (Esports Entertainment Group, Inc.)
Event of Default. (a) Each The occurrence of any one or more of the following events shall constitute an event of default hereunder (an “Event of Default”)::
(ia) if (A) any portion of the Debt is not paid in full on or prior to the Maturity Date, (B) date the same is due or if the entire Debt Service is not paid in full on or before the related Payment Maturity Date; provided, however, (i) Borrower shall not be in default so long as there is sufficient money in the Lockbox Account for payment of all amounts then due and payable (including any deposits into Reserve Accounts) and Lender’s access to such money has not been constrained or constricted in any manner and (Cii) any other portion with respect to payments that are not regularly scheduled pursuant to the terms of the Debt is not paid within Loan Documents, Borrower shall have a five (5) days of when dueday grace period;
(iib) except as otherwise expressly provided in the Loan Documents, if any of the Taxes or Other Charges are not paid (with respect to each or any Individual Property) prior to Delinquencythe time that such Taxes or Other Charges would be delinquent, unless there is sufficient money in the Tax and Insurance Reserve Account for payment of amounts then due and payable and Lender’s access to such money has not been constrained or restricted in any manner;
(iiic) if the Policies (with respect to each or any Individual Property) are not kept in full force and effect, or if certified copies of the Policies (for each Individual Property) are not delivered to Lender upon request (or certificates thereof, if a Policy shall be renewed and certified copies of the Policy are not immediately available upon such renewal (each Borrower agreeing as provided in such instance to provide copies of the Policies to Lender promptly thereafter))Section 8.1;
(ivd) if Borrower breaches any Borrower Transfers or otherwise encumbers any portion of the Properties, the Collateral or the Senior Mezzanine Collateral, or there shall otherwise occur a Transfer without Lender’s prior consent covenant with respect to itself contained in violation of the provisions of this Agreement, the Pledge Agreement Article 6 or any other Loan Documentcovenant contained in Article 7 hereof;
(ve) if any representation or warranty made by any of, or with respect to, Borrower, Borrower Principal or any other Loan Party herein member, general partner, principal or beneficial owner of any of the foregoing, made herein, in any other Loan Document, or in any certificate, report, certificate, financial statement or other instrument, agreement instrument or document or other material or written information furnished to Lender in connection with the Loan and made at the time of the closing of the Loan or during the term of the Loan shall have been false or misleading in any material respect as of the date the representation or warranty was when made (anda “Rep & Warranty Breach”), with respect to any unless (i) Borrower notifies Lender of such breach which Rep & Warranty Breach promptly upon becoming aware of it and (ii) such Rep & Warranty Breach (A) was unintentional, (B) is not the subject of any other subsection of this Section 8.1 immaterial and which is (iii) if capable of being cured, is cured within thirty (30) days following notice from Lender;
(f) if (i) Borrower shall commence any case, proceeding or other action (A) under any Creditors Rights Laws, seeking to have an order for relief entered with respect to it, or seeking to adjudicate it a bankrupt or insolvent, or seeking reorganization, or (B) seeking appointment of a receiver, trustee, custodian, conservator or other similar official for it or for all or any substantial part of its assets, or Borrower shall make a general assignment for the benefit of its creditors; or (ii) there shall be commenced against Borrower any case, proceeding or other action of a nature referred to in clause (i) above which (A) results in the entry of an order for relief or any such adjudication or appointment or (B) remains undismissed, undischarged or unbonded for a period of sixty (60) days; or (iii) there shall be commenced against Borrower, any managing member or general partner of Borrower fails any case, proceeding or other action seeking issuance of a warrant of attachment, execution, distraint or similar process against all or any substantial part of its assets which results in the entry of any order for any such relief which shall not have been vacated, discharged, or stayed or bonded pending appeal within sixty (60) days from the entry thereof; or (iv) Borrower shall take any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the acts set forth in clause (i), (ii), or (iii) above; or (v) Borrower shall generally not, or shall admit in writing its inability to, pay its debts as they become due;
(g) if Borrower shall be in default beyond applicable notice and grace periods under any other mortgage, deed of trust, deed to remedy secure debt or other security agreement covering any material part of the Property, whether it be superior or junior in lien to the Mortgage;
(h) except as otherwise expressly permitted by the Loan Documents, if the Property becomes subject to any mechanic’s, materialman’s or other Lien other than a Lien for any Taxes or Other Charges not then delinquent and the Lien shall remain undischarged of record (by payment, bonding or otherwise) for a period of thirty (30) days, unless, within such condition thirty (30) day period, Borrower delivers to Lender an endorsement to the Title Insurance Policy insuring that any such Lien shall not affect the priority of the Mortgage;
(i) if any federal tax lien is filed against Borrower, any member or general partner of Borrower or the Property and same is not discharged of record within thirty (30) days after same is filed;
(j) if a judgment is filed against the Borrower in excess of $50,000 which is not fully covered by insurance or which is not vacated or discharged within 90 days;
(k) if any default occurs under any guaranty or indemnity executed in connection herewith and such default continues after the expiration of applicable grace periods or appellate proceedings, if any, so long as enforcement of the obligations is stayed pending appeal;
(l) if Borrower shall permit any event within its control to occur that would cause any material reciprocal easement agreement to terminate without notice or action by any party thereto or would entitle any party to terminate any material reciprocal easement agreement and the term thereof by giving notice to Borrower; or any material reciprocal easement agreement shall be surrendered, terminated or canceled for any reason or under any circumstance whatsoever except as provided for in such material reciprocal easement agreement; or any term of any material reciprocal easement agreement shall be modified or supplemented in any material respect without Lender’s prior written consent; or Borrower shall fail, within ten (10) days following notice to Borrower from Business Days after demand by Lender, to exercise its option to renew or extend the term of any material reciprocal easement agreement or shall fail or neglect to pursue diligently all actions necessary to exercise such renewal rights pursuant to such material reciprocal easement agreement except as provided for in such material reciprocal easement agreement; or
(m) if Borrower shall continue to be in default under any other term, covenant or condition of this Agreement or any of the Loan Documents for more than ten (10) days after notice from Lender in the case of any such breach default which can be cured by the payment of a sum of money, or within thirty (30) days following notice from Lender in the case of any other such breach);
(vi) if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower shall make an assignment for the benefit of creditors; or if a receiver, liquidator or trustee shall be appointed for any Borrower, Senior Mezzanine Borrower or Mortgage Borrower, or if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower shall be adjudicated a bankrupt or insolvent, or if any petition for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by or against, consented to, or acquiesced in by, Borrower or Senior Mezzanine Borrower, or if any proceeding for the dissolution or liquidation of any Borrower, Senior Mezzanine Borrower or Mortgage Borrower shall be instituted; provided, however, if such appointment, adjudication, petition or proceeding was involuntary and not consented to by any Borrower, Senior Mezzanine Borrower or Mortgage Borrower, upon the same not being discharged, stayed or dismissed within ninety (90) days;
(vii) if any Operating Company, any Manager, Principal, Holdings or any Guarantor shall make an assignment for the benefit of creditors; or if a receiver, liquidator or trustee shall be appointed for any such Operating Company, any such Manager, Principal, Holdings or any such Guarantor, or if any Operating Company, any Manager, Principal, Holdings or any Guarantor shall be adjudicated a bankrupt or insolvent, or if any petition for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by or against, consented to, or acquiesced in by, any Operating Company, any Manager, Principal, Holdings or any Guarantor, or if any proceeding for the dissolution or liquidation of any Operating Company, any Manager, Principal, Holdings or any Guarantor shall be instituted; provided, however, if such appointment, adjudication, petition or proceeding was involuntary and not consented to by any such Operating Company, any such Manager, Principal, Holdings or any such Guarantor, upon the same not being discharged, stayed or dismissed within ninety (90) days;
(viii) if any Borrower attempts to assign its rights under this Agreement or any of the other Loan Documents or any interest herein or therein in contravention of the Loan Documents;
(ix) if any Borrower breaches any of its respective negative covenants contained in Section 5.2 or any covenant contained in Section 4.1.30 or Section 5.1.11 hereof (and, with respect to any such breach of any covenant set forth in Section 5.1.11 which is not the subject of any other subsection of this Section 8.1, such Borrower fails to remedy such condition within ten (10) days after notice to Borrower from Lender, in the case of any such Default under Section 5.1.11 which can be cured by the payment of a sum of money, money or for thirty (30) days after notice from Lender in the case of any other such Default under Section 5.1.11);
(x) with respect to any termdefault, covenant or provision set forth herein which specifically contains a notice requirement or grace period, if any Borrower shall be in default under such term, covenant or condition after the giving of such notice or the expiration of such grace period;
(xi) if any of the assumptions contained in the Insolvency Opinion delivered in connection with the Loan, or in the Additional Insolvency Opinion delivered subsequent to the closing of the Loan, is or shall become untrue in any material respect; or if any of the assumptions contained in the True Lease Opinion in connection with the Loan, or in the Additional True Lease Opinion delivered subsequent to the closing of the Loan, is or shall become untrue in any material respect;
(xii) if any Mortgage Borrower, any Operating Company or any Guarantor (Operating Lease) is in default of any of its material obligations under any Operating Lease (or under another lease and/or management agreement in substitution for such Operating Lease in accordance herewith) or under any such Operating Lease Guaranty (or under another operating lease guaranty in substitution for such Operating Lease Guaranty in accordance herewith) beyond any applicable notice and cure periods contained therein; or if any Operating Lease (or such other lease and/or management agreement) or any Operating Lease Guaranty (or such other operating lease guaranty) shall be surrendered or any Operating Lease or any Operating Lease Guaranty shall be terminated or canceled for any reason or under any circumstances whatsoever, except with the consent of Lender; or if any of the terms, covenants or conditions of any Operating Lease (or such other lease and/or management agreement) or any Operating Lease Guaranty (or such other operating lease guaranty) shall in any manner be modified, changed, supplemented, altered, restated or amended without the consent of Lender except as may otherwise expressly permitted in this Agreement;
(xiii) intentionally omitted;
(xiv) if any Affiliate of any Borrower provided that is or becomes a party to the Windstorm Insurance Intercreditor Agreement is in default of any of its material obligations under the Windstorm Insurance Intercreditor Agreement beyond any applicable notice and cure periods contained therein; or if the Windstorm Insurance Intercreditor Agreement shall be surrendered, terminated or canceled for any reason or under any circumstances whatsoever, except with the consent of Lender; or if any of the terms, covenants or conditions of the Windstorm Insurance Intercreditor Agreement shall in any manner be modified, changed, supplemented, altered, restated or amended without the consent of Lender;
(xv) if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower fails to comply with the covenants as to Prescribed Laws set forth in Section 5.1.1 hereof;
(xvi) if a material default has occurred and continues beyond any applicable cure period under any Management Agreement and if such default permits the Manager, the Operating Company or the Mortgage Borrower party thereto to terminate or cancel the Management Agreement in question;
(xvii) any Gaming License shall be refused, suspended, revoked, modified in a materially adverse manner or canceled or allowed to lapse or any proceeding is commenced by any Governmental Authority for the purpose of suspending, revoking or canceling any Gaming License in any materially adverse respect, or any Governmental Authority shall have appointed a conservator, supervisor or trustee to or for any of the Casino Components and, in each case of the foregoing, such action could reasonably be expected to (A) have an Individual Material Adverse Effect, (B) materially and adversely affect the continued operation of the Casino Components in the usual course of business and in substantially the same manner and to at least the same standard as was maintained prior to such action, or (C) result in any material decrease in the then expected cash flow and revenues to be derived from the Casino Components;
(xviii) if any Borrower shall continue to be in Default under any of the other terms, covenants or conditions of this Agreement not specified in subsections (i) to (xvii) above, for ten (10) days after notice to Borrower from Lender, in the case of any Default which can be cured by the payment of a sum of money, or for thirty (30) days after notice from Lender in the case of any other Default; provided, however, that if such non-monetary Default is susceptible of cure but cannot reasonably be cured within such thirty (30) day period and provided further that such Borrower shall have commenced to cure such Default default within such thirty (30) day period and thereafter diligently and expeditiously proceeds to cure the same, such thirty (30) day period shall be extended for such time so long as is reasonably necessary for such it shall require Borrower in the exercise of due diligence to cure such Defaultdefault, it being agreed that no such additional extension shall be for a period not to exceed one hundred twenty in excess of sixty (12060) days;
(xix) if there shall be a default under any of the other Loan Documents beyond any applicable cure periods contained in such documents, whether as to any Borrower, Mortgage Borrower, Senior Mezzanine Borrower, the Collateral, the Senior Mezzanine Collateral or any Individual Property, or if any other such event shall occur or condition shall exist, if the effect of such event or condition is to accelerate the maturity of any portion of the Debt or to permit Lender to accelerate the maturity of all or any portion of the Debt;
(xx) if the Liens created pursuant to any Loan Document shall cease to be a fully protected enforceable first priority security interest in the Collateral, or any portion of the Collateral is Transferred without Lender’s prior written consent except as permitted hereunder; or
(xxi) if a Mortgage Loan Event of Default or Senior Mezzanine Loan Event of Default shall occur.
(b) Upon the occurrence of an Event of Default (other than an Event of Default described in clauses (vi) or (vii) above) and at any time thereafter, in addition to any other rights or remedies available to it pursuant to this Agreement and the other Loan Documents or at law or in equity, Lender may take such action, without notice or demand, that Lender deems advisable to protect and enforce its rights against Borrower and in and to all or any of the Collateral, including, without limitation, declaring the Debt to be immediately due and payable, and Lender may enforce or avail itself of any or all rights or remedies provided in the Loan Documents and may exercise all the rights and remedies of a secured party under the Uniform Commercial Code, as adopted and enacted by the State or States where any of the Collateral is located, against Borrower and any or all of the Collateral, including, without limitation, all rights or remedies available at law or in equity; and upon any Event of Default described in clauses (vi) or (vii) above, the Debt and all other obligations of Borrower hereunder and under the other Loan Documents shall immediately and automatically become due and payable, without notice or demand, and Borrower hereby expressly waives any such notice or demand, anything contained herein or in any other Loan Document to the contrary notwithstanding.
Appears in 2 contracts
Samples: Loan Agreement (MPG Office Trust, Inc.), Loan Agreement (Maguire Properties Inc)
Event of Default. (a) Each of the following events shall constitute an event of default hereunder (an As used herein, “Event of Default”):
(i) if (A) ” shall mean the occurrence and/or existence of any portion one or more of the Debt is not paid in full on the Maturity Datefollowing: (a)(i) Tenant shall fail to pay any installment of Base Rent, (B) the Debt Service is not paid in full Additional Rent or any other amount due under this Lease on or before the related Payment Datedate on which the same becomes due and payable, or (C) any other portion of the Debt is not paid within and such failure continues for five (5) days of when due;
after written notice from Landlord thereof or (ii) if Landlord having given the notice specified in the foregoing clause (a)(i) to Tenant twice in any twelve (12) month period, Tenant shall fail, on a third occasion within the twelve (12) months following the giving of the Taxes or Other Charges are not paid (with respect first such notice by Landlord, to each or pay any Individual Property) prior to Delinquency;
(iii) if the Policies (with respect to each or any Individual Property) are not kept in full force and effectinstallment of Base Rent, or if certified copies of the Policies (for each Individual Property) are not delivered to Lender upon request (or certificates thereof, if a Policy shall be renewed and certified copies of the Policy are not immediately available upon such renewal (each Borrower agreeing in such instance to provide copies of the Policies to Lender promptly thereafter));
(iv) if any Borrower Transfers or otherwise encumbers any portion of the Properties, the Collateral or the Senior Mezzanine Collateral, or there shall otherwise occur a Transfer without Lender’s prior consent in violation of the provisions of this Agreement, the Pledge Agreement Additional Rent or any other Loan Document;
(v) if any representation amount due under this Lease on or warranty made by any Borrower or any other Loan Party herein or in any other Loan Document, or in any report, certificate, financial statement or other instrument, agreement or document or other material or written information furnished to Lender shall have been false or misleading in any material respect as of before the date on which the representation or warranty was made (and, with respect to any such breach which is not the subject of any other subsection of this Section 8.1 same becomes due and which is capable of being cured, such Borrower fails to remedy such condition within ten (10) days following notice to Borrower from Lender, in the case of any such breach which can be cured by the payment of a sum of money, or within thirty (30) days following notice from Lender in the case of any other such breach);
(vi) if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower shall make an assignment for the benefit of creditorspayable; or if a receiver, liquidator (b) Tenant shall neglect or trustee shall be appointed for any Borrower, Senior Mezzanine Borrower fail to perform or Mortgage Borrower, or if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower shall be adjudicated a bankrupt or insolvent, or if any petition for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by or against, consented to, or acquiesced in by, Borrower or Senior Mezzanine Borrower, or if any proceeding for the dissolution or liquidation of any Borrower, Senior Mezzanine Borrower or Mortgage Borrower shall be instituted; provided, however, if such appointment, adjudication, petition or proceeding was involuntary and not consented to by any Borrower, Senior Mezzanine Borrower or Mortgage Borrower, upon the same not being discharged, stayed or dismissed within ninety (90) days;
(vii) if any Operating Company, any Manager, Principal, Holdings or any Guarantor shall make an assignment for the benefit of creditors; or if a receiver, liquidator or trustee shall be appointed for any such Operating Company, any such Manager, Principal, Holdings or any such Guarantor, or if any Operating Company, any Manager, Principal, Holdings or any Guarantor shall be adjudicated a bankrupt or insolvent, or if any petition for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by or against, consented to, or acquiesced in by, any Operating Company, any Manager, Principal, Holdings or any Guarantor, or if any proceeding for the dissolution or liquidation of any Operating Company, any Manager, Principal, Holdings or any Guarantor shall be instituted; provided, however, if such appointment, adjudication, petition or proceeding was involuntary and not consented to by any such Operating Company, any such Manager, Principal, Holdings or any such Guarantor, upon the same not being discharged, stayed or dismissed within ninety (90) days;
(viii) if any Borrower attempts to assign its rights under this Agreement or observe any of the other Loan Documents covenants or any interest undertakings herein on its part to be performed or therein in contravention of the Loan Documents;
(ix) if any Borrower breaches any of its respective negative covenants contained in Section 5.2 observed and such neglect or any covenant contained in Section 4.1.30 or Section 5.1.11 hereof (and, with respect to any such breach of any covenant set forth in Section 5.1.11 which is not the subject of any other subsection of this Section 8.1, such Borrower fails to remedy such condition within ten (10) days after notice to Borrower from Lender, in the case of any such Default under Section 5.1.11 which can be cured by the payment of a sum of money, or failure shall continue for thirty (30) days after notice from Lender in the case of any other such Default under Section 5.1.11);
(x) with respect to any term, covenant or provision set forth herein which specifically contains a notice requirement or grace period, if any Borrower shall be in default under such term, covenant or condition after the giving of such notice or the expiration of such grace period;
(xi) if any of the assumptions contained in the Insolvency Opinion delivered in connection with the Loan, or in the Additional Insolvency Opinion delivered subsequent to the closing of the Loan, is or shall become untrue in any material respect; or if any of the assumptions contained in the True Lease Opinion in connection with the Loan, or in the Additional True Lease Opinion delivered subsequent to the closing of the Loan, is or shall become untrue in any material respect;
(xii) if any Mortgage Borrower, any Operating Company or any Guarantor (Operating Lease) is in default of any of its material obligations under any Operating Lease (or under another lease and/or management agreement in substitution for such Operating Lease in accordance herewith) or under any such Operating Lease Guaranty (or under another operating lease guaranty in substitution for such Operating Lease Guaranty in accordance herewith) beyond any applicable notice and cure periods contained therein; or if any Operating Lease (or such other lease and/or management agreement) or any Operating Lease Guaranty (or such other operating lease guaranty) shall be surrendered or any Operating Lease or any Operating Lease Guaranty shall be terminated or canceled for any reason or under any circumstances whatsoever, except with the consent of Lender; or if any of the terms, covenants or conditions of any Operating Lease (or such other lease and/or management agreement) or any Operating Lease Guaranty (or such other operating lease guaranty) shall in any manner be modified, changed, supplemented, altered, restated or amended without the consent of Lender except as may otherwise expressly permitted in this Agreement;
(xiii) intentionally omitted;
(xiv) if any Affiliate of any Borrower that is or becomes a party to the Windstorm Insurance Intercreditor Agreement is in default of any of its material obligations under the Windstorm Insurance Intercreditor Agreement beyond any applicable notice and cure periods contained therein; or if the Windstorm Insurance Intercreditor Agreement shall be surrendered, terminated or canceled for any reason or under any circumstances whatsoever, except with the consent of Lender; or if any of the terms, covenants or conditions of the Windstorm Insurance Intercreditor Agreement shall in any manner be modified, changed, supplemented, altered, restated or amended without the consent of Lender;
(xv) if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower fails to comply with the covenants as to Prescribed Laws set forth in Section 5.1.1 hereof;
(xvi) if a material default has occurred and continues beyond any applicable cure period under any Management Agreement and if such default permits the Manager, the Operating Company or the Mortgage Borrower party thereto to terminate or cancel the Management Agreement in question;
(xvii) any Gaming License shall be refused, suspended, revoked, modified in a materially adverse manner or canceled or allowed to lapse or any proceeding is commenced by any Governmental Authority for the purpose of suspending, revoking or canceling any Gaming License in any materially adverse respect, or any Governmental Authority shall have appointed a conservator, supervisor or trustee to or for any of the Casino Components and, in each case of the foregoing, such action could reasonably be expected to (A) have an Individual Material Adverse Effect, (B) materially and adversely affect the continued operation of the Casino Components in the usual course of business and in substantially the same manner and to at least the same standard as was maintained prior to such action, or (C) result in any material decrease in the then expected cash flow and revenues to be derived from the Casino Components;
(xviii) if any Borrower shall continue to be in Default under any of the other terms, covenants or conditions of this Agreement not specified in subsections (i) to (xvii) above, for ten (10) days after written notice to Borrower from Lender, in the case of any Default which can be cured by the payment of a sum of money, or for thirty (30) days after notice from Lender in the case of any other DefaultTenant; provided, however, that if the default is other than a default under clause (a) above, or clauses (c) through (i) below, and is such non-monetary Default is susceptible of cure but that it cannot reasonably be cured within such thirty (30) day period and provided further that such Borrower shall have commenced to cure such Default within such thirty (30) day period and thereafter diligently and expeditiously proceeds to cure the samedays, but is capable of being cured, such thirty (30) day period shall be extended for such time as is reasonably necessary for such Borrower in the exercise of due diligence by up to sixty (60) additional days provided that Tenant commences to cure such Defaultdefault within said thirty (30) day period, continues to do so diligently, and thereafter completes such additional period cure within not to exceed one hundred twenty more than ninety (12090) days following the notice of default; or (c) there is filed by Tenant any case, petition, proceeding or other action under any Bankruptcy Law; or (d) any other proceedings shall be instituted against Tenant under any Bankruptcy Law and not be dismissed within sixty (60) days;
; or (xixe) if there Tenant shall execute an assignment of its property for the benefit of its creditors; or (f) a receiver, custodian or other similar officer for Tenant shall be a default under any appointed and not be discharged within sixty (60) days; or (g) the estate hereby created shall be taken by execution or by other process of law and is not redeemed by Tenant within thirty (30) days thereafter; or (h) an assignment or sublease in violation of the other Loan Documents beyond any applicable cure periods contained in such documents, whether as to any Borrower, Mortgage Borrower, Senior Mezzanine Borrower, the Collateral, the Senior Mezzanine Collateral terms of this Lease; or any Individual Property, or if (i) any other such event shall occur or condition shall exist, if the effect of such event or condition is to accelerate the maturity of any portion of the Debt or to permit Lender to accelerate the maturity of all or any portion of the Debt;
(xx) if the Liens created pursuant to any Loan Document shall cease to be a fully protected enforceable first priority security interest in the Collateral, or any portion of the Collateral is Transferred without Lender’s prior written consent except as permitted hereunder; or
(xxi) if a Mortgage Loan Event of Default or Senior Mezzanine Loan Event of Default shall occur.
(b) Upon the occurrence of constituting an Event of Default (under other than an Event Sections of Default described in clauses (vi) or (vii) above) and at any time thereafter, in addition to any other rights or remedies available to it pursuant to this Agreement and the other Loan Documents or at law or in equity, Lender may take such action, without notice or demand, that Lender deems advisable to protect and enforce its rights against Borrower and in and to all or any of the Collateral, including, without limitation, declaring the Debt to be immediately due and payable, and Lender may enforce or avail itself of any or all rights or remedies provided in the Loan Documents and may exercise all the rights and remedies of a secured party under the Uniform Commercial Code, as adopted and enacted by the State or States where any of the Collateral is located, against Borrower and any or all of the Collateral, including, without limitation, all rights or remedies available at law or in equity; and upon any Event of Default described in clauses (vi) or (vii) above, the Debt and all other obligations of Borrower hereunder and under the other Loan Documents shall immediately and automatically become due and payable, without notice or demand, and Borrower hereby expressly waives any such notice or demand, anything contained herein or in any other Loan Document to the contrary notwithstandingLease.
Appears in 2 contracts
Samples: Lease Agreement (Genocea Biosciences, Inc.), Lease Agreement (Genocea Biosciences, Inc.)
Event of Default. (a) Each Any of the following events shall constitute an event a default on the part of default hereunder (an “Event of Default”):the Borrower:
(i1) if Any representations and undertakings made by the Borrower hereunder, or any notice, authorization, approval, consent, certificate, and other documents provided by the Borrower in connection with this Contract are inaccurate or misleading at the time of being made, or are proved to be inaccurate or misleading, or are proved to be void or canceled or have no legal effect.
(A2) The Borrower commits any portion breach of the Debt is “other matters agreed upon by the parties”, if any, in Part I hereof or any agreed matter in Article 8 of Part II hereof.
(3) The Borrower commits any major cross default event, including but not paid limited to breaches of other loan contracts/agreements entered into by the Borrower; or default in full on repayment of any outstanding debts matured under other loan contracts/agreements entered into by the Maturity DateBorrower.
(4) The Borrower's investor withdraws capital, (B) the Debt Service is not paid in full on or before the related Payment Datetransfers assets, or (C) any other portion of transfers the Debt is not paid within five equity without permission.
(5) days of when dueThe security provider has lost or will lose the ability to provide security for the loan, or breaches the security document it signs.
(6) The Borrower suspends business, suspends production, closes business, suspends business for rectification, is reorganized, liquidated, placed in receivership or conservatorship, or dissolved, or has its business license revoked or canceled, or goes bankrupt;
(ii7) if any The financial condition of the Taxes Borrower or Other Charges are not paid (with respect to each the security provider deteriorates, or any Individual Property) prior to Delinquency;they encounter great difficulties in operations, or an event or situation which has an adverse effect on their normal operations, financial conditions, or solvency occurs.
(iii) if 8) The Borrower or its controlling shareholder, actual controller, or related persons are involved in any major lawsuit or arbitration, or its major assets are subject to seizure, attachment, freezing, enforcement, or other measures of the Policies (with respect to each or any Individual Property) are not kept in full force and same effect, or if certified copies its legal representative/principal, directors, supervisors, or senior managers are involved in any lawsuit, arbitration, or are subject to other enforcements actions that have an adverse effect on the Borrower's solvency.
(9) The Borrower fails to pay off the principal and interest of the Policies (loan as scheduled or use the loan for each Individual Property) are not delivered to Lender upon request (or certificates thereof, if a Policy shall be renewed and certified copies of the Policy are not immediately available upon such renewal (each Borrower agreeing in such instance to provide copies of the Policies to Lender promptly thereafter));agreed purposes.
(iv10) if any The Borrower Transfers or otherwise encumbers any portion of fails to make payments with the Properties, loan amount in the Collateral or the Senior Mezzanine Collateral, or there shall otherwise occur a Transfer without Lender’s prior consent in violation of the provisions of this Agreement, the Pledge Agreement or any other Loan Document;agreed payment mode.
(v11) if any representation or warranty made The documents and materials submitted by any the Borrower or any other Loan Party herein or in any other Loan Document, or in any report, certificate, financial statement or other instrument, agreement or document or other material or written information furnished to Lender shall have been apply for the loan hereunder contain false or misleading in any material respect as of the date the representation or warranty was made (and, with respect to any such breach which is not the subject of any other subsection of this Section 8.1 and which is capable of being cured, such Borrower fails to remedy such condition within ten (10) days following notice to Borrower from Lender, in the case of any such breach which can be cured by the payment of a sum of money, or within thirty (30) days following notice from Lender in the case of any other such breach);
(vi) if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower shall make an assignment for the benefit of creditors; or if a receiver, liquidator or trustee shall be appointed for any Borrower, Senior Mezzanine Borrower or Mortgage Borrower, or if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower shall be adjudicated a bankrupt or insolvent, or if any petition for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by or against, consented to, or acquiesced in by, Borrower or Senior Mezzanine Borrower, or if any proceeding for the dissolution or liquidation of any Borrower, Senior Mezzanine Borrower or Mortgage Borrower shall be instituted; provided, however, if such appointment, adjudication, petition or proceeding was involuntary and not consented to by any Borrower, Senior Mezzanine Borrower or Mortgage Borrower, upon the same not being discharged, stayed or dismissed within ninety (90) days;
(vii) if any Operating Company, any Manager, Principal, Holdings or any Guarantor shall make an assignment for the benefit of creditors; or if a receiver, liquidator or trustee shall be appointed for any such Operating Company, any such Manager, Principal, Holdings or any such Guarantor, or if any Operating Company, any Manager, Principal, Holdings or any Guarantor shall be adjudicated a bankrupt or insolvent, or if any petition for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by or against, consented to, or acquiesced in by, any Operating Company, any Manager, Principal, Holdings or any Guarantor, or if any proceeding for the dissolution or liquidation of any Operating Company, any Manager, Principal, Holdings or any Guarantor shall be instituted; provided, however, if such appointment, adjudication, petition or proceeding was involuntary and not consented to by any such Operating Company, any such Manager, Principal, Holdings or any such Guarantor, upon the same not being discharged, stayed or dismissed within ninety (90) days;
(viii) if any Borrower attempts to assign its rights under this Agreement or any of the other Loan Documents or any interest herein or therein in contravention of the Loan Documents;
(ix) if any Borrower breaches any of its respective negative covenants contained in Section 5.2 or any covenant contained in Section 4.1.30 or Section 5.1.11 hereof (and, with respect to any such breach of any covenant set forth in Section 5.1.11 which is not the subject of any other subsection of this Section 8.1, such Borrower fails to remedy such condition within ten (10) days after notice to Borrower from Lender, in the case of any such Default under Section 5.1.11 which can be cured by the payment of a sum of money, or for thirty (30) days after notice from Lender in the case of any other such Default under Section 5.1.11);
(x) with respect to any term, covenant or provision set forth herein which specifically contains a notice requirement or grace period, if any Borrower shall be in default under such term, covenant or condition after the giving of such notice or the expiration of such grace period;
(xi) if any of the assumptions contained in the Insolvency Opinion delivered in connection with the Loan, or in the Additional Insolvency Opinion delivered subsequent to the closing of the Loan, is or shall become untrue in any material respect; or if any of the assumptions contained in the True Lease Opinion in connection with the Loan, or in the Additional True Lease Opinion delivered subsequent to the closing of the Loan, is or shall become untrue in any material respect;
(xii) if any Mortgage Borrower, any Operating Company or any Guarantor (Operating Lease) is in default of any of its material obligations under any Operating Lease (or under another lease and/or management agreement in substitution for such Operating Lease in accordance herewith) or under any such Operating Lease Guaranty (or under another operating lease guaranty in substitution for such Operating Lease Guaranty in accordance herewith) beyond any applicable notice and cure periods contained therein; or if any Operating Lease (or such other lease and/or management agreement) or any Operating Lease Guaranty (or such other operating lease guaranty) shall be surrendered or any Operating Lease or any Operating Lease Guaranty shall be terminated or canceled for any reason or under any circumstances whatsoever, except with the consent of Lender; or if any of the terms, covenants or conditions of any Operating Lease (or such other lease and/or management agreement) or any Operating Lease Guaranty (or such other operating lease guaranty) shall in any manner be modified, changed, supplemented, altered, restated or amended without the consent of Lender except as may otherwise expressly permitted in this Agreement;
(xiii) intentionally omitted;
(xiv) if any Affiliate of any Borrower that is or becomes a party to the Windstorm Insurance Intercreditor Agreement is in default of any of its material obligations under the Windstorm Insurance Intercreditor Agreement beyond any applicable notice and cure periods contained therein; or if the Windstorm Insurance Intercreditor Agreement shall be surrendered, terminated or canceled for any reason or under any circumstances whatsoever, except with the consent of Lender; or if any of the terms, covenants or conditions of the Windstorm Insurance Intercreditor Agreement shall in any manner be modified, changed, supplemented, altered, restated or amended without the consent of Lender;
(xv) if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower fails to comply with the covenants as to Prescribed Laws set forth in Section 5.1.1 hereof;
(xvi) if a material default has occurred and continues beyond any applicable cure period under any Management Agreement and if such default permits the Manager, the Operating Company or the Mortgage Borrower party thereto to terminate or cancel the Management Agreement in question;
(xvii) any Gaming License shall be refused, suspended, revoked, modified in a materially adverse manner or canceled or allowed to lapse or any proceeding is commenced by any Governmental Authority for the purpose of suspending, revoking or canceling any Gaming License in any materially adverse respect, or any Governmental Authority shall have appointed a conservator, supervisor or trustee to or for any of the Casino Components and, in each case of the foregoing, such action could reasonably be expected to (A) have an Individual Material Adverse Effect, (B) materially and adversely affect the continued operation of the Casino Components in the usual course of business and in substantially the same manner and to at least the same standard as was maintained prior to such action, or (C) result in any material decrease in the then expected cash flow and revenues to be derived from the Casino Components;
(xviii) if any Borrower shall continue to be in Default under any of the other terms, covenants or conditions of this Agreement not specified in subsections (i) to (xvii) above, for ten (10) days after notice to Borrower from Lender, in the case of any Default which can be cured by the payment of a sum of money, or for thirty (30) days after notice from Lender in the case of any other Default; provided, however, that if such non-monetary Default is susceptible of cure but cannot reasonably be cured within such thirty (30) day period and provided further that such Borrower shall have commenced to cure such Default within such thirty (30) day period and thereafter diligently and expeditiously proceeds to cure the same, such thirty (30) day period shall be extended for such time as is reasonably necessary for such Borrower in the exercise of due diligence to cure such Default, such additional period not to exceed one hundred twenty (120) days;
(xix) if there shall be a default under any of the other Loan Documents beyond any applicable cure periods contained in such documents, whether as to any Borrower, Mortgage Borrower, Senior Mezzanine Borrower, the Collateral, the Senior Mezzanine Collateral or any Individual Property, or if any other such event shall occur or condition shall exist, if the effect of such event or condition is to accelerate the maturity of any portion of the Debt or to permit Lender to accelerate the maturity of all or any portion of the Debt;
(xx) if the Liens created pursuant to any Loan Document shall cease to be a fully protected enforceable first priority security interest in the Collateral, or any portion of the Collateral is Transferred without Lender’s prior written consent except as permitted hereunder; or
(xxi) if a Mortgage Loan Event of Default or Senior Mezzanine Loan Event of Default shall occurinformation.
(b12) Upon The Borrower does not conform to or exceeds the occurrence relevant financial indicators as specified herein.
(13) The balance of an Event the Borrower’s repayment reserve account is less than the repayment of Default principal and interest due in the current period on any repayment date of principal and interest hereunder and within three (other than an Event 3) days prior to the repayment date.
(14) The movement of Default described capital flows in clauses the general settlement account/capital collection account is abnormal.
(vi15) or (vii) above) and at any time thereafter, in addition to The Borrower commits any other rights breach of this Contract that is enough to prevent the normal performance of this Contract, or remedies available to it pursuant to this Agreement and other acts that impair the other Loan Documents or at law or in equity, Lender may take such action, without notice or demand, that Lender deems advisable to protect and enforce its rights against Borrower and in and to all or any legitimate interests of the Collateral, including, without limitation, declaring the Debt to be immediately due and payable, and Lender may enforce or avail itself of any or all rights or remedies provided in the Loan Documents and may exercise all the rights and remedies of a secured party under the Uniform Commercial Code, as adopted and enacted by the State or States where any of the Collateral is located, against Borrower and any or all of the Collateral, including, without limitation, all rights or remedies available at law or in equity; and upon any Event of Default described in clauses (vi) or (vii) above, the Debt and all other obligations of Borrower hereunder and under the other Loan Documents shall immediately and automatically become due and payable, without notice or demand, and Borrower hereby expressly waives any such notice or demand, anything contained herein or in any other Loan Document to the contrary notwithstandingLender.
Appears in 2 contracts
Samples: Working Capital Loan Contract (Applied Optoelectronics, Inc.), Working Capital Loan Contract (Applied Optoelectronics, Inc.)
Event of Default. (a) Each of the following events shall constitute an event of default hereunder (an “Event of Default”):
(i) if (A) any portion of the Debt is not paid in full on the Maturity Date, (B) the Debt Service any Monthly Interest Payment or any required monthly deposit to any Reserve Fund is not paid in full on or before the related Payment Date, or (C) any other portion of the Debt is not paid within five three (53) days of when dueBusiness Days following notice to Borrowers that the same is due and payable;
(ii) if any of the Taxes or Other Charges are not paid (with respect to each or any Individual Property) prior to Delinquencythe date upon which any interest or late charges shall begin to accrue thereon, subject to Section 7.2 of the Mortgage Loan Agreement or Section 7.2 hereof, as applicable;
(iii) if the Policies (with respect to each or any Individual Property) are not kept in full force and effect, or if certified copies of the Policies (for each Individual Property) are not delivered to Lender upon request (or certificates thereof, if a Policy shall be renewed and certified copies of the Policy are not immediately available upon such renewal (each Borrower agreeing in such instance to provide copies of the Policies to Lender promptly thereafter));
(iv) if any Borrower Transfers or otherwise encumbers any portion of the Properties, the Collateral or the Senior Mezzanine Collateralany interest therein, or there shall if any Mortgage Borrower Transfers or otherwise occur a encumbers any portion of any Property or any interest therein or the IP or any portion thereof, or any direct or indirect interest in any Transfer without Lender’s prior consent Restricted Party is Transferred, in each instance, in violation of the provisions of this Agreement, the Pledge Agreement or any other Loan Documentand not otherwise consented to by Lender;
(v) if any representation or warranty made by any Borrower or any other Loan Party herein or in any other Loan Document, or in any report, certificate, financial statement or other instrument, agreement or document or other material or written information furnished to Lender by or on behalf of any Borrower or any Restricted Party shall have been false or misleading in any material respect as of the date the representation or warranty was made (andmade, with respect to any provided, however, if such breach which representation or warranty is not the subject of any other subsection of this Section 8.1 and which is capable susceptible of being cured, and Lender has not theretofore materially adversely relied thereon, Borrowers shall have the right to cure such Borrower fails to remedy such condition representation or warranty within ten (10) days following Business Days of notice to Borrower from Lender, in the case of any such breach which can be cured by the payment of a sum of money, or within thirty (30) days following notice from Lender in the case of any other such breach)thereof;
(vi) if any BorrowerLoan Party, Senior Mezzanine Borrower HRHI or Mortgage Borrower any Guarantor shall make an assignment for the benefit of creditors; or any creditor (other than Lender);
(vii) if a receiver, liquidator or trustee shall be appointed for any BorrowerLoan Party, Senior Mezzanine Borrower or Mortgage Borrower, or if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower shall be adjudicated a bankrupt or insolvent, or if any petition for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, HRHI or any similar federal or state law, shall be filed by or against, consented to, or acquiesced in by, Borrower or Senior Mezzanine Borrower, or if any proceeding for the dissolution or liquidation of any Borrower, Senior Mezzanine Borrower or Mortgage Borrower shall be instituted; provided, however, if such appointment, adjudication, petition or proceeding was involuntary and not consented to by any Borrower, Senior Mezzanine Borrower or Mortgage Borrower, upon the same not being discharged, stayed or dismissed within ninety (90) days;
(vii) if any Operating Company, any Manager, Principal, Holdings or any Guarantor shall make an assignment for the benefit of creditors; or if a receiver, liquidator or trustee shall be appointed for any such Operating Company, any such Manager, Principal, Holdings or any such Guarantor, or if any Operating CompanyLoan Party, any Manager, Principal, Holdings HRHI or any Guarantor shall be adjudicated a bankrupt or insolvent, or if any petition for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by or against, consented to, or acquiesced in by, any Operating CompanyLoan Party, any Manager, Principal, Holdings HRHI or any Guarantor, or if any proceeding for the dissolution or liquidation of any Operating CompanyLoan Party, any Manager, Principal, Holdings HRHI or any Guarantor shall be instituted; provided, however, if such appointment, adjudication, petition or proceeding was involuntary and not consented to by any such Operating CompanyLoan Party, any such Manager, Principal, Holdings HRHI or any such Guarantor, upon the same not being discharged, stayed or dismissed within ninety (90) days, and provided that such appointment was not initiated by Lender;
(viii) if any Borrower attempts to assign its rights under this Agreement or any of the other Loan Documents or any interest herein or therein in contravention of the Loan Documents;
(ix) if any Borrower breaches any of its respective negative covenants contained in Section 5.2 hereof or any covenant contained in Section 4.1.30 or Section 5.1.11 hereof (andhereof, with respect to provided, however, that, unless otherwise addressed in any such other clause of this Section 8.1(a), a breach of any covenant set forth contained in Section 5.1.11 which is not the subject of any other subsection of this Section 8.14.1.30, such Borrower fails to remedy such condition within ten (10) days after notice to Borrower from Lender, in the case of any such Default under Section 5.1.11 which can be cured by the payment or Section 5.2 hereof shall not constitute an Event of a sum of moneyDefault if (A) such breach is inadvertent and non-recurring, or for (B) if such breach is curable, Borrowers shall promptly cure such breach within thirty (30) days after notice thereof from Lender, and (C) with respect to a material breach of any material covenant contained in Section 4.1.30 hereof, within fifteen (15) Business Days of the request of Lender, Borrowers deliver to Lender an Additional Insolvency Opinion, or a modification of the Insolvency Opinion, to the effect that such breach shall not in any way impair, negate or amend the opinions rendered in the Insolvency Opinion, which opinion or modification and the counsel delivering such opinion or modification shall be acceptable to Lender in the case of any other such Default under Section 5.1.11)its reasonable discretion;
(x) with respect to any term, covenant or provision set forth herein which specifically contains a notice requirement or grace period, if any Borrower shall be in default under such term, covenant or condition after the giving of such notice or the expiration of such grace period;
(xi) if any of the assumptions contained in the Insolvency Opinion delivered to Lender in connection with the Loan, or in the any Additional Insolvency Opinion delivered subsequent to the closing of the Loan, is or shall become untrue in any material respect; or if any of the assumptions contained in the True Lease Opinion in connection with the Loan, or in the Additional True Lease Opinion delivered subsequent to the closing of the Loan, is or shall become untrue in any material respect;
(xii) if any Mortgage Borrower, any Operating Company or any Guarantor (Operating Lease) is in default of any of its material obligations under any Operating Lease (or under another lease and/or management agreement in substitution for such Operating Lease in accordance herewith) or under any such Operating Lease Guaranty (or under another operating lease guaranty in substitution for such Operating Lease Guaranty in accordance herewith) beyond any applicable notice and cure periods contained therein; or if any Operating Lease (or such other lease and/or management agreement) or any Operating Lease Guaranty (or such other operating lease guaranty) shall be surrendered or any Operating Lease or any Operating Lease Guaranty shall be terminated or canceled for any reason or under any circumstances whatsoever, except with the consent of Lender; or if any of the terms, covenants or conditions of any Operating Lease (or such other lease and/or management agreement) or any Operating Lease Guaranty (or such other operating lease guaranty) shall in any manner be modified, changed, supplemented, altered, restated or amended without the consent of Lender except as may otherwise expressly permitted in this Agreement;
(xiii) intentionally omitted;
(xiv) if any Affiliate of any Borrower that is or becomes a party to the Windstorm Insurance Intercreditor Agreement is in default of any of its material obligations under the Windstorm Insurance Intercreditor Agreement beyond any applicable notice and cure periods contained therein; or if the Windstorm Insurance Intercreditor Agreement shall be surrendered, terminated or canceled for any reason or under any circumstances whatsoever, except with the consent of Lender; or if any of the terms, covenants or conditions of the Windstorm Insurance Intercreditor Agreement shall in any manner be modified, changed, supplemented, altered, restated or amended without the consent of Lender;
(xv) if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower fails to comply with the covenants as to Prescribed Laws set forth in Section 5.1.1 hereof;
(xvi) if a material default by any Mortgage Borrower has occurred and continues beyond any applicable cure period under any Management Agreement (or any Replacement Management Agreement) and if as a result of such default permits the ManagerManager thereunder terminates or cancels such Management Agreement (or any Replacement Management Agreement);
(xiii) if a material default by Hotel/Casino Borrower has occurred and continues beyond any applicable cure period under the Liquor Management Agreement (or any Replacement Liquor Management Agreement) and as a result of such default the Liquor Manager thereunder terminates or cancels such Liquor Management Agreement (or any Replacement Liquor Management Agreement);
(xiv) if any Borrower or any other Loan Party fails to comply in any material respect with the covenants as to Prescribed Laws set forth in Section 5.1.1 hereof and such failure to comply continues after ten (10) Business Days notice thereof;
(xv) except as otherwise contemplated by the Loan Documents, if Hotel/Casino Borrower ceases to do business as a hotel and casino at a standard at least equal to Comparable Hotel/Casinos, including, without limitation, comparable food and beverage outlets and other amenities, (other than temporary cessation in connection with any diligent Restoration of the Hotel/Casino Property following a Casualty or Condemnation) and such failure continues after thirty (30) days notice from Lender thereof; provided, however, that if any such failure is susceptible of cure but cannot reasonably be cured within such thirty (30) day period, and provided, further, that Borrowers shall have caused Mortgage Borrowers to commence to cure such failure within such thirty (30) day period and shall thereafter diligently and expeditiously proceed to cure the same, such thirty (30) day period shall be extended for such time as is reasonably necessary for Mortgage Borrowers in the exercise of due diligence to cure such Default, such additional period not to exceed sixty (60) days, subject to Excusable Delay;
(xvi) if (A) there shall occur any default by HRHI or Hotel/Casino Borrower under the HRHI Lease in the observance or performance of any term, covenant or condition on its part to be observed or performed and such failure shall continue beyond the expiration of all applicable notice and cure periods under the HRHI Lease, (B) if, without Lender’s prior written consent, the Operating Company HRHI Lease shall be terminated, changed, modified or amended, other than ministerial non-monetary amendments or modifications, or (C) if, without Lender’s prior written consent, HRHI shall hold over at the Mortgage Borrower party thereto to terminate expiration or cancel earlier termination of the Management Agreement in questionHRHI Lease;
(xvii) if (A) there shall occur any default by HRHI under the Gaming Sublease in the observance or performance of any term, covenant or condition on the part of HRHI to be observed or performed and such failure shall continue beyond the expiration of all applicable notice and cure periods under the Gaming Sublease, (B) any event shall occur which would cause the Gaming Sublease to terminate without notice or action by the Gaming Operator or which would entitle the Gaming Operator to terminate the Gaming Sublease by giving notice to HRHI, (C) if HRHI shall waive, excuse, condone or in any way release or discharge the Gaming Operator of or from any of the Gaming Operator’s material obligations, covenants and/or conditions under the Gaming Sublease without the prior written consent of Lender, (D) if, without Lender’s prior written consent, HRHI shall terminate (or consent to or approve any such termination), change, modify or amend the Gaming Sublease, other than ministerial non-monetary amendments or modifications, (E) if HRHI shall fail to provide Gaming Employees as and to the extent required pursuant to Paragraph 7 of the HRHI Gaming Agreement, (F) if HRHI shall, without the consent of Mortgage Lender as provided in the HRHI Gaming Agreement, consent to or approve any matter requiring Mortgage Lender’s consent thereunder (other than a termination), in the event that either (1) Mortgage Lender has been materially damaged by such consent or approval or is reasonably likely to be materially damaged by such consent or approval with the further passage of time, or (2) HRHI is unable to rescind or void such consent or approval within thirty (30) days after notice from Mortgage Lender of its objection thereto, and/or (G) HRHI shall otherwise default under the Gaming Recognition Agreement or the HRHI Gaming Agreement and such default, if a monetary default, shall continue beyond the notice and cure period set forth in Section 8.1(a)(i)(C) hereof, or if a non-monetary default, shall continue beyond the notice and cure period set forth in Section 8.1(a)(xxiii) hereof;
(xviii) if at any time during the term of the Loan, for any reason (including, without limitation, the revocation, suspension or surrender of any required Governmental Approval), (A) the Gaming Operating Condition is not satisfied, provided, however, that if the Gaming Operating Condition is not satisfied at any time on or after February 2, 2008 through and including May 9, 2008, so long as (I) Mortgage Borrowers are diligently pursuing the satisfaction of the Gaming Operating Condition, (II) all Debt Service is being satisfied as and when due, and (III) no other Event of Default has occurred and is continuing, the failure of the Gaming Operating Condition to be satisfied during such period shall not constitute an Event of Default unless the Gaming Operating Condition shall remain unsatisfied beyond May 9, 2008; or (B) any Gaming License or finding of suitability held by the Gaming Operator shall be refusedmaterially adversely modified, denied, suspended, revoked, modified in a materially adverse manner revoked or canceled or allowed to lapse or if a notice of a material violation is issued under any Gaming License by the issuing agency or other Governmental Authority having jurisdiction, or any proceeding is commenced by any Governmental Authority for the purpose of modifying in any materially adverse respect, suspending, revoking or canceling any Gaming License in any materially adverse respect, in each case, which is not stayed within sixty (60) days after commencement thereof and the result of which is reasonably likely to be Mortgage Borrowers’ inability to continue to conduct gaming operations at the Hotel/Casino Property; provided, however, that during the course of any of the foregoing, substantially the same gaming operations are permitted to continue to operate at the Hotel/Casino Property, or any Governmental Authority shall have appointed a conservator, supervisor or trustee with respect to the Casino Component or the Hotel/Casino Property;
(xix) if at any time during the term of the Loan, for any reason (including, without limitation, the revocation, suspension or surrender of any required Governmental Approval), the alcoholic beverage services at the Hotel/Casino Components and, in each case of the foregoing, such action could reasonably be expected to Property (A) have an Individual Material Adverse Effect, (B) materially and adversely affect are not being managed by a Qualified Liquor Manager pursuant to the continued operation of the Casino Components in the usual course of business and in substantially the same manner and to at least the same standard as was maintained prior to such action, Liquor Management Agreement or (C) result in any material decrease in the then expected cash flow and revenues to be derived from the Casino Componentsa Replacement Liquor Management Agreement;
(xviiixx) if HRHI shall fail to provide liquor management services following an Event of Default or a foreclosure of the Mortgage as and to the extent required pursuant to Sections 5(a) or 5(b) of the Assignment of Liquor Management Agreement;
(xxi) in the event that Gaming Borrower shall ever become the Gaming Operator pursuant to Article XII hereof, if Gaming Borrower thereafter shall fail to provide gaming operation services for the Hotel/Casino Property following an Event of Default or a foreclosure of the Mortgage as and to the extent required pursuant to Section 12.1(e) hereof;
(xxii) in the event that Gaming Borrower, any other Mortgage Borrower or any Affiliate thereof shall ever become the Liquor Manager, if Gaming Borrower, such other Mortgage Borrower or such Affiliate thereof thereafter shall fail to provide liquor management services following an Event of Default or following the transfer of the Hotel/Casino Property to a Mortgage Lender Successor Owner as and to the extent required pursuant to Section 5.1.23(c) of the Mortgage Loan Agreement and Section 5.1.23(c) hereof;
(xxiii) if any Borrower shall continue to be in Default under any of the other terms, covenants or conditions of this Agreement or any other Loan Document, in each instance, not specified in subsections (i) to (xviixxii) above, for ten (10) days Business Days after notice to Borrower Borrowers from Lender, in the case of any Default which can be cured by the payment of a sum of money, or for thirty (30) days after notice from Lender in the case of any other Default; provided, however, that if any such non-monetary Default is susceptible of cure but cannot reasonably be cured within such thirty (30) day period period, and provided further that such Borrower Borrowers shall have commenced to cure such Default within such thirty (30) day period and thereafter diligently and expeditiously proceeds proceed to cure the same, such thirty (30) day period shall be extended for such time as is reasonably necessary for such Borrower Borrowers in the exercise of due diligence to cure such Default, such additional period not to exceed one hundred twenty ninety (12090) days, subject to Excusable Delay;
(xixxxiv) the occurrence of any event that is expressly specified to be an Event of Default in this Agreement or any other Loan Document;
(xxv) if the Liens created pursuant to the Pledge Agreement or any other Loan Document shall cease to be a fully perfected enforceable first priority security interest effective under the Gaming Laws or if there shall be a default under any of the other Loan Documents Pledge Agreement beyond any applicable notice and cure periods contained in such documents, whether as to any Borrower, Mortgage Borrower, Senior Mezzanine Borrower, the Collateral, the Senior Mezzanine Collateral or any Individual Property, or Pledge Agreement;
(xxvi) if any other such event shall occur or condition shall exist, if the effect of such event or condition is to accelerate the maturity of any portion of the Debt or to permit Lender to accelerate the maturity of all or any portion of the Debt;
(xxxxvii) if the Liens created pursuant to any Loan Document a Mortgage Event of Default shall cease to occur and be continuing;
(xxviii) if a fully protected enforceable first priority security interest in the Collateral, or any portion First Mezzanine Event of the Collateral is Transferred without Lender’s prior written consent except as permitted hereunderDefault shall occur and be continuing; or
(xxixxix) if a Mortgage Loan Event of Default or Senior Second Mezzanine Loan Event of Default shall occuroccur and be continuing.
(b) Upon the occurrence and during the continuance of an Event of Default (other than an Event of Default described in clauses (vi) or (vii) above) and at any time thereafter, in addition to any other rights or remedies available to it pursuant to this Agreement and the other Loan Documents or at law or in equity, to the extent permitted by applicable law, Lender may take such action, without notice or demand, that Lender deems advisable to protect and enforce its rights against Borrower Borrowers and in and to all or any of Property and/or the IP and/or the Collateral, including, without limitation, declaring the Debt to be immediately due and payable, and Lender may enforce or avail itself of any or all rights or remedies provided in the Loan Documents and may exercise all against Borrowers, any Property and/or the rights and remedies of a secured party under the Uniform Commercial Code, as adopted and enacted by the State or States where any of the Collateral is located, against Borrower and any or all of IP and/or the Collateral, including, without limitation, all rights or remedies available at law or in equity; and upon any Event of Default described in clauses (vi) or (vii) above, the Debt and all other obligations Other Obligations of Borrower Borrowers hereunder and under the other Loan Documents shall shall, to the extent permitted by applicable law, immediately and automatically become due and payable, without notice or demand, and each Borrower hereby expressly waives any such notice or demand, anything contained herein or in any other Loan Document to the contrary notwithstanding.
Appears in 2 contracts
Samples: Third Mezzanine Loan Agreement (Hard Rock Hotel Holdings, LLC), Third Mezzanine Loan Agreement (Morgans Hotel Group Co.)
Event of Default. (a) Each of the following events shall constitute an event of default hereunder (an “Event of Default”):
(i) if (A) any portion of the Debt is not paid in full on the Maturity Date, (B) the Debt Service is not paid in full on or before the related Payment Date, or (C) any other portion of the Debt is not paid within five (5) days of when due;
(ii) if any of the Taxes or Other Charges are not paid (” with respect to each or the CERs, means any Individual Property) prior to Delinquency;
(iii) if material default in the Policies (with respect to each or any Individual Property) are not kept in full force and effectperformance, or if certified copies of the Policies (for each Individual Property) are not delivered to Lender upon request (or certificates thereof, if a Policy shall be renewed and certified copies of the Policy are not immediately available upon such renewal (each Borrower agreeing in such instance to provide copies of the Policies to Lender promptly thereafter));
(iv) if any Borrower Transfers or otherwise encumbers any portion of the Properties, the Collateral or the Senior Mezzanine Collateral, or there shall otherwise occur a Transfer without Lender’s prior consent in violation of the provisions of this Agreement, the Pledge Agreement or any other Loan Document;
(v) if any representation or warranty made by any Borrower or any other Loan Party herein or in any other Loan Document, or in any report, certificate, financial statement or other instrument, agreement or document or other material or written information furnished to Lender shall have been false or misleading breach in any material respect as of the date the representation or warranty was made (andrespect, with respect to any such breach which is not the subject of any other subsection of this Section 8.1 and which is capable of being cured, such Borrower fails to remedy such condition within ten (10) days following notice to Borrower from Lender, in the case of any such breach which can be cured by the payment of a sum of money, or within thirty (30) days following notice from Lender in the case of any other such breach);
(vi) if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower shall make an assignment for the benefit of creditors; or if a receiver, liquidator or trustee shall be appointed for any Borrower, Senior Mezzanine Borrower or Mortgage Borrower, or if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower shall be adjudicated a bankrupt or insolvent, or if any petition for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by or against, consented to, or acquiesced in by, Borrower or Senior Mezzanine Borrower, or if any proceeding for the dissolution or liquidation of any Borrower, Senior Mezzanine Borrower or Mortgage Borrower shall be instituted; provided, however, if such appointment, adjudication, petition or proceeding was involuntary and not consented to by any Borrower, Senior Mezzanine Borrower or Mortgage Borrower, upon the same not being discharged, stayed or dismissed within ninety (90) days;
(vii) if any Operating Company, any Manager, Principal, Holdings or any Guarantor shall make an assignment for the benefit of creditors; or if a receiver, liquidator or trustee shall be appointed for any such Operating Company, any such Manager, Principal, Holdings or any such Guarantor, or if any Operating Company, any Manager, Principal, Holdings or any Guarantor shall be adjudicated a bankrupt or insolvent, or if any petition for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by or against, consented to, or acquiesced in by, any Operating Company, any Manager, Principal, Holdings or any Guarantor, or if any proceeding for the dissolution or liquidation of any Operating Company, any Manager, Principal, Holdings or any Guarantor shall be instituted; provided, however, if such appointment, adjudication, petition or proceeding was involuntary and not consented to by any such Operating Company, any such Manager, Principal, Holdings or any such Guarantor, upon the same not being discharged, stayed or dismissed within ninety (90) days;
(viii) if any Borrower attempts to assign its rights under this Agreement or any of the other Loan Documents or any interest herein or therein in contravention of the Loan Documents;
(ix) if any Borrower breaches any of its respective negative covenants contained in Section 5.2 or any covenant contained in Section 4.1.30 or Section 5.1.11 hereof (and, with respect to any such breach of any covenant set forth or warranty of Parent hereunder (other than a default in Section 5.1.11 which whose performance or whose breach is not the subject of any other subsection of elsewhere in this Section 8.15.1 specifically dealt with), and continuance of such Borrower fails to remedy such condition within ten (10) days after notice to Borrower from Lender, in the case default or breach for a period of any such Default under Section 5.1.11 which can be cured by the payment of a sum of money, or for thirty (30) days after a written notice from Lender in specifying such default or breach and requiring it to be remedied is given, which written notice states that it is a “Notice of Default” hereunder and is sent by registered or certified mail to Parent by the case Rights Agent, at the direction of any other the Acting Holders (whatever the reason for such Event of Default under Section 5.1.11);
(x) with respect to any term, covenant or provision set forth herein which specifically contains a notice requirement or grace period, if any Borrower and whether it shall be in default under such term, covenant voluntary or condition after the giving of such notice involuntary or the expiration of such grace period;
(xi) if any of the assumptions contained in the Insolvency Opinion delivered in connection with the Loan, or in the Additional Insolvency Opinion delivered subsequent to the closing of the Loan, is or shall become untrue in any material respect; or if any of the assumptions contained in the True Lease Opinion in connection with the Loan, or in the Additional True Lease Opinion delivered subsequent to the closing of the Loan, is or shall become untrue in any material respect;
(xii) if any Mortgage Borrower, any Operating Company or any Guarantor (Operating Lease) is in default of any of its material obligations under any Operating Lease (or under another lease and/or management agreement in substitution for such Operating Lease in accordance herewith) or under any such Operating Lease Guaranty (or under another operating lease guaranty in substitution for such Operating Lease Guaranty in accordance herewith) beyond any applicable notice and cure periods contained therein; or if any Operating Lease (or such other lease and/or management agreement) or any Operating Lease Guaranty (or such other operating lease guaranty) shall be surrendered or any Operating Lease or any Operating Lease Guaranty shall be terminated or canceled for any reason or under any circumstances whatsoever, except with the consent of Lender; or if any of the terms, covenants or conditions of any Operating Lease (or such other lease and/or management agreement) or any Operating Lease Guaranty (or such other operating lease guaranty) shall in any manner be modified, changed, supplemented, altered, restated or amended without the consent of Lender except as may otherwise expressly permitted in this Agreement;
(xiii) intentionally omitted;
(xiv) if any Affiliate of any Borrower that is or becomes a party to the Windstorm Insurance Intercreditor Agreement is in default of any of its material obligations under the Windstorm Insurance Intercreditor Agreement beyond any applicable notice and cure periods contained therein; or if the Windstorm Insurance Intercreditor Agreement shall be surrendered, terminated or canceled for any reason or under any circumstances whatsoever, except with the consent of Lender; or if any of the terms, covenants or conditions of the Windstorm Insurance Intercreditor Agreement shall in any manner be modified, changed, supplemented, altered, restated or amended without the consent of Lender;
(xv) if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower fails to comply with the covenants as to Prescribed Laws set forth in Section 5.1.1 hereof;
(xvi) if a material default has occurred and continues beyond any applicable cure period under any Management Agreement and if such default permits the Manager, the Operating Company or the Mortgage Borrower party thereto to terminate or cancel the Management Agreement in question;
(xvii) any Gaming License shall be refused, suspended, revoked, modified in a materially adverse manner or canceled or allowed to lapse or any proceeding is commenced effected by any Governmental Authority for the purpose of suspending, revoking or canceling any Gaming License in any materially adverse respect, or any Governmental Authority shall have appointed a conservator, supervisor or trustee to or for any of the Casino Components and, in each case of the foregoing, such action could reasonably be expected to (A) have an Individual Material Adverse Effect, (B) materially and adversely affect the continued operation of the Casino Components in the usual course of business and in substantially the same manner and to at least the same standard as was maintained prior to such action, Law or (C) result in any material decrease in the then expected cash flow and revenues to be derived from the Casino Components;
(xviii) if any Borrower shall continue to be in Default under any of the other terms, covenants or conditions of this Agreement not specified in subsections (i) to (xvii) above, for ten (10) days after notice to Borrower from Lender, in the case of any Default which can be cured by the payment of a sum of money, or for thirty (30) days after notice from Lender in the case of any other Default; provided, however, that if such non-monetary Default is susceptible of cure but cannot reasonably be cured within such thirty (30) day period and provided further that such Borrower shall have commenced to cure such Default within such thirty (30) day period and thereafter diligently and expeditiously proceeds to cure the same, such thirty (30) day period shall be extended for such time as is reasonably necessary for such Borrower in the exercise of due diligence to cure such Default, such additional period not to exceed one hundred twenty (120) days;
(xix) if there shall be a default under any of the other Loan Documents beyond any applicable cure periods contained in such documents, whether as to any Borrower, Mortgage Borrower, Senior Mezzanine Borrower, the Collateral, the Senior Mezzanine Collateral or any Individual Property, or if any other such event shall occur or condition shall exist, if the effect of such event or condition is to accelerate the maturity of any portion of the Debt or to permit Lender to accelerate the maturity of all or any portion of the Debt;
(xx) if the Liens created pursuant to any Loan Document shall cease to be a fully protected enforceable first priority security interest in the Collateraljudgment, decree or order of any court or any portion order, rule or regulation of the Collateral is Transferred without Lender’s prior written consent except as permitted hereunder; or
(xxi) if a Mortgage Loan Event of Default or Senior Mezzanine Loan Event of Default shall occur.
(b) Upon the occurrence of an Event of Default (other than any Governmental Authority). If an Event of Default described above occurs and is continuing (and has not been cured or waived), then, and in clauses (vi) or (vii) above) each and at any time thereafterevery such case, the Rights Agent upon the written request of the Acting Holders by notice in addition writing to any other rights or remedies available to it pursuant to this Agreement and the other Loan Documents or at law or in equityParent, Lender may take such action, without notice or demand, that Lender deems advisable shall commence an arbitration proceeding to protect and enforce its the rights against Borrower and in and to all or any of the CollateralHolders, including, without limitation, declaring the Debt including to be immediately obtain payment for any amounts then due and payable, pursuant to Section 6.6. The foregoing provisions of this Section 5.1, however, are subject to the condition that if, at any time after the Rights Agent shall have commenced such arbitration proceeding, and Lender may enforce before any award shall have been obtained, Parent shall pay or avail itself of any or shall deposit with the Rights Agent a sum sufficient to pay all rights or remedies provided in the Loan Documents and may exercise all the rights and remedies of a secured party under the Uniform Commercial Code, as adopted and enacted by the State or States where any of the Collateral is located, against Borrower and any or all of the Collateral, including, without limitation, all rights or remedies available at law or in equity; and upon any Event of Default described in clauses (vi) or (vii) above, the Debt and all other obligations of Borrower hereunder and under the other Loan Documents amounts which shall immediately and automatically have become due and payablesuch amount as shall be sufficient to cover reasonable compensation to the Rights Agent, without notice or demandits agents, attorneys and counsel, and Borrower hereby expressly waives any all Events of Default under this Agreement shall have been cured, waived or otherwise remedied as provided herein, then and in every such case the Acting Holders, by written notice or demand, anything contained herein or in any other Loan Document to Parent and to the contrary notwithstandingRights Agent, may waive all defaults that are the subject of such arbitration proceeding, but no such waiver or rescission and annulment shall extend to or shall affect any subsequent default.
Appears in 2 contracts
Samples: Merger Agreement (Ready Capital Corp), Merger Agreement (Ready Capital Corp)
Event of Default. (a) Each Upon the occurrence of any one or more of the following events shall constitute an event (collectively, the “Events of default hereunder (Default” and, individually, an “Event of Default”):) the Lender shall have the option, in its sole and unfettered discretion, to declare the Obligations immediately due and payable:
(ia) if (A) the Borrower does not pay any portion of the Debt is not paid in full on the Maturity Date, (B) the Debt Service is not paid in full on or before the related Payment Date, or (C) any other portion of the Debt is not paid within five (5) days of Outstanding Obligations when due;
(iib) if the Borrower does not observe or perform any of the Taxes their obligations or Other Charges are not paid (with respect to each or any Individual Property) prior to Delinquency;
(iii) if the Policies (with respect to each or any Individual Property) are not kept in full force and effect, or if certified copies of the Policies (for each Individual Property) are not delivered to Lender upon request (or certificates thereof, if a Policy shall be renewed and certified copies of the Policy are not immediately available upon such renewal (each Borrower agreeing in such instance to provide copies of the Policies to Lender promptly thereafter));
(iv) if any Borrower Transfers or otherwise encumbers any portion of the Properties, the Collateral or the Senior Mezzanine Collateral, or there shall otherwise occur a Transfer without Lender’s prior consent in violation of the provisions of covenants under this Agreement, the Pledge Agreement or any other Loan DocumentDocument or any other agreement or document existing at any time between the Borrower and the Lender;
(vc) if any representation representation, warranty or warranty statement made by any or on behalf of the Borrower or any other Loan Party herein or in any other Loan Document, or in any report, certificate, financial statement or other instrument, agreement or document or other material or written information furnished to the Lender shall have been false or misleading is untrue in any material respect at the time when or as of which it was made;
(d) if there is any default or failure in the date observance or performance of any covenant contained in Section 8.02;
(e) if, other than in respect of covenants contained in Section 8.02, or any covenant to pay an amount to the representation Lender, there is ay default or warranty was made failure in the observance or performance of any act required to be done under the Loan Documents or any other covenant or condition required to be observed as performed under the Loan Documents, and the default or failure continues thirty (and, with respect 30) days;
(f) the Borrower defaults in payment of any indebtedness to any such breach which is not Person other than the subject Lender or defaults in the performance of any term, provision or condition created in any agreement under which any such indebtedness was created or is governed where such default would allow such Person to cause such indebtedness to become due prior to its stated maturity, or any such indebtedness is declared to be due and payable other subsection of this Section 8.1 and which is capable of being cured, such than by a regularly scheduled payment;
(g) the Borrower fails ceases or threatens to remedy such condition within ten cease to carry on in its Business in the normal course or any material part thereof;
(10h) days following notice to Borrower from Lenderif there is, in the case Lender’s reasonable opinion, a change in effective control of the Borrower;
(i) the Borrower becomes insolvent or bankrupt; the Borrower becomes subject to proceedings under the Bankruptcy and Insolvency Act (Canada) (the “BIA”), the Companies Creditors Arrangement Act (the “CCAA”) or the U.S. Federal Bankruptcy Code (the “USFBC”) or any similar legislation in any applicable jurisdiction; the Borrower files a notice of intention to file a proposal under the BIA, commences proceedings under the CCAA, institutes any proceedings seeking an order for relief under the USFBC or any similar legislation or seeking to adjudicate it a bank or insolvent, or seeking dissolution, winding-up, dissolution, reorganization, arrangement, adjustment or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or fails to file an answer or any other pleading denying the material allegations in any such breach which can be cured by proceeding instituted against it; a petition in bankruptcy is filed against the payment Borrower or the Borrowers files an assignment for the benefit of creditors under the BIA; the Borrower takes any corporate action to authorize or effect any of the foregoing actions;
(j) a sum receiver, receiver and manager, interim receiver, trustee, liquidator, custodian or other similar official is appointed in respect of moneythe Borrower or any of the Borrower’s property;
(k) any court, government or governmental agency shall condemn, seize or otherwise appropriate, or take custody or control of all or any substantial portion of the property of the Borrower;
(l) the Borrower shall fail within thirty (30) days following notice from Lender to pay, bond or otherwise discharge any judgment or order for the payment of money in the case excess of $500,000 outstanding at any other such breach)time, which is not stayed on appeal or otherwise being appropriately contested in good faith;
(vim) if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower shall make an assignment for the benefit of creditors; or if a receiver, liquidator or trustee shall be appointed for any Borrower, Senior Mezzanine Borrower or Mortgage Borrower, or if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower shall be adjudicated a bankrupt or insolvent, or if any petition for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by or against, consented to, or acquiesced in by, Borrower or Senior Mezzanine Borrower, or if any proceeding for the dissolution or liquidation of any Borrower, Senior Mezzanine Borrower or Mortgage Borrower shall be instituted; provided, however, if such appointment, adjudication, petition or proceeding was involuntary and not consented to by any Borrower, Senior Mezzanine Borrower or Mortgage Borrower, upon the same not being discharged, stayed or dismissed within ninety (90) days;
(vii) if any Operating Company, any Manager, Principal, Holdings or any Guarantor shall make an assignment for the benefit of creditors; or if a receiver, liquidator or trustee shall be appointed for any such Operating Company, any such Manager, Principal, Holdings or any such Guarantor, or if any Operating Company, any Manager, Principal, Holdings or any Guarantor shall be adjudicated a bankrupt or insolvent, or if any petition for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by or against, consented to, or acquiesced in by, any Operating Company, any Manager, Principal, Holdings or any Guarantor, or if any proceeding for the dissolution or liquidation of any Operating Company, any Manager, Principal, Holdings or any Guarantor shall be instituted; provided, however, if such appointment, adjudication, petition or proceeding was involuntary and not consented to by any such Operating Company, any such Manager, Principal, Holdings or any such Guarantor, upon the same not being discharged, stayed or dismissed within ninety (90) days;
(viii) if any Borrower attempts to assign its rights under this Agreement or any of the other Loan Documents or any interest herein or therein in contravention of the Loan Documents;
(ix) if any Borrower breaches any of its respective negative covenants contained in Section 5.2 or any covenant contained in Section 4.1.30 or Section 5.1.11 hereof (and, with respect to any such breach of any covenant set forth in Section 5.1.11 which is not the subject of any other subsection of this Section 8.1, such Borrower fails to remedy such condition within ten (10) days after notice to Borrower from Lender, in the case of any such Default under Section 5.1.11 which can be cured by the payment holder of a sum of money, or for thirty (30) days after notice from Lender in the case of any other such Default under Section 5.1.11);
(x) with respect to any term, covenant or provision set forth herein which specifically contains Security Interest delivers a notice requirement of intention to enforce its security or grace period, if any Borrower shall be in default under such term, covenant or condition after the giving of such notice or the expiration of such grace period;
(xi) if any of the assumptions contained in the Insolvency Opinion delivered in connection with the Loan, or in the Additional Insolvency Opinion delivered subsequent to the closing of the Loan, is or shall become untrue in any material respect; or if any of the assumptions contained in the True Lease Opinion in connection with the Loan, or in the Additional True Lease Opinion delivered subsequent to the closing of the Loan, is or shall become untrue in any material respect;
(xii) if any Mortgage Borrower, any Operating Company or any Guarantor (Operating Lease) is in default of any of its material obligations under any Operating Lease (or under another lease and/or management agreement in substitution for such Operating Lease in accordance herewith) or under any such Operating Lease Guaranty (or under another operating lease guaranty in substitution for such Operating Lease Guaranty in accordance herewith) beyond any applicable notice and cure periods contained therein; or if any Operating Lease (or such other lease and/or management agreement) or any Operating Lease Guaranty (or such other operating lease guaranty) shall be surrendered or any Operating Lease or any Operating Lease Guaranty shall be terminated or canceled for any reason or under any circumstances whatsoever, except with the consent of Lender; or if any of the terms, covenants or conditions of any Operating Lease (or such other lease and/or management agreement) or any Operating Lease Guaranty (or such other operating lease guaranty) shall in any manner be modified, changed, supplemented, altered, restated or amended without the consent of Lender except as may otherwise expressly permitted in this Agreement;
(xiii) intentionally omitted;
(xiv) if any Affiliate of any Borrower that is or becomes a party to the Windstorm Insurance Intercreditor Agreement is in default of any of its material obligations under the Windstorm Insurance Intercreditor Agreement beyond any applicable notice and cure periods contained therein; or if the Windstorm Insurance Intercreditor Agreement shall be surrendered, terminated or canceled for any reason or under any circumstances whatsoever, except with the consent of Lender; or if any of the terms, covenants or conditions of the Windstorm Insurance Intercreditor Agreement shall in any manner be modified, changed, supplemented, altered, restated or amended without the consent of Lender;
(xv) if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower fails to comply with the covenants as to Prescribed Laws set forth in Section 5.1.1 hereof;
(xvi) if a material default has occurred and continues beyond any applicable cure period under any Management Agreement and if such default permits the Manager, the Operating Company or the Mortgage Borrower party thereto to terminate or cancel the Management Agreement in question;
(xvii) any Gaming License shall be refused, suspended, revoked, modified in a materially adverse manner or canceled or allowed to lapse or any proceeding is commenced by any Governmental Authority for the purpose of suspending, revoking or canceling any Gaming License in any materially adverse respect, or any Governmental Authority shall have appointed a conservator, supervisor or trustee to or for any of the Casino Components and, in each case of the foregoing, such action could reasonably be expected to (A) have an Individual Material Adverse Effect, (B) materially and adversely affect the continued operation of the Casino Components in the usual course of business and in substantially the same manner and to at least the same standard as was maintained prior to such action, or (C) result in any material decrease in the then expected cash flow and revenues to be derived from the Casino Components;
(xviii) if any Borrower shall continue to be in Default under any of the other terms, covenants or conditions of this Agreement not specified in subsections (i) to (xvii) above, for ten (10) days after notice to Borrower from Lender, in the case of any Default which can be cured by the payment of a sum of money, or for thirty (30) days after notice from Lender in the case of any other Default; provided, however, that if such non-monetary Default is susceptible of cure but cannot reasonably be cured within such thirty (30) day period and provided further that such Borrower shall have commenced to cure such Default within such thirty (30) day period and thereafter diligently and expeditiously proceeds to cure the same, such thirty (30) day period shall be extended for such time as is reasonably necessary for such Borrower in the exercise of due diligence to cure such Default, such additional period not to exceed one hundred twenty (120) days;
(xix) if there shall be a default under any of the other Loan Documents beyond any applicable cure periods contained in such documents, whether as to any Borrower, Mortgage Borrower, Senior Mezzanine Borrower, the Collateral, the Senior Mezzanine Collateral or any Individual Property, or if any other such event shall occur or condition shall exist, if the effect of such event or condition is to accelerate the maturity of any portion of the Debt or to permit Lender to accelerate the maturity takes possession of all or any portion part of the Debtproperty of the Borrower, or a distress, execution or other similar process is levied against all or any part of such property;
(xxn) if the Liens created pursuant to any Loan Document shall cease Lender, in good faith and upon commercially reasonable grounds, believes that the prospect of payment or performance is or is about to be impaired or that all or a fully protected enforceable first priority security interest in the Collateral, or any portion material part of the Collateral assets and undertaking of the Borrower is Transferred without Lender’s prior written consent except as permitted hereunderor is about to be placed in jeopardy; or
(xxio) if a Mortgage Loan Event of Default or Senior Mezzanine Loan Event of Default shall occur.
(b) Upon the occurrence and continuance of a default or an Event event of Default (other than an Event of Default described in clauses (vi) or (vii) above) and at any time thereafter, in addition to any other rights or remedies available to it pursuant to this default under the US Credit Agreement and the other Loan Documents or at law or in equity, Lender may take such action, without notice or demand, that Lender deems advisable to protect and enforce its rights against Borrower and in and to all or any of the Collateralloan, including, without limitation, declaring the Debt to be immediately due and payable, and Lender may enforce security or avail itself of any or all rights or remedies provided in the Loan Documents and may exercise all the rights and remedies of a secured party under the Uniform Commercial Code, as adopted and enacted by the State or States where any of the Collateral is located, against Borrower and any or all of the Collateral, including, without limitation, all rights or remedies available at law or in equity; and upon any Event of Default described in clauses (vi) or (vii) above, the Debt and all other obligations of Borrower hereunder and under the other Loan Documents shall immediately and automatically become due and payable, without notice or demand, and Borrower hereby expressly waives any such notice or demand, anything contained herein or in any other Loan Document to the contrary notwithstandingdocument related thereto.
Appears in 2 contracts
Samples: Credit Agreement (Rti International Metals Inc), Credit Agreement (Rti International Metals Inc)
Event of Default. (a) Each of the following events shall constitute an event of default hereunder (is an “Event of Default”)::
(ia) if (A) any portion Parent Issuer defaults and such default continues for a period of the Debt is not paid in full on the Maturity Date, (B) the Debt Service is not paid in full on or before the related Payment Date, or (C) any other portion of the Debt is not paid within five (5) days in the payment when due of when due;
(ii) if any of interest or fees on the Taxes or Other Charges are not paid (with respect to each or any Individual Property) prior to Delinquency;
(iii) if the Policies (with respect to each or any Individual Property) are not kept in full force and effect, or if certified copies of the Policies (for each Individual Property) are not delivered to Lender upon request (or certificates thereof, if a Policy shall be renewed and certified copies of the Policy are not immediately available upon such renewal (each Borrower agreeing in such instance to provide copies of the Policies to Lender promptly thereafter));
(iv) if any Borrower Transfers or otherwise encumbers any portion of the Properties, the Collateral or the Senior Mezzanine Collateral, or there shall otherwise occur a Transfer without Lender’s prior consent in violation of the provisions of this Agreement, the Pledge Agreement or any other Loan Document;
(v) if any representation or warranty made by any Borrower or any other Loan Party herein or in any other Loan Document, or in any report, certificate, financial statement Notes or other instrument, agreement fees or document or other material or written information furnished to Lender shall have been false or misleading in any material respect as of the date the representation or warranty was made (and, with respect to any such breach which is not the subject of any other subsection of this Section 8.1 and which is capable of being cured, such Borrower fails to remedy such condition within ten (10) days following notice to Borrower from Lender, in the case of any such breach which can be cured by the payment of a sum of money, or within thirty (30) days following notice from Lender in the case of any other such breach);
(vi) if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower shall make an assignment for the benefit of creditors; or if a receiver, liquidator or trustee shall be appointed for any Borrower, Senior Mezzanine Borrower or Mortgage Borrower, or if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower shall be adjudicated a bankrupt or insolvent, or if any petition for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by or against, consented to, or acquiesced in by, Borrower or Senior Mezzanine Borrower, or if any proceeding for the dissolution or liquidation of any Borrower, Senior Mezzanine Borrower or Mortgage Borrower shall be instituted; provided, however, if such appointment, adjudication, petition or proceeding was involuntary and not consented to by any Borrower, Senior Mezzanine Borrower or Mortgage Borrower, upon the same not being discharged, stayed or dismissed within ninety (90) days;
(vii) if any Operating Company, any Manager, Principal, Holdings or any Guarantor shall make an assignment for the benefit of creditors; or if a receiver, liquidator or trustee shall be appointed for any such Operating Company, any such Manager, Principal, Holdings or any such Guarantor, or if any Operating Company, any Manager, Principal, Holdings or any Guarantor shall be adjudicated a bankrupt or insolvent, or if any petition for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by or against, consented to, or acquiesced in by, any Operating Company, any Manager, Principal, Holdings or any Guarantor, or if any proceeding for the dissolution or liquidation of any Operating Company, any Manager, Principal, Holdings or any Guarantor shall be instituted; provided, however, if such appointment, adjudication, petition or proceeding was involuntary and not consented to by any such Operating Company, any such Manager, Principal, Holdings or any such Guarantor, upon the same not being discharged, stayed or dismissed within ninety (90) days;
(viii) if any Borrower attempts to assign its rights payments under this Agreement or any of the other Loan Documents or any interest herein or therein in contravention of the Loan Documents;
(ix) if any Borrower breaches any of its respective negative covenants contained in Section 5.2 or any covenant contained in Section 4.1.30 or Section 5.1.11 hereof (and, with respect to any such breach of any covenant set forth in Section 5.1.11 which is not the subject of any other subsection of this Section 8.1, such Borrower fails to remedy such condition within ten (10) days after notice to Borrower from Lender, in the case of any such Default under Section 5.1.11 which can be cured by the payment of a sum of money, or for thirty (30) days after notice from Lender in the case of any other such Default under Section 5.1.11);
(x) with respect to any term, covenant or provision set forth herein which specifically contains a notice requirement or grace period, if any Borrower shall be in default under such term, covenant or condition after the giving of such notice or the expiration of such grace period;
(xi) if any of the assumptions contained in the Insolvency Opinion delivered in connection with the Loan, or in the Additional Insolvency Opinion delivered subsequent to the closing of the Loan, is or shall become untrue in any material respect; or if any of the assumptions contained in the True Lease Opinion in connection with the Loan, or in the Additional True Lease Opinion delivered subsequent to the closing of the Loan, is or shall become untrue in any material respect;
(xii) if any Mortgage Borrower, any Operating Company or any Guarantor (Operating Lease) is in default of any of its material obligations under any Operating Lease (or under another lease and/or management agreement in substitution for such Operating Lease in accordance herewith) or under any such Operating Lease Guaranty (or under another operating lease guaranty in substitution for such Operating Lease Guaranty in accordance herewith) beyond any applicable notice and cure periods contained therein; or if any Operating Lease (or such other lease and/or management agreement) or any Operating Lease Guaranty (or such other operating lease guaranty) shall be surrendered or any Operating Lease or any Operating Lease Guaranty shall be terminated or canceled for any reason or under any circumstances whatsoever, except with the consent of Lender; or if any of the terms, covenants or conditions of any Operating Lease (or such other lease and/or management agreement) or any Operating Lease Guaranty (or such other operating lease guaranty) shall in any manner be modified, changed, supplemented, altered, restated or amended without the consent of Lender except as may otherwise expressly permitted in this Agreement;
(xiiib) intentionally omittedParent Issuer defaults in the payment when due of the Principal Amount of, or premium, if any, on the Notes;
(xivc) if any Affiliate of any Borrower that is or becomes a party to the Windstorm Insurance Intercreditor Agreement is in default of any of its material obligations under the Windstorm Insurance Intercreditor Agreement beyond any applicable notice and cure periods contained therein; or if the Windstorm Insurance Intercreditor Agreement shall be surrendered, terminated or canceled for any reason or under any circumstances whatsoever, except with the consent of Lender; or if any of the terms, covenants or conditions of the Windstorm Insurance Intercreditor Agreement shall in any manner be modified, changed, supplemented, altered, restated or amended without the consent of Lender[RESERVED];
(xvd) if Parent Issuer or any BorrowerGuarantor, Senior Mezzanine Borrower or Mortgage Borrower as applicable, fails to comply with the covenants observe or perform any term or condition contained in Sections 4.9, 5.4(b), 5.5, 5.7(c), or 5.8 through 5.28 of this Agreement;
(e) any Note Party fails to observe or perform any covenant in any Note Document, other than as to Prescribed Laws set forth in Section 5.1.1 hereof6.1(d) or any other covenant a default in the performance of which is covered elsewhere in this Section 6.1, for 20 days after the earlier of (1) the date such Note Party becomes aware of the default or (2) written notice to Parent Issuer by the Holders of at least twenty-five percent (25%) of the aggregate Principal Amount of the outstanding Notes specifying the default and demanding that such default be remedied and stating that such notice is a “Notice of Default”;
(xvif) if a material (1) the occurrence of any default has occurred and continues beyond any applicable cure period under any Management Agreement and if or event of default in respect of the First Lien Notes or the Second Lien Notes if, in either such case, the effect of such default permits or event of default is to cause, or to permit the Managerholder or holders of such Indebtedness (or a trustee on behalf of such holder or holders) to cause, the Operating Company such Indebtedness to become or be declared due and payable prior to its stated maturity or the Mortgage Borrower party thereto to terminate stated maturity of any underlying obligation, as the case may be (upon the giving or cancel the Management Agreement in question;
(xvii) any Gaming License shall be refusedreceiving of notice, suspendedlapse of time, revoked, modified in a materially adverse manner or canceled or allowed to lapse or any proceeding is commenced by any Governmental Authority for the purpose of suspending, revoking or canceling any Gaming License in any materially adverse respectboth, or any Governmental Authority shall have appointed a conservator, supervisor or trustee to or for any of the Casino Components and, in each case of the foregoing, such action could reasonably be expected to (A) have an Individual Material Adverse Effect, (B) materially and adversely affect the continued operation of the Casino Components in the usual course of business and in substantially the same manner and to at least the same standard as was maintained prior to such action, or (C) result in any material decrease in the then expected cash flow and revenues to be derived from the Casino Components;
(xviii) if any Borrower shall continue to be in Default under any of the other terms, covenants or conditions of this Agreement not specified in subsections (i) to (xvii) above, for ten (10) days after notice to Borrower from Lender, in the case of any Default which can be cured by the payment of a sum of money, or for thirty (30) days after notice from Lender in the case of any other Defaultotherwise); provided, however, that if such non-monetary Default is susceptible an “Event of cure but cannot reasonably be cured within such thirty (30) day period Default” under and provided further that such Borrower shall have commenced to cure such Default within such thirty (30) day period and thereafter diligently and expeditiously proceeds to cure the same, such thirty (30) day period shall be extended for such time as is reasonably necessary for such Borrower defined in the exercise First Lien Purchase Agreement or an “Event of due diligence to cure such Default” under and as defined in the Second Lien Purchase Agreement shall constitute an Event of Default under this Section 6.1(f) only after a “Notice of Acceleration” as variously described in the First Lien Purchase Agreement or the Second Lien Purchase Agreement, such additional period as applicable, has been given and not to exceed one hundred twenty (120) days;
(xix) if there shall be a default under any rescinded in accordance with the terms of the other Loan Documents beyond any applicable cure periods contained First Lien Purchase Agreement or the Second Lien Purchase Agreement, as the case may be, or (2) after the satisfaction in such documents, whether as to any Borrower, Mortgage Borrower, Senior Mezzanine Borrowerfull in cash of all First Lien Obligations and Second Lien Obligations, the Collateral, the Senior Mezzanine Collateral occurrence of any default or any Individual Property, or if any other such event shall occur or condition shall exist, of default in respect of a Working Capital Line if the effect of such default or event or condition of default is to accelerate cause, or to permit the holder or holders of such Indebtedness (or a trustee on behalf of such holder or holders) to cause, such Indebtedness to become or be declared due and payable prior to its stated maturity or the stated maturity of any portion underlying obligation, as the case may be (upon the giving or receiving of notice, lapse of time, both, or otherwise);
(1) a payment default occurs under any mortgage, indenture or instrument under which there may be issued or by which there may be secured or evidenced any other Indebtedness for money borrowed by Parent Issuer or any of its Subsidiaries in excess of $7,500,000, whether such Indebtedness now exists, or is created after the Debt date of this Agreement, or (2) the occurrence of any other default or event of default under any such mortgage, indenture or instrument, if, in either such case, the effect of such default or event of default is to cause, or to permit Lender the holder or holders of such Indebtedness (or a trustee on behalf of such holder or holders) to accelerate cause, such Indebtedness to become or be declared due and payable prior to its stated maturity or the stated maturity of all any underlying obligation, as the case may be (upon the giving or any portion receiving of the Debtnotice, lapse of time, both, or otherwise);
(xxh) if a final judgment or final judgments for the Liens created pursuant to any Loan Document shall cease to be payment of money are entered by a fully protected enforceable first priority security interest in the Collateral, court or courts of competent jurisdiction against Parent Issuer or any portion of its Subsidiaries, which judgment or judgments are not paid, discharged or stayed for a period of 30 days; provided that the aggregate of all such undischarged judgments (exclusive of any applicable, independent third party insurance coverage or third party indemnity, on terms and conditions and from indemnitors reasonably acceptable to the Holders) exceeds $7,500,000;
(i) Parent Issuer or any of its Subsidiaries (other than any of Go Networks, IPW, Cygnus or any Subsidiary of Go Networks, IPW or Cygnus):
1. commences a voluntary bankruptcy proceeding;
2. consents to the entry of an order for relief against it in an involuntary bankruptcy case;
3. consents to the appointment of a custodian of it or for all or substantially all of its property;
4. makes a general assignment for the benefit of its creditors; or
5. generally is not paying its debts as they become due;
(j) 1. a court of competent jurisdiction enters an order or decree under any bankruptcy law that:
(A) is for relief against Parent Issuer or any of its Subsidiaries;
(B) appoints a custodian for all or substantially all of the Collateral is Transferred without Lender’s prior written consent except as permitted hereunderproperty of Parent Issuer or any of its Subsidiaries; or orders the liquidation of Parent Issuer or any of its Subsidiaries; or
(xxiC) if a Mortgage Loan Event orders the liquidation of Default or Senior Mezzanine Loan Event of Default shall occur.
(b) Upon the occurrence of an Event of Default (other than an Event of Default described in clauses (vi) or (vii) above) and at any time thereafter, in addition to any other rights or remedies available to it pursuant to this Agreement and the other Loan Documents or at law or in equity, Lender may take such action, without notice or demand, that Lender deems advisable to protect and enforce its rights against Borrower and in and to all Parent Issuer or any of its Subsidiaries; and
(D) the Collateral, including, without limitation, declaring the Debt to be immediately due order or decree remains unstayed and payable, and Lender may enforce or avail itself of any or all rights or remedies provided in the Loan Documents and may exercise all the rights and remedies of a secured party under the Uniform Commercial Code, as adopted and enacted by the State or States where any of the Collateral is located, against Borrower and any or all of the Collateral, including, without limitation, all rights or remedies available at law or in equityeffect for 30 consecutive days; and upon any Event of Default described in clauses (vi) or (vii) above, the Debt and all other obligations of Borrower hereunder and under the other Loan Documents shall immediately and automatically become due and payable, without notice or demand, and Borrower hereby expressly waives any such notice or demand, anything contained herein or in any other Loan Document to the contrary notwithstanding.or
Appears in 2 contracts
Samples: Third Lien Subordinated Exchange Note Exchange Agreement (Navation, Inc.), Third Lien Subordinated Exchange Note Exchange Agreement (Manchester Financial Group, LP)
Event of Default. (a) Each of the following events shall constitute be an event of default hereunder by Lessee under this Lease (each, an “Event of Default”):
(ia) if any representation or warranty of Lessee set forth in this Lease is false in any material respect when made, or if Lessee renders any statement or account that is false in any material respect when made;
(Ab) if any portion of the Debt Rental due under this Lease is not paid when due; provided, however, in full on the Maturity Dateevent that Lessee pays Rental by wire transfer pursuant to Section 4.06 above, any delay in the payment of Rental as a result of a technical error in the wiring and/or automated clearinghouse process shall not constitute an Event of Default hereunder so long as the same is corrected within one (B1) Business Day of the Debt Service is not paid in full on or before the related Payment Date, or date that Lessee receives notice thereof;
(Cc) if any other portion of the Debt Monetary Obligation due under this Lease is not paid within five (5) days of when dueBusiness Days following written notice thereof;
(iid) except as permitted by Section 8.06, if Lessee fails to pay, prior to delinquency, any taxes, assessments or other charges the failure of which to pay will result in the imposition of a lien against any of the Taxes or Other Charges are not paid (with respect to each or any Individual Property) prior to DelinquencyProperties;
(iiie) if the Policies (with respect to each or any Individual Property) are not kept in full force and effect, or if certified copies of the Policies (for each Individual Property) are not delivered to Lender upon request (or certificates thereof, if a Policy shall be renewed and certified copies of the Policy are not immediately available upon such renewal (each Borrower agreeing in such instance to provide copies of the Policies to Lender promptly thereafter))there is an Insolvency Event affecting Lessee;
(ivf) if any Borrower Transfers or otherwise encumbers any portion of the Properties, the Collateral or the Senior Mezzanine Collateral, or there shall otherwise occur a Transfer without Lender’s prior consent in violation of except as permitted by the provisions of this AgreementSection 8.01, the Pledge Agreement if Lessee vacates or abandons any other Loan DocumentProperty;
(vg) if Lessee fails to observe or perform any representation or warranty made by any Borrower or any other Loan Party herein or in any other Loan Document, or in any report, certificate, financial statement or other instrument, agreement or document or other material or written information furnished to Lender shall have been false or misleading in any material respect as of the date the representation other covenants, conditions or warranty was made (and, with respect to any such breach which is not the subject obligations of any other subsection of Lessee in this Section 8.1 and which is capable of being cured, such Borrower fails to remedy such condition within ten (10) days following notice to Borrower from Lender, in the case of any such breach which can be cured by the payment of a sum of money, or within thirty (30) days following notice from Lender in the case of any other such breach);
(vi) if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower shall make an assignment for the benefit of creditors; or if a receiver, liquidator or trustee shall be appointed for any Borrower, Senior Mezzanine Borrower or Mortgage Borrower, or if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower shall be adjudicated a bankrupt or insolvent, or if any petition for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by or against, consented to, or acquiesced in by, Borrower or Senior Mezzanine Borrower, or if any proceeding for the dissolution or liquidation of any Borrower, Senior Mezzanine Borrower or Mortgage Borrower shall be institutedLease; provided, however, if such appointment, adjudication, petition or proceeding was involuntary and not consented to by any Borrower, Senior Mezzanine Borrower or Mortgage Borrower, upon the same not being discharged, stayed or dismissed within ninety (90) days;
(vii) if any Operating Company, any Manager, Principal, Holdings or any Guarantor shall make an assignment for the benefit of creditors; or if a receiver, liquidator or trustee shall be appointed for any such Operating Company, any such Manager, Principal, Holdings or any such Guarantor, or if any Operating Company, any Manager, Principal, Holdings or any Guarantor shall be adjudicated a bankrupt or insolvent, or if any petition for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by or against, consented to, or acquiesced in by, any Operating Company, any Manager, Principal, Holdings or any Guarantor, or if any proceeding for the dissolution or liquidation of any Operating Company, any Manager, Principal, Holdings or any Guarantor shall be instituted; provided, however, if such appointment, adjudication, petition or proceeding was involuntary and failure does not consented to by any such Operating Company, any such Manager, Principal, Holdings or any such Guarantor, upon the same not being discharged, stayed or dismissed within ninety (90) days;
(viii) if any Borrower attempts to assign its rights under this Agreement or any of the other Loan Documents or any interest herein or therein in contravention of the Loan Documents;
(ix) if any Borrower breaches any of its respective negative covenants contained in Section 5.2 or any covenant contained in Section 4.1.30 or Section 5.1.11 hereof (and, with respect to any such breach of any covenant set forth in Section 5.1.11 which is not the subject of any other subsection of this Section 8.1, such Borrower fails to remedy such condition within ten (10) days after notice to Borrower from Lender, in the case of any such Default under Section 5.1.11 which can be cured by involve the payment of any Monetary Obligation, is not willful or intentional, does not place any Property or any rights or property of Lessor in immediate jeopardy, and is within the reasonable power of Lessee to promptly cure, all as determined by Lessor in its reasonable discretion, then such failure shall not constitute an Event of Default hereunder, unless otherwise expressly provided herein, unless and until Lessor shall have given Lessee notice thereof and a sum period of money, or for thirty (30) days after shall have elapsed, during which period Lessee may correct or cure such failure, upon failure of which an Event of Default shall be deemed to have occurred hereunder without further notice from Lender in the case or demand of any other kind being required. If such Default under Section 5.1.11);
(x) with respect to any term, covenant or provision set forth herein which specifically contains a notice requirement or grace period, if any Borrower shall be in default under such term, covenant or condition after the giving of such notice or the expiration of such grace period;
(xi) if any of the assumptions contained in the Insolvency Opinion delivered in connection with the Loan, or in the Additional Insolvency Opinion delivered subsequent to the closing of the Loan, is or shall become untrue in any material respect; or if any of the assumptions contained in the True Lease Opinion in connection with the Loan, or in the Additional True Lease Opinion delivered subsequent to the closing of the Loan, is or shall become untrue in any material respect;
(xii) if any Mortgage Borrower, any Operating Company or any Guarantor (Operating Lease) is in default of any of its material obligations under any Operating Lease (or under another lease and/or management agreement in substitution for such Operating Lease in accordance herewith) or under any such Operating Lease Guaranty (or under another operating lease guaranty in substitution for such Operating Lease Guaranty in accordance herewith) beyond any applicable notice and cure periods contained therein; or if any Operating Lease (or such other lease and/or management agreement) or any Operating Lease Guaranty (or such other operating lease guaranty) shall be surrendered or any Operating Lease or any Operating Lease Guaranty shall be terminated or canceled for any reason or under any circumstances whatsoever, except with the consent of Lender; or if any of the terms, covenants or conditions of any Operating Lease (or such other lease and/or management agreement) or any Operating Lease Guaranty (or such other operating lease guaranty) shall in any manner be modified, changed, supplemented, altered, restated or amended without the consent of Lender except as may otherwise expressly permitted in this Agreement;
(xiii) intentionally omitted;
(xiv) if any Affiliate of any Borrower that is or becomes a party to the Windstorm Insurance Intercreditor Agreement is in default of any of its material obligations under the Windstorm Insurance Intercreditor Agreement beyond any applicable notice and cure periods contained therein; or if the Windstorm Insurance Intercreditor Agreement shall be surrendered, terminated or canceled for any reason or under any circumstances whatsoever, except with the consent of Lender; or if any of the terms, covenants or conditions of the Windstorm Insurance Intercreditor Agreement shall in any manner be modified, changed, supplemented, altered, restated or amended without the consent of Lender;
(xv) if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower fails to comply with the covenants as to Prescribed Laws set forth in Section 5.1.1 hereof;
(xvi) if a material default has occurred and continues beyond any applicable cure period under any Management Agreement and if such default permits the Manager, the Operating Company or the Mortgage Borrower party thereto to terminate or cancel the Management Agreement in question;
(xvii) any Gaming License shall be refused, suspended, revoked, modified in a materially adverse manner or canceled or allowed to lapse or any proceeding is commenced by any Governmental Authority for the purpose of suspending, revoking or canceling any Gaming License in any materially adverse respect, or any Governmental Authority shall have appointed a conservator, supervisor or trustee to or for any of the Casino Components and, in each case of the foregoing, such action could reasonably be expected to (A) have an Individual Material Adverse Effect, (B) materially and adversely affect the continued operation of the Casino Components in the usual course of business and in substantially the same manner and to at least the same standard as was maintained prior to such action, or (C) result in any material decrease in the then expected cash flow and revenues to be derived from the Casino Components;
(xviii) if any Borrower shall continue to be in Default under any of the other terms, covenants or conditions of this Agreement not specified in subsections (i) to (xvii) above, for ten (10) days after notice to Borrower from Lender, in the case of any Default which can be cured by the payment of a sum of money, or for thirty (30) days after notice from Lender in the case of any other Default; provided, however, that if such non-monetary Default is susceptible of cure but failure cannot reasonably be cured within such thirty (30) day period 30)-day period, as determined by Lessor in its reasonable discretion, and provided further that Lessee is diligently pursuing a cure of such Borrower failure, then Lessee shall have commenced a reasonable period to cure such Default within failure beyond such thirty (3030)-day period, which shall in no event exceed ninety (90) day period and thereafter diligently and expeditiously proceeds days after receiving notice of such failure from Lessor. If Lessee shall fail to correct or cure the samesuch failure within such ninety (90)-day period, such thirty (30) day period an Event of Default shall be extended for such time as is reasonably necessary for such Borrower in the exercise deemed to have occurred hereunder without further notice or demand of due diligence to cure such Default, such additional period not to exceed one hundred twenty (120) daysany kind being required;
(xixh) if a final, nonappealable judgment is rendered by a court against Lessee which has a Material Adverse Effect, or which does not have a Material Adverse Effect but which is in the amount of $5,000,000 or more, and in either event is not discharged or provision made for such discharge within ninety (90) days from the date of entry thereof;
(i) if Lessee shall be liquidated or dissolved or shall begin proceedings towards its liquidation or dissolution;
(j) if the estate or interest of Lessee in any of the Properties shall be levied upon or attached in any proceeding and such estate or interest is about to be sold or transferred or such process shall not be vacated or discharged within ninety (90) days after it is made; or
(k) if there shall be a is an “Event of Default” or other breach or default by Lessee under any of the other Loan Documents beyond Transaction Documents, any applicable cure periods contained in such documents, whether as to any Borrower, Mortgage Borrower, Senior Mezzanine Borrower, the Collateral, the Senior Mezzanine Collateral Other Agreement or any Individual PropertyOther Lease between Lessor and Lessee or their respective Affiliates, after the passage of all applicable notice and cure or if grace periods; provided, however, in the event that this Lease has been the subject of a Securitization and any other such event shall occur Other Agreement or condition shall exist, if Other Lease has not been the effect of such event or condition is to accelerate the maturity of any portion subject of the Debt or to permit Lender to accelerate the maturity of all same Securitization or any portion of the Debt;
(xx) if the Liens created pursuant series relating to any Loan Document shall cease to be a fully protected enforceable first priority security interest in the Collateralsuch Securitization, or any portion of the Collateral is Transferred without Lender’s prior written consent except as permitted hereunder; or
(xxi) if a Mortgage Loan an “Event of Default Default” under such Other Agreement or Senior Mezzanine Loan Event of Default Other Lease shall occur.
(b) Upon the occurrence of not constitute an Event of Default (other than an Event of Default described in clauses (vi) or (vii) above) and at any time thereafter, in addition to any other rights or remedies available to it pursuant to under this Agreement and the other Loan Documents or at law or in equity, Lender may take such action, without notice or demand, that Lender deems advisable to protect and enforce its rights against Borrower and in and to all or any of the Collateral, including, without limitation, declaring the Debt to be immediately due and payable, and Lender may enforce or avail itself of any or all rights or remedies provided in the Loan Documents and may exercise all the rights and remedies of a secured party under the Uniform Commercial Code, as adopted and enacted by the State or States where any of the Collateral is located, against Borrower and any or all of the Collateral, including, without limitation, all rights or remedies available at law or in equity; and upon any Event of Default described in clauses (vi) or (vii) above, the Debt and all other obligations of Borrower hereunder and under the other Loan Documents shall immediately and automatically become due and payable, without notice or demand, and Borrower hereby expressly waives any such notice or demand, anything contained herein or in any other Loan Document to the contrary notwithstanding.Lease;
Appears in 2 contracts
Samples: Master Lease Agreement, Master Lease Agreement (O Charleys Inc)
Event of Default. (a) Each of the following events shall constitute an event of default hereunder (an “Event of Default”):
(i) if (A) any portion of the Debt is not paid in full on the Maturity Date, (B) the Debt Service any Monthly Interest Payment or any required monthly deposit to any Reserve Fund is not paid in full on or before the related Payment Date, or (C) any other portion of the Debt is not paid within five three (53) days of when dueBusiness Days following notice to Borrowers that the same is due and payable;
(ii) if any of the Taxes or Other Charges are not paid (with respect to each or any Individual Property) prior to Delinquencythe date upon which any interest or late charges shall begin to accrue thereon, subject to Section 7.2 of the Mortgage Loan Agreement or Section 7.2 hereof, as applicable;
(iii) if the Policies (with respect to each or any Individual Property) are not kept in full force and effect, or if certified copies of the Policies (for each Individual Property) are not delivered to Lender upon request (or certificates thereof, if a Policy shall be renewed and certified copies of the Policy are not immediately available upon such renewal (each Borrower agreeing in such instance to provide copies of the Policies to Lender promptly thereafter));
(iv) if any Borrower Transfers or otherwise encumbers any portion of the Properties, the Collateral or the Senior Mezzanine Collateralany interest therein, or there shall if any Mortgage Borrower Transfers or otherwise occur a encumbers any portion of any Property or any interest therein or the IP or any portion thereof, or any direct or indirect interest in any Transfer without Lender’s prior consent Restricted Party is Transferred, in each instance, in violation of the provisions of this Agreement, the Pledge Agreement or any other Loan Documentand not otherwise consented to by Lender;
(v) if any representation or warranty made by any Borrower or any other Loan Party herein or in any other Loan Document, or in any report, certificate, financial statement or other instrument, agreement or document or other material or written information furnished to Lender by or on behalf of any Borrower or any Restricted Party shall have been false or misleading in any material respect as of the date the representation or warranty was made (andmade, with respect to any provided, however, if such breach which representation or warranty is not the subject of any other subsection of this Section 8.1 and which is capable susceptible of being cured, and Lender has not theretofore materially adversely relied thereon, Borrowers shall have the right to cure such Borrower fails to remedy such condition representation or warranty within ten (10) days following Business Days of notice to Borrower from Lender, in the case of any such breach which can be cured by the payment of a sum of money, or within thirty (30) days following notice from Lender in the case of any other such breach)thereof;
(vi) if any BorrowerLoan Party, Senior Mezzanine Borrower HRHI or Mortgage Borrower any Guarantor shall make an assignment for the benefit of creditors; or any creditor (other than Lender);
(vii) if a receiver, liquidator or trustee shall be appointed for any BorrowerLoan Party, Senior Mezzanine Borrower or Mortgage Borrower, or if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower shall be adjudicated a bankrupt or insolvent, or if any petition for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, HRHI or any similar federal or state law, shall be filed by or against, consented to, or acquiesced in by, Borrower or Senior Mezzanine Borrower, or if any proceeding for the dissolution or liquidation of any Borrower, Senior Mezzanine Borrower or Mortgage Borrower shall be instituted; provided, however, if such appointment, adjudication, petition or proceeding was involuntary and not consented to by any Borrower, Senior Mezzanine Borrower or Mortgage Borrower, upon the same not being discharged, stayed or dismissed within ninety (90) days;
(vii) if any Operating Company, any Manager, Principal, Holdings or any Guarantor shall make an assignment for the benefit of creditors; or if a receiver, liquidator or trustee shall be appointed for any such Operating Company, any such Manager, Principal, Holdings or any such Guarantor, or if any Operating CompanyLoan Party, any Manager, Principal, Holdings HRHI or any Guarantor shall be adjudicated a bankrupt or insolvent, or if any petition for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by or against, consented to, or acquiesced in by, any Operating CompanyLoan Party, any Manager, Principal, Holdings HRHI or any Guarantor, or if any proceeding for the dissolution or liquidation of any Operating CompanyLoan Party, any Manager, Principal, Holdings HRHI or any Guarantor shall be instituted; provided, however, if such appointment, adjudication, petition or proceeding was involuntary and not consented to by any such Operating CompanyLoan Party, any such Manager, Principal, Holdings HRHI or any such Guarantor, upon the same not being discharged, stayed or dismissed within ninety (90) days, and provided that such appointment was not initiated by Lender;
(viii) if any Borrower attempts to assign its rights under this Agreement or any of the other Loan Documents or any interest herein or therein in contravention of the Loan Documents;
(ix) if any Borrower breaches any of its respective negative covenants contained in Section 5.2 hereof or any covenant contained in Section 4.1.30 or Section 5.1.11 hereof (andhereof, with respect to provided, however, that, unless otherwise addressed in any such other clause of this Section 8.1(a), a breach of any covenant set forth contained in Section 5.1.11 which is not the subject of any other subsection of this Section 8.14.1.30, such Borrower fails to remedy such condition within ten (10) days after notice to Borrower from Lender, in the case of any such Default under Section 5.1.11 which can be cured by the payment or Section 5.2 hereof shall not constitute an Event of a sum of moneyDefault if (A) such breach is inadvertent and non-recurring, or for (B) if such breach is curable, Borrowers shall promptly cure such breach within thirty (30) days after notice thereof from Lender, and (C) with respect to a material breach of any material covenant contained in Section 4.1.30 hereof, within fifteen (15) Business Days of the request of Lender, Borrowers deliver to Lender an Additional Insolvency Opinion, or a modification of the Insolvency Opinion, to the effect that such breach shall not in any way impair, negate or amend the opinions rendered in the Insolvency Opinion, which opinion or modification and the counsel delivering such opinion or modification shall be acceptable to Lender in the case of any other such Default under Section 5.1.11)its reasonable discretion;
(x) with respect to any term, covenant or provision set forth herein which specifically contains a notice requirement or grace period, if any Borrower shall be in default under such term, covenant or condition after the giving of such notice or the expiration of such grace period;
(xi) if any of the assumptions contained in the Insolvency Opinion delivered to Lender in connection with the Loan, or in the any Additional Insolvency Opinion delivered subsequent to the closing of the Loan, is or shall become untrue in any material respect; or if any of the assumptions contained in the True Lease Opinion in connection with the Loan, or in the Additional True Lease Opinion delivered subsequent to the closing of the Loan, is or shall become untrue in any material respect;
(xii) if any Mortgage Borrower, any Operating Company or any Guarantor (Operating Lease) is in default of any of its material obligations under any Operating Lease (or under another lease and/or management agreement in substitution for such Operating Lease in accordance herewith) or under any such Operating Lease Guaranty (or under another operating lease guaranty in substitution for such Operating Lease Guaranty in accordance herewith) beyond any applicable notice and cure periods contained therein; or if any Operating Lease (or such other lease and/or management agreement) or any Operating Lease Guaranty (or such other operating lease guaranty) shall be surrendered or any Operating Lease or any Operating Lease Guaranty shall be terminated or canceled for any reason or under any circumstances whatsoever, except with the consent of Lender; or if any of the terms, covenants or conditions of any Operating Lease (or such other lease and/or management agreement) or any Operating Lease Guaranty (or such other operating lease guaranty) shall in any manner be modified, changed, supplemented, altered, restated or amended without the consent of Lender except as may otherwise expressly permitted in this Agreement;
(xiii) intentionally omitted;
(xiv) if any Affiliate of any Borrower that is or becomes a party to the Windstorm Insurance Intercreditor Agreement is in default of any of its material obligations under the Windstorm Insurance Intercreditor Agreement beyond any applicable notice and cure periods contained therein; or if the Windstorm Insurance Intercreditor Agreement shall be surrendered, terminated or canceled for any reason or under any circumstances whatsoever, except with the consent of Lender; or if any of the terms, covenants or conditions of the Windstorm Insurance Intercreditor Agreement shall in any manner be modified, changed, supplemented, altered, restated or amended without the consent of Lender;
(xv) if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower fails to comply with the covenants as to Prescribed Laws set forth in Section 5.1.1 hereof;
(xvi) if a material default by any Mortgage Borrower has occurred and continues beyond any applicable cure period under any Management Agreement (or any Replacement Management Agreement) and if as a result of such default permits the ManagerManager thereunder terminates or cancels such Management Agreement (or any Replacement Management Agreement);
(xiii) if a material default by Hotel/Casino Borrower has occurred and continues beyond any applicable cure period under the Liquor Management Agreement (or any Replacement Liquor Management Agreement) and as a result of such default the Liquor Manager thereunder terminates or cancels such Liquor Management Agreement (or any Replacement Liquor Management Agreement);
(xiv) if any Borrower or any other Loan Party fails to comply in any material respect with the covenants as to Prescribed Laws set forth in Section 5.1.1 hereof and such failure to comply continues after ten (10) Business Days notice thereof;
(xv) except as otherwise contemplated by the Loan Documents, if Hotel/Casino Borrower ceases to do business as a hotel and casino at a standard at least equal to Comparable Hotel/Casinos, including, without limitation, comparable food and beverage outlets and other amenities, (other than temporary cessation in connection with any diligent Restoration of the Hotel/Casino Property following a Casualty or Condemnation) and such failure continues after thirty (30) days notice from Lender thereof; provided, however, that if any such failure is susceptible of cure but cannot reasonably be cured within such thirty (30) day period, and provided, further, that Borrowers shall have caused Mortgage Borrowers to commence to cure such failure within such thirty (30) day period and shall thereafter diligently and expeditiously proceed to cure the same, such thirty (30) day period shall be extended for such time as is reasonably necessary for Mortgage Borrowers in the exercise of due diligence to cure such Default, such additional period not to exceed sixty (60) days, subject to Excusable Delay;
(xvi) if (A) there shall occur any default by HRHI or Hotel/Casino Borrower under the HRHI Lease in the observance or performance of any term, covenant or condition on its part to be observed or performed and such failure shall continue beyond the expiration of all applicable notice and cure periods under the HRHI Lease, (B) if, without Lender’s prior written consent, the Operating Company HRHI Lease shall be terminated, changed, modified or amended, other than ministerial non-monetary amendments or modifications, or (C) if, without Lender’s prior written consent, HRHI shall hold over at the Mortgage Borrower party thereto to terminate expiration or cancel earlier termination of the Management Agreement in questionHRHI Lease;
(xvii) if (A) there shall occur any default by HRHI under the Gaming Sublease in the observance or performance of any term, covenant or condition on the part of HRHI to be observed or performed and such failure shall continue beyond the expiration of all applicable notice and cure periods under the Gaming Sublease, (B) any event shall occur which would cause the Gaming Sublease to terminate without notice or action by the Gaming Operator or which would entitle the Gaming Operator to terminate the Gaming Sublease by giving notice to HRHI, (C) if HRHI shall waive, excuse, condone or in any way release or discharge the Gaming Operator of or from any of the Gaming Operator’s material obligations, covenants and/or conditions under the Gaming Sublease without the prior written consent of Lender, (D) if, without Lender’s prior written consent, HRHI shall terminate (or consent to or approve any such termination), change, modify or amend the Gaming Sublease, other than ministerial non-monetary amendments or modifications, (E) if HRHI shall fail to provide Gaming Employees as and to the extent required pursuant to Paragraph 7 of the HRHI Gaming Agreement, (F) if HRHI shall, without the consent of Mortgage Lender as provided in the HRHI Gaming Agreement, consent to or approve any matter requiring Mortgage Lender’s consent thereunder (other than a termination), in the event that either (1) Mortgage Lender has been materially damaged by such consent or approval or is reasonably likely to be materially damaged by such consent or approval with the further passage of time, or (2) HRHI is unable to rescind or void such consent or approval within thirty (30) days after notice from Mortgage Lender of its objection thereto, and/or (G) HRHI shall otherwise default under the Gaming Recognition Agreement or the HRHI Gaming Agreement and such default, if a monetary default, shall continue beyond the notice and cure period set forth in Section 8.1(a)(i)(C) hereof, or if a non-monetary default, shall continue beyond the notice and cure period set forth in Section 8.1(a)(xxiii) hereof;
(xviii) if at any time during the term of the Loan, for any reason (including, without limitation, the revocation, suspension or surrender of any required Governmental Approval), (A) the Gaming Operating Condition is not satisfied, provided, however, that if the Gaming Operating Condition is not satisfied at any time on or after February 2, 2008 through and including May 9, 2008, so long as (I) Mortgage Borrowers are diligently pursuing the satisfaction of the Gaming Operating Condition, (II) all Debt Service is being satisfied as and when due, and (III) no other Event of Default has occurred and is continuing, the failure of the Gaming Operating Condition to be satisfied during such period shall not constitute an Event of Default unless the Gaming Operating Condition shall remain unsatisfied beyond May 9, 2008; or (B) any Gaming License or finding of suitability held by the Gaming Operator shall be refusedmaterially adversely modified, denied, suspended, revoked, modified in a materially adverse manner revoked or canceled or allowed to lapse or if a notice of a material violation is issued under any Gaming License by the issuing agency or other Governmental Authority having jurisdiction, or any proceeding is commenced by any Governmental Authority for the purpose of modifying in any materially adverse respect, suspending, revoking or canceling any Gaming License in any materially adverse respect, in each case, which is not stayed within sixty (60) days after commencement thereof and the result of which is reasonably likely to be Mortgage Borrowers’ inability to continue to conduct gaming operations at the Hotel/Casino Property; provided, however, that during the course of any of the foregoing, substantially the same gaming operations are permitted to continue to operate at the Hotel/Casino Property, or any Governmental Authority shall have appointed a conservator, supervisor or trustee with respect to the Casino Component or the Hotel/Casino Property;
(xix) if at any time during the term of the Loan, for any reason (including, without limitation, the revocation, suspension or surrender of any required Governmental Approval), the alcoholic beverage services at the Hotel/Casino Components and, in each case of the foregoing, such action could reasonably be expected to Property (A) have an Individual Material Adverse Effect, (B) materially and adversely affect are not being managed by a Qualified Liquor Manager pursuant to the continued operation of the Casino Components in the usual course of business and in substantially the same manner and to at least the same standard as was maintained prior to such action, Liquor Management Agreement or (C) result in any material decrease in the then expected cash flow and revenues to be derived from the Casino Componentsa Replacement Liquor Management Agreement;
(xviiixx) if HRHI shall fail to provide liquor management services following an Event of Default or a foreclosure of the Mortgage as and to the extent required pursuant to Sections 5(a) or 5(b) of the Assignment of Liquor Management Agreement;
(xxi) in the event that Gaming Borrower shall ever become the Gaming Operator pursuant to Article XII hereof, if Gaming Borrower thereafter shall fail to provide gaming operation services for the Hotel/Casino Property following an Event of Default or a foreclosure of the Mortgage as and to the extent required pursuant to Section 12.1(e) hereof;
(xxii) in the event that Gaming Borrower, any other Mortgage Borrower or any Affiliate thereof shall ever become the Liquor Manager, if Gaming Borrower, such other Mortgage Borrower or such Affiliate thereof thereafter shall fail to provide liquor management services following an Event of Default or following the transfer of the Hotel/Casino Property to a Mortgage Lender Successor Owner as and to the extent required pursuant to Section 5.1.23(c) of the Mortgage Loan Agreement and Section 5.1.23(c) hereof;
(xxiii) if any Borrower shall continue to be in Default under any of the other terms, covenants or conditions of this Agreement or any other Loan Document, in each instance, not specified in subsections (i) to (xviixxii) above, for ten (10) days Business Days after notice to Borrower Borrowers from Lender, in the case of any Default which can be cured by the payment of a sum of money, or for thirty (30) days after notice from Lender in the case of any other Default; provided, however, that if any such non-monetary Default is susceptible of cure but cannot reasonably be cured within such thirty (30) day period period, and provided further that such Borrower Borrowers shall have commenced to cure such Default within such thirty (30) day period and thereafter diligently and expeditiously proceeds proceed to cure the same, such thirty (30) day period shall be extended for such time as is reasonably necessary for such Borrower Borrowers in the exercise of due diligence to cure such Default, such additional period not to exceed one hundred twenty ninety (12090) days, subject to Excusable Delay;
(xixxxiv) the occurrence of any event that is expressly specified to be an Event of Default in this Agreement or any other Loan Document;
(xxv) if the Liens created pursuant to the Pledge Agreement or any other Loan Document shall cease to be a fully perfected enforceable first priority security interest effective under the Gaming Laws or if there shall be a default under any of the other Loan Documents Pledge Agreement beyond any applicable notice and cure periods contained in such documents, whether as to any Borrower, Mortgage Borrower, Senior Mezzanine Borrower, the Collateral, the Senior Mezzanine Collateral or any Individual Property, or Pledge Agreement;
(xxvi) if any other such event shall occur or condition shall exist, if the effect of such event or condition is to accelerate the maturity of any portion of the Debt or to permit Lender to accelerate the maturity of all or any portion of the Debt;
(xxxxvii) if the Liens created pursuant to any Loan Document a Mortgage Event of Default shall cease to occur and be a fully protected enforceable first priority security interest in the Collateral, or any portion of the Collateral is Transferred without Lender’s prior written consent except as permitted hereundercontinuing; or
(xxixxviii) if a Mortgage Loan Event of Default or Senior First Mezzanine Loan Event of Default shall occuroccur and be continuing.
(b) Upon the occurrence and during the continuance of an Event of Default (other than an Event of Default described in clauses (vi) or (vii) above) and at any time thereafter, in addition to any other rights or remedies available to it pursuant to this Agreement and the other Loan Documents or at law or in equity, to the extent permitted by applicable law, Lender may take such action, without notice or demand, that Lender deems advisable to protect and enforce its rights against Borrower Borrowers and in and to all or any of Property and/or the IP and/or the Collateral, including, without limitation, declaring the Debt to be immediately due and payable, and Lender may enforce or avail itself of any or all rights or remedies provided in the Loan Documents and may exercise all against Borrowers, any Property and/or the rights and remedies of a secured party under the Uniform Commercial Code, as adopted and enacted by the State or States where any of the Collateral is located, against Borrower and any or all of IP and/or the Collateral, including, without limitation, all rights or remedies available at law or in equity; and upon any Event of Default described in clauses (vi) or (vii) above, the Debt and all other obligations Other Obligations of Borrower Borrowers hereunder and under the other Loan Documents shall shall, to the extent permitted by applicable law, immediately and automatically become due and payable, without notice or demand, and each Borrower hereby expressly waives any such notice or demand, anything contained herein or in any other Loan Document to the contrary notwithstanding.
Appears in 2 contracts
Samples: Second Mezzanine Loan Agreement (Hard Rock Hotel Holdings, LLC), Mezzanine Loan Agreement (Morgans Hotel Group Co.)
Event of Default. (a) Each If any of the following events shall constitute an event of default hereunder (an “Event "Events of Default”):") shall occur and be continuing:
(ia) if (A) Any Borrower shall fail to pay any portion installment of the Debt is not paid in full on the Maturity Date, (B) the Debt Service is not paid in full on principal of any of its Advances or before the related Payment DateNotes when due, or (C) any other portion of the Debt is not paid within five (5) days of when due;
(ii) if interest on any of the Taxes its Advances or Other Charges are not paid (with respect to each or any Individual Property) prior to Delinquency;
(iii) if the Policies (with respect to each or any Individual Property) are not kept in full force and effect, or if certified copies of the Policies (for each Individual Property) are not delivered to Lender upon request (or certificates thereof, if a Policy shall be renewed and certified copies of the Policy are not immediately available upon such renewal (each Borrower agreeing in such instance to provide copies of the Policies to Lender promptly thereafter));
(iv) if any Borrower Transfers or otherwise encumbers any portion of the Properties, the Collateral or the Senior Mezzanine Collateral, or there shall otherwise occur a Transfer without Lender’s prior consent in violation of the provisions of this Agreement, the Pledge Agreement Notes or any other Loan Document;amount payable by it hereunder within five Business Days after the same shall be due; or
(vb) if any Any representation or warranty made or deemed made by any Borrower herein or by any Borrower (or any other Loan Party herein or of its officers) in any other Loan Document, or in any report, certificate, financial statement or other instrument, agreement or document or other material or written information furnished connection with this Agreement shall prove to Lender shall have been false or misleading incorrect in any material respect as of the date the representation when made or warranty was made deemed made; or
(and, with respect c) Any Borrower shall fail to any such breach which is not the subject of perform or observe any other subsection of this Section 8.1 and which is capable of being cured, such Borrower fails to remedy such condition within ten (10) days following notice to Borrower from Lender, in the case of any such breach which can be cured by the payment of a sum of money, or within thirty (30) days following notice from Lender in the case of any other such breach);
(vi) if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower shall make an assignment for the benefit of creditors; or if a receiver, liquidator or trustee shall be appointed for any Borrower, Senior Mezzanine Borrower or Mortgage Borrower, or if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower shall be adjudicated a bankrupt or insolvent, or if any petition for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by or against, consented to, or acquiesced in by, Borrower or Senior Mezzanine Borrower, or if any proceeding for the dissolution or liquidation of any Borrower, Senior Mezzanine Borrower or Mortgage Borrower shall be instituted; provided, however, if such appointment, adjudication, petition or proceeding was involuntary and not consented to by any Borrower, Senior Mezzanine Borrower or Mortgage Borrower, upon the same not being discharged, stayed or dismissed within ninety (90) days;
(vii) if any Operating Company, any Manager, Principal, Holdings or any Guarantor shall make an assignment for the benefit of creditors; or if a receiver, liquidator or trustee shall be appointed for any such Operating Company, any such Manager, Principal, Holdings or any such Guarantor, or if any Operating Company, any Manager, Principal, Holdings or any Guarantor shall be adjudicated a bankrupt or insolvent, or if any petition for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by or against, consented to, or acquiesced in by, any Operating Company, any Manager, Principal, Holdings or any Guarantor, or if any proceeding for the dissolution or liquidation of any Operating Company, any Manager, Principal, Holdings or any Guarantor shall be instituted; provided, however, if such appointment, adjudication, petition or proceeding was involuntary and not consented to by any such Operating Company, any such Manager, Principal, Holdings or any such Guarantor, upon the same not being discharged, stayed or dismissed within ninety (90) days;
(viii) if any Borrower attempts to assign its rights under this Agreement or any of the other Loan Documents or any interest herein or therein in contravention of the Loan Documents;
(ix) if any Borrower breaches any of its respective negative covenants contained in Section 5.2 or any covenant contained in Section 4.1.30 or Section 5.1.11 hereof (and, with respect to any such breach of any covenant set forth in Section 5.1.11 which is not the subject of any other subsection of this Section 8.1, such Borrower fails to remedy such condition within ten (10) days after notice to Borrower from Lender, in the case of any such Default under Section 5.1.11 which can be cured by the payment of a sum of money, or for thirty (30) days after notice from Lender in the case of any other such Default under Section 5.1.11);
(x) with respect to any term, covenant or provision set forth herein which specifically contains agreement contained in this Agreement on its part to be performed or observed and any such failure shall remain unremedied for 30 days after written notice thereof shall have been given to such Borrower by the Administrative Agent or by any Lender with a notice requirement copy to the Administrative Agent; or
(d) The Company or any Principal Subsidiary shall fail to pay any Debt or Guaranty (excluding Debt incurred pursuant hereto) of the Company or such Principal Subsidiary in an aggregate principal amount of $200,000,000 or more, at such time, or any installment of principal thereof or interest or premium thereon, when due (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise) and such failure shall continue after the applicable grace period, if any, specified in the agreement or instrument relating to such Debt or Guaranty; or any Borrower shall be in other default under such term, covenant any agreement or condition after the giving of such notice or the expiration of such grace period;
(xi) if any of the assumptions contained in the Insolvency Opinion delivered in connection with the Loan, or in the Additional Insolvency Opinion delivered subsequent instrument relating to the closing of the Loan, is or shall become untrue in any material respect; or if any of the assumptions contained in the True Lease Opinion in connection with the Loan, or in the Additional True Lease Opinion delivered subsequent to the closing of the Loan, is or shall become untrue in any material respect;
(xii) if any Mortgage Borrower, any Operating Company or any Guarantor (Operating Lease) is in default of any of its material obligations under any Operating Lease (or under another lease and/or management agreement in substitution for such Operating Lease in accordance herewith) or under any such Operating Lease Guaranty (or under another operating lease guaranty in substitution for such Operating Lease Guaranty in accordance herewith) beyond any applicable notice and cure periods contained therein; or if any Operating Lease (or such other lease and/or management agreement) or any Operating Lease Guaranty (or such other operating lease guaranty) shall be surrendered or any Operating Lease or any Operating Lease Guaranty shall be terminated or canceled for any reason or under any circumstances whatsoever, except with the consent of Lender; or if any of the terms, covenants or conditions of any Operating Lease (or such other lease and/or management agreement) or any Operating Lease Guaranty (or such other operating lease guaranty) shall in any manner be modified, changed, supplemented, altered, restated or amended without the consent of Lender except as may otherwise expressly permitted in this Agreement;
(xiii) intentionally omitted;
(xiv) if any Affiliate of any Borrower that is or becomes a party to the Windstorm Insurance Intercreditor Agreement is in default of any of its material obligations under the Windstorm Insurance Intercreditor Agreement beyond any applicable notice and cure periods contained therein; or if the Windstorm Insurance Intercreditor Agreement shall be surrendered, terminated or canceled for any reason or under any circumstances whatsoever, except with the consent of Lender; or if any of the terms, covenants or conditions of the Windstorm Insurance Intercreditor Agreement shall in any manner be modified, changed, supplemented, altered, restated or amended without the consent of Lender;
(xv) if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower fails to comply with the covenants as to Prescribed Laws set forth in Section 5.1.1 hereof;
(xvi) if a material default has occurred and continues beyond any applicable cure period under any Management Agreement and if such default permits the Manager, the Operating Company or the Mortgage Borrower party thereto to terminate or cancel the Management Agreement in question;
(xvii) any Gaming License shall be refused, suspended, revoked, modified in a materially adverse manner or canceled or allowed to lapse or any proceeding is commenced by any Governmental Authority for the purpose of suspending, revoking or canceling any Gaming License in any materially adverse respectDebt, or any Governmental Authority other event, shall have appointed a conservator, supervisor or trustee to or for any of the Casino Components and, in each case of the foregoing, such action could reasonably be expected to (A) have an Individual Material Adverse Effect, (B) materially occur and adversely affect the continued operation of the Casino Components in the usual course of business and in substantially the same manner and to at least the same standard as was maintained prior to such action, or (C) result in any material decrease in the then expected cash flow and revenues to be derived from the Casino Components;
(xviii) if any Borrower shall continue to be in Default under any of after the other termsapplicable grace period, covenants or conditions of this Agreement not if any, specified in subsections (i) to (xvii) above, for ten (10) days after notice to Borrower from Lender, in the case of any Default which can be cured by the payment of a sum of money, such agreement or for thirty (30) days after notice from Lender in the case of any other Default; provided, however, that if such non-monetary Default is susceptible of cure but cannot reasonably be cured within such thirty (30) day period and provided further that such Borrower shall have commenced to cure such Default within such thirty (30) day period and thereafter diligently and expeditiously proceeds to cure the same, such thirty (30) day period shall be extended for such time as is reasonably necessary for such Borrower in the exercise of due diligence to cure such Default, such additional period not to exceed one hundred twenty (120) days;
(xix) if there shall be a default under any of the other Loan Documents beyond any applicable cure periods contained in such documents, whether as to any Borrower, Mortgage Borrower, Senior Mezzanine Borrower, the Collateral, the Senior Mezzanine Collateral or any Individual Property, or if any other such event shall occur or condition shall existinstrument, if the effect of such default or event or condition is to accelerate the maturity of such Debt; or any portion such Debt shall be required to be prepaid (other than by a regularly scheduled required prepayment), prior to the stated maturity thereof, as a result of the either (i) any default under any agreement or instrument relating to any such Debt or to permit Lender to accelerate the maturity of all or any portion of the Debt;
(xxii) if the Liens created pursuant to any Loan Document shall cease to be a fully protected enforceable first priority security interest in the Collateral, or any portion of the Collateral is Transferred without Lender’s prior written consent except as permitted hereunder; or
(xxi) if a Mortgage Loan Event of Default or Senior Mezzanine Loan Event of Default shall occur.
(b) Upon the occurrence of an Event of Default any other event (other than an Event issuance, sale or other disposition of Default described in clauses (vi) stock or (vii) above) and at any time thereafterother assets, in addition to any other rights or remedies available to it pursuant to this Agreement and the other Loan Documents or at law or in equity, Lender may take such action, without notice or demand, that Lender deems advisable to protect and enforce its rights against Borrower and in and to all or any of the Collateral, including, without limitation, declaring the Debt to be immediately due and payable, and Lender may enforce or avail itself of any or all rights or remedies provided in the Loan Documents and may exercise all the rights and remedies of a secured party under the Uniform Commercial Code, as adopted and enacted by the State or States where any of the Collateral is located, against Borrower and any or all of the Collateral, including, without limitation, all rights or remedies available at law or in equity; and upon any Event of Default described in clauses (vi) or (vii) above, the Debt and all other obligations of Borrower hereunder and under the other Loan Documents shall immediately and automatically become due and payable, without notice or demand, and Borrower hereby expressly waives any such notice or demand, anything contained herein or in any other Loan Document to the contrary notwithstanding.an
Appears in 2 contracts
Samples: Revolving Credit and Competitive Advance Facility Agreement (El Paso CGP Co), Revolving Credit and Competitive Advance Facility Agreement (Tennessee Gas Pipeline Co)
Event of Default. (a) Each The occurrence of any of the following events shall constitute an event of default hereunder (an “constituted Event of Default”):Default under this Lease Agreement and/or any Lease Schedule:
(i) if (A) any portion of the Debt is not paid in full on the Maturity Date, (B1) the Debt Service is not paid in full on or before the related Payment Datenonpayment by Lessee of any Lease Charges when due, or (C) the nonpayment by Lessee of any other portion of the Debt is not sum required hereunder to be paid within five by Lessee which non-payment continues for a period often (510) days of from the date when due;
(ii2) if the failure of Lessee to perform any other covenant or condition of the Taxes or Other Charges are not paid (with respect to each this Lease Agreement, any Lease Schedule or any Individual Property) prior to Delinquency;
(iii) if the Policies (with respect to each or any Individual Property) are not kept in full force and effect, or if certified copies of the Policies (for each Individual Property) are not delivered to Lender upon request (or certificates thereof, if a Policy shall be renewed and certified copies of the Policy are not immediately available upon such renewal (each Borrower agreeing in such instance to provide copies of the Policies to Lender promptly thereafter));
(iv) if any Borrower Transfers or otherwise encumbers any portion of the Properties, the Collateral or the Senior Mezzanine Collateral, or there shall otherwise occur a Transfer without Lender’s prior consent in violation of the provisions of this Agreement, the Pledge Agreement or any other Loan Document;
(v) if any representation or warranty made by any Borrower or any other Loan Party herein or in any other Loan Document, or in any report, certificate, financial statement or other instrumentdocument, agreement or document instrument executed pursuant hereto or other material or written information furnished to Lender shall have been false or misleading in any material respect as of the date the representation or warranty was made (andconnection herewith, with respect to any such breach which is not the subject of any other subsection of this Section 8.1 and which is capable of being cured, such Borrower fails to remedy such condition cured within ten (10) days following after written notice to Borrower thereof from Lender, in the case of any such breach which can be cured by the payment of a sum of money, or within thirty (30) days following notice from Lender in the case of any other such breach)Lessor;
(vi3) if Lessee attempts to or does remove, transfer, sell, swap, assign, sublease, trade, exchange, encumber, receive an allowance or credit for, or part with possession of, any Borroweritem of Equipment;
(4) Lessee ceases doing business as a going concern, Senior Mezzanine Borrower or Mortgage Borrower shall make is insolvent, makes an assignment for the benefit of creditors; , fails to pay its debts as they become due, offers a settlement to creditors or if calls a receiver, liquidator or trustee shall be appointed meeting of creditors for any Borrowersuch purpose, Senior Mezzanine Borrower or Mortgage Borrowerfiles a voluntary petition in bankruptcy, or if any Borroweris subject to an involuntary petition in bankruptcy, Senior Mezzanine Borrower or Mortgage Borrower shall be is adjudicated a bankrupt or insolvent, files or if has filed against it a petition seeking any petition for bankruptcyreorganization, reorganization arrangement or arrangement pursuant to federal bankruptcy lawcomposition, under any present or any similar federal future statute, law or state law, shall be filed by or against, consented to, or acquiesced in by, Borrower or Senior Mezzanine Borrower, or if any proceeding for the dissolution or liquidation of any Borrower, Senior Mezzanine Borrower or Mortgage Borrower shall be instituted; provided, however, if such appointment, adjudication, petition or proceeding was involuntary and not consented to by any Borrower, Senior Mezzanine Borrower or Mortgage Borrower, upon the same not being discharged, stayed or dismissed within ninety (90) daysregulation;
(vii5) if any Operating Company, of Lessee’s representations or warranties made herein or in any Manager, Principal, Holdings oral or written statement or certificate at any Guarantor shall make an assignment for the benefit of creditors; time given in writing pursuant hereto or if a receiver, liquidator or trustee in connection herewith shall be appointed for any such Operating Company, any such Manager, Principal, Holdings false or any such Guarantor, or if any Operating Company, any Manager, Principal, Holdings or any Guarantor shall be adjudicated a bankrupt or insolvent, or if any petition for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by or against, consented to, or acquiesced in by, any Operating Company, any Manager, Principal, Holdings or any Guarantor, or if any proceeding for the dissolution or liquidation of any Operating Company, any Manager, Principal, Holdings or any Guarantor shall be instituted; provided, however, if such appointment, adjudication, petition or proceeding was involuntary and not consented to by any such Operating Company, any such Manager, Principal, Holdings or any such Guarantor, upon the same not being discharged, stayed or dismissed within ninety (90) days;
(viii) if any Borrower attempts to assign its rights under this Agreement or any of the other Loan Documents or any interest herein or therein in contravention of the Loan Documents;
(ix) if any Borrower breaches any of its respective negative covenants contained in Section 5.2 or any covenant contained in Section 4.1.30 or Section 5.1.11 hereof (and, with respect to any such breach of any covenant set forth in Section 5.1.11 which is not the subject of any other subsection of this Section 8.1, such Borrower fails to remedy such condition within ten (10) days after notice to Borrower from Lender, in the case of any such Default under Section 5.1.11 which can be cured by the payment of a sum of money, or for thirty (30) days after notice from Lender in the case of any other such Default under Section 5.1.11);
(x) with respect to any term, covenant or provision set forth herein which specifically contains a notice requirement or grace period, if any Borrower shall be in default under such term, covenant or condition after the giving of such notice or the expiration of such grace period;
(xi) if any of the assumptions contained in the Insolvency Opinion delivered in connection with the Loan, or in the Additional Insolvency Opinion delivered subsequent to the closing of the Loan, is or shall become untrue in any material respect; or if any of the assumptions contained in the True Lease Opinion in connection with the Loan, or in the Additional True Lease Opinion delivered subsequent to the closing of the Loan, is or shall become untrue misleading in any material respect;
(xii6) if Lessee defaults under or otherwise has accelerated any Mortgage Borrowermaterial obligation, credit agreement, loan agreement, conditional sales contract, lease, indenture or debenture; or Lessee defaults under any Operating Company other agreement now existing or hereafter made with Lessor;
(7) the breach or repudiation by any Guarantor (Operating Lease) is in default party thereto of any guaranty, subordination agreement or other agreement running in favor of its material obligations under any Operating Lessor obtained in connection with this Lease (or under another lease and/or management agreement in substitution for such Operating Lease in accordance herewith) or under any such Operating Lease Guaranty (or under another operating lease guaranty in substitution for such Operating Lease Guaranty in accordance herewith) beyond any applicable notice and cure periods contained therein; or if any Operating Lease (or such other lease and/or management agreement) or any Operating Lease Guaranty (or such other operating lease guaranty) shall be surrendered or any Operating Lease or any Operating Lease Guaranty shall be terminated or canceled for any reason or under any circumstances whatsoever, except with the consent of Lender; or if any of the terms, covenants or conditions of any Operating Lease (or such other lease and/or management agreement) or any Operating Lease Guaranty (or such other operating lease guaranty) shall in any manner be modified, changed, supplemented, altered, restated or amended without the consent of Lender except as may otherwise expressly permitted in this Agreement;
(xiii) intentionally omitted;
(xiv) if any Affiliate of any Borrower that is or becomes a party to 8) the Windstorm Insurance Intercreditor Agreement is in default of any of its material obligations under the Windstorm Insurance Intercreditor Agreement beyond any applicable notice and cure periods contained therein; or if the Windstorm Insurance Intercreditor Agreement shall be surrendered, terminated or canceled for any reason or under any circumstances whatsoever, except with the consent of Lender; or if any of the terms, covenants or conditions of the Windstorm Insurance Intercreditor Agreement shall in any manner be modified, changed, supplemented, altered, restated or amended without the consent of Lender;
(xv) if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower fails to comply with the covenants as to Prescribed Laws set forth in Section 5.1.1 hereof;
(xvi) if a material default has occurred and continues beyond any applicable cure period under any Management Agreement and if such default permits the Manager, the Operating Company or the Mortgage Borrower party thereto to terminate or cancel the Management Agreement in question;
(xvii) any Gaming License shall be refused, suspended, revoked, modified in a materially adverse manner or canceled or allowed to lapse or any proceeding is commenced acquisition by any Governmental Authority for the purpose individual, entity or group of suspending, revoking beneficial ownership of 20% or canceling any Gaming License in any materially adverse respect, or any Governmental Authority shall have appointed a conservator, supervisor or trustee to or for any more of the Casino Components and, in each case of the foregoing, such action could reasonably be expected to (A) have an Individual Material Adverse Effect, (B) materially and adversely affect the continued operation of the Casino Components in the usual course of business and in substantially the same manner and to at least the same standard as was maintained prior to such action, or (C) result in any material decrease in the then expected cash flow and revenues to be derived from the Casino Components;
(xviii) if any Borrower shall continue to be in Default under any of the other terms, covenants or conditions of this Agreement not specified in subsections either (i) the then outstanding ownership interests of Lessee or (ii) the combined voting power of the then outstanding voting interests of Lessee entitled to (xvii) above, for ten (10) days after notice to Borrower from Lender, vote generally in the case election of any Default which can be cured by the payment of a sum of money, directors or for thirty (30) days after notice from Lender in the case of any other Default; provided, however, that if such non-monetary Default is susceptible of cure but cannot reasonably be cured within such thirty (30) day period and provided further that such Borrower shall have commenced to cure such Default within such thirty (30) day period and thereafter diligently and expeditiously proceeds to cure the same, such thirty (30) day period shall be extended for such time as is reasonably necessary for such Borrower in the exercise of due diligence to cure such Default, such additional period not to exceed one hundred twenty (120) days;
(xix) if there shall be a default under any of the other Loan Documents beyond any applicable cure periods contained in such documents, whether as to any Borrower, Mortgage Borrower, Senior Mezzanine Borrower, the Collateral, the Senior Mezzanine Collateral or any Individual Property, or if any other such event shall occur or condition shall exist, if the effect of such event or condition is to accelerate the maturity of any portion of the Debt or to permit Lender to accelerate the maturity of all or any portion of the Debt;
(xx) if the Liens created pursuant to any Loan Document shall cease to be a fully protected enforceable first priority security interest in the Collateral, or any portion of the Collateral is Transferred without Lender’s prior written consent except as permitted hereundermanagers; or
(xxi9) if consummation of a Mortgage Loan Event reorganization, merger or consolidation or sale or other disposition of Default or Senior Mezzanine Loan Event of Default shall occur.
(b) Upon the occurrence of an Event of Default (other than an Event of Default described in clauses (vi) or (vii) above) and at any time thereafter, in addition to any other rights or remedies available to it pursuant to this Agreement and the other Loan Documents or at law or in equity, Lender may take such action, without notice or demand, that Lender deems advisable to protect and enforce its rights against Borrower and in and to all or any of the Collateral, including, without limitation, declaring the Debt to be immediately due and payable, and Lender may enforce or avail itself of any or all rights or remedies provided in the Loan Documents and may exercise all the rights and remedies of a secured party under the Uniform Commercial Code, as adopted and enacted by the State or States where any of the Collateral is located, against Borrower and any or substantially all of the Collateral, including, without limitation, all rights assets of Lessee or remedies available at law or in equity; and upon any Event the acquisition of Default described in clauses (vi) or (vii) above, the Debt and all other obligations assets of Borrower hereunder and under the other Loan Documents shall immediately and automatically become due and payable, without notice or demand, and Borrower hereby expressly waives any such notice or demand, anything contained herein or in any other Loan Document to the contrary notwithstanding.another company,
Appears in 2 contracts
Samples: Lease Agreement (Five9, Inc.), Lease Agreement (Five9, Inc.)
Event of Default. (a) Each The occurrence of any one or more of the following events shall constitute an event of default hereunder (an “"Event of Default”):":
(i) if (A) Borrower fails to pay any portion of the Debt is not paid in full Note(s) or any of the installment(s) thereunder on the Maturity Date, (B) the Debt Service is not paid in full on due date thereof; or before the related Payment Date, or (C) Borrower fails to make any other portion of payment due to Lender however arising on the Debt is not paid within due date thereof and such default continues for five (5) days of when due;days; or
(ii) if Borrower fails or neglects to perform or observe any of the Taxes other term, covenant, warranty or Other Charges are not paid (with respect to each or any Individual Property) prior to Delinquency;
(iii) if the Policies (with respect to each or any Individual Property) are not kept representation contained in full force and effect, or if certified copies of the Policies (for each Individual Property) are not delivered to Lender upon request (or certificates thereof, if a Policy shall be renewed and certified copies of the Policy are not immediately available upon such renewal (each Borrower agreeing in such instance to provide copies of the Policies to Lender promptly thereafter));
(iv) if any Borrower Transfers or otherwise encumbers any portion of the Properties, the Collateral or the Senior Mezzanine Collateral, or there shall otherwise occur a Transfer without Lender’s prior consent in violation of the provisions of this Agreement, the Pledge Agreement or any other Loan Document;
(v) if any representation or warranty made by any Borrower or any other Loan Party herein or in any other Loan Document, or in any report, certificate, financial statement or other instrument, agreement or document or other material or written information furnished to Lender shall have been false or misleading in any material respect as of the date the representation or warranty was made (and, with respect to any such breach which is not the subject of any required to be performed or observed by Borrower (other subsection of this Section 8.1 and which is capable of being cured, such Borrower fails to remedy such condition within ten (10) days following notice to Borrower from Lender, in the case of any such breach which can be cured by than for the payment of a sum of money, or within thirty (30) days following notice from Lender in the case of any other such breach);
(vi) if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower shall make an assignment for the benefit of creditors; or if a receiver, liquidator or trustee shall be appointed for any Borrower, Senior Mezzanine Borrower or Mortgage Borrower, or if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower shall be adjudicated a bankrupt or insolvent, or if any petition for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by or against, consented to, or acquiesced in by, Borrower or Senior Mezzanine Borrower, or if any proceeding for the dissolution or liquidation of any Borrower, Senior Mezzanine Borrower or Mortgage Borrower shall be instituted; provided, however, if such appointment, adjudication, petition or proceeding was involuntary and not consented to by any Borrower, Senior Mezzanine Borrower or Mortgage Borrower, upon the same not being discharged, stayed or dismissed within ninety (90) days;
(vii) if any Operating Company, any Manager, Principal, Holdings or any Guarantor shall make an assignment for the benefit of creditors; or if a receiver, liquidator or trustee shall be appointed for any such Operating Company, any such Manager, Principal, Holdings or any such Guarantor, or if any Operating Company, any Manager, Principal, Holdings or any Guarantor shall be adjudicated a bankrupt or insolvent, or if any petition for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by or against, consented to, or acquiesced in by, any Operating Company, any Manager, Principal, Holdings or any Guarantor, or if any proceeding for the dissolution or liquidation of any Operating Company, any Manager, Principal, Holdings or any Guarantor shall be instituted; provided, however, if such appointment, adjudication, petition or proceeding was involuntary and not consented to by any such Operating Company, any such Manager, Principal, Holdings or any such Guarantor, upon the same not being discharged, stayed or dismissed within ninety (90) days;
(viii) if any Borrower attempts to assign its rights under this Agreement or any of the other Loan Documents or any interest herein or therein in contravention of the Loan Documents;
(ix) if any Borrower breaches any of its respective negative covenants contained in Section 5.2 or any covenant contained in Section 4.1.30 or Section 5.1.11 hereof (and, with respect to any such breach of any covenant set forth in Section 5.1.11 which is not the subject of any other subsection of this Section 8.1, such Borrower fails cured to remedy such condition Lender's reasonable satisfaction within ten (10) days after notice to Borrower from Lender, in the case of any such Default under Section 5.1.11 which can be cured by the payment of a sum of money, or for thirty (30) days after notice from Lender in the case of any other such Default under Section 5.1.11);
(x) with respect to any term, covenant or provision set forth herein which specifically contains a notice requirement or grace period, if any Borrower shall be in default under such term, covenant or condition after the giving of such notice or the expiration by Lender to Borrower of such grace period;failure; or
(xiiii) if The Collateral or a significant part of Borrower's other assets are attached, seized, levied upon or subjected to a writ or distress warrant, or come within the possession of any receiver, trustee, custodian or assignee for the benefit of creditors and the same is not cured within ten (10) days thereafter; or
(iv) Any guarantor of the Obligations defaults under or otherwise breaches any of the assumptions terms of his/her/its guaranty of the Obligations or any guarantor of the Obligations fails or neglects to perform or observe any other term, covenant, warranty or representation contained in the Insolvency Opinion delivered in connection with the Loanany Loan Document executed by a guarantor, which is required to be performed or in the Additional Insolvency Opinion delivered subsequent to the closing of the Loan, is or shall become untrue in any material respect; or if any of the assumptions contained in the True Lease Opinion in connection with the Loan, or in the Additional True Lease Opinion delivered subsequent to the closing of the Loan, is or shall become untrue in any material respect;
observed by a guarantor (xii) if any Mortgage Borrower, any Operating Company or any Guarantor (Operating Lease) is in default of any of its material obligations under any Operating Lease (or under another lease and/or management agreement in substitution for such Operating Lease in accordance herewith) or under any such Operating Lease Guaranty (or under another operating lease guaranty in substitution for such Operating Lease Guaranty in accordance herewith) beyond any applicable notice and cure periods contained therein; or if any Operating Lease (or such other lease and/or management agreement) or any Operating Lease Guaranty (or such other operating lease than a guaranty) shall be surrendered or any Operating Lease or any Operating Lease Guaranty shall be terminated or canceled for any reason or under any circumstances whatsoever, except with the consent of Lender; or if any of the terms, covenants or conditions of any Operating Lease (or such other lease and/or management agreement) or any Operating Lease Guaranty (or such other operating lease guaranty) shall in any manner be modified, changed, supplemented, altered, restated or amended without the consent of Lender except as may otherwise expressly permitted in this Agreement;
(xiii) intentionally omitted;
(xiv) if any Affiliate of any Borrower that is or becomes a party to the Windstorm Insurance Intercreditor Agreement is in default of any of its material obligations under the Windstorm Insurance Intercreditor Agreement beyond any applicable notice and cure periods contained therein; or if the Windstorm Insurance Intercreditor Agreement shall be surrendered, terminated or canceled for any reason or under any circumstances whatsoever, except with the consent of Lender; or if any of the terms, covenants or conditions of the Windstorm Insurance Intercreditor Agreement shall in any manner be modified, changed, supplemented, altered, restated or amended without the consent of Lender;
(xv) if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower fails to comply with the covenants as to Prescribed Laws set forth in Section 5.1.1 hereof;
(xvi) if a material default has occurred and continues beyond any applicable cure period under any Management Agreement and if such default permits the Manager, the Operating Company or the Mortgage Borrower party thereto to terminate or cancel the Management Agreement in question;
(xvii) any Gaming License shall be refused, suspended, revoked, modified in a materially adverse manner or canceled or allowed to lapse or any proceeding is commenced by any Governmental Authority for the purpose of suspending, revoking or canceling any Gaming License in any materially adverse respect, or any Governmental Authority shall have appointed a conservator, supervisor or trustee to or for any of the Casino Components and, in each case of the foregoing, such action could reasonably be expected to (A) have an Individual Material Adverse Effect, (B) materially and adversely affect the continued operation of the Casino Components in the usual course of business and in substantially the same manner and is not cured to at least the same standard as was maintained prior to such action, or (C) result in any material decrease in the then expected cash flow and revenues to be derived from the Casino Components;
(xviii) if any Borrower shall continue to be in Default under any of the other terms, covenants or conditions of this Agreement not specified in subsections (i) to (xvii) above, for Lender's reasonable satisfaction within ten (10) days after the giving of notice by Lender to Borrower from Lender, in the case of any Default which can be cured by the payment of a sum of money, or for thirty (30) days after notice from Lender in the case of any other Default; provided, however, that if such non-monetary Default is susceptible of cure but cannot reasonably be cured within such thirty (30) day period and provided further that such Borrower shall have commenced to cure such Default within such thirty (30) day period and thereafter diligently and expeditiously proceeds to cure the same, such thirty (30) day period shall be extended for such time as is reasonably necessary for such Borrower in the exercise of due diligence to cure such Default, such additional period not to exceed one hundred twenty (120) days;
(xix) if there shall be a default under any of the other Loan Documents beyond any applicable cure periods contained in such documents, whether as to any Borrower, Mortgage Borrower, Senior Mezzanine Borrower, the Collateral, the Senior Mezzanine Collateral or any Individual Property, or if any other such event shall occur or condition shall exist, if the effect guarantor of such event or condition is to accelerate the maturity of any portion of the Debt or to permit Lender to accelerate the maturity of all or any portion of the Debt;
(xx) if the Liens created pursuant to any Loan Document shall cease to be a fully protected enforceable first priority security interest in the Collateral, or any portion of the Collateral is Transferred without Lender’s prior written consent except as permitted hereunderfailure; or
(xxiv) if a Mortgage Loan Event Borrower breaches or defaults under the terms of Default or Senior Mezzanine Loan Event of Default shall occur.
(b) Upon the occurrence of an Event of Default (other than an Event of Default described in clauses (vi) or (vii) above) and at any time thereafter, in addition to any other rights agreement, instrument or remedies available to it pursuant to this Agreement and document with or for the other Loan Documents or at law or in equity, Lender may take such action, without notice or demand, that Lender deems advisable to protect and enforce its rights against Borrower and in and to all or any benefit of the CollateralLender, including, without limitation, declaring promissory notes, guaranties, equipment leases and security documents (including security agreements and deeds of trust); or
(vi) Any guarantor of the Debt to be immediately due and payable, and Lender may enforce Obligations breaches or avail itself defaults under the terms of any other agreement, instrument or all rights document with or remedies provided in for the Loan Documents and may exercise all the rights and remedies benefit of a secured party under the Uniform Commercial Code, as adopted and enacted by the State or States where any of the Collateral is located, against Borrower and any or all of the CollateralLender, including, without limitation, all rights or remedies available at law or in equitypromissory notes, guaranties, equipment leases and security documents (including security agreements and deeds of trust); and upon any Event of Default described in clauses (vi) or or
(vii) aboveAn application is made by Borrower or by any person other than Borrower for the appointment of a receiver, trustee or custodian for the Collateral or any other of Borrower's assets and in the case of an application made by a third party, the Debt same is not dismissed within sixty (60) days after the application therefor; or
(viii) A petition under any section or chapter of the Bankruptcy Code or any similar law or regulation shall be filed by or against Borrower, and all other obligations in the case of any petition filed by any third party, such petition is not dismissed within sixty (60) days of such filing, or Borrower makes an assignment for the benefit of its creditors or any case or proceeding is filed by or against Borrower for its dissolution, liquidation, or termination; or
(ix) The indictment or threatened indictment of Borrower hereunder and or any guarantor of Borrower's Obligations under any criminal statute, or commencement or threatened commencement of criminal or civil proceedings against Borrower or any guarantor of Borrower's Obligations pursuant to which the other Loan Documents shall immediately and automatically become due and payableproceedings, without notice penalties or demandremedies sought or available include forfeiture of any of the property of Borrower or of any guarantor; or
(x) Borrower sells, and leases, assigns, conveys, abandons or otherwise transfers or disposes of all or substantially all of its assets or a majority of voting stock in Borrower hereby expressly waives any such notice is transferred; or
(xi) Borrower ceases to conduct its business or demandis enjoined, anything contained herein restrained or in any other Loan Document way prevented by court order from conducting all or any material part of its business affairs, and/or Borrower dies or is declared incompetent if Borrower is an individual; or
(xii) Lender in good faith believes that either (i) the prospect of payment or performance of the Obligations is impaired, or (ii) the Collateral is not sufficient to secure fully any of the contrary notwithstandingObligations; or
(xiii) There is an adverse change in the Collateral or in the business of Borrower; or
(xiv) If any representations or warranties made or given either heretofore or hereafter by Borrower in connection with this Agreement or the extension of credit by Lender hereunder is false or misleading.
Appears in 2 contracts
Samples: Master Security Agreement (Cosi Inc), Master Security Agreement (Cosi Inc)
Event of Default. (a) Each of the following events shall constitute an event of default hereunder (an “An "Event of Default”):" occurs or exists if ----------------
(i) if (A) any portion the Borrower defaults in the payment when due of the Debt is not paid in full principal of or interest on the Maturity Date, (B) the Debt Service is not paid in full on any Loan or before the related Payment Date, or (C) of any other portion of amount owing by the Debt is not paid within five (5) days of when due;
Borrower to the Bank pursuant to this Agreement, (ii) if any of the Taxes or Other Charges are not paid (with respect to each Borrower or any Individual Property) prior Subsidiary defaults in the payment when due of any sum that is now or hereafter owing by it to Delinquency;
the Bank other than pursuant to this Agreement, or the maturity of any such sum is accelerated, (iii) if the Policies (with respect Borrower defaults in the performance when due of any obligation owing by it to each or any Individual Property) are not kept in full force the Bank pursuant to this Agreement other than an obligation to pay money, and effectfails to cure such default within 90 days after notice of such default is given by the Bank, or if certified copies of the Policies (for each Individual Property) are not delivered to Lender upon request (or certificates thereof, if a Policy shall be renewed and certified copies of the Policy are not immediately available upon such renewal (each Borrower agreeing in such instance to provide copies of the Policies to Lender promptly thereafter));
(iv) if the Borrower is dissolved, ceases to exist, participates or agrees to participate in any merger, consolidation or other absorption in which the Borrower Transfers is not the surviving entity, assigns, sells or otherwise encumbers transfers or disposes of all or substantially all of its assets, makes or permits what might be fraudulent transfer or fraudulent conveyance of any portion of its assets, makes any bulk sale, sends any notice of any intended bulk sale, becomes insolvent (however such insolvency is evidenced), generally fails to pay its debts as they become due, fails to pay, withhold or collect any tax as required by any Law (except for any tax not yet required by Section 5i of this Agreement to be paid), suspends or ceases its present business, has served or filed against it or against any of its assets any attachment, levy, tax lien, warrant or similar lien other than a Permitted Lien or has entered against it or against any of its assets any judgment, order or award of any court, agency or other governmental authority or of any arbitrator, (vi) the Borrower has any receiver, trustee, liquidator, sequestrator or custodian of it or of any of its assets appointed (whether with or without its consent), makes any assignment for the benefit of creditors or commences or has commenced against it any case or other proceeding pursuant to any Bankruptcy Law or any formal or informal proceeding for the dissolution, liquidation or winding up of the Properties, the Collateral or the Senior Mezzanine Collateralaffairs of, or there shall otherwise occur a Transfer without Lender’s prior consent in violation for the settlement of the provisions of this Agreementclaims against it, the Pledge Agreement or any other Loan Document;
(vvii) if any representation or warranty made by any Borrower in this Agreement or any other Loan Party herein heretofore or in any other Loan Documenthereafter made to the Bank proves, as of the time it was made or in any report, certificate, financial statement or other instrument, agreement or document or other material or written information furnished deemed to Lender shall have been false made, to have been incorrect or misleading in any material respect as respect, except to the extent updated in a certificate executed by the President or a Vice President of the date Borrower and by the representation chief financial officer of the Borrower and received by the Bank, or warranty was made (and, viii) there occurs or exists with respect to any such breach which is not the subject of Pension Plan any Prohibited Transaction, Reportable Event or other subsection of this Section 8.1 and which is capable of being cured, such Borrower fails to remedy such event or condition within ten (10) days following notice to Borrower from Lenderthat, in the case opinion of the Bank, constitutes or will or might constitute grounds for the institution by the Pension Benefit Guaranty Corporation of any proceeding under ERISA seeking the termination of such breach which can be cured by Pension Plan or the payment appointment of a sum of moneytrustee to administer such Pension Plan, or within thirty (30) days following notice from Lender in the case Pension Benefit Guaranty Corporation institutes any proceeding under ERISA seeking the termination of any Pension Plan or the appointment of a trustee to administer any Pension Plan, any Person other such breach);
(vi) if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower shall make an assignment for than the benefit of creditors; or if a receiver, liquidator or trustee shall be appointed for any Borrower, Senior Mezzanine Borrower or Mortgage Borrower, or if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower shall be adjudicated a bankrupt or insolvent, or if any petition for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by or against, consented to, or acquiesced in by, Borrower or Senior Mezzanine Borrower, or if Pension Benefit Guaranty Corporation institutes any proceeding for under ERISA seeking the dissolution or liquidation termination of any Borrower, Senior Mezzanine Borrower Pension Plan or Mortgage Borrower shall be instituted; provided, however, if such appointment, adjudication, petition or proceeding was involuntary and not consented the appointment of a trustee to by administer any Borrower, Senior Mezzanine Borrower or Mortgage Borrower, upon the same not being discharged, stayed or dismissed within ninety (90) days;
(vii) if any Operating Company, any Manager, Principal, Holdings or any Guarantor shall make an assignment for the benefit of creditors; or if a receiver, liquidator or trustee shall be appointed for any such Operating Company, any such Manager, Principal, Holdings or any such Guarantor, or if any Operating Company, any Manager, Principal, Holdings or any Guarantor shall be adjudicated a bankrupt or insolvent, or if any petition for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by or against, consented to, or acquiesced in by, any Operating Company, any Manager, Principal, Holdings or any Guarantor, or if any proceeding for the dissolution or liquidation of any Operating Company, any Manager, Principal, Holdings or any Guarantor shall be instituted; provided, however, if such appointment, adjudication, petition or proceeding was involuntary and not consented to by any such Operating Company, any such Manager, Principal, Holdings or any such Guarantor, upon the same not being discharged, stayed or dismissed within ninety (90) days;
(viii) if any Borrower attempts to assign its rights under this Agreement or any of the other Loan Documents or any interest herein or therein in contravention of the Loan Documents;
(ix) if any Borrower breaches any of its respective negative covenants contained in Section 5.2 or any covenant contained in Section 4.1.30 or Section 5.1.11 hereof (and, with respect to any such breach of any covenant set forth in Section 5.1.11 which is not the subject of any other subsection of this Section 8.1, such Borrower fails to remedy such condition within ten (10) days after notice to Borrower from LenderPension Plan that is, in the case opinion of the Bank, likely to result in the termination of such Pension Plan, any such Default under Section 5.1.11 which can be cured trustee is appointed by the payment of a sum of moneyUnited States District Court to administer any Pension Plan, or for thirty (30) days after notice from Lender there are vested unfunded liabilities under any Pension Plan that, in the case of any other such Default under Section 5.1.11);
(x) with respect to any term, covenant or provision set forth herein which specifically contains a notice requirement or grace period, if any Borrower shall be in default under such term, covenant or condition after the giving of such notice or the expiration of such grace period;
(xi) if any opinion of the assumptions contained in the Insolvency Opinion delivered in connection with the LoanBank, have or in the Additional Insolvency Opinion delivered subsequent to the closing of the Loan, is will or shall become untrue in might have any material respect; or if any of the assumptions contained in the True Lease Opinion in connection with the Loan, or in the Additional True Lease Opinion delivered subsequent to the closing of the Loan, is or shall become untrue in any material respect;
(xii) if any Mortgage Borrower, any Operating Company or any Guarantor (Operating Lease) is in default of any of its material obligations under any Operating Lease (or under another lease and/or management agreement in substitution for such Operating Lease in accordance herewith) or under any such Operating Lease Guaranty (or under another operating lease guaranty in substitution for such Operating Lease Guaranty in accordance herewith) beyond any applicable notice and cure periods contained therein; or if any Operating Lease (or such other lease and/or management agreement) or any Operating Lease Guaranty (or such other operating lease guaranty) shall be surrendered or any Operating Lease or any Operating Lease Guaranty shall be terminated or canceled for any reason or under any circumstances whatsoever, except with the consent of Lender; or if any of the terms, covenants or conditions of any Operating Lease (or such other lease and/or management agreement) or any Operating Lease Guaranty (or such other operating lease guaranty) shall in any manner be modified, changed, supplemented, altered, restated or amended without the consent of Lender except as may otherwise expressly permitted in this Agreement;
(xiii) intentionally omitted;
(xiv) if any Affiliate of any Borrower that is or becomes a party to the Windstorm Insurance Intercreditor Agreement is in default of any of its material obligations under the Windstorm Insurance Intercreditor Agreement beyond any applicable notice and cure periods contained therein; or if the Windstorm Insurance Intercreditor Agreement shall be surrendered, terminated or canceled for any reason or under any circumstances whatsoever, except with the consent of Lender; or if any of the terms, covenants or conditions of the Windstorm Insurance Intercreditor Agreement shall in any manner be modified, changed, supplemented, altered, restated or amended without the consent of Lender;
(xv) if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower fails to comply with the covenants as to Prescribed Laws set forth in Section 5.1.1 hereof;
(xvi) if a material default has occurred and continues beyond any applicable cure period under any Management Agreement and if such default permits the Manager, the Operating Company or the Mortgage Borrower party thereto to terminate or cancel the Management Agreement in question;
(xvii) any Gaming License shall be refused, suspended, revoked, modified in a materially adverse manner or canceled or allowed to lapse or any proceeding is commenced by any Governmental Authority for the purpose of suspending, revoking or canceling any Gaming License in any materially adverse respect, or any Governmental Authority shall have appointed a conservator, supervisor or trustee to or for any of the Casino Components and, in each case of the foregoing, such action could reasonably be expected to (A) have an Individual Material Adverse Effect, (B) materially and adversely affect the continued operation of the Casino Components in the usual course of business and in substantially the same manner and to at least the same standard as was maintained prior to such action, or (C) result in any material decrease in the then expected cash flow and revenues to be derived from the Casino Components;
(xviii) if any Borrower shall continue to be in Default under any of the other terms, covenants or conditions of this Agreement not specified in subsections (i) to (xvii) above, for ten (10) days after notice to Borrower from Lender, in the case of any Default which can be cured by the payment of a sum of money, or for thirty (30) days after notice from Lender in the case of any other Default; provided, however, that if such non-monetary Default is susceptible of cure but cannot reasonably be cured within such thirty (30) day period and provided further that such Borrower shall have commenced to cure such Default within such thirty (30) day period and thereafter diligently and expeditiously proceeds to cure the same, such thirty (30) day period shall be extended for such time as is reasonably necessary for such Borrower in the exercise of due diligence to cure such Default, such additional period not to exceed one hundred twenty (120) days;
(xix) if there shall be a default under any of the other Loan Documents beyond any applicable cure periods contained in such documents, whether as to any Borrower, Mortgage Borrower, Senior Mezzanine Borrower, the Collateral, the Senior Mezzanine Collateral or any Individual Property, or if any other such event shall occur or condition shall exist, if the effect of such event or condition is to accelerate the maturity of any portion of the Debt or to permit Lender to accelerate the maturity of all or any portion of the Debt;
(xx) if the Liens created pursuant to any Loan Document shall cease to be a fully protected enforceable first priority security interest in the Collateral, or any portion of the Collateral is Transferred without Lender’s prior written consent except as permitted hereunder; or
(xxi) if a Mortgage Loan Event of Default or Senior Mezzanine Loan Event of Default shall occur.
(b) Upon the occurrence of an Event of Default (other than an Event of Default described in clauses (vi) or (vii) above) and at any time thereafter, in addition to any other rights or remedies available to it pursuant to this Agreement and the other Loan Documents or at law or in equity, Lender may take such action, without notice or demand, that Lender deems advisable to protect and enforce its rights against Borrower and in and to all or any of the Collateral, including, without limitation, declaring the Debt to be immediately due and payable, and Lender may enforce or avail itself of any or all rights or remedies provided in the Loan Documents and may exercise all the rights and remedies of a secured party under the Uniform Commercial Code, as adopted and enacted by the State or States where any of the Collateral is located, against Borrower and any or all of the Collateral, including, without limitation, all rights or remedies available at law or in equity; and upon any Event of Default described in clauses (vi) or (vii) above, the Debt and all other obligations of Borrower hereunder and under the other Loan Documents shall immediately and automatically become due and payable, without notice or demand, and Borrower hereby expressly waives any such notice or demand, anything contained herein or in any other Loan Document to the contrary notwithstanding.
Appears in 2 contracts
Samples: Corporate Revolving and Term Loan Agreement (Dset Corp), Corporate Revolving and Term Loan Agreement (Dset Corp)
Event of Default. (a) Each of the following events shall constitute an event of default hereunder (an “Event of Default”):” by the respective Party:
(ia) if failure of RCP (Aor of a third party, whether Bliss Sports, Bliss Sports II or otherwise, which has agreed in writing to fulfill RCP’s obligations) any portion of to obtain and maintain or to cause a third party to obtain or maintain the Debt is not paid in full on the Maturity Date, (B) the Debt Service is not paid in full on or before the related Payment Date, or (C) any other portion of the Debt is not paid within five (5) days of when dueinsurance required by Article XII hereof;
(iib) if any of the Taxes or Other Charges are not paid (with respect to each or any Individual Property) prior to Delinquency;
(iii) if the Policies (with respect to each or any Individual Property) are not kept in full force and effect, or if certified copies of the Policies (for each Individual Property) are not delivered to Lender upon request (or certificates thereof, if a Policy shall be renewed and certified copies of the Policy are not immediately available upon such renewal (each Borrower agreeing in such instance to provide copies of the Policies to Lender promptly thereafter));
(iv) if any Borrower Transfers or otherwise encumbers any portion of the Properties, the Collateral or the Senior Mezzanine Collateral, or there shall otherwise occur a Transfer without Lender’s prior consent in violation of the provisions of this Agreement, the Pledge Agreement or any other Loan Document;
(v) if any representation or warranty made by any Borrower Bliss Sports or any other Loan Party Bliss Sports II herein or in any other Loan Document, or in any report, certificate, financial written statement or other instrument, agreement or document or other material or written information certificate furnished to Lender shall have been false or misleading a Party by another Party with respect to the performance of this Agreement, proves untrue in any material respect as of the date of the representation issuance or warranty was made (and, with respect to any such breach making thereof which is not corrected or brought into compliance within 30 days after the subject of any other subsection of this Section 8.1 recipient Party gives the Party which gave the untrue written statement or certificate a written notice specifying such untruth and which requiring it to be remedied; provided, that if such untruth cannot be fully remedied within such 30-day period, but can reasonably be expected to be fully remedied and the defaulting Party is capable of being cured, such Borrower fails diligently attempting to remedy such condition within ten untruth, such untruth shall not constitute an event of default if the defaulting Party shall immediately upon receipt of such notice diligently attempting to remedy such untruth and shall thereafter prosecute and complete the same with due diligence and dispatch; or
(10c) days following notice to Borrower from Lenderany judgment which is final, writ or warrant of attachment or any similar process shall be entered or filed against a Party which remains unvacated, unpaid, unbonded, unstayed or uncontested in good faith for a period of 90 days; provided, however, that none of the foregoing shall constitute an event of default unless the amount of such judgment, writ, warrant of attachment or similar process, together with the amount of all other such judgments, writs, warrants or similar processes so unvacated, unpaid, unbonded, unstayed or uncontested, exceeds $2,000,000; or
(d) the entry of a decree or order by a court having jurisdiction in the case premises for relief in respect of a Party, or adjudging a Party a bankrupt or insolvent, or approving as properly filed a petition seeking reorganization, adjustment or composition of or in respect of a Party under the United States Bankruptcy Code or any other applicable federal or state law, or appointing a custodian, receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of or for a Party or any substantial part of its property, or ordering the winding up or liquidation of its affairs, and the continuance of any such breach which can be cured decree or order unstayed and in effect for a period of 120 consecutive days; or
(e) the commencement by the payment a Party of a sum voluntary case, by it of money, or within thirty (30) days following notice from Lender in the case of any other such breach);
(vi) if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower shall make an assignment for the benefit of creditors; or if a receiver, liquidator or trustee shall be appointed for any Borrower, Senior Mezzanine Borrower or Mortgage Borrower, or if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower shall proceedings to be adjudicated a bankrupt or insolvent, or if any petition for bankruptcy, reorganization the consent by it to a Party of bankruptcy or arrangement pursuant to federal bankruptcy lawinsolvency proceedings against it, or the filing by it of a petition or answer or consent seeking reorganization, arrangement or relief under the United States Bankruptcy Code or any similar other applicable federal or state law, shall be filed or the consent or acquiescence by it to the filing of any such petition or againstthe appointment of or taking possession by a custodian, consented toreceiver, liquidator, assignee, trustee, sequestrator (or other similar official) of a Party or any substantial part of its property, or acquiesced in by, Borrower or Senior Mezzanine Borrower, or if any proceeding for the dissolution or liquidation making by it of any Borrower, Senior Mezzanine Borrower or Mortgage Borrower shall be instituted; provided, however, if such appointment, adjudication, petition or proceeding was involuntary and not consented to by any Borrower, Senior Mezzanine Borrower or Mortgage Borrower, upon the same not being discharged, stayed or dismissed within ninety (90) days;
(vii) if any Operating Company, any Manager, Principal, Holdings or any Guarantor shall make an assignment for the benefit of creditors; , or if the admission by it in writing of its inability or its failure to pay its debts generally as they become due, or the taking of corporate action by a receiver, liquidator or trustee shall be appointed for Party in furtherance of any such Operating Company, action; or
(f) any such Manager, Principal, Holdings or any such Guarantordefault by a Party in the performance, or if any Operating Companybreach, any Manager, Principal, Holdings or any Guarantor shall be adjudicated a bankrupt or insolvent, or if any petition for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by or against, consented to, or acquiesced in by, any Operating Company, any Manager, Principal, Holdings or any Guarantor, or if any proceeding for the dissolution or liquidation of any Operating Company, any Manager, Principal, Holdings or any Guarantor shall be instituted; provided, however, if such appointment, adjudication, petition or proceeding was involuntary and not consented to by any such Operating Company, any such Manager, Principal, Holdings or any such Guarantor, upon the same not being discharged, stayed or dismissed within ninety (90) days;
(viii) if any Borrower attempts to assign its rights under this Agreement or any of the other Loan Documents or any interest herein or therein in contravention of the Loan Documents;
(ix) if any Borrower breaches any of its respective negative covenants contained in Section 5.2 or any covenant contained in Section 4.1.30 or Section 5.1.11 hereof (and, with respect to any such breach of any covenant set forth or agreement of such Party in Section 5.1.11 which is not the subject this Agreement, and continuance of any other subsection such default or breach for a period of this Section 8.1, such Borrower fails to remedy such condition within ten (10) days after notice to Borrower from Lender, in the case of any such Default under Section 5.1.11 which can be cured by the payment of a sum of money, or for thirty (30) days after notice from Lender in the case other Party entitled to performance of any other such Default under Section 5.1.11);
(x) with respect to any term, covenant or provision set forth herein which specifically contains agreement has been delivered to defaulting Party a written notice requirement or grace period, if any Borrower shall be in default under such term, covenant or condition after the giving of such notice or the expiration of such grace period;
(xi) if any of the assumptions contained in the Insolvency Opinion delivered in connection with the Loan, or in the Additional Insolvency Opinion delivered subsequent to the closing of the Loan, is or shall become untrue in any material respect; or if any of the assumptions contained in the True Lease Opinion in connection with the Loan, or in the Additional True Lease Opinion delivered subsequent to the closing of the Loan, is or shall become untrue in any material respect;
(xii) if any Mortgage Borrower, any Operating Company or any Guarantor (Operating Lease) is in default of any of its material obligations under any Operating Lease (or under another lease and/or management agreement in substitution for such Operating Lease in accordance herewith) or under any such Operating Lease Guaranty (or under another operating lease guaranty in substitution for such Operating Lease Guaranty in accordance herewith) beyond any applicable notice and cure periods contained therein; or if any Operating Lease (or such other lease and/or management agreement) or any Operating Lease Guaranty (or such other operating lease guaranty) shall be surrendered or any Operating Lease or any Operating Lease Guaranty shall be terminated or canceled for any reason or under any circumstances whatsoever, except with the consent of Lender; or if any of the terms, covenants or conditions of any Operating Lease (or such other lease and/or management agreement) or any Operating Lease Guaranty (or such other operating lease guaranty) shall in any manner be modified, changed, supplemented, altered, restated or amended without the consent of Lender except as may otherwise expressly permitted in this Agreement;
(xiii) intentionally omitted;
(xiv) if any Affiliate of any Borrower that is or becomes a party to the Windstorm Insurance Intercreditor Agreement is in default of any of its material obligations under the Windstorm Insurance Intercreditor Agreement beyond any applicable notice and cure periods contained therein; or if the Windstorm Insurance Intercreditor Agreement shall be surrendered, terminated or canceled for any reason or under any circumstances whatsoever, except with the consent of Lender; or if any of the terms, covenants or conditions of the Windstorm Insurance Intercreditor Agreement shall in any manner be modified, changed, supplemented, altered, restated or amended without the consent of Lender;
(xv) if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower fails to comply with the covenants as to Prescribed Laws set forth in Section 5.1.1 hereof;
(xvi) if a material default has occurred and continues beyond any applicable cure period under any Management Agreement and if specifying such default permits the Manager, the Operating Company or the Mortgage Borrower party thereto to terminate or cancel the Management Agreement in question;
(xvii) any Gaming License shall be refused, suspended, revoked, modified in a materially adverse manner or canceled or allowed to lapse or any proceeding is commenced by any Governmental Authority for the purpose of suspending, revoking or canceling any Gaming License in any materially adverse respect, or any Governmental Authority shall have appointed a conservator, supervisor or trustee to or for any of the Casino Components and, in each case of the foregoing, such action could reasonably be expected to (A) have an Individual Material Adverse Effect, (B) materially breach and adversely affect the continued operation of the Casino Components in the usual course of business and in substantially the same manner and to at least the same standard as was maintained prior to such action, or (C) result in any material decrease in the then expected cash flow and revenues requiring it to be derived from the Casino Components;
(xviii) if any Borrower shall continue to be in Default under any of the other terms, covenants or conditions of this Agreement not specified in subsections (i) to (xvii) above, for ten (10) days after notice to Borrower from Lender, in the case of any Default which can be cured by the payment of a sum of money, or for thirty (30) days after notice from Lender in the case of any other Defaultremedied; provided, however, that if such non-monetary Default is susceptible of cure but default or breach cannot reasonably be cured fully remedied within such thirty (30) day period period, but can reasonably be expected to be fully remedied and provided further that the defaulting Party is diligently attempting to remedy such Borrower shall have commenced to cure such Default within such thirty (30) day period and thereafter diligently and expeditiously proceeds to cure the samedefault or breach, such thirty (30) day period default or breach shall be extended for not constitute an event of default if defaulting Party shall, immediately upon receipt of such time as is reasonably necessary for notice, diligently attempt to remedy such Borrower in default or breach and shall thereafter prosecute and complete the exercise of same with due diligence to cure such Default, such additional period not to exceed one hundred twenty (120) days;
(xix) if there shall be a default under any of the other Loan Documents beyond any applicable cure periods contained in such documents, whether as to any Borrower, Mortgage Borrower, Senior Mezzanine Borrower, the Collateral, the Senior Mezzanine Collateral or any Individual Property, or if any other such event shall occur or condition shall exist, if the effect of such event or condition is to accelerate the maturity of any portion of the Debt or to permit Lender to accelerate the maturity of all or any portion of the Debt;
(xx) if the Liens created pursuant to any Loan Document shall cease to be a fully protected enforceable first priority security interest in the Collateral, or any portion of the Collateral is Transferred without Lender’s prior written consent except as permitted hereunder; or
(xxi) if a Mortgage Loan Event of Default or Senior Mezzanine Loan Event of Default shall occurand dispatch.
(b) Upon the occurrence of an Event of Default (other than an Event of Default described in clauses (vi) or (vii) above) and at any time thereafter, in addition to any other rights or remedies available to it pursuant to this Agreement and the other Loan Documents or at law or in equity, Lender may take such action, without notice or demand, that Lender deems advisable to protect and enforce its rights against Borrower and in and to all or any of the Collateral, including, without limitation, declaring the Debt to be immediately due and payable, and Lender may enforce or avail itself of any or all rights or remedies provided in the Loan Documents and may exercise all the rights and remedies of a secured party under the Uniform Commercial Code, as adopted and enacted by the State or States where any of the Collateral is located, against Borrower and any or all of the Collateral, including, without limitation, all rights or remedies available at law or in equity; and upon any Event of Default described in clauses (vi) or (vii) above, the Debt and all other obligations of Borrower hereunder and under the other Loan Documents shall immediately and automatically become due and payable, without notice or demand, and Borrower hereby expressly waives any such notice or demand, anything contained herein or in any other Loan Document to the contrary notwithstanding.
Appears in 2 contracts
Samples: Development Agreement, Development Agreement
Event of Default. (a) Each of the following events shall constitute an event of default hereunder (an “Event of Default”):
(i) if (AFor so long as an Event of Default has occurred and is continuing under the Indenture, no amounts shall be disbursed from the Escrow Account, except as provided in Section 4(a)(ii) any portion of the Debt is not paid in full on the Maturity Date, (Bor 4(b)(i) the Debt Service is not paid in full on or before the related Payment Date, or (C) any other portion of the Debt is not paid within five (5) days of when due;below.
(ii) if If any Event of the Taxes or Other Charges are not paid (with respect to each or any Individual Property) prior to Delinquency;
(iii) if the Policies (with respect to each or any Individual Property) are not kept in full force and effect, or if certified copies of the Policies (for each Individual Property) are not delivered to Lender upon request (or certificates thereof, if a Policy shall be renewed and certified copies of the Policy are not immediately available upon such renewal (each Borrower agreeing in such instance to provide copies of the Policies to Lender promptly thereafter));
(iv) if any Borrower Transfers or otherwise encumbers any portion of the Properties, the Collateral or the Senior Mezzanine Collateral, or there shall otherwise occur a Transfer without Lender’s prior consent in violation of the provisions of this Agreement, the Pledge Agreement or any other Loan Document;
(v) if any representation or warranty made by any Borrower or any other Loan Party herein or in any other Loan Document, or in any report, certificate, financial statement or other instrument, agreement or document or other material or written information furnished to Lender shall have been false or misleading in any material respect as of the date the representation or warranty was made (and, with respect to any such breach which is not the subject of any other subsection of this Section 8.1 and which is capable of being cured, such Borrower fails to remedy such condition within ten (10) days following notice to Borrower from Lender, in the case of any such breach which can be cured by the payment of a sum of money, or within thirty (30) days following notice from Lender in the case of any other such breach);
(vi) if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower shall make an assignment for the benefit of creditors; or if a receiver, liquidator or trustee shall be appointed for any Borrower, Senior Mezzanine Borrower or Mortgage Borrower, or if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower shall be adjudicated a bankrupt or insolvent, or if any petition for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by or against, consented to, or acquiesced in by, Borrower or Senior Mezzanine Borrower, or if any proceeding for the dissolution or liquidation of any Borrower, Senior Mezzanine Borrower or Mortgage Borrower shall be instituted; provided, however, if such appointment, adjudication, petition or proceeding was involuntary and not consented to by any Borrower, Senior Mezzanine Borrower or Mortgage Borrower, upon the same not being discharged, stayed or dismissed within ninety (90) days;
(vii) if any Operating Company, any Manager, Principal, Holdings or any Guarantor shall make an assignment for the benefit of creditors; or if a receiver, liquidator or trustee shall be appointed for any such Operating Company, any such Manager, Principal, Holdings or any such Guarantor, or if any Operating Company, any Manager, Principal, Holdings or any Guarantor shall be adjudicated a bankrupt or insolvent, or if any petition for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by or against, consented to, or acquiesced in by, any Operating Company, any Manager, Principal, Holdings or any Guarantor, or if any proceeding for the dissolution or liquidation of any Operating Company, any Manager, Principal, Holdings or any Guarantor shall be instituted; provided, however, if such appointment, adjudication, petition or proceeding was involuntary and not consented to by any such Operating Company, any such Manager, Principal, Holdings or any such Guarantor, upon the same not being discharged, stayed or dismissed within ninety (90) days;
(viii) if any Borrower attempts to assign its rights under this Agreement or any of the other Loan Documents or any interest herein or therein in contravention of the Loan Documents;
(ix) if any Borrower breaches any of its respective negative covenants contained in Section 5.2 or any covenant contained in Section 4.1.30 or Section 5.1.11 hereof (and, with respect to any such breach of any covenant set forth in Section 5.1.11 which is not the subject of any other subsection of this Section 8.1, such Borrower fails to remedy such condition within ten (10) days after notice to Borrower from Lender, in the case of any such Default under Section 5.1.11 which can be cured by the payment of a sum of money, or for thirty (30) days after notice from Lender in the case of any other such Default under Section 5.1.11);
(x) with respect to any term, covenant or provision set forth herein which specifically contains a notice requirement or grace period, if any Borrower shall be in default under such term, covenant or condition after the giving of such notice or the expiration of such grace period;
(xi) if any of the assumptions contained in the Insolvency Opinion delivered in connection with the Loan, or in the Additional Insolvency Opinion delivered subsequent to the closing of the Loan, is or shall become untrue in any material respect; or if any of the assumptions contained in the True Lease Opinion in connection with the Loan, or in the Additional True Lease Opinion delivered subsequent to the closing of the Loan, is or shall become untrue in any material respect;
(xii) if any Mortgage Borrower, any Operating Company or any Guarantor (Operating Lease) is in default of any of its material obligations under any Operating Lease (or under another lease and/or management agreement in substitution for such Operating Lease in accordance herewith) or under any such Operating Lease Guaranty (or under another operating lease guaranty in substitution for such Operating Lease Guaranty in accordance herewith) beyond any applicable notice and cure periods contained therein; or if any Operating Lease (or such other lease and/or management agreement) or any Operating Lease Guaranty (or such other operating lease guaranty) shall be surrendered or any Operating Lease or any Operating Lease Guaranty shall be terminated or canceled for any reason or under any circumstances whatsoever, except with the consent of Lender; or if any of the terms, covenants or conditions of any Operating Lease (or such other lease and/or management agreement) or any Operating Lease Guaranty (or such other operating lease guaranty) shall in any manner be modified, changed, supplemented, altered, restated or amended without the consent of Lender except as may otherwise expressly permitted in this Agreement;
(xiii) intentionally omitted;
(xiv) if any Affiliate of any Borrower that is or becomes a party to the Windstorm Insurance Intercreditor Agreement is in default of any of its material obligations under the Windstorm Insurance Intercreditor Agreement beyond any applicable notice and cure periods contained therein; or if the Windstorm Insurance Intercreditor Agreement shall be surrendered, terminated or canceled for any reason or under any circumstances whatsoever, except with the consent of Lender; or if any of the terms, covenants or conditions of the Windstorm Insurance Intercreditor Agreement shall in any manner be modified, changed, supplemented, altered, restated or amended without the consent of Lender;
(xv) if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower fails to comply with the covenants as to Prescribed Laws set forth in Section 5.1.1 hereof;
(xvi) if a material default has occurred and continues beyond any applicable cure period is continuing under any Management Agreement and if such default permits Section 9.02 of the Manager, the Operating Company or the Mortgage Borrower party thereto to terminate or cancel the Management Agreement in question;Supplemental Indenture:
(xvii1) any Gaming License shall be refusedThe Trustee may, suspended, revoked, modified in a materially adverse manner or canceled or allowed to lapse or any proceeding is commenced by any Governmental Authority for the purpose of suspending, revoking or canceling any Gaming License in any materially adverse respect, or any Governmental Authority shall have appointed a conservator, supervisor or trustee to or for any of the Casino Components and, in each case of the foregoing, such action could reasonably be expected to (A) have an Individual Material Adverse Effect, (B) materially and adversely affect the continued operation of the Casino Components in the usual course of business and in substantially the same manner and to at least the same standard as was maintained prior to such action, or (C) result in any material decrease in the then expected cash flow and revenues to be derived from the Casino Components;
(xviii) if any Borrower shall continue to be in Default under any of the other terms, covenants or conditions of this Agreement not specified in subsections (i) to (xvii) above, for ten (10) days after without notice to Borrower from Lender, in the case of any Default which can be cured by the payment of a sum of money, or for thirty (30) days after notice from Lender in the case of any other Default; provided, however, that if such non-monetary Default is susceptible of cure but cannot reasonably be cured within such thirty (30) day period and provided further that such Borrower shall have commenced to cure such Default within such thirty (30) day period and thereafter diligently and expeditiously proceeds to cure the same, such thirty (30) day period shall be extended for such time as is reasonably necessary for such Borrower in the exercise of due diligence to cure such Default, such additional period not to exceed one hundred twenty (120) days;
(xix) if there shall be a default under any of the other Loan Documents beyond any applicable cure periods contained in such documents, whether as to any Borrower, Mortgage Borrower, Senior Mezzanine Borrower, the Collateral, the Senior Mezzanine Collateral or any Individual Property, or if any other such event shall occur or condition shall exist, if the effect of such event or condition is to accelerate the maturity of any portion of the Debt or to permit Lender to accelerate the maturity of all or any portion of the Debt;
(xx) if the Liens created pursuant to any Loan Document shall cease to be a fully protected enforceable first priority security interest in the Collateral, or any portion of the Collateral is Transferred without Lender’s prior written consent Company except as permitted hereunder; or
(xxi) if a Mortgage Loan Event of Default or Senior Mezzanine Loan Event of Default shall occur.
(b) Upon the occurrence of an Event of Default (other than an Event of Default described in clauses (vi) or (vii) above) required by applicable law and at any time thereafteror from time to time, direct the Escrow Agent to redeem or sell all Collateral and transfer all proceeds thereof to the Paying Agent to apply such funds in accordance with Section 9.15 of the Supplemental Indenture.
(2) If requested by the Holders pursuant to Section 9.06 of the Supplemental Indenture, the Trustee (and/or the Escrow Agent at its direction and on its behalf) may also, in addition to any the other rights or and remedies available to it pursuant to this Agreement and the other Loan Documents or at law or provided for herein, exercise in equity, Lender may take such action, without notice or demand, that Lender deems advisable to protect and enforce its rights against Borrower and in and to all or any respect of the Collateral, including, without limitation, declaring the Debt to be immediately due and payable, and Lender may enforce or avail itself of any or all rights or remedies provided in the Loan Documents and may exercise Collateral all the rights and remedies of a secured party upon default under the Uniform Commercial CodeNew York UCC, and may also, without notice except as adopted and enacted by specified below, redeem or sell the State Collateral or States where any part thereof in one or more parcels at public or private sales, at any of the Collateral is locatedTrustee’s or the Escrow Agent’s offices or elsewhere, against Borrower for cash, on credit or for future delivery, and any or all upon such other terms as the Trustee may deem commercially reasonable. The Company agrees that, to the extent notice of sale shall be required by law, at least ten (10) days’ notice to the Company of the Collateraltime and place of any public sale or the time after which any private sale is to be made shall constitute reasonable notice to the Company. The Trustee and the Escrow Agent shall not be obligated to make any sale of Collateral regardless of notice of sale having been given. The Trustee (or the Escrow Agent on its behalf) may adjourn any public or private sale from time to time by announcement at the time and place fixed therefor, includingand such sale may, without limitationfurther notice, be made at the time and place to which it was so adjourned.
(3) Any cash held by the Escrow Agent as Collateral and all rights net cash proceeds received by the Trustee or remedies available the Escrow Agent in respect of any sale or liquidation of, collection from, or other realization upon all or any part of the Collateral may, in the discretion of the Trustee, be held by the Trustee or the Escrow Agent as collateral for, and then or at law any time thereafter be applied (after payment of any costs and expenses incurred in connection with any redemption, sale, liquidation or disposition of or realization upon the Collateral and the payment of any amounts payable to the Trustee or the Escrow Agent) in whole or in equity; part by the Trustee for the equal and upon ratable benefit of the Holders against all or any Event part of Default the Secured Obligations in such order as described in clauses (vi) or (vii) above, Section 9.15 of the Debt and all other obligations of Borrower hereunder and under the other Loan Documents shall immediately and automatically become due and payable, without notice or demand, and Borrower hereby expressly waives any such notice or demand, anything contained herein or in any other Loan Document to the contrary notwithstandingSupplemental Indenture.
Appears in 2 contracts
Samples: Pledge and Escrow Agreement, Pledge and Escrow Agreement (Exelixis Inc)
Event of Default. (a) Each of the following events shall constitute an event of default hereunder (an “Event of Default”):
(i) if (A) any portion of the Debt is not paid in full on when due, except, with respect to the Maturity Date, (B) payment of the Monthly Debt Service is not paid Payment Amount during a Cash Sweep Period caused solely by a DSCR Trigger, to the extent there are sufficient funds in full on or before the related Cash Management Account to pay such Monthly Debt Service Payment Date, or (C) any other portion of the Debt is not paid within five (5) days of Amount when due;
(ii) if any of the Taxes or Other Charges are not paid (with respect to each or any Individual Property) prior to Delinquencythe date when the same become delinquent, except to the extent that (x) Borrower is contesting the same in accordance with the terms of Section 5.1.2 hereof, or (y) during a Cash Sweep Period caused solely by a DSCR Trigger, there are sufficient funds in the Tax and Insurance Escrow Account (after deducting funds deposited into such account in respect of Premiums) to pay such Taxes or Other Charges and Lender fails to or refuses to pay the same to the extent required under this Agreement;
(iii) if the Policies (with respect to each or any Individual Property) are not kept in full force and effect, or if certified copies of the Policies (for each Individual Property) are not delivered to Lender upon request within ten (or certificates thereof, if a Policy shall be renewed and certified copies 10) days of the Policy are not immediately available upon such renewal (each Borrower agreeing in such instance to provide copies of the Policies to Lender promptly thereafter))request;
(iv) if any Borrower Transfers or otherwise encumbers any portion of the Properties, the Collateral or the Senior Mezzanine Collateral, or there shall otherwise occur a Transfer any Individual Property without Lender’s prior written consent in violation (to extent such consent is required) or otherwise violates any of the provisions of this Agreement, Agreement and Article 6 of the Pledge Agreement or any other Loan DocumentMortgage;
(v) if any representation or warranty made by any Borrower or any other Loan Party herein or in any other Loan Document, or in any report, certificate, financial statement or other instrument, agreement or document or other material or written information furnished to Lender shall have been false or misleading in any material respect as of the date the representation or warranty was made (and, with respect to any such breach which is not the subject of any other subsection of this Section 8.1 and which is capable of being cured, such Borrower fails to remedy such condition within ten (10) days following notice to Borrower from Lender, in the case of any such breach which can be cured by the payment of a sum of money, or within thirty (30) days following notice from Lender in the case of any other such breach)made;
(vi) if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower Principal shall make an assignment for the benefit of creditors; or ;
(vii) if a receiver, liquidator or trustee shall be appointed for any Borrower, Senior Mezzanine Borrower or Mortgage Borrower, Principal or any other guarantor under any guarantee issued in connection with the Loan or if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower Principal shall be adjudicated a bankrupt or insolvent, or if any petition for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by or against, consented to, or acquiesced in by, Borrower or Senior Mezzanine BorrowerPrincipal, or if any proceeding for the dissolution or liquidation of any Borrower, Senior Mezzanine Borrower or Mortgage Borrower Principal shall be instituted; provided, however, if such appointment, adjudication, petition or proceeding was involuntary and not consented to by any Borrower, Senior Mezzanine Borrower or Mortgage Borrower, Principal upon the same not being discharged, stayed or dismissed within ninety (90) days;
(viiviii) if any Operating Company, any Manager, Principal, Holdings Borrower attempts to assign its rights under this Agreement or any of the other Loan Documents or any interest herein or therein in contravention of the Loan Documents;
(ix) if Guarantor or any guarantor or indemnitor under any guaranty or indemnity issued in connection with the Loan shall make an assignment for the benefit of creditors; creditors or if a receiver, liquidator or trustee shall be appointed for any such Operating Company, any such Manager, Principal, Holdings Guarantor or any such Guarantor, guarantor or indemnitor under any guarantee or indemnity issued in connection with the Loan or if any Operating Company, any Manager, Principal, Holdings Guarantor or any Guarantor such other guarantor or indemnitor shall be adjudicated a bankrupt or insolvent, or if any petition for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by or against, consented to, or acquiesced in by, any Operating Company, any Manager, Principal, Holdings Guarantor or any Guarantorsuch other guarantor or indemnitor, or if any proceeding for the dissolution or liquidation of any Operating Company, any Manager, Principal, Holdings Guarantor or any Guarantor such other guarantor or indemnitor shall be instituted; provided, however, if such appointment, adjudication, petition or proceeding was involuntary and not consented to by any Guarantor or such Operating Company, any such Manager, Principal, Holdings other guarantor or any such Guarantorindemnitor, upon the same not being discharged, stayed or dismissed within ninety (90) days; provided, further, however, it shall be at Lender’s option to determine whether any of the foregoing shall be an Event of Default;
(viiix) if any Borrower attempts to assign its rights under this Agreement or any of the other Loan Documents or any interest herein or therein in contravention of the Loan Documents;
(ix) if any Borrower breaches any of its respective negative covenants contained in Section 5.2 or any covenant contained in Section 4.1.30 hereof or Section 5.1.11 hereof (and, with respect to any such breach of any negative covenant set forth contained in Section 5.1.11 which is not the subject of any other subsection of this Section 8.1, such Borrower fails to remedy such condition within ten (10) days after notice to Borrower from Lender, in the case of any such Default under Section 5.1.11 which can be cured by the payment of a sum of money, or for thirty (30) days after notice from Lender in the case of any other such Default under Section 5.1.11)5.2 hereof;
(xxi) with respect to any term, covenant or provision set forth herein which specifically contains a notice requirement or grace period, if any Borrower shall be in default under such term, covenant or condition after the giving of such notice or the expiration of such grace period;
(xi) if any of the assumptions contained in the Insolvency Opinion delivered in connection with the Loan, or in the Additional Insolvency Opinion delivered subsequent to the closing of the Loan, is or shall become untrue in any material respect; or if any of the assumptions contained in the True Lease Opinion in connection with the Loan, or in the Additional True Lease Opinion delivered subsequent to the closing of the Loan, is or shall become untrue in any material respect;
(xii) if any Mortgage Borrower, any Operating Company or any Guarantor (Operating Lease) is in default of any of its material obligations under any Operating Lease (or under another lease and/or management agreement in substitution for such Operating Lease in accordance herewith) or under any such Operating Lease Guaranty (or under another operating lease guaranty in substitution for such Operating Lease Guaranty in accordance herewith) beyond any applicable notice and cure periods contained therein; or if any Operating Lease (or such other lease and/or management agreement) or any Operating Lease Guaranty (or such other operating lease guaranty) shall be surrendered or any Operating Lease or any Operating Lease Guaranty shall be terminated or canceled for any reason or under any circumstances whatsoever, except with the consent of Lender; or if any of the terms, covenants or conditions of any Operating Lease (or such other lease and/or management agreement) or any Operating Lease Guaranty (or such other operating lease guaranty) shall in any manner be modified, changed, supplemented, altered, restated or amended without the consent of Lender except as may otherwise expressly permitted in this Agreementintentionally omitted;
(xiii) intentionally omitted;
(xiv) if any Affiliate of any Borrower that is or becomes a party shall continue to the Windstorm Insurance Intercreditor Agreement is be in default of any of its material obligations Default under the Windstorm Insurance Intercreditor Agreement beyond any applicable notice and cure periods contained therein; or if the Windstorm Insurance Intercreditor Agreement shall be surrendered, terminated or canceled for any reason or under any circumstances whatsoever, except with the consent of Lender; or if any of the terms, covenants or conditions of Section 9.1 hereof, or fails to cooperate with Lender in connection with a Securitization pursuant to the Windstorm Insurance Intercreditor Agreement shall in any manner be modifiedprovisions of Section 9.1 hereof, changed, supplemented, altered, restated or amended without the consent of for five (5) days after notice to Borrower from Lender;
(xv) if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower fails to comply with the covenants as to Prescribed Laws set forth in Section 5.1.1 hereof;
(xvi) if a material default has occurred and continues beyond any applicable cure period under any Management Agreement and if such default permits the Manager, the Operating Company or the Mortgage Borrower party thereto to terminate or cancel the Management Agreement in question;
(xvii) any Gaming License shall be refused, suspended, revoked, modified in a materially adverse manner or canceled or allowed to lapse or any proceeding is commenced by any Governmental Authority for the purpose of suspending, revoking or canceling any Gaming License in any materially adverse respect, or any Governmental Authority shall have appointed a conservator, supervisor or trustee to or for any of the Casino Components and, in each case of the foregoing, such action could reasonably be expected to (A) have an Individual Material Adverse Effect, (B) materially and adversely affect the continued operation of the Casino Components in the usual course of business and in substantially the same manner and to at least the same standard as was maintained prior to such action, or (C) result in any material decrease in the then expected cash flow and revenues to be derived from the Casino Components;
(xviii) if any Borrower shall continue to be in Default under any of the other terms, covenants or conditions of this Agreement not specified in subsections (i) to (xviixiv) above, for ten (10) days after notice to Borrower from Lender, in the case of any Default which can be cured by the payment of a sum of money, or for thirty (30) days after notice from Lender in the case of any other Default; provided, however, that if such non-monetary Default is susceptible of cure but cannot reasonably be cured within such thirty (30) day period and provided further that such Borrower shall have commenced to cure such Default within such thirty (30) day period and thereafter diligently and expeditiously proceeds to cure the same, such thirty (30) day period shall be extended for such time as is reasonably necessary for such Borrower in the exercise of due diligence to cure such Default, such additional period not to exceed one hundred twenty (120) days;; or
(xixxvi) if there shall be a default under any of the other Loan Documents beyond any applicable cure periods contained in such documents, whether as to any Borrower, Mortgage Borrower, Senior Mezzanine Borrower, the Collateral, the Senior Mezzanine Collateral Individual Borrower or any Individual Property, or if any other such event shall occur or condition shall exist, if the effect of such default, event or condition is to accelerate the maturity of any portion of the Debt or to permit Lender to accelerate the maturity of all or any portion of the Debt;
(xx) if the Liens created pursuant to any Loan Document shall cease to be a fully protected enforceable first priority security interest in the Collateral, or any portion of the Collateral is Transferred without Lender’s prior written consent except as permitted hereunder; or
(xxi) if a Mortgage Loan Event of Default or Senior Mezzanine Loan Event of Default shall occur.
(b) Upon the occurrence of an Event of Default (other than an Event of Default described in clauses (vi), (vii) or (viiviii) above) and at any time thereafter, in addition to any other rights or remedies available to it pursuant to this Agreement and the other Loan Documents or at law or in equity, Lender may take such action, without notice or demand, that Lender deems advisable to protect and enforce its rights against Borrower and in and to all or any of the CollateralIndividual Property, including, without limitation, declaring the Debt to be immediately due and payable, and Lender may enforce or avail itself of any or all rights or remedies provided in the Loan Documents and may exercise all the rights and remedies of a secured party under the Uniform Commercial Code, as adopted and enacted by the State or States where any of the Collateral is located, against Borrower and any or all of the CollateralProperties, including, without limitation, all rights or remedies available at law or in equity; and upon any Event of Default described in clauses (vi), (vii) or (viiviii) above, the Debt and all other obligations Other Obligations of Borrower hereunder and under the other Loan Documents shall immediately and automatically become due and payable, without notice or demand, and Borrower hereby expressly waives any such notice or demand, anything contained herein or in any other Loan Document to the contrary notwithstanding.
Appears in 2 contracts
Samples: Loan Agreement (Inland Real Estate Income Trust, Inc.), Loan Agreement (Inland Real Estate Income Trust, Inc.)
Event of Default. (a) Each of the following events shall constitute an event of default hereunder (an “Event of Default”):
(i) if (A) any portion of the Debt payment due on the Maturity Date is not paid in full on the Maturity Datewhen due, (B) any monthly installment of principal and/or interest due under the Debt Service Note or any amount required to be deposited into the Reserve Funds is not paid in full on or before the related Payment Datewhen due, or (C) any other portion of the Debt is not paid within when due and such failure to pay continues for five (5) days of when dueBusiness Days following written notice thereof from Agent;
(ii) if any of the Taxes or Other Charges are not paid when due (unless, with respect to each Taxes, sufficient Tax Funds are on deposit with Agent pursuant to Section 6.2.1 hereof and Agent’s access to such funds has not been restricted or constrained in any Individual Property) prior manner by applicable Legal Requirements, injunction or other court order (not due to Delinquencythe actions of Agent), or as a result of any action, inaction or omission by any Borrower Party;
(iii) if the Policies (with respect to each or any Individual Property) are not kept in full force and effect, or if certified copies of the Policies (for each Individual Property) are not delivered to Lender upon request (or certificates thereof, if a Policy shall be renewed and certified copies of the Policy are not immediately available upon such renewal (each Borrower agreeing in such instance to provide copies of the Policies to Lender promptly thereafter));
(iv) if any Borrower Transfers breaches or otherwise encumbers any portion permits or suffers a breach of Sections 4.2.1 or 4.2.2 hereof, or Article 6 of the Properties, the Collateral or the Senior Mezzanine Collateral, or there shall otherwise occur a Transfer without Lender’s prior consent in violation of the provisions of this Agreement, the Pledge Agreement or any other Loan DocumentMortgage;
(v) if any representation or warranty made by any Borrower or any other Loan Party herein or in any other Loan Document, or in any report, certificate, financial statement or other instrument, agreement or document or other material or written information furnished to Lender Agent shall have been false or misleading in any material respect as of the date the representation or warranty was made (and, with respect to any such breach which is not the subject of any other subsection of this Section 8.1 and which is capable of being cured, such Borrower fails to remedy such condition within ten (10) days following notice to Borrower from Lender, in the case of any such breach which can be cured by the payment of a sum of money, or within thirty (30) days following notice from Lender in the case of any other such breach)made;
(vi) if any Borrower, Senior Mezzanine Borrower any SPE Party or Mortgage Borrower Guarantor shall make an assignment for the benefit of creditors; or ;
(vii) if a receiver, liquidator or trustee shall be appointed for any Borrower, Senior Mezzanine Borrower any SPE Party or Mortgage Guarantor or if Borrower, any SPE Party or if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower shall be adjudicated a bankrupt or insolvent, or if any petition for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by or against, consented to, or acquiesced in by, Borrower or Senior Mezzanine Borrower, or if any proceeding for the dissolution or liquidation of any Borrower, Senior Mezzanine Borrower or Mortgage Borrower shall be instituted; provided, however, if such appointment, adjudication, petition or proceeding was involuntary and not consented to by any Borrower, Senior Mezzanine Borrower or Mortgage Borrower, upon the same not being discharged, stayed or dismissed within ninety (90) days;
(vii) if any Operating Company, any Manager, Principal, Holdings or any Guarantor shall make an assignment for the benefit of creditors; or if a receiver, liquidator or trustee shall be appointed for any such Operating Company, any such Manager, Principal, Holdings or any such Guarantor, or if any Operating Company, any Manager, Principal, Holdings or any Guarantor shall be adjudicated a bankrupt or insolvent, or if any petition for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by or against, consented to, or acquiesced in by, any Operating CompanyBorrower, any Manager, Principal, Holdings SPE Party or any Guarantor, or if any proceeding for the dissolution or liquidation of any Operating CompanyBorrower, any Manager, Principal, Holdings SPE Party or any Guarantor shall be instituted; provided, however, if such appointment, adjudication, petition or proceeding was involuntary and not consented to by any such Operating CompanyBorrower, any such Manager, Principal, Holdings SPE Party or any such Guarantor, upon the same not being discharged, stayed or dismissed within ninety (90) days;
(viii) if the Property becomes subject to any mechanic’s, materialman’s or other Lien other than a Lien for local real estate taxes and assessments not then due and payable and the Lien shall remain undischarged of record (by payment, bonding or otherwise) for a period of forty-five (45) days;
(ix) if Borrower attempts to assign its rights under this Agreement or any of the other Loan Documents or any interest herein or therein in contravention of the Loan Documents;
(ix) if any Borrower breaches any of its respective negative covenants contained in Section 5.2 or any covenant contained in Section 4.1.30 or Section 5.1.11 hereof (and, with respect to any such breach of any covenant set forth in Section 5.1.11 which is not the subject of any other subsection of this Section 8.1, such Borrower fails to remedy such condition within ten (10) days after notice to Borrower from Lender, in the case of any such Default under Section 5.1.11 which can be cured by the payment of a sum of money, or for thirty (30) days after notice from Lender in the case of any other such Default under Section 5.1.11);
(x) with respect to any term, covenant or provision set forth herein which specifically contains a notice requirement or grace period, if any Borrower shall be in default under such term, covenant or condition after the giving of such notice or the expiration of such grace period;
(xi) if any of the factual assumptions contained in the Insolvency Non-Consolidation Opinion (other than those relating to Agent or Lender), or in any New Non-Consolidation Opinion delivered to Agent in connection with the Loan, or in the Additional Insolvency Opinion any other non-consolidation opinion delivered subsequent to the closing of the Loan, is or shall become untrue were not true and correct in any material respect; or if any respect as of the assumptions contained in the True Lease date of such Non-Consolidation Opinion in connection with the Loanor New Non-Consolidation Opinion, as applicable; provided, that no Event of Default shall be deemed to have occurred (A) if such untruth was inadvertent or in the Additional True Lease immaterial, (B) if such untruth is curable, Borrower shall promptly commence to cures same within ten (10) Business Days of notice from Agent and (C) if reasonably requested by Agent, within fifteen (15) Business Days of request by Agent, Borrower delivers to Agent a New Non-Consolidation Opinion delivered subsequent to the closing of the Loan, is or effect that such breach shall become untrue not in any material respectrespect impair, negate or amend the opinions rendered in the Non-Consolidation Opinion or the New Non-Consolidation Opinion most recently delivered to Agent, which opinion shall be acceptable to Agent in its reasonable discretion;
(xi) Borrower or any SPE Party (if any) breaches any representation, warranty or covenant contained in Section 3.1.24 hereof; provided, that such breach shall not constitute an Event of Default if (A) such breach was inadvertent or immaterial, (B) if such breach is curable, Borrower shall promptly commence to cure such breach within ten (10) days of notice from Agent, (C) such breach is cured within thirty (30) days, as the same may be extended for such time as is reasonably necessary for Borrower in the exercise of due diligence to cure such default, and (D) if requested by Agent, within fifteen (15) Business Days of request by Agent, Borrower delivers to Agent a New Non-Consolidation Opinion to the effect that such breach shall not in any material respect impair, negate or amend the opinions rendered in the Non-Consolidation Opinion or the New Non-Consolidation Opinion most recently delivered to Agent, which opinion shall be acceptable to Agent in its reasonable discretion;
(xii) if Borrower or Guarantor fails to comply with the covenants as to the Patriot Act and OFAC as set forth in Sections 3.1.40, 3.1.41 and 4.1.1;
(xiii) if Borrower breaches any Mortgage Borrowerof the negative covenants contained in Section 4.2.11;
(xiv) if Guarantor breaches in any material respect any covenant, any Operating Company warranty or any Guarantor representation contained in the Guaranty;
(Operating Leasexv) is if Borrower shall fail to obtain and/or maintain the Interest Rate Protection Agreement or replacement Interest Rate Protection Agreement, as applicable, as required pursuant to Section 4.1.18 hereof;
(xvi) if (A) Borrower shall fail in default the payment of any of its material obligations under rent, additional rent or other charge mentioned in or made payable by the Ground Lease as and when such rent or other charge is payable (unless waived by the ground lessor), (B) there shall occur any Operating Lease (or under another lease and/or management agreement in substitution for such Operating Lease in accordance herewith) or under any such Operating Lease Guaranty (or under another operating lease guaranty in substitution for such Operating Lease Guaranty in accordance herewith) default, beyond any all applicable notice and cure periods contained therein; periods, by Borrower, as tenant under the Ground Lease, in the observance or performance of any term, covenant or condition of the Ground Lease on the part of Borrower, to be observed or performed (unless waived by the ground lessor), (C) if any Operating one or more of the events referred to in the Ground Lease shall occur which would cause the Ground Lease to terminate without notice or action by the ground lessor under the Ground Lease or which would entitle the ground lessor to terminate the Ground Lease and the term thereof by giving notice to Borrower, as tenant thereunder (or such other lease and/or management agreementunless waived by the ground lessor) or without any Operating further time to cure, (D) if the leasehold estate created by the Ground Lease Guaranty (or such other operating lease guaranty) shall be surrendered or any Operating the Ground Lease or any Operating Lease Guaranty shall be terminated or canceled for any reason or under any circumstances whatsoever, except with the consent of Lender; whatsoever or (E) if any of the terms, covenants or conditions of any Operating the Ground Lease (or such other lease and/or management agreement) or any Operating Lease Guaranty (or such other operating lease guaranty) shall in any manner be modified, changed, supplemented, altered, restated or amended without the consent of Lender except as may otherwise expressly permitted in this Agreement;
(xiii) intentionally omitted;
(xiv) if any Affiliate of any Borrower that is or becomes a party to the Windstorm Insurance Intercreditor Agreement is in default of any of its material obligations under the Windstorm Insurance Intercreditor Agreement beyond any applicable notice and cure periods contained therein; or if the Windstorm Insurance Intercreditor Agreement shall be surrendered, terminated or canceled for any reason or under any circumstances whatsoever, except with the consent of Lender; or if any of the terms, covenants or conditions of the Windstorm Insurance Intercreditor Agreement shall in any manner be modified, changed, supplemented, altered, restated or amended without the consent of Lender;
(xv) if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower fails to comply with the covenants as to Prescribed Laws set forth in Section 5.1.1 hereof;
(xvi) if a material default has occurred and continues beyond any applicable cure period under any Management Agreement and if such default permits the Manager, the Operating Company or the Mortgage Borrower party thereto to terminate or cancel the Management Agreement in questionAgent;
(xvii) any Gaming License shall be refused, suspended, revoked, modified in a materially adverse manner or canceled or allowed to lapse or any proceeding is commenced by any Governmental Authority for the purpose of suspending, revoking or canceling any Gaming License in any materially adverse respect, or any Governmental Authority shall have appointed a conservator, supervisor or trustee to or for any of the Casino Components and, in each case of the foregoing, such action could reasonably be expected to (A) have an Individual Material Adverse Effect, (B) materially and adversely affect the continued operation of the Casino Components in the usual course of business and in substantially the same manner and to at least the same standard as was maintained prior to such action, or (C) result in any material decrease in the then expected cash flow and revenues to be derived from the Casino Components;
(xviii) if any Borrower shall continue to be in Default under any of the other terms, covenants or conditions of this Agreement not specified in subsections clauses (i) to (xviixvi) above, for ten (10) days after notice to Borrower from LenderAgent, in the case of any Default which can be cured by the payment of a sum of money, or for thirty (30) days after notice from Lender Agent in the case of any other Default; provided, however, that if such non-monetary Default is susceptible of cure but cannot reasonably be cured within such thirty (30) day period and provided further that such Borrower shall have commenced to cure such Default within such thirty (30) day period and thereafter diligently and expeditiously proceeds to cure the same, such thirty (30) day period shall be extended for such time as is reasonably necessary for such Borrower in the exercise of due diligence to cure such Default, such additional period not to exceed one hundred twenty ninety (12090) days;
(xviii) if Borrower shall fail to perform as required by the Ground Lease with respect to the Ground Lease Put on or before the date that is ten (10) days prior to the date the Association (as defined in the Agreement Concerning Interests) may compel Borrower to perform under the Ground Lease Put on the Association’s behalf under the Agreement Concerning Interests; and
(xix) if there shall be a default or breach under any of the other Loan Documents beyond any applicable notice and/or cure periods contained in such documentsLoan Documents, whether as to any Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Guarantor or the Collateral, the Senior Mezzanine Collateral or any Individual Property, or if any other such event shall occur or condition shall exist, if the effect of such event or condition is to accelerate the maturity of any portion of the Debt or to permit Lender Agent to accelerate the maturity of all or any portion of the Debt;
(xx) if the Liens created pursuant to any Loan Document shall cease to be a fully protected enforceable first priority security interest in the Collateral, or any portion of the Collateral is Transferred without Lender’s prior written consent except as permitted hereunder; or
(xxi) if a Mortgage Loan Event of Default or Senior Mezzanine Loan Event of Default shall occur.
(b) Upon the occurrence of an Event of Default (other than an Event of Default described in clauses (vi) or (vii) aboveabove with respect to the Borrower and/or SPE Party only) and at any time thereafterthereafter Agent may, in addition to any other rights or remedies available to it pursuant to this Agreement and the other Loan Documents or at law or in equity, Lender may take such action, without notice or demand, that Lender Agent deems advisable to protect and enforce its rights against Borrower and in and to all or any of the CollateralProperty, including, without limitation, declaring the Debt to be immediately due and payable, and Lender Agent may enforce or avail itself of any or all rights or remedies provided in the Loan Documents and may exercise all the rights and remedies of a secured party under the Uniform Commercial Code, as adopted and enacted by the State or States where any of the Collateral is located, against Borrower and any or all of the CollateralProperty, including, without limitation, all rights or remedies available at law or in equity; and upon any Event of Default described in clauses (vi) or (vii) aboveabove with respect to Borrower and/or SPE Party only, the Debt and all other obligations of Borrower hereunder and under the other Loan Documents shall immediately and automatically become due and payable, without notice or demand, and Borrower hereby expressly waives any such notice or demand, anything contained herein or in any other Loan Document to the contrary notwithstanding.
Appears in 2 contracts
Samples: Loan Agreement (Black Creek Diversified Property Fund Inc.), Loan Agreement (Black Creek Diversified Property Fund Inc.)
Event of Default. (a) Each of the following events shall constitute an event of default hereunder (an “Event of Default”):
” means (i) if (A) any portion Buyer fails to provide adequate assurance of the Debt is not paid in full on the Maturity Date, (B) the Debt Service is not paid in full on or before the related Payment Date, or (C) any other portion of the Debt is not paid within five (5) days of when due;
performance to Seller pursuant to Article 3; (ii) if any of Buyer fails to pay undisputed amounts by the Taxes or Other Charges are not paid (with respect to each or any Individual Property) prior to Delinquency;
invoice due date; (iii) if the Policies (with respect to each either Party makes an assignment or any Individual Property) are not kept in full force and effect, or if certified copies general arrangement for the benefit of the Policies (for each Individual Property) are not delivered to Lender upon request (or certificates thereof, if a Policy shall be renewed and certified copies of the Policy are not immediately available upon such renewal (each Borrower agreeing in such instance to provide copies of the Policies to Lender promptly thereafter));
creditors; (iv) if either Party defaults in any Borrower Transfers payment obligation to the other Party; (v) either Party defaults in any material payment obligation to any of its creditors; (vi) either Party files a petition or otherwise encumbers any portion of the Propertiescommences, the Collateral or the Senior Mezzanine Collateralauthorizes, or there shall acquiesces in the commencement of a proceeding or causes under any bankruptcy or similar law for the protection of creditors or has such petition filed or proceeding commenced against it; (vii) either Party otherwise occur becomes bankrupt or insolvent (however evidenced); (viii) either Party is unable to pay its debts as they fall due; (ix) either Party terminates this Agreement and/or any effective Confirmation (or service to one or more Accounts) for any reason except for a Transfer without Lender’s prior consent termination resulting from an Event of Default committed by the other Party; (x) Seller fails to sell and schedule for delivery, or Buyer fails to purchase and receive natural gas in violation of the provisions of accordance with any effective Confirmation; (xi) either Party falls to perform any material covenant or obligation set forth in this Agreement, the Pledge Agreement or any other Loan Document;
effective Confirmation (vexcept to the extent such failure constitutes a separate Event of Default); or (xii) if any either Party makes a representation or warranty made by any Borrower or any other Loan Party herein or in any other Loan Document, or in any report, certificate, financial statement or other instrument, agreement or document or other material or written information furnished to Lender shall have been that is false or misleading in any material respect as of at any time during the date the representation or warranty was made (and, with respect to any such breach which is not the subject of any other subsection term of this Section 8.1 and which is capable of being cured, such Borrower fails to remedy such condition within ten (10) days following notice to Borrower from Lender, in the case of any such breach which can be cured by the payment of a sum of money, or within thirty (30) days following notice from Lender in the case of any other such breach);
(vi) if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower shall make an assignment for the benefit of creditors; or if a receiver, liquidator or trustee shall be appointed for any Borrower, Senior Mezzanine Borrower or Mortgage Borrower, or if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower shall be adjudicated a bankrupt or insolvent, or if any petition for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by or against, consented to, or acquiesced in by, Borrower or Senior Mezzanine Borrower, or if any proceeding for the dissolution or liquidation of any Borrower, Senior Mezzanine Borrower or Mortgage Borrower shall be instituted; provided, however, if such appointment, adjudication, petition or proceeding was involuntary and not consented to by any Borrower, Senior Mezzanine Borrower or Mortgage Borrower, upon the same not being discharged, stayed or dismissed within ninety (90) days;
(vii) if any Operating Company, any Manager, Principal, Holdings or any Guarantor shall make an assignment for the benefit of creditors; or if a receiver, liquidator or trustee shall be appointed for any such Operating Company, any such Manager, Principal, Holdings or any such Guarantor, or if any Operating Company, any Manager, Principal, Holdings or any Guarantor shall be adjudicated a bankrupt or insolvent, or if any petition for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by or against, consented to, or acquiesced in by, any Operating Company, any Manager, Principal, Holdings or any Guarantor, or if any proceeding for the dissolution or liquidation of any Operating Company, any Manager, Principal, Holdings or any Guarantor shall be instituted; provided, however, if such appointment, adjudication, petition or proceeding was involuntary and not consented to by any such Operating Company, any such Manager, Principal, Holdings or any such Guarantor, upon the same not being discharged, stayed or dismissed within ninety (90) days;
(viii) if any Borrower attempts to assign its rights under this Agreement or any of the other Loan Documents or any interest herein or therein in contravention of the Loan Documents;
(ix) if any Borrower breaches any of its respective negative covenants contained in Section 5.2 or any covenant contained in Section 4.1.30 or Section 5.1.11 hereof (and, with respect to any such breach of any covenant set forth in Section 5.1.11 which is not the subject of any other subsection of this Section 8.1, such Borrower fails to remedy such condition within ten (10) days after notice to Borrower from Lender, in the case of any such Default under Section 5.1.11 which can be cured by the payment of a sum of money, or for thirty (30) days after notice from Lender in the case of any other such Default under Section 5.1.11);
(x) with respect to any term, covenant or provision set forth herein which specifically contains a notice requirement or grace period, if any Borrower shall be in default under such term, covenant or condition after the giving of such notice or the expiration of such grace period;
(xi) if any of the assumptions contained in the Insolvency Opinion delivered in connection with the Loan, or in the Additional Insolvency Opinion delivered subsequent to the closing of the Loan, is or shall become untrue in any material respect; or if any of the assumptions contained in the True Lease Opinion in connection with the Loan, or in the Additional True Lease Opinion delivered subsequent to the closing of the Loan, is or shall become untrue in any material respect;
(xii) if any Mortgage Borrower, any Operating Company or any Guarantor (Operating Lease) is in default of any of its material obligations under any Operating Lease (or under another lease and/or management agreement in substitution for such Operating Lease in accordance herewith) or under any such Operating Lease Guaranty (or under another operating lease guaranty in substitution for such Operating Lease Guaranty in accordance herewith) beyond any applicable notice and cure periods contained therein; or if any Operating Lease (or such other lease and/or management agreement) or any Operating Lease Guaranty (or such other operating lease guaranty) shall be surrendered or any Operating Lease or any Operating Lease Guaranty shall be terminated or canceled for any reason or under any circumstances whatsoever, except with the consent of Lender; or if any of the terms, covenants or conditions of any Operating Lease (or such other lease and/or management agreement) or any Operating Lease Guaranty (or such other operating lease guaranty) shall in any manner be modified, changed, supplemented, altered, restated or amended without the consent of Lender except as may otherwise expressly permitted in this Agreement;
(xiii) intentionally omitted;
(xiv) if any Affiliate of any Borrower that is or becomes a party to the Windstorm Insurance Intercreditor Agreement is in default of any of its material obligations under the Windstorm Insurance Intercreditor Agreement beyond any applicable notice and cure periods contained therein; or if the Windstorm Insurance Intercreditor Agreement shall be surrendered, terminated or canceled for any reason or under any circumstances whatsoever, except with the consent of Lender; or if any of the terms, covenants or conditions of the Windstorm Insurance Intercreditor Agreement shall in any manner be modified, changed, supplemented, altered, restated or amended without the consent of Lender;
(xv) if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower fails to comply with the covenants as to Prescribed Laws set forth in Section 5.1.1 hereof;
(xvi) if a material default has occurred and continues beyond any applicable cure period under any Management Agreement and if such default permits the Manager, the Operating Company or the Mortgage Borrower party thereto to terminate or cancel the Management Agreement in question;
(xvii) any Gaming License shall be refused, suspended, revoked, modified in a materially adverse manner or canceled or allowed to lapse or any proceeding is commenced by any Governmental Authority for the purpose of suspending, revoking or canceling any Gaming License in any materially adverse respect, or any Governmental Authority shall have appointed a conservator, supervisor or trustee to or for any of the Casino Components and, in each case of the foregoing, such action could reasonably be expected to (A) have an Individual Material Adverse Effect, (B) materially and adversely affect the continued operation of the Casino Components in the usual course of business and in substantially the same manner and to at least the same standard as was maintained prior to such action, or (C) result in any material decrease in the then expected cash flow and revenues to be derived from the Casino Components;
(xviii) if any Borrower shall continue to be in Default under any of the other terms, covenants or conditions of this Agreement not specified in subsections (i) to (xvii) above, for ten (10) days after notice to Borrower from Lender, in the case of any Default which can be cured by the payment of a sum of money, or for thirty (30) days after notice from Lender in the case of any other Default; provided, however, that if such non-monetary Default is susceptible of cure but cannot reasonably be cured within such thirty (30) day period and provided further that such Borrower shall have commenced to cure such Default within such thirty (30) day period and thereafter diligently and expeditiously proceeds to cure the same, such thirty (30) day period shall be extended for such time as is reasonably necessary for such Borrower in the exercise of due diligence to cure such Default, such additional period not to exceed one hundred twenty (120) days;
(xix) if there shall be a default under any of the other Loan Documents beyond any applicable cure periods contained in such documents, whether as to any Borrower, Mortgage Borrower, Senior Mezzanine Borrower, the Collateral, the Senior Mezzanine Collateral or any Individual Property, or if any other such event shall occur or condition shall exist, if the effect of such event or condition is to accelerate the maturity of any portion of the Debt or to permit Lender to accelerate the maturity of all or any portion of the Debt;
(xx) if the Liens created pursuant to any Loan Document shall cease to be a fully protected enforceable first priority security interest in the Collateral, or any portion of the Collateral is Transferred without Lender’s prior written consent except as permitted hereunder; or
(xxi) if a Mortgage Loan Event of Default or Senior Mezzanine Loan Event of Default shall occur.
(b) . Upon the occurrence of an Event of Default (other than an Default, the Party not committing the Event of Default described in clauses (vi“Non-Defaulting Party”) or (vii) above) and at any time thereaftershall have the right to suspend service and/or terminate this Agreement, including all effective Confirmations, in addition to any and all other rights or remedies available to it pursuant to this Agreement and the other Loan Documents or at law or in equityhereunder. 5. REMEDY 5.1 During any Delivery Period, Lender may take such action, without notice or demand, that Lender deems advisable to protect and enforce its rights against Borrower and in and to all or any of the Collateral, including, without limitation, declaring the Debt to be immediately due and payable, and Lender may enforce or avail itself of any or all rights or remedies provided in the Loan Documents and may exercise all the rights and remedies of a secured party under the Uniform Commercial Code, as adopted and enacted by the State or States where any of the Collateral is located, against Borrower and any or all of the Collateral, including, without limitation, all rights or remedies available at law or in equity; and upon any if either Party commits an Event of Default described in clauses (vi) or the “Defaulting Party”), then the Defaulting Party shall pay and the Non-Defaulting Party shall be entitled to, as its exclusive remedy, early termination damages arising out of the Event of Default as reasonably calculated by Seller (vii) above“Early Termination Damages”). The Parties expressly acknowledge that should an Event of Default occur, the Debt damages would be difficult to ascertain and all other obligations of Borrower hereunder and under the other Loan Documents shall immediately and automatically become due and payable, without notice or demandquantify, and Borrower hereby expressly waives any such notice agree that this provision for calculating damages (i) is reasonable in light of the anticipated or demandactual harm, anything contained herein or (ii) shall be followed in lieu of any other Loan Document to the contrary notwithstandingmethods of calculating or estimating direct actual damages, and (iii) is not a penalty.
Appears in 2 contracts
Samples: Master Retail Gas Sales Agreement, Master Retail Gas Sales Agreement (Minn Shares Inc)
Event of Default. (a) Each and every one of the following events shall constitute an event of default hereunder (is an “Event of Default”):” under the Agreement:
(ia) if (A) any portion in the opinion of the Debt is not paid City, the Participant fails to conform or comply with any term or covenant contained in full on this Agreement to be performed or complied with by the Maturity Date, (B) the Debt Service is not paid in full on or before the related Payment Date, or (C) any other portion of the Debt is not paid within five (5) days of when dueParticipant;
(iib) if in the opinion of the City, the Participant has made materially false or misleading representations or statements, or provided materially false or misleading information to the City in relations to the Agreement;
(c) if an order shall be made or an effective resolution passed for the winding up, or liquidation or dissolution of the Participant or the Participant is otherwise dissolved or ceases to carry on its operation;
(d) if the Participant uses any of the Taxes or Other Charges are Incentive for a purpose not paid (with respect to each or any Individual Property) authorized by this Agreement without the prior to Delinquencywritten consent of the City;
(iiie) if the Policies (with respect Participant admits in writing its inability to each or any Individual Property) are not kept in full force and effectpay its debts generally as they become due, or if certified copies voluntarily suspends transactions of the Policies (for each Individual Property) are not delivered to Lender upon request (or certificates thereofits usual business, if a Policy shall be renewed and certified copies of the Policy are not immediately available upon such renewal (each Borrower agreeing in such instance to provide copies of the Policies to Lender promptly thereafter));
(iv) if any Borrower Transfers or otherwise encumbers any portion of the Propertiesbecomes insolvent, the Collateral or the Senior Mezzanine Collateralbankrupt, or there shall otherwise occur a Transfer without Lender’s prior consent in violation of the provisions of this Agreement, the Pledge Agreement or any other Loan Document;
(v) if any representation or warranty made by any Borrower or any other Loan Party herein or in any other Loan Document, or in any report, certificate, financial statement or other instrument, agreement or document or other material or written information furnished to Lender shall have been false or misleading in any material respect as of the date the representation or warranty was made (and, with respect to any such breach which is not the subject of any other subsection of this Section 8.1 and which is capable of being cured, such Borrower fails to remedy such condition within ten (10) days following notice to Borrower from Lender, in the case of any such breach which can be cured by the payment of a sum of money, or within thirty (30) days following notice from Lender in the case of any other such breach);
(vi) if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower shall make makes an assignment for the benefit of its creditors; , or a receiver or manager, court appointed or otherwise, is appointed for its assets or if the Participant takes the benefit of any statute from time to time in force relating to bankrupts or insolvent debtors;
(f) if in the opinion of the City a receivermaterial adverse change occurs such that the viability of the Participant to meet its obligations under the Agreement is a concern or threatened in the opinion of the City, liquidator or trustee shall be appointed for any Borroweracting reasonably;
(g) if in the opinion of the City, Senior Mezzanine Borrower or Mortgage Borrowerthe Participant abandons, or attempts to abandon the Deep Retrofit Project as contemplated by the Agreement or ceases to own the Building, and does not assign or transfer its interest in the Agreement as outlined in Section 32 (Assignment) to the new Building owner;
(h) if the Participant fails to begin the Deep Retrofit Project or meet any Borrower, Senior Mezzanine Borrower or Mortgage Borrower shall be adjudicated a bankrupt or insolventof the Agreement timelines, or such other date as agreed to by the City or such period as the City may allow, or, in the opinion of the City, the Participant has failed to proceed diligently with the Deep Retrofit Project or abandons the Deep Retrofit Project in whole or in part;
(i) if in the opinion of the City, the Participant makes a material change to any petition for bankruptcyelement of the Deep Retrofit Project that results in a predicted failure to achieve the Deep Retrofit Design minimum requirements, reorganization or arrangement pursuant as outlined under Schedule B (Deep Retrofit Design Requirements), and/or meet the Required Retrofit Completion Date;
(j) If the Participant fails to federal bankruptcy lawnotify the City promptly of any material change in the information contained herein relating to the Participant's business, Deep Retrofit Application, the Deep Retrofit Design Report including the Project Budget and Timeline, or any similar federal or state law, shall be filed by or against, consented to, or acquiesced in by, Borrower or Senior Mezzanine Borrower, or if any proceeding for the dissolution or liquidation details of any Borrower, Senior Mezzanine Borrower substantial claims affecting the Participant's ability to meet the requirements of the Deep Retrofit Challenge or Mortgage Borrower shall be instituted; provided, however, if such appointment, adjudication, petition or proceeding was involuntary and not consented undertake the Retrofit Work required to by any Borrower, Senior Mezzanine Borrower or Mortgage Borrower, upon complete the same not being discharged, stayed or dismissed within ninety (90) daysDeep Retrofit Design;
(viik) if If the Participant fails to obtain any Operating Company, any Manager, Principal, Holdings or any Guarantor shall make an assignment for permits required to completed the benefit of creditors; or if a receiver, liquidator or trustee shall be appointed for any such Operating Company, any such Manager, Principal, Holdings or any such Guarantor, or if any Operating Company, any Manager, Principal, Holdings or any Guarantor shall be adjudicated a bankrupt or insolvent, or if any petition for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by or against, consented to, or acquiesced in by, any Operating Company, any Manager, Principal, Holdings or any Guarantor, or if any proceeding for the dissolution or liquidation of any Operating Company, any Manager, Principal, Holdings or any Guarantor shall be instituted; provided, however, if such appointment, adjudication, petition or proceeding was involuntary and not consented to by any such Operating Company, any such Manager, Principal, Holdings or any such Guarantor, upon the same not being discharged, stayed or dismissed within ninety (90) daysRetrofit Work;
(viiil) if any Borrower attempts If the Participant fails to assign its rights under this Agreement or any pay all taxes, rates, levies, assessments and other charges of every nature in respect of the other Loan Documents Deep Retrofit Project, which may be lawfully levied, assessed or any interest herein imposed against or therein in contravention respect of the Loan Documents;
(ix) if any Borrower breaches any of its respective negative covenants contained in Section 5.2 or any covenant contained in Section 4.1.30 or Section 5.1.11 hereof (and, with respect to any Participant as and when the same becomes due and payable and such breach of any covenant set forth in Section 5.1.11 which is defect has not the subject of any other subsection of this Section 8.1, such Borrower fails to remedy such condition within ten (10) days after notice to Borrower from Lender, in the case of any such Default under Section 5.1.11 which can be been cured by or remedied by the payment of a sum of money, or for Participant within thirty (30) calendar days after notice from Lender in of Written Notice of such defect having been provided to the case of any other such Default under Section 5.1.11)Participant by the City;
(xm) with respect the Participant fails to any term, covenant or provision set forth herein which specifically contains a notice requirement or grace period, if any Borrower shall be in default under such term, covenant or condition after the giving of such notice or the expiration of such grace period;
(xi) if any of the assumptions contained in the Insolvency Opinion delivered in connection with the Loan, or in the Additional Insolvency Opinion delivered subsequent to the closing of the Loan, is or shall become untrue in any material respect; or if any of the assumptions contained in the True Lease Opinion in connection with the Loan, or in the Additional True Lease Opinion delivered subsequent to the closing of the Loan, is or shall become untrue in any material respect;
(xii) if any Mortgage Borrower, any Operating Company or any Guarantor (Operating Lease) is in default of any of its material obligations under any Operating Lease (or under another lease and/or management agreement in substitution for such Operating Lease maintain insurance in accordance herewith) or under any such Operating Lease Guaranty (or under another operating lease guaranty in substitution for such Operating Lease Guaranty in accordance herewith) beyond any applicable notice and cure periods contained therein; or if any Operating Lease (or such other lease and/or management agreement) or any Operating Lease Guaranty (or such other operating lease guaranty) shall be surrendered or any Operating Lease or any Operating Lease Guaranty shall be terminated or canceled for any reason or under any circumstances whatsoever, except with the consent of Lender; or if any of the terms, covenants or conditions of any Operating Lease (or such other lease and/or management agreement) or any Operating Lease Guaranty (or such other operating lease guaranty) shall in any manner be modified, changed, supplemented, altered, restated or amended without the consent of Lender except as may otherwise expressly permitted in this Agreement;
(xiiin) intentionally omittedthe Participant or any of its respective advisors, partners, directors, officers, employees, agents, subcontractors and volunteers have breached the requirements of Section 19 (Conflict of Interest and Confidentiality);
(xivo) if any Affiliate of any Borrower that is term, condition or becomes a party to the Windstorm Insurance Intercreditor undertaking in this Agreement is in default of any of its material obligations under not complied with and such defect has not been cured by or remedied by the Windstorm Insurance Intercreditor Agreement beyond any applicable notice and cure periods contained thereinParticipant; or if the Windstorm Insurance Intercreditor Agreement shall be surrendered, terminated or canceled for any reason or under any circumstances whatsoever, except with the consent of Lender; or if any of the terms, covenants or conditions of the Windstorm Insurance Intercreditor Agreement shall in any manner be modified, changed, supplemented, altered, restated or amended without the consent of Lender;and
(xvp) if any Borrower, Senior Mezzanine Borrower the Participant neglects or Mortgage Borrower fails to comply pay the City any amount due in accordance with the covenants as to Prescribed Laws set forth in Section 5.1.1 hereof;
(xvi) if a material default has occurred and continues beyond any applicable cure period under any Management Agreement and if such default permits the Manager, the Operating Company or the Mortgage Borrower party thereto to terminate or cancel the Management Agreement in question;
(xvii) any Gaming License shall be refused, suspended, revoked, modified in a materially adverse manner or canceled or allowed to lapse or any proceeding is commenced by any Governmental Authority for the purpose of suspending, revoking or canceling any Gaming License in any materially adverse respect, or any Governmental Authority shall have appointed a conservator, supervisor or trustee to or for any of the Casino Components and, in each case of the foregoing, such action could reasonably be expected to (A) have an Individual Material Adverse Effect, (B) materially and adversely affect the continued operation of the Casino Components in the usual course of business and in substantially the same manner and to at least the same standard as was maintained prior to such action, or (C) result in any material decrease in the then expected cash flow and revenues to be derived from the Casino Components;
(xviii) if any Borrower shall continue to be in Default under any of the other terms, covenants or conditions of this Agreement not specified in subsections (i) to (xvii) above, for ten (10) days after notice to Borrower from Lender, in the case of any Default which can be cured by the payment of a sum of money, or for thirty (30) days after notice from Lender in the case of any other Default; provided, however, that if such non-monetary Default is susceptible of cure but cannot reasonably be cured within such thirty (30) day period and provided further that such Borrower shall have commenced to cure such Default within such thirty (30) day period and thereafter diligently and expeditiously proceeds to cure the same, such thirty (30) day period shall be extended for such time as is reasonably necessary for such Borrower in the exercise of due diligence to cure such Default, such additional period not to exceed one hundred twenty (120) days;
(xix) if there shall be a default under any of the other Loan Documents beyond any applicable cure periods contained in such documents, whether as to any Borrower, Mortgage Borrower, Senior Mezzanine Borrower, the Collateral, the Senior Mezzanine Collateral or any Individual Property, or if any other such event shall occur or condition shall exist, if the effect of such event or condition is to accelerate the maturity of any portion of the Debt or to permit Lender to accelerate the maturity of all or any portion of the Debt;
(xx) if the Liens created pursuant to any Loan Document shall cease to be a fully protected enforceable first priority security interest in the Collateral, or any portion of the Collateral is Transferred without Lender’s prior written consent except as permitted hereunder; or
(xxi) if a Mortgage Loan Event of Default or Senior Mezzanine Loan Event of Default shall occurAgreement.
(b) Upon the occurrence of an Event of Default (other than an Event of Default described in clauses (vi) or (vii) above) and at any time thereafter, in addition to any other rights or remedies available to it pursuant to this Agreement and the other Loan Documents or at law or in equity, Lender may take such action, without notice or demand, that Lender deems advisable to protect and enforce its rights against Borrower and in and to all or any of the Collateral, including, without limitation, declaring the Debt to be immediately due and payable, and Lender may enforce or avail itself of any or all rights or remedies provided in the Loan Documents and may exercise all the rights and remedies of a secured party under the Uniform Commercial Code, as adopted and enacted by the State or States where any of the Collateral is located, against Borrower and any or all of the Collateral, including, without limitation, all rights or remedies available at law or in equity; and upon any Event of Default described in clauses (vi) or (vii) above, the Debt and all other obligations of Borrower hereunder and under the other Loan Documents shall immediately and automatically become due and payable, without notice or demand, and Borrower hereby expressly waives any such notice or demand, anything contained herein or in any other Loan Document to the contrary notwithstanding.
Appears in 2 contracts
Samples: Deep Retrofit Challenge Participant Agreement, Deep Retrofit Challenge Participant Agreement
Event of Default. (a) Each of the following events shall constitute an event of default hereunder (an “Event of Default”):
(i) if (A) any portion of Monthly Debt Service Payment Amount is not paid on or before the date when due, (B) the Debt is not paid in full on the Maturity Date, (B) the Debt Service is not paid in full on or before the related Payment Date, Date or (C) any other portion of the Debt not specified in the foregoing subclause (A) or subclause (B) is not paid within on or prior to the date when the same is due with such failure continuing for five (5) days of when dueBusiness Days after Administrative Agent delivers written notice thereof to Borrower, including, without limitation, any Fees payable pursuant to the Fee Letter;
(ii) if any of the Taxes or material Other Charges are not paid (with respect when the same become delinquent, subject to each or any Individual Property) prior Borrower’s rights to Delinquencycontest same as provided herein;
(iii) if the Policies (with respect to each or any Individual Property) are not kept in full force and effect, or if certified copies of the Policies (for each Individual Property) are not delivered to Lender upon request (or certificates thereof, if a Policy shall be renewed and certified copies of the Policy are not immediately available upon such renewal (each Borrower agreeing in such instance to provide copies of the Policies to Lender promptly thereafter));
(iv) if any Borrower Transfers or otherwise encumbers any portion shall fail to deliver to Administrative Agent certificates of insurance evidencing the Policies and such other documentation as reasonably requested by Administrative Agent in respect of the Properties, Policies within the Collateral or the Senior Mezzanine Collateral, or there shall otherwise occur a applicable time periods set forth in Section 6.1(b) hereof;
(v) if any Transfer without Lender’s prior consent is consummated in violation of the provisions of this Agreement, the Pledge Agreement or any other Loan DocumentSection 5.2.10 hereof;
(vvi) if any representation or warranty made by any Borrower herein or by Borrower or any other Loan Party herein or Guarantor in any other Loan Document, or in any report, certificate, financial statement or other instrument, agreement or document or other material materials or written information furnished to Lender Administrative Agent shall have been false or misleading in any material adverse respect as of the date the representation or warranty was made made, provided that if such untrue representation or warranty is susceptible of being cured (andfor the avoidance of doubt, with respect a statement which has already been relied on by Administrative Agent to any such breach which is its detriment shall not the subject of any other subsection of this Section 8.1 and which is capable be susceptible of being cured), Borrower shall have the right to cure such Borrower fails to remedy such condition within ten (10) days following notice to Borrower from Lender, in the case of any such breach which can be cured by the payment of a sum of money, representation or warranty within thirty (30) days following of receipt of notice from Lender in the case of any other such breach)Administrative Agent;
(vivii) if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower any SPE Constituent Entity shall make an assignment for the benefit of creditors; or ;
(viii) if a receiver, liquidator or trustee shall be appointed for any Borrower, Senior Mezzanine Borrower or Mortgage Borrower, any SPE Constituent Entity or if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower any SPE Constituent Entity shall be adjudicated a bankrupt or insolvent, or if any petition for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, the Bankruptcy Code shall be filed by or against, consented to, or acquiesced in by, Borrower or Senior Mezzanine Borrowerany SPE Constituent Entity, or if any proceeding for the dissolution or liquidation of any Borrower, Senior Mezzanine Borrower or Mortgage Borrower any SPE Constituent Entity shall be instituted; provided, however, if such appointment, adjudication, petition or proceeding was involuntary and not consented to by any Borrower, Senior Mezzanine Borrower or Mortgage Borrower, any SPE Constituent Entity upon the same not being discharged, stayed or dismissed within ninety (90) days;
(viiix) only upon the declaration by Administrative Agent that the same constitutes an Event of Default (which declaration may be made by Administrative Agent in its sole discretion) if any Operating Company, any Manager, Principal, Holdings (A) Guarantor or any Guarantor other guarantor or indemnitor under any guaranty or indemnity that may be entered into in respect of the Loan following the Closing Date shall make an assignment for the benefit of creditors; creditors or if if, (B) a receiver, liquidator or trustee shall be appointed for Guarantor or any such Operating Company, guarantor or indemnitor under any such Manager, Principal, Holdings guarantee or indemnity issued in connection with the Loan or if Guarantor or any such Guarantor, other guarantor or if any Operating Company, any Manager, Principal, Holdings or any Guarantor indemnitor shall be adjudicated a bankrupt or insolvent, or if (C) any petition for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, the Bankruptcy Code shall be filed by or against, consented to, or acquiesced in by, any Operating Company, any Manager, Principal, Holdings Guarantor or any Guarantorsuch other guarantor or indemnitor, or if (D) any proceeding for the dissolution or liquidation of any Operating Company, any Manager, Principal, Holdings Guarantor or any Guarantor such other guarantor or indemnitor shall be instituted; provided, however, if such appointment, adjudication, petition or proceeding was involuntary and not consented to by any Guarantor or such Operating Company, any such Manager, Principal, Holdings other guarantor or any such Guarantorindemnitor, upon the same not being discharged, stayed or dismissed within ninety (90) days;
(viiix) if any Borrower or Guarantor attempts to assign its rights under this Agreement or any of the other Loan Documents or any interest herein or therein in contravention of the Loan Documents;
(ixxi) if any Borrower breaches any of its respective negative covenants contained in Section 5.2 or any covenant contained in Section 4.1.30 or Section 5.1.11 hereof (and5.1.29 hereof, with respect to provided, however, that any such breach shall not constitute an Event of any covenant set forth in Section 5.1.11 which Default (A) if such breach is not the subject of any other subsection of this Section 8.1inadvertent and non-recurring, (B) if such breach is curable, if Borrower fails to remedy shall promptly cure such condition breach within ten (10) days after notice to Borrower from Lender, in the case of any such Default under Section 5.1.11 which can be cured by the payment of a sum of money, or for thirty (30) days after notice from Lender such breach occurs, and (C) upon the written request of Administrative Agent, if Borrower promptly delivers to Administrative Agent an Additional Insolvency Opinion or a modification of the Insolvency Opinion, as applicable, to the effect that such breach shall not in any way impair, negate or amend the opinions rendered in the case of any other Insolvency Opinion, which opinion or modification and the counsel delivering such Default under Section 5.1.11)opinion and modification shall be acceptable to Administrative Agent in its sole discretion;
(xxii) with respect to any term, covenant or provision set forth herein which specifically contains a notice requirement or grace period, if any Borrower shall be in default under such term, covenant or condition after the giving of such notice or the expiration of such grace period;
(xixiii) if any of the assumptions contained in the Insolvency Opinion delivered to Administrative Agent in connection with the Loan, or in the any Additional Insolvency Opinion delivered subsequent to the closing of the Loan, is or shall become untrue in any material respect; or if any of the assumptions contained in the True Lease Opinion in connection with the Loan, or in the Additional True Lease Opinion delivered subsequent to the closing of the Loan, is or shall become untrue in any material respect;
(xii) if any Mortgage Borrower, any Operating Company or any Guarantor (Operating Lease) is in default of any of its material obligations under any Operating Lease (or under another lease and/or management agreement in substitution for such Operating Lease in accordance herewith) or under any such Operating Lease Guaranty (or under another operating lease guaranty in substitution for such Operating Lease Guaranty in accordance herewith) beyond any applicable notice and cure periods contained therein; or if any Operating Lease (or such other lease and/or management agreement) or any Operating Lease Guaranty (or such other operating lease guaranty) shall be surrendered or any Operating Lease or any Operating Lease Guaranty shall be terminated or canceled for any reason or under any circumstances whatsoever, except with the consent of Lender; or if any of the terms, covenants or conditions of any Operating Lease (or such other lease and/or management agreement) or any Operating Lease Guaranty (or such other operating lease guaranty) shall in any manner be modified, changed, supplemented, altered, restated or amended without the consent of Lender except as may otherwise expressly permitted in this Agreement;
(xiii) intentionally omitted;
(xiv) if any Affiliate of any Borrower that is or becomes a party to the Windstorm Insurance Intercreditor Agreement is in default of any of its material obligations under the Windstorm Insurance Intercreditor Agreement beyond any applicable notice and cure periods contained therein; or if the Windstorm Insurance Intercreditor Agreement shall be surrendered, terminated or canceled for any reason or under any circumstances whatsoever, except with the consent of Lender; or if any of the terms, covenants or conditions of the Windstorm Insurance Intercreditor Agreement shall in any manner be modified, changed, supplemented, altered, restated or amended without the consent of Lender;
(xv) if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower fails to comply with the covenants as to Prescribed Laws set forth in Section 5.1.1 hereof;
(xvi) if a material default has occurred and continues beyond any applicable cure period under any the Management Agreement (or any Replacement Management Agreement) and if such default permits the Manager, the Operating Company or the Mortgage Borrower party thereto Manager thereunder to terminate or cancel the Management Agreement (or any Replacement Management Agreement), unless Borrower engages a Qualified Manager in questionaccordance with the terms and conditions of Section 5.2.1 within ten (10) days of notice of such default;
(xviixv) if a material default by Borrower has occurred and continues beyond any Gaming License applicable cure period under any REA, provided, however, that prior to declaring an Event of Default under this clause (xv), Administrative Agent shall be refused, suspended, revoked, modified in a materially adverse manner or canceled or allowed permit Borrower to lapse or any proceeding is commenced by any Governmental Authority for release the purpose of suspending, revoking or canceling any Gaming License in any materially adverse respect, or any Governmental Authority shall have appointed a conservator, supervisor or trustee Property subject to or for any such REA creating such default within forty-five (45) days of the Casino Components and, in each case date of such default upon payment of the foregoing, such action could reasonably be expected to (A) have an Individual Material Adverse Effect, (B) materially applicable Release Amount and adversely affect the continued operation satisfaction of the Casino Components conditions set forth in the usual course of business Section 2.4.1 hereof (excluding Section 2.4.1(a) if otherwise applicable) and in substantially the same manner and to at least the same standard as was maintained prior to such action, or Section 2.6.1 hereof (Cexcluding clause (a)(iv) result in any material decrease in the then expected cash flow and revenues to be derived from the Casino Componentsthereof);
(xviiixvi) if any Borrower shall continue to be in Default under breach any of the other terms, covenants or conditions of this Agreement and the other Loan Documents not specified in subsections clauses (i) to (xviixv) aboveabove or (xviii) below, and such Default shall continue for ten (10) days after written notice to Borrower from LenderAdministrative Agent, in the case of any such Default which can be cured by the payment of a sum of money, or for thirty (30) days after written notice from Lender Administrative Agent in the case of any other Default; provided, however, that if such non-monetary Default is susceptible of cure but cannot reasonably be cured within such thirty (30) day period and provided further that such Borrower shall have commenced to cure such Default within such thirty (30) day period and thereafter diligently and expeditiously proceeds to cure the same, such thirty (30) day period shall be extended for such time as is reasonably necessary for such Borrower in the exercise of due diligence to cure such Default, such additional period not to exceed one hundred twenty ninety (12090) days;
(xixxvii) if there shall be a any default under any of the other Loan Documents beyond any applicable cure periods contained in such documents or, if no cure period is specified in such documents, beyond the cure period specified in Section 8.1(xvi), whether as to any Borrower, Mortgage Borrower, Senior Mezzanine Borrower, the Collateral, the Senior Mezzanine Collateral Borrower or any Individual Property, or if any other such event shall occur or condition shall exist, if the effect of such event or condition is to accelerate the maturity of any portion of the Debt or to permit Lender Administrative Agent to accelerate the maturity of all or any portion of the Debt;
(xx) if the Liens created pursuant to any Loan Document shall cease to be a fully protected enforceable first priority security interest in the Collateral, or any portion of the Collateral is Transferred without Lender’s prior written consent except as permitted hereunder; or
(xxixviii) if a Mortgage Loan Event of Default Borrower shall fail to obtain and/or maintain the Interest Rate Protection Agreement or Senior Mezzanine Loan Event of Default shall occurReplacement Interest Rate Protection Agreement, as applicable, as required pursuant to Section 2.2.7 hereof.
(b) Upon the occurrence of an Event of Default (other than an Event of Default described in clauses (vivii), (viii) or (viix) above) and at any time thereafter, in addition to any other rights or remedies available to it pursuant to this Agreement and the other Loan Documents or at law or in equity, Lender may Administrative Agent may, at the direction of the Requisite Lenders, take such action, without notice or demand, that Lender Administrative Agent deems advisable to protect and enforce its rights against Borrower and in and to all or any of the CollateralIndividual Property, including, without limitation, declaring the Debt to be immediately due and payable, and Lender Administrative Agent may enforce or avail itself of any or all rights or remedies provided in the Loan Documents and may exercise all the rights and remedies of a secured party under the Uniform Commercial Code, as adopted and enacted by the State or States where any of the Collateral is located, against Borrower and any or all of the CollateralProperties, including, without limitation, all rights or remedies available at law or in equity; and upon any Event of Default described in clauses (vivii), (viii) or (viix) above, the Debt and all other obligations of Borrower hereunder and under the other Loan Documents Other Obligations shall immediately and automatically become due and payable, without notice or demand, and Borrower hereby expressly waives any such notice or demand, anything contained herein or in any other Loan Document to the contrary notwithstanding.
Appears in 2 contracts
Samples: Loan Agreement (Excel Trust, L.P.), Loan Agreement (Excel Trust, L.P.)
Event of Default. (a) Each of the following events shall constitute an event of default hereunder (an “Event of Default”):
(i) if (A) any portion payment of the Debt principal or interest is not paid in full when due; provided that it shall not be an Event of Default if a monthly Debt Service payment or other monthly payment is not paid on the Maturity Date, (B) the Debt Service Payment Date if (a) sufficient funds are in the Monthly Debt Service Account (as defined in the Cash Management Agreement) to make such payment on the Debt Service Payment Date in question and (b) such payment is not paid in full made on or before the related next Business Day following such Debt Service Payment Date, or (C) any other portion of the Debt is not paid within five (5) days of when due;
(ii) if any of the Taxes or Other Charges are not paid (when due; provided that with respect to each or any Individual PropertyTaxes it shall not be an Event of Default if (a) prior sufficient Tax Funds for the payment of such Taxes were on deposit pursuant to DelinquencySection 6.2 hereof on the date such Taxes were due and (b) such payment is made on the next Business Day following such date;
(iii) if the Policies (with respect to each or any Individual Property) are not kept in full force and effect, or ; provided that it shall not be an Event of Default if certified copies (a) sufficient Insurance Premium Funds for the payment of such Insurance Premiums were on deposit pursuant to Section 6.3 hereof on the Policies date such Insurance Premiums were due and (for each Individual Propertyb) are not delivered to Lender upon request (or certificates thereof, if a Policy shall be renewed and certified copies of such payment is made on the Policy are not immediately available upon next Business Day following such renewal (each Borrower agreeing in such instance to provide copies of the Policies to Lender promptly thereafter))date;
(iv) if Borrower breaches or permits or suffers a breach of any Borrower Transfers covenant contained in Section 2.8, Section 3.1.24, Section 4.2.12 or otherwise encumbers any portion of the Properties, the Collateral or the Senior Mezzanine Collateral, or there shall otherwise occur a Transfer without Lender’s prior consent in violation of the provisions Section 8.1 of this Agreement, the Pledge or if Borrower applies any Rent or Hotel Rent in a manner inconsistent with this Agreement or any other Loan Document;
(v) if any representation or warranty made by any Borrower or any other Loan Party herein or in any other Loan Document, or in any report, certificate, financial statement or other instrument, agreement or document or other material or written information furnished to Lender shall have been false or misleading in any material respect as of the date the representation or warranty was made (and, with respect to any such breach which is not the subject of any other subsection of this Section 8.1 and which is capable of being cured, such Borrower fails to remedy such condition within ten (10) days following notice to Borrower from Lender, in the case of any such breach which can be cured by the payment of a sum of money, or within thirty (30) days following notice from Lender in the case of any other such breach)made;
(vi) if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower Guarantor shall make an assignment for the benefit of creditors; or ;
(vii) if a receiver, liquidator or trustee shall be appointed for any Borrower, Senior Mezzanine Borrower or Mortgage Borrower, Guarantor or if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower Guarantor shall be adjudicated a bankrupt or insolvent, or if any petition for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by or against, consented to, or acquiesced in by, Borrower or Senior Mezzanine Borrower, or if any proceeding for the dissolution or liquidation of any Borrower, Senior Mezzanine Borrower or Mortgage Borrower shall be instituted; provided, however, if such appointment, adjudication, petition or proceeding was involuntary and not consented to by any Borrower, Senior Mezzanine Borrower or Mortgage Borrower, upon the same not being discharged, stayed or dismissed within ninety (90) days;
(vii) if any Operating Company, any Manager, Principal, Holdings or any Guarantor shall make an assignment for the benefit of creditors; or if a receiver, liquidator or trustee shall be appointed for any such Operating Company, any such Manager, Principal, Holdings or any such Guarantor, or if any Operating Company, any Manager, Principal, Holdings or any Guarantor shall be adjudicated a bankrupt or insolvent, or if any petition for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by or against, consented to, or acquiesced in by, any Operating Company, any Manager, Principal, Holdings or any Guarantor, or if any proceeding for the dissolution or liquidation of any Operating Company, any Manager, Principal, Holdings Borrower or any Guarantor shall be instituted; provided, however, if such appointment, adjudication, petition or proceeding was involuntary and not consented to by any such Operating Company, any such Manager, Principal, Holdings Borrower or any such Guarantor, upon the same not being discharged, stayed or dismissed within ninety sixty (9060) days;
(viii) if any Borrower attempts to assign its rights under this Agreement or any of the other Loan Documents or any interest herein or therein in contravention of the Loan Documents;
(ix) if any Borrower breaches any of its respective negative covenants contained in Section 5.2 or any covenant contained in Section 4.1.30 or Section 5.1.11 hereof (and, with respect to any such breach of any covenant set forth in Section 5.1.11 which is not the subject of any other subsection of this Section 8.1, such Borrower fails to remedy such condition within ten (10) days after notice to Borrower from Lender, in the case of any such Default under Section 5.1.11 which can be cured by the payment of a sum of money, or for thirty (30) days after notice from Lender in the case of any other such Default under Section 5.1.11);
(x) with respect to any term, covenant or provision set forth herein which specifically contains a notice requirement or grace period, if any Borrower shall be in default under such term, covenant or condition after the giving of such notice or the expiration of such grace period;
(xi) if any of the assumptions contained in the Insolvency Opinion Opinion, or in any other non-consolidation opinion delivered to Lender in connection with the Loan, or in the Additional Insolvency Opinion delivered subsequent to the closing of the Loan, is or shall become untrue in any material respect; or if any of the assumptions contained in the True Lease Opinion in connection with the Loan, or in the Additional True Lease Opinion other non-consolidation delivered subsequent to the closing of the Loan, is or shall become untrue in any material respect;
(xiix) if any Mortgage Borrower, any Operating Company or any Guarantor (Operating Lease) is in default of any of its material obligations under any Operating Lease (or under another lease and/or management agreement in substitution for such Operating Lease in accordance herewith) or under any such Operating Lease Guaranty (or under another operating lease guaranty in substitution for such Operating Lease Guaranty in accordance herewith) beyond any applicable notice and cure periods contained therein; or if any Operating Lease (or such other lease and/or management agreement) or any Operating Lease Guaranty (or such other operating lease guaranty) shall be surrendered or any Operating Lease or any Operating Lease Guaranty shall be terminated or canceled for any reason or under any circumstances whatsoever, except with the consent of Lender; or if any of the terms, covenants or conditions of any Operating Lease (or such other lease and/or management agreement) or any Operating Lease Guaranty (or such other operating lease guaranty) shall in any manner be modified, changed, supplemented, altered, restated or amended without the consent of Lender except as may otherwise expressly permitted in this Agreement;
(xiii) intentionally omitted;
(xiv) if any Affiliate of any Borrower that is or becomes a party to the Windstorm Insurance Intercreditor Agreement is in default of any of its material obligations under the Windstorm Insurance Intercreditor Agreement beyond any applicable notice and cure periods contained therein; or if the Windstorm Insurance Intercreditor Agreement shall be surrendered, terminated or canceled for any reason or under any circumstances whatsoever, except with the consent of Lender; or if any of the terms, covenants or conditions of the Windstorm Insurance Intercreditor Agreement shall in any manner be modified, changed, supplemented, altered, restated or amended without the consent of Lender;
(xv) if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower fails to comply with the covenants as to Prescribed Laws set forth in Section 5.1.1 hereof;
(xvi) if a material default has occurred and continues beyond any applicable cure period under any Management Agreement and if such default permits the Manager, the Operating Company or the Mortgage Borrower party thereto to terminate or cancel the Management Agreement in question;
(xvii) any Gaming License shall be refused, suspended, revoked, modified in a materially adverse manner or canceled or allowed to lapse or any proceeding is commenced by any Governmental Authority for the purpose of suspending, revoking or canceling any Gaming License in any materially adverse respect, or any Governmental Authority shall have appointed a conservator, supervisor or trustee to or for any of the Casino Components and, in each case of the foregoing, such action could reasonably be expected to (A) have an Individual Material Adverse Effect, (B) materially and adversely affect the continued operation of the Casino Components in the usual course of business and in substantially the same manner and to at least the same standard as was maintained prior to such action, or (C) result in any material decrease in the then expected cash flow and revenues to be derived from the Casino Components;
(xviii) if any Borrower shall continue to be in Default under any of the other terms, covenants or conditions of this Agreement not specified in subsections (i) to (xviiix) above, for ten (10) days after notice to Borrower from Lender, in the case of any Default which can be cured by the payment of a sum of money, or for thirty (30) days after notice from Lender in the case of any other DefaultDefault or any other Default that does not provide for a specific cure period; provided, however, that if such non-monetary Default is susceptible of cure but cannot reasonably be cured within such thirty (30) -day period and provided further that such Borrower shall have commenced to cure such Default within such thirty (30) -day period and thereafter diligently and expeditiously proceeds to cure the same, as evidenced by an Officer’s Certificate certifying as to same, such thirty (30) -day period shall be extended for such time as is reasonably necessary for such Borrower in the exercise of due diligence to cure such Default, such additional period not to exceed one hundred twenty ninety (12090) days;
(xixxi) if there shall be a default under any of the other Loan Documents beyond any applicable cure periods contained in such documents, whether as to any Borrower, Mortgage Borrower, Senior Mezzanine Borrower, the Collateral, the Senior Mezzanine Collateral Guarantor or any of the Individual PropertyProperties, or if any other such event shall occur or condition shall exist, if the effect of such event or condition is to accelerate the maturity of any portion of the Debt or to permit Lender to accelerate the maturity of all or any portion of the Debt;
(xxxii) if there shall occur any default by Borrower as tenant under the Liens created pursuant to Ground Lease in the observance or performance of any Loan Document shall cease term, covenant or condition of the Ground Lease on the part of Borrower to be a fully protected enforceable first priority security interest observed or performed, and said default is not cured prior to the expiration of any applicable grace period therein provided, or if any one or more of the events referred to in the CollateralGround Lease shall occur which would cause the Ground Lease to terminate or which would entitle the ground lessor to terminate the Ground Lease or, unless Borrower acquires the fee estate of the lessor, if the leasehold estate created by the Ground Lease shall be surrendered or the Ground Lease terminated or canceled for any reason or under any circumstances whatsoever, or any portion of if Borrower shall fail to exercise the Collateral is Transferred without Lender’s prior written consent except as permitted hereunderPurchase Option by January 1, 2017; or
(xxixiii) if there shall be a Mortgage Loan Event default by Host (or such other creditworthy Affiliate of Default or Senior Mezzanine Loan Event of Default shall occurBorrower that provides the Host Commitment) under the Host Commitment.
(b) Upon the occurrence of an Event of Default (other than an Event of Default described in clauses (vi), (vii) or (viiviii) above) and at any time thereafterthereafter Lender may, in addition to any other rights or remedies available to it pursuant to this Agreement and the other Loan Documents or at law or in equity, Lender may take such lawful action, without notice or demand, that Lender deems advisable to protect and enforce its rights against Borrower and in and to all or any of the CollateralIndividual Properties, including, without limitation, declaring the Debt to be immediately due and payable, and Lender may enforce or avail itself of any or all rights or remedies provided in the Loan Documents and may exercise all the rights and remedies of a secured party under the Uniform Commercial Code, as adopted and enacted by the State or States where any of the Collateral is located, against Borrower and any or all of the CollateralIndividual Properties, including, without limitation, all rights or remedies available at law or in equity; and upon any Event of Default described in clauses (vi), (vii) or (viiviii) above, the Debt and all other obligations of Borrower hereunder and under the other Loan Documents shall immediately and automatically become due and payable, without notice or demand, and Borrower hereby expressly waives any such notice or demand, anything contained herein or in any other Loan Document to the contrary notwithstanding.
Appears in 2 contracts
Samples: Loan Agreement (Host Marriott Corp/), Loan Agreement (Host Marriott L P)
Event of Default. (a) Each The occurrence of any one or more of the following events shall constitute an event of default hereunder (an “Event of Default”)::
(a) if (i) if (A) any portion of monthly Debt Service payment or the Debt payment due on the Maturity Date is not paid in full on the Maturity Datewhen due, (Bii) any deposit to any of the Debt Service Reserve Accounts required hereunder or under the other Loan Documents is not paid in full on or before the related Payment Date, when due or (Ciii) any other portion of the Debt is not paid within when due and (in the case of this clause (iii)) such non-payment continues for five (5) days of when dueBusiness Days following written notice to Borrower that the same is due and payable;
(iib) except as otherwise expressly provided in the Loan Documents, if any of the Property Taxes or Other Charges are not paid (with respect to each or any Individual Property) prior to Delinquencydelinquency (unless being contested by Borrower in accordance with the terms of the Loan Documents), unless there is sufficient money in the Tax and Insurance Reserve Account for payment of amounts then due and payable and Lender’s access to such money has not been constrained or restricted in any manner;
(iiic) if (i) the Policies (with respect to each or any Individual Property) are not kept in full force and effecteffect (unless such failure results from Lender failing to timely pay such premiums when required hereunder, to the extent sufficient funds are then held in the Tax and Insurance Reserve Account and Borrower has complied with all disbursement obligations with respect thereto and has not in any way impeded or if impaired Lender’s ability make such payments), (ii) the Xxxxx 28 (or similar) certificate is not delivered to Lender in accordance with Section 8.1 and such failure continues for five (5) days after written notice from Lender or (iii) certified copies of the Policies (for each Individual Property) are not promptly delivered to Lender upon request (or certificates thereof, if a Policy shall be renewed provided such copies are available) and certified copies of the Policy are not immediately available upon such renewal failure continues for ten (each Borrower agreeing in such instance to provide copies of the Policies to Lender promptly thereafter))10) Business Days after written notice from Lender;
(ivd) if any (i) Borrower Transfers or otherwise encumbers any portion of the Properties, the Collateral or the Senior Mezzanine Collateral, or there shall otherwise occur a Transfer without Lender’s prior consent in violation of the provisions of this Agreement, the Pledge Agreement or any other Loan Document;
(v) if any representation or warranty made by any Borrower or any other Loan Party herein or in any other Loan Document, or in any report, certificate, financial statement or other instrument, agreement or document or other material or written information furnished to Lender shall have been false or misleading breaches in any material respect as of the date the representation or warranty was made (and, any covenant with respect to itself or any such breach which is not the subject of any other subsection of this Section 8.1 and which is capable of being curedSPE Component Entity (if any) contained in Article 6, such Borrower fails to remedy such condition unless within ten (10) days following notice to Borrower from Business Days after request by Lender, in Borrower delivers an update to the case of any such breach which can be cured by the payment of a sum of money, or within thirty (30) days following notice from Lender in the case of any other such breach);
(vi) if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower shall make an assignment for the benefit of creditors; or if a receiver, liquidator or trustee shall be appointed for any Borrower, Senior Mezzanine Borrower or Mortgage Borrower, or if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower shall be adjudicated a bankrupt or insolvent, or if any petition for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, Non-Consolidation Opinion or any similar federal or state lawNew Non-Consolidation Opinion, shall be filed by or against, consented to, or acquiesced in by, Borrower or Senior Mezzanine Borrower, or if any proceeding for the dissolution or liquidation of any Borrower, Senior Mezzanine Borrower or Mortgage Borrower shall be instituted; provided, however, if such appointment, adjudication, petition or proceeding was involuntary and not consented to by any Borrower, Senior Mezzanine Borrower or Mortgage Borrower, upon the same not being discharged, stayed or dismissed within ninety (90) days;
(vii) if any Operating Company, any Manager, Principal, Holdings or any Guarantor shall make an assignment for the benefit of creditors; or if a receiver, liquidator or trustee shall be appointed for any such Operating Company, any such Manager, Principal, Holdings or any such Guarantor, or if any Operating Company, any Manager, Principal, Holdings or any Guarantor shall be adjudicated a bankrupt or insolvent, or if any petition for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by or against, consented to, or acquiesced in by, any Operating Company, any Manager, Principal, Holdings or any Guarantor, or if any proceeding for the dissolution or liquidation of any Operating Company, any Manager, Principal, Holdings or any Guarantor shall be instituted; provided, however, if such appointment, adjudication, petition or proceeding was involuntary and not consented to by any such Operating Company, any such Manager, Principal, Holdings or any such Guarantor, upon the same not being discharged, stayed or dismissed within ninety (90) days;
(viii) if any Borrower attempts to assign its rights under this Agreement or any of the other Loan Documents or any interest herein or therein in contravention of the Loan Documents;
(ix) if any Borrower breaches any of its respective negative covenants contained in Section 5.2 or any covenant contained in Section 4.1.30 or Section 5.1.11 hereof (and, with respect to any such breach of any covenant set forth in Section 5.1.11 which is not the subject of any other subsection of this Section 8.1, such Borrower fails to remedy such condition within ten (10) days after notice to Borrower from Lender, in the case of any such Default under Section 5.1.11 which can be cured by the payment of a sum of money, or for thirty (30) days after notice from Lender in the case of any other such Default under Section 5.1.11);
(x) with respect to any term, covenant or provision set forth herein which specifically contains a notice requirement or grace period, if any Borrower shall be in default under such term, covenant or condition after the giving of such notice or the expiration of such grace period;
(xi) if any of the assumptions contained in the Insolvency Opinion delivered in connection with the Loan, or in the Additional Insolvency Opinion delivered subsequent to the closing of the Loan, is or shall become untrue in any material respect; or if any of the assumptions contained in the True Lease Opinion in connection with the Loan, or in the Additional True Lease Opinion delivered subsequent to the closing of the Loan, is or shall become untrue in any material respect;
(xii) if any Mortgage Borrower, any Operating Company or any Guarantor (Operating Lease) is in default of any of its material obligations under any Operating Lease (or under another lease and/or management agreement in substitution for such Operating Lease in accordance herewith) or under any such Operating Lease Guaranty (or under another operating lease guaranty in substitution for such Operating Lease Guaranty in accordance herewith) beyond any applicable notice and cure periods contained therein; or if any Operating Lease (or such other lease and/or management agreement) or any Operating Lease Guaranty (or such other operating lease guaranty) shall be surrendered or any Operating Lease or any Operating Lease Guaranty shall be terminated or canceled for any reason or under any circumstances whatsoever, except with the consent of Lender; or if any of the terms, covenants or conditions of any Operating Lease (or such other lease and/or management agreement) or any Operating Lease Guaranty (or such other operating lease guaranty) shall in any manner be modified, changed, supplemented, altered, restated or amended without the consent of Lender except as may otherwise expressly permitted in this Agreement;
(xiii) intentionally omitted;
(xiv) if any Affiliate of any Borrower that is or becomes a party to the Windstorm Insurance Intercreditor Agreement is in default of any of its material obligations under the Windstorm Insurance Intercreditor Agreement beyond any applicable notice and cure periods contained therein; or if the Windstorm Insurance Intercreditor Agreement shall be surrendered, terminated or canceled for any reason or under any circumstances whatsoever, except with the consent of Lender; or if any of the terms, covenants or conditions of the Windstorm Insurance Intercreditor Agreement shall in any manner be modified, changed, supplemented, altered, restated or amended without the consent of Lender;
(xv) if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower fails to comply with the covenants as to Prescribed Laws set forth in Section 5.1.1 hereof;
(xvi) if a material default has occurred and continues beyond any applicable cure period under any Management Agreement and if such default permits the Manager, the Operating Company or the Mortgage Borrower party thereto to terminate or cancel the Management Agreement in question;
(xvii) any Gaming License shall be refused, suspended, revoked, modified in a materially adverse manner or canceled or allowed to lapse or any proceeding is commenced by any Governmental Authority for the purpose of suspending, revoking or canceling any Gaming License in any materially adverse respect, or any Governmental Authority shall have appointed a conservator, supervisor or trustee to or for any of the Casino Components andapplicable, in each case of case, reasonably acceptable to Lender and confirming that such breach does not alter the foregoing, such action could reasonably be expected to (A) have an Individual Material Adverse Effect, (B) materially and adversely affect the continued operation of the Casino Components in the usual course of business and in substantially the same manner and to at least the same standard as was maintained prior to such action, opinions given therein or (Cii) result in any material decrease in the then expected cash flow and revenues to be derived from the Casino Componentsa Prohibited Transfer occurs;
(xviii) if any Borrower shall continue to be in Default under any of the other terms, covenants or conditions of this Agreement not specified in subsections (i) to (xvii) above, for ten (10) days after notice to Borrower from Lender, in the case of any Default which can be cured by the payment of a sum of money, or for thirty (30) days after notice from Lender in the case of any other Default; provided, however, that if such non-monetary Default is susceptible of cure but cannot reasonably be cured within such thirty (30) day period and provided further that such Borrower shall have commenced to cure such Default within such thirty (30) day period and thereafter diligently and expeditiously proceeds to cure the same, such thirty (30) day period shall be extended for such time as is reasonably necessary for such Borrower in the exercise of due diligence to cure such Default, such additional period not to exceed one hundred twenty (120) days;
(xix) if there shall be a default under any of the other Loan Documents beyond any applicable cure periods contained in such documents, whether as to any Borrower, Mortgage Borrower, Senior Mezzanine Borrower, the Collateral, the Senior Mezzanine Collateral or any Individual Property, or if any other such event shall occur or condition shall exist, if the effect of such event or condition is to accelerate the maturity of any portion of the Debt or to permit Lender to accelerate the maturity of all or any portion of the Debt;
(xx) if the Liens created pursuant to any Loan Document shall cease to be a fully protected enforceable first priority security interest in the Collateral, or any portion of the Collateral is Transferred without Lender’s prior written consent except as permitted hereunder; or
(xxi) if a Mortgage Loan Event of Default or Senior Mezzanine Loan Event of Default shall occur.
(b) Upon the occurrence of an Event of Default (other than an Event of Default described in clauses (vi) or (vii) above) and at any time thereafter, in addition to any other rights or remedies available to it pursuant to this Agreement and the other Loan Documents or at law or in equity, Lender may take such action, without notice or demand, that Lender deems advisable to protect and enforce its rights against Borrower and in and to all or any of the Collateral, including, without limitation, declaring the Debt to be immediately due and payable, and Lender may enforce or avail itself of any or all rights or remedies provided in the Loan Documents and may exercise all the rights and remedies of a secured party under the Uniform Commercial Code, as adopted and enacted by the State or States where any of the Collateral is located, against Borrower and any or all of the Collateral, including, without limitation, all rights or remedies available at law or in equity; and upon any Event of Default described in clauses (vi) or (vii) above, the Debt and all other obligations of Borrower hereunder and under the other Loan Documents shall immediately and automatically become due and payable, without notice or demand, and Borrower hereby expressly waives any such notice or demand, anything contained herein or in any other Loan Document to the contrary notwithstanding.
Appears in 2 contracts
Samples: Loan Agreement (Griffin Capital Essential Asset REIT II, Inc.), Loan Agreement (Griffin Capital Essential Asset REIT, Inc.)
Event of Default. (a) Each If any of the following events shall constitute (each such an event of default hereunder (event, an “Event of Default”):) shall occur:
(a) Obligors shall fail to pay any principal of any Loan or any reimbursement obligation in respect of any LC Disbursement or deposit any funds as cash collateral in respect of any Letter of Credit when and as the same shall become due and payable and in the currency required hereunder, whether at the due date thereof or at a date fixed for prepayment thereof or otherwise;
(b) Obligors shall fail to pay (i) if any interest on any Loan or LC Disbursement or (Aii) any portion of the Debt is not paid in full on the Maturity Date, (B) the Debt Service is not paid in full on fee or before the related Payment Date, or (C) any other portion amount (other than an amount referred to in clause (a) of this Section) payable under this Agreement or under any other Loan Document, when and as the Debt is not paid within same shall become due and payable and in the currency required hereunder, and such failure shall continue unremedied for a period of (x) with respect to the foregoing clause (i), three (3) or more Business Days and (y) with respect to the foregoing clause (ii), five (5) days of when dueor more Business Days;
(iic) if any of the Taxes or Other Charges are not paid (with respect to each or any Individual Property) prior to Delinquency;
(iii) if the Policies (with respect to each or any Individual Property) are not kept in full force and effectcertification, representation, or if certified copies warranty made or deemed made by or on behalf of the Policies (for each Individual Property) are not delivered to Lender upon request (any Obligor in or certificates thereof, if a Policy shall be renewed and certified copies of the Policy are not immediately available upon such renewal (each Borrower agreeing in such instance to provide copies of the Policies to Lender promptly thereafter));
(iv) if any Borrower Transfers or otherwise encumbers any portion of the Properties, the Collateral or the Senior Mezzanine Collateral, or there shall otherwise occur a Transfer without Lender’s prior consent in violation of the provisions of connection with this Agreement, the Pledge Agreement or any other Loan Document;
(v) if any representation or warranty made by any Borrower or any other Loan Party herein or in any other Loan Document, Document or in any report, certificate, financial statement statement, or other instrumentdocument furnished pursuant to or in connection with this Agreement or any other Loan Document, agreement or document or other material or written information furnished shall prove to Lender shall have been false or misleading incorrect in any material respect as of the date the when made or deemed made (unless any such certification, representation or warranty was made is qualified as to materiality or as to Material Adverse Effect, in which case such certification, representation, or warranty shall prove to have been incorrect in any respect);
(andd) (i) any Obligor shall fail to observe or perform any covenant, condition or agreement contained in Section 5.1 and such failure shall continue unremedied for a period of five (5) Business Days, or (ii) any Obligor shall fail to observe or perform any covenant, condition or agreement contained in 5.2(a), 5.3 (with respect to any Obligor’s existence), 5.11, 6, or 7,;
(e) any Obligor shall fail to observe or perform any covenant, condition or agreement contained in this Agreement (other than those specified in clause (a), (b), or (d) of this Section) or any other Loan Document and such breach which is not the subject failure shall continue unremedied for a period of 30 or more days;
(f) any Company shall fail to make any payment (whether of principal or interest and regardless of amount) in respect of any other subsection of this Section 8.1 Material Indebtedness, when and which is capable of being cured, such Borrower fails as the same shall become due and payable (after giving effect to remedy such condition within ten (10) days following any applicable notice to Borrower from Lender, in the case of any such breach which can be cured by the payment of a sum of money, requirement or within thirty (30) days following notice from Lender in the case of any other such breachgrace period);
(vig) if any Borrowerevent or condition occurs that results in any Material Indebtedness becoming due prior to its scheduled maturity or that enables or permits (with or without the giving of notice, Senior Mezzanine Borrower the lapse of time or Mortgage Borrower both) the holder or holders of any Material Indebtedness or any trustee or agent on its or their behalf to cause any Material Indebtedness to become due, or to require the prepayment, repurchase, redemption or defeasance thereof, prior to its scheduled maturity (after giving effect to any applicable notice requirement or grace period); provided that this clause (g) shall make not apply to secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the property securing such Indebtedness in a transaction permitted hereunder;
(h) an involuntary proceeding shall be commenced or an involuntary petition shall be filed seeking (i) liquidation, reorganization, conservatorship, bankruptcy, assignment for the benefit of creditors; , moratorium, rearrangement, receivership, insolvency or if other relief in respect of any Company (other than any Immaterial Subsidiary) or its debts, or of a substantial part of its assets, under any Debtor Relief Laws or (ii) the appointment of a receiver, liquidator trustee, custodian, sequestrator, conservator, liquidator, rehabilitator, or trustee similar official for any Company (other than any Immaterial Subsidiary) or for a substantial part of its or their assets, and, in any such case, such proceeding or petition shall continue undismissed for a period of 60 or more days or an order or decree approving or ordering any of the foregoing shall be appointed for any Borrower, Senior Mezzanine Borrower or Mortgage Borrower, or if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower shall be adjudicated a bankrupt or insolvent, or if any petition for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by or against, consented to, or acquiesced in by, Borrower or Senior Mezzanine Borrower, or if any proceeding for the dissolution or liquidation of any Borrower, Senior Mezzanine Borrower or Mortgage Borrower shall be instituted; provided, however, if such appointment, adjudication, petition or proceeding was involuntary and not consented to by any Borrower, Senior Mezzanine Borrower or Mortgage Borrower, upon the same not being discharged, stayed or dismissed within ninety (90) daysentered;
(viii) if any Operating CompanyCompany (other than any Immaterial Subsidiary) shall (i) voluntarily commence any proceeding or file any petition seeking liquidation, any Managerarrangement, Principalreorganization, Holdings or any Guarantor shall make an conservatorship, bankruptcy, assignment for the benefit of creditors; , moratorium, rearrangement, receivership, insolvency, or if other relief under any Debtor Relief Laws now or hereafter in effect, (ii) consent to the institution of, or fail to contest in a timely and appropriate manner, any proceeding or petition described in clause (h) of this Section, (iii) apply for or consent to the appointment of a receiver, liquidator receiver and manager, monitor, trustee, custodian, sequestrator, conservator, liquidator, rehabilitator, or trustee similar official for any Company (other than any Immaterial Subsidiary) or for a substantial part of its assets, (iv) file an answer admitting the material allegations of a petition filed against it in any such proceeding, (v) make a general assignment for the benefit of creditors, or (vi) take any organizational action to authorize any of the foregoing;
(j) any Company (other than any Immaterial Subsidiary) shall become unable, admit in writing its inability, or fail generally to pay its debts as they become due;
(k) one or more judgments for the payment of money in an aggregate amount in excess of greater of (x) $37,500,000 and (y) 15.0% of Applicable EBITDA (exclusive of amounts covered by insurance provided by a financially sound insurance company and for which such insurer has accepted liability) shall be appointed rendered against any Company and the same shall remain undischarged for any such Operating Company, any such Manager, Principal, Holdings or any such Guarantor, or if any Operating Company, any Manager, Principal, Holdings or any Guarantor a period of 30 consecutive days during which execution shall not be adjudicated a bankrupt or insolvent, or if any petition for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy laweffectively stayed, or any similar federal or state law, action shall be filed legally taken by a judgment creditor to attach or against, consented to, or acquiesced in by, levy upon any Operating Company, any Manager, Principal, Holdings or any Guarantor, or if any proceeding for the dissolution or liquidation assets of any Operating Company, any Manager, Principal, Holdings or any Guarantor shall be instituted; provided, however, if such appointment, adjudication, petition or proceeding was involuntary and not consented Company to by enforce any such Operating Company, any such Manager, Principal, Holdings or any such Guarantor, upon the same not being discharged, stayed or dismissed within ninety (90) daysjudgment;
(viiil) if any Borrower attempts to assign its rights under this Agreement or any of the other Loan Documents or any interest herein or therein in contravention of the Loan Documents;
(ix) if any Borrower breaches any of its respective negative covenants contained in Section 5.2 or any covenant contained in Section 4.1.30 or Section 5.1.11 hereof (and, with respect to any such breach of any covenant set forth in Section 5.1.11 which is not the subject of any other subsection of this Section 8.1, such Borrower fails to remedy such condition within ten (10) days after notice to Borrower from Lender, in the case of any such Default under Section 5.1.11 which can be cured by the payment of a sum of money, or for thirty (30) days after notice from Lender in the case of any other such Default under Section 5.1.11);
(x) with respect to any term, covenant or provision set forth herein which specifically contains a notice requirement or grace period, if any Borrower shall be in default under such term, covenant or condition after the giving of such notice or the expiration of such grace period;
(xi) if any of the assumptions contained in the Insolvency Opinion delivered in connection with the Loan, or in the Additional Insolvency Opinion delivered subsequent to the closing of the Loan, is or shall become untrue in any material respect; or if any of the assumptions contained in the True Lease Opinion in connection with the Loan, or in the Additional True Lease Opinion delivered subsequent to the closing of the Loan, is or shall become untrue in any material respect;
(xii) if any Mortgage Borrower, any Operating Company or any Guarantor (Operating Lease) is in default of any of its material obligations under any Operating Lease (or under another lease and/or management agreement in substitution for such Operating Lease in accordance herewith) or under any such Operating Lease Guaranty (or under another operating lease guaranty in substitution for such Operating Lease Guaranty in accordance herewith) beyond any applicable notice and cure periods contained therein; or if any Operating Lease (or such other lease and/or management agreement) or any Operating Lease Guaranty (or such other operating lease guaranty) shall be surrendered or any Operating Lease or any Operating Lease Guaranty shall be terminated or canceled for any reason or under any circumstances whatsoever, except with the consent of Lender; or if any of the terms, covenants or conditions of any Operating Lease (or such other lease and/or management agreement) or any Operating Lease Guaranty (or such other operating lease guaranty) shall in any manner be modified, changed, supplemented, altered, restated or amended without the consent of Lender except as may otherwise expressly permitted in this Agreement;
(xiii) intentionally omitted;
(xiv) if any Affiliate of any Borrower that is or becomes a party to the Windstorm Insurance Intercreditor Agreement is in default of any of its material obligations under the Windstorm Insurance Intercreditor Agreement beyond any applicable notice and cure periods contained therein; or if the Windstorm Insurance Intercreditor Agreement shall be surrendered, terminated or canceled for any reason or under any circumstances whatsoever, except with the consent of Lender; or if any of the terms, covenants or conditions of the Windstorm Insurance Intercreditor Agreement shall in any manner be modified, changed, supplemented, altered, restated or amended without the consent of Lender;
(xv) if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower fails to comply with the covenants as to Prescribed Laws set forth in Section 5.1.1 hereof;
(xvi) if a material default has occurred and continues beyond any applicable cure period under any Management Agreement and if such default permits the Manager, the Operating Company or the Mortgage Borrower party thereto to terminate or cancel the Management Agreement in question;
(xvii) any Gaming License shall be refused, suspended, revoked, modified in a materially adverse manner or canceled or allowed to lapse or any proceeding is commenced by any Governmental Authority for the purpose of suspending, revoking or canceling any Gaming License in any materially adverse respect, or any Governmental Authority an ERISA Event shall have appointed a conservatoroccurred that when taken together with all other ERISA Events that have occurred, supervisor or trustee to or for any of the Casino Components and, in each case of the foregoing, such action could reasonably be expected to result in a Material Adverse Effect;
(m) a Change of Control shall occur;
(n) the Liens created by any of the Security Documents shall at any time not constitute a valid and perfected first-priority Lien on a material portion of the Collateral intended to be covered thereby (other than any Collateral released under Section 9.10) in favor of Administrative Agent, free and clear of all other Liens (other than Permitted Encumbrances), or, except for expiration or termination in accordance with its terms or with the consent of Administrative Agent, any of the Loan Documents shall for whatever reason be terminated or cease to be in full force and effect, or enforceability thereof shall be contested by any Obligor;
(o) the Receivables Intercreditor Agreement, shall for any reason, other than the Full Satisfaction of the Obligations or payment in full of the other applicable Indebtedness subject to such agreement, cease to be in full force and effect, or any other creditor party thereto or any Person acting by or on behalf of such creditor, shall deny or disaffirm such creditor’s obligations under such intercreditor;
(i) the subordination provisions of the documents evidencing or governing any Subordinated Indebtedness constituting Material Indebtedness (the “Subordination Provisions”) shall, in whole or in part, terminate, cease to be effective or cease to be legally valid, binding and enforceable against any holder of the applicable Subordinated Indebtedness constituting Material Indebtedness; or (ii) any Obligor or holder of Subordinated Indebtedness constituting Material Indebtedness shall, directly or indirectly disavow or contest in any manner (A) have an Individual Material Adverse Effectthe effectiveness, validity or enforceability of any of the Subordination Provisions, (B) materially that the Subordination Provisions exist for the benefit of Administrative Agent, the Lenders and adversely affect the continued operation of the Casino Components in the usual course of business and in substantially the same manner and to at least the same standard as was maintained prior to such actionIssuing Lender, or (C) result in any material decrease in that all payments of principal of or premium and interest on the then expected cash flow and revenues to be derived applicable Subordinated Indebtedness, or realized from the Casino Components;
(xviii) if liquidation of any Borrower property of any Obligor, shall continue be subject to be in Default under any of the other terms, covenants Subordination Provisions; or conditions of this (iii) any Subordination Agreement not specified in subsections (i) to (xvii) above, for ten (10) days after notice to Borrower from Lender, in the case of any Default which can be cured by the payment of a sum of money, or for thirty (30) days after notice from Lender in the case of any other Default; provided, however, that if such non-monetary Default is susceptible of cure but cannot reasonably be cured within such thirty (30) day period and provided further that such Borrower shall have commenced to cure such Default within such thirty (30) day period and thereafter diligently and expeditiously proceeds to cure the same, such thirty (30) day period shall be extended for such time as is reasonably necessary for such Borrower in the exercise of due diligence to cure such Default, such additional period not to exceed one hundred twenty (120) days;
(xix) if there shall be a default under any of the other Loan Documents beyond any applicable cure periods contained in such documents, whether as to any Borrower, Mortgage Borrower, Senior Mezzanine Borrower, the Collateral, the Senior Mezzanine Collateral or any Individual Property, or if any other such event shall occur or condition shall exist, if the effect of such event or condition is to accelerate the maturity of any portion of the Debt or to permit Lender to accelerate the maturity of all or any portion of the Debt;
(xx) if the Liens created pursuant to any Loan Document constituting Material Indebtedness shall cease to be a fully protected enforceable first priority security interest in full force and effect or the CollateralLoans shall cease to constitute “Senior Indebtedness” (or similar term) thereunder;
(q) (i) the Separation Agreement or any other Spin-Off Document shall be terminated prior to the date of the consummation of the Distribution, or any portion of (ii) the Collateral is Transferred without Lender’s Distribution shall not have been consummated at or prior written consent except as permitted hereunderto 4:01 p.m. New York City time on October 30, 2023; or
(xxi) if a Mortgage Loan Event of Default or Senior Mezzanine Loan Event of Default shall occur.
(b) Upon the occurrence of an Event of Default then, and in every such event (other than an Event of Default event with respect to any Obligor described in clauses clause (vih) or (viii) above) of this Section 8.1), and at any time thereafterthereafter during the continuance of such event, in addition to any other rights or remedies available to it pursuant to this Agreement and Administrative Agent may with the other Loan Documents or at law or in equity, Lender may take such action, without notice or demand, that Lender deems advisable to protect and enforce its rights against Borrower and in and to all or any consent of the Collateral, including, without limitation, declaring the Debt to be immediately due and payableRequired Lenders, and Lender may enforce or avail itself of any or all rights or remedies provided in at the Loan Documents and may exercise all the rights and remedies of a secured party under the Uniform Commercial Code, as adopted and enacted by the State or States where any request of the Collateral is locatedRequired Lenders shall, against Borrower and by notice to Borrowers, take any or all of the Collateralfollowing actions, includingat the same or different times: (i) terminate the Commitments including any obligation of Issuing Lender to issue Letters of Credit, without limitationand thereupon the Commitments and such obligations shall terminate immediately, all rights or remedies available at law (ii) require that Borrowers Cash Collateralize the aggregate LC Exposure, (iii) declare the Loans then outstanding to be due and payable in whole (or in equity; part, in which case any principal not so declared to be due and upon any Event payable may thereafter be declared to be due and payable), and thereupon the principal of Default described in clauses (vi) or (vii) abovethe Loans so declared to be due and payable, the Debt together with accrued interest thereon and all fees and other obligations of Borrower the Obligors accrued hereunder and under the other Loan Documents, shall become due and payable immediately, without presentment, demand, protest, notice of intent to accelerate, notice of acceleration or other notice of any kind, all of which are hereby waived by each Obligor, and (iv) exercise on behalf of itself, the Lenders and Issuing Lender all rights and remedies available to it, the Lenders and Issuing Lender under the Loan Documents and applicable law; and in case of any event with respect to any Obligor described in clause (h) or (i) of this Section 8.1, the Commitments, and Issuing Lender’s obligation to issue Letters of Credit, shall immediately automatically terminate, the obligation of Borrowers to Cash Collateralize the LC Exposure shall automatically become effective, and the principal of the Loans then outstanding, together with accrued interest thereon and all fees and other obligations of the Obligors accrued hereunder and under the other Loan Documents, shall automatically become due and payable, without notice or presentment, demand, protest, notice of intent to accelerate, notice of acceleration, or other notice of any kind, all of which are hereby waived by each Obligor. In addition, if any Event of Default shall exist, Administrative Agent may foreclose or otherwise enforce any Lien granted to Administrative Agent, for the benefit of the Secured Parties, to secure payment and Borrower hereby expressly waives performance of the Obligations in accordance with the terms of the Loan Documents and exercise any such notice and all rights and remedies afforded by applicable law, by any of the Loan Documents, by equity, or demand, anything contained herein or in any other Loan Document to the contrary notwithstandingotherwise.
Appears in 2 contracts
Samples: Credit Agreement (Kellogg Co), Credit Agreement (WK Kellogg Co)
Event of Default. (a) Each Any one or more of the following events shall constitute an event of default hereunder (an “Event of Default”):” under this Agreement:
(a) Borrower fails to pay (i) if any principal amount of its Liabilities when such Liabilities are due, declared due or demanded or (Aii) any portion of interest, fee or other amount with respect to the Debt is not paid in full on the Maturity DateLiabilities are due, declared due or demanded within three (B) the Debt Service is not paid in full on or before the related Payment Date, or (C) any other portion of the Debt is not paid within five (53) days of when after such interest, fee or other amount is due, declared due or demanded;
(iib) if Borrower fails or neglects to perform, keep or observe any of the Taxes covenants, conditions or Other Charges are not paid agreements set forth in Section 2.5 hereof, Section 4.4, Section 6.8, any of the Sections of Article 9 hereof or Sections 8.1 (with respect to each except subparts (j) and (k)), 8.2, 8.9(a), 8.10 or any Individual Property) prior to Delinquency8.12 hereof;
(iiic) if the Policies (with respect Borrower fails or neglects to each perform, keep or observe any Individual Property) are not kept in full force and effect, or if certified copies of the Policies covenants, conditions, promises or agreements contained in this Agreement (other than those specified in Section 10.1(b) hereof) and such failure or neglect shall continue for each Individual Propertya period of twenty one (21) are not delivered to Lender upon request calendar days following the earlier of (i) notice from Administrative Agent thereof or certificates thereof, if a Policy shall be renewed and certified copies (ii) the date Borrower has actual knowledge of the Policy are not immediately available upon such renewal (each Borrower agreeing in such instance to provide copies of the Policies to Lender promptly thereafter))failure or neglect;
(ivd) if any Borrower Transfers or otherwise encumbers any portion of the Properties, the Collateral or the Senior Mezzanine Collateral, or there shall otherwise occur a Transfer without Lender’s prior consent in violation of the provisions of this Agreement, the Pledge Agreement or any other Loan Document;
(v) if any representation or warranty heretofore, now or hereafter made by any Borrower in connection with this Agreement or any of the other Loan Party herein Financing Agreements to which Borrower is a party is untrue, misleading or incorrect in any other Loan Documentmaterial respect, or in any reportschedule, certificate, written statement, report, financial statement data (taken as a whole), notice, or other instrumentwriting furnished at any time by Borrower to Administrative Agent or Lenders in connection with any Financing Agreement, agreement is untrue, misleading or document or other material or written information furnished to Lender shall have been false or misleading incorrect in any material respect (without duplication of materiality), on the date as of which the date facts set forth therein are stated or certified;
(e) a judgment, decree or order requiring payment in excess of Three Hundred Thousand Dollars ($300,000) shall be rendered against Borrower and such judgment or order shall remain unsatisfied or undischarged and in effect for thirty (30) consecutive days without a stay of enforcement or execution, provided that this clause (e) shall not apply to any judgment for which Borrower is fully insured (except for customary deductibles) and with respect to which the representation insurer has admitted liability;
(f) a notice of Lien, levy or warranty was made (and, assessment is filed or recorded with respect to any such breach which is not of the subject material assets of any other subsection of this Section 8.1 and which is capable of being curedBorrower (including, such Borrower fails to remedy such condition within ten (10) days following notice to Borrower from Lenderwithout limitation, in the case of any such breach which can be cured Collateral), by the payment of a sum of moneyUnited States, or within thirty any department, agency or instrumentality thereof, or by any state, county, municipality or other governmental agency or any material taxes or material debts owing at any time or times hereafter to any one or more of them become a Lien, upon any of the assets of Borrower (30including, without limitation, the Collateral), provided that this clause (f) days following notice from Lender shall not apply to any Liens, levies, or assessments which a Borrower is contesting in good faith (provided Borrower has complied with the case provisions of any other such breach)clauses (a) and (b) of Section 8.4 hereof) or which relate to current taxes not yet due and payable;
(vig) if any Borrowermaterial portion of the Collateral is attached, Senior Mezzanine seized, subjected to a writ or distress warrant, or is levied upon, or comes within the possession of any receiver, trustee, custodian or assignee for the benefit of creditors;
(h) a proceeding under any bankruptcy, reorganization, arrangement of debt, insolvency, readjustment of debt or receivership law or statute is filed against Borrower or Mortgage any guarantor of the Liabilities, and such proceeding is not dismissed within forty-five (45) days of the date of its filing, or a proceeding under any bankruptcy, reorganization, arrangement of debt, insolvency, readjustment of debt or receivership law or statute is filed by Borrower shall make or any guarantor of the Liabilities, or Borrower or any guarantor of the Liabilities, makes an assignment for the benefit of creditors; , or if Borrower or any guarantor of the Liabilities takes any action to authorize any of the foregoing;
(i) Borrower or any guarantor of the Liabilities voluntarily or involuntarily dissolves or is dissolved, or its existence terminates or is terminated, except pursuant to a receivermerger expressly permitted hereby in connection with an Acquisition;
(j) Borrower or any guarantor of the Liabilities becomes insolvent or Borrower or any guarantor of the Liabilities fails generally to pay its debts as they become due;
(k) Borrower is enjoined, liquidator restrained, or trustee in any way prevented by the order of any court or any administrative or regulatory agency from conducting all or any material part of its business affairs;
(l) a breach (after the expiration of any applicable cure period) by Borrower shall occur under any material agreement, document or instrument (other than an agreement, document or instrument evidencing the lending of money), whether heretofore, now or hereafter existing between Borrower and any other Person and the effect of such breach will or is reasonably likely to have or create a Material Adverse Effect;
(m) Borrower shall fail to make any payment due on any other obligation for borrowed money or shall be appointed for in breach of any Borroweragreement (after the expiration of any cure period under such agreement) evidencing the lending of money and the effect of such failure or breach would be to permit the acceleration of any obligation, Senior Mezzanine Borrower liability or Mortgage indebtedness in excess of Five Hundred Thousand Dollars ($500,000);
(n) there shall be instituted in any court criminal proceedings against Borrower, or if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower shall be adjudicated indicted for any crime, in either case for which forfeiture of a bankrupt material amount of its property is a potential penalty and which penalty can reasonably be expected to be imposed;
(i) a Change of Control shall occur; or insolvent(ii) any two of Xxxxxxx X. Xxxxxxx, Xxxxx X. Xxxxx and J. Xxxxxx Xxxxxxxxx xx Xxxxxx shall not be a senior officer of Borrower and devote significant time and energy to the business of Borrower (other than as a result of temporary illness or if any petition for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by or against, consented to, or acquiesced in by, Borrower or Senior Mezzanine Borrower, or if any proceeding for the dissolution or liquidation of any Borrower, Senior Mezzanine Borrower or Mortgage Borrower shall be institutedtemporary disability); provided, however, if any such appointment, adjudication, petition person shall fail for any reason to be a senior officer of Borrower or proceeding was involuntary fail to devote significant time and not consented energy to by any the business of Borrower, Senior Mezzanine there shall not be an Event of Default under this clause (o) if such person is promptly replaced by Borrower or Mortgage Borrower, upon the same not being discharged, stayed or dismissed with an individual with substantially similar skills and experience (but in no event later than within ninety (90) dayscalendar days of such person’s resignation, termination, permanent disability or death) and otherwise acceptable to Administrative Agent in its reasonable and good faith determination;
(viip) if any Operating CompanyLien securing the Liabilities shall, any Managerin whole or in part, Principal, Holdings or any Guarantor shall make an assignment for cease to be a perfected first priority Lien (subject only to the benefit of creditorsPermitted Liens); or if a receiver, liquidator or trustee shall be appointed for any such Operating Company, any such Manager, Principal, Holdings or any such Guarantor, or if any Operating Company, any Manager, Principal, Holdings or any Guarantor shall be adjudicated a bankrupt or insolvent, or if any petition for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by or against, consented to, or acquiesced in by, any Operating Company, any Manager, Principal, Holdings or any Guarantor, or if any proceeding for the dissolution or liquidation of any Operating Company, any Manager, Principal, Holdings or any Guarantor shall be instituted; provided, however, if such appointment, adjudication, petition or proceeding was involuntary and not consented to by any such Operating Company, any such Manager, Principal, Holdings or any such Guarantor, upon the same not being discharged, stayed or dismissed within ninety (90) days;
(viii) if any Borrower attempts to assign its rights under this Agreement or any of the other Loan Documents Financing Agreements to which Borrower is a party, shall (except in accordance with its terms), in whole or in part, terminate, cease to be effective or cease to be the legally valid, binding and enforceable obligations of Borrower; or Borrower shall directly or indirectly, contest in any interest herein manner such effectiveness, validity, binding nature or therein in contravention of the Loan Documentsenforceability;
(ixq) if any Borrower breaches any of its respective negative covenants contained in Section 5.2 breach of, noncompliance with or any covenant contained in Section 4.1.30 or Section 5.1.11 hereof (and, with respect to any such breach of any covenant set forth in Section 5.1.11 which is not the subject of any other subsection of this Section 8.1, such Borrower fails to remedy such condition within ten (10) days after notice to Borrower from Lender, in the case of any such Default under Section 5.1.11 which can be cured by the payment of a sum of money, or for thirty (30) days after notice from Lender in the case of any other such Default under Section 5.1.11);
(x) with respect to any term, covenant or provision set forth herein which specifically contains a notice requirement or grace period, if any Borrower shall be in default under such term, covenant or condition any Financing Agreement other than this Agreement shall occur by any party thereto (other than by Administrative Agent) after the giving of such notice or the expiration of such grace period;
(xi) if any of the assumptions contained in the Insolvency Opinion delivered in connection with the Loan, or in the Additional Insolvency Opinion delivered subsequent to the closing of the Loan, is or shall become untrue in any material respect; or if any of the assumptions contained in the True Lease Opinion in connection with the Loan, or in the Additional True Lease Opinion delivered subsequent to the closing of the Loan, is or shall become untrue in any material respect;
(xii) if any Mortgage Borrower, any Operating Company or any Guarantor (Operating Lease) is in default of any of its material obligations under any Operating Lease (or under another lease and/or management agreement in substitution for such Operating Lease in accordance herewith) or under any such Operating Lease Guaranty (or under another operating lease guaranty in substitution for such Operating Lease Guaranty in accordance herewith) beyond any applicable notice and cure periods contained therein; or period, if any Operating Lease (or such other lease and/or management agreement) or any Operating Lease Guaranty (or such other operating lease guaranty) shall be surrendered or any Operating Lease or any Operating Lease Guaranty shall be terminated or canceled for any reason or under any circumstances whatsoever, except with the consent of Lender; or if any of the terms, covenants or conditions of any Operating Lease (or such other lease and/or management agreement) or any Operating Lease Guaranty (or such other operating lease guaranty) shall in any manner be modified, changed, supplemented, altered, restated or amended without the consent of Lender except as may otherwise expressly permitted in this Agreementany;
(xiiir) intentionally omitted;
(xiv) if any Affiliate of any Borrower that is Ultimate Parent shall revoke or becomes a party attempt to the Windstorm Insurance Intercreditor Agreement is in default of any of revoke, terminate or contest its material obligations under the Windstorm Insurance Intercreditor Agreement beyond any applicable notice and cure periods contained therein; or if the Windstorm Insurance Intercreditor Agreement shall be surrenderedUltimate Parent Pledge Agreement, terminated or canceled for any reason or under any circumstances whatsoever, except with the consent of Lender; or if any of the terms, covenants or conditions of the Windstorm Insurance Intercreditor Agreement shall in any manner be modified, changed, supplemented, altered, restated or amended without the consent of Lender;
(xv) if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower fails to comply with the covenants as to Prescribed Laws set forth in Section 5.1.1 hereof;
(xvi) if a material default has occurred and continues beyond any applicable cure period under any Management Agreement and if such default permits the Manager, the Operating Company or the Mortgage Borrower party thereto to terminate or cancel the Management Ultimate Parent Pledge Agreement in question;
(xvii) any Gaming License shall be refused, suspended, revoked, modified in a materially adverse manner or canceled or allowed to lapse or any proceeding is commenced by any Governmental Authority for the purpose of suspending, revoking or canceling any Gaming License in any materially adverse respect, or any Governmental Authority shall have appointed a conservator, supervisor or trustee to or for any of the Casino Components and, in each case of the foregoing, such action could reasonably be expected to (A) have an Individual Material Adverse Effect, (B) materially and adversely affect the continued operation of the Casino Components in the usual course of business and in substantially the same manner and to at least the same standard as was maintained prior to such action, or (C) result in any material decrease in the then expected cash flow and revenues to be derived from the Casino Components;
(xviii) if any Borrower shall continue to be in Default under any of the other terms, covenants or conditions of this Agreement not specified in subsections (i) to (xvii) above, for ten (10) days after notice to Borrower from Lender, in the case of any Default which can be cured by the payment of a sum of money, or for thirty (30) days after notice from Lender in the case of any other Default; provided, however, that if such non-monetary Default is susceptible of cure but cannot reasonably be cured within such thirty (30) day period and provided further that such Borrower shall have commenced to cure such Default within such thirty (30) day period and thereafter diligently and expeditiously proceeds to cure the same, such thirty (30) day period shall be extended for such time as is reasonably necessary for such Borrower in the exercise of due diligence to cure such Default, such additional period not to exceed one hundred twenty (120) days;
(xix) if there shall be a default under any of the other Loan Documents beyond any applicable cure periods contained in such documents, whether as to any Borrower, Mortgage Borrower, Senior Mezzanine Borrower, the Collateral, the Senior Mezzanine Collateral or any Individual Property, or if any other such event shall occur or condition shall exist, if the effect of such event or condition is to accelerate the maturity of any portion of the Debt or to permit Lender to accelerate the maturity of all or any portion of the Debt;
(xx) if the Liens created pursuant to any Loan Document provision thereof shall cease to be a fully protected enforceable first priority security interest in full force and effect in accordance with its terms and provisions;
(s) Parent (or any other Borrower or Affiliate thereof if applicable) shall revoke or attempt to revoke, terminate or contest its obligations under the CollateralParent Pledge Agreement, or the Parent Pledge Agreement or any portion provision thereof shall cease to be in full force and effect in accordance with its terms and provisions;
(t) institution by the PBGC, Borrower or any ERISA Affiliate of the Collateral is Transferred without Lender’s prior written consent except as permitted hereundersteps to terminate any Plan or to organize, withdraw from or terminate a Multiemployer Plan if such reorganization, withdrawal or termination could result in a Material Adverse Effect or a Lien under ERISA; or
(xxiu) if a Mortgage Loan Event of Default Borrower or Senior Mezzanine Loan Event of Default shall occur.
(b) Upon the occurrence of an Event of Default (other than an Event of Default described in clauses (vi) or (vii) above) and any Affiliate is at any time thereafter, in addition to identified on any other rights or remedies available to it pursuant to this Agreement and the other Loan Documents or at law or in equity, Lender may take such action, without notice or demand, that Lender deems advisable to protect and enforce its rights against Borrower and in and to all or any of the Collateral, including, without limitation, declaring the Debt to be immediately due and payable, and Lender may enforce or avail itself of any or all rights or remedies provided in the Loan Documents and may exercise all the rights and remedies of a secured party under the Uniform Commercial Code, as adopted and enacted by the State or States where any of the Collateral is located, against Borrower and any or all of the Collateral, including, without limitation, all rights or remedies available at law or in equity; and upon any Event of Default described in clauses (vi) or (vii) above, the Debt and all other obligations of Borrower hereunder and under the other Loan Documents shall immediately and automatically become due and payable, without notice or demand, and Borrower hereby expressly waives any such notice or demand, anything contained herein or in any other Loan Document to the contrary notwithstandingBlocked Persons List.
Appears in 2 contracts
Samples: Loan and Security Agreement (ExamWorks Group, Inc.), Loan and Security Agreement (ExamWorks Group, Inc.)
Event of Default. (a) Each of the following events shall constitute an event of default hereunder (an “Event of Default” and each of the events in clauses (d) and (e) below shall constitute a “Bankruptcy Event of Default”)::
(ia) if (A) any portion the Company’s failure to cure a Conversion Failure by delivery of the Debt is not paid in full on the Maturity Date, (B) the Debt Service is not paid in full on or before the related Payment Date, or (C) any other portion required number of the Debt is not paid within five (5) days shares of when due;
(ii) if any of the Taxes or Other Charges are not paid (with respect to each or any Individual Property) prior to Delinquency;
(iii) if the Policies (with respect to each or any Individual Property) are not kept in full force and effect, or if certified copies of the Policies (for each Individual Property) are not delivered to Lender upon request (or certificates thereof, if a Policy shall be renewed and certified copies of the Policy are not immediately available upon such renewal (each Borrower agreeing in such instance to provide copies of the Policies to Lender promptly thereafter));
(iv) if any Borrower Transfers or otherwise encumbers any portion of the Properties, the Collateral or the Senior Mezzanine Collateral, or there shall otherwise occur a Transfer without Lender’s prior consent in violation of the provisions of this Agreement, the Pledge Agreement or any other Loan Document;
(v) if any representation or warranty made by any Borrower or any other Loan Party herein or in any other Loan Document, or in any report, certificate, financial statement or other instrument, agreement or document or other material or written information furnished to Lender shall have been false or misleading in any material respect as of the date the representation or warranty was made (and, with respect to any such breach which is not the subject of any other subsection of this Section 8.1 and which is capable of being cured, such Borrower fails to remedy such condition Common Stock within ten (10) days following notice Trading Days after the applicable Conversion Date;
(b) the Company’s or any Guarantor’s failure to Borrower from Lenderpay to the Holder (i) any amount of Principal when due under this Note, or (ii) any amount of Interest or other amounts due under this Note (including, without limitation, the Company’s or any Guarantor’s failure to pay any redemption payments or amounts hereunder) or any other Transaction Document or any other agreement, document, certificate or other instrument delivered to Holder in connection with the case transactions contemplated hereby and thereby, within three (3) Trading Days after such amounts were due;
(c) The occurrence of any such breach which can be cured by the payment default, event of a sum of moneydefault, or within thirty similar term under the MSPLP Facility after the expiration of all applicable notice, grace and cure periods (30each, a “CNB Event of Default”); provided, that to the extent that the Holder has not accelerated the Notes or foreclosed upon the Collateral in reliance on the Event of Default in this clause (c) days following notice from Lender on or prior to the date upon which CNB, its affiliates or successors enter into a consent, amendment, waiver or similar agreement with respect to the underlying CNB Event of Default giving rise to the Event of Default under this clause (c), the Event of Default pursuant to this clause (c) shall be deemed to be automatically cured upon effectiveness of such waiver or similar agreement among CNB, its affiliates or successors and the Company and its affiliates with respect to the CNB Event of Default. For the avoidance of doubt, the proviso set forth in the case this clause (c) shall not apply to, or be deemed to have any impact on, any Event of any other such breachDefault arising independently of this clause (c);
(vid) if any BorrowerObligor or any of its Subsidiaries institutes or consents to the institution of any proceeding under any Debtor Relief Law (as defined in the Guaranty and Security Agreement), Senior Mezzanine Borrower or Mortgage Borrower shall make makes an assignment for the benefit of creditors; or if makes a receiverproposal to its creditors or files notice of its intention to do so, liquidator or trustee shall be appointed for institutes any Borrower, Senior Mezzanine Borrower or Mortgage Borrower, or if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower shall be adjudicated a other proceeding under applicable law seeking to adjudicate it as bankrupt or insolvent, or if seeking liquidation, dissolution, winding-up, reorganization, compromise, arrangement, adjustment, protection, moratorium, relief, stay of proceedings of creditors, composition of it or its debts or any petition other similar relief; or applies for or consents to the appointment (including any provisional appointment) of any receiver, receiver-manager, trustee, custodian, conservator, liquidator, rehabilitator or similar officer for it or for all or any material part of its property; or any receiver, administrative receiver, administrator, compulsory manager, receiver-manager, trustee, custodian, conservator, liquidator, rehabilitator or similar officer is appointed without the application or consent of such Person and the appointment continues undischarged or unstayed for sixty (60) calendar days or any proceeding under any Debtor Relief Law relating to any such Person or to all or any material part of its property is instituted without the consent of such Person and continues undismissed or unstayed for sixty (60) calendar days, or an order for relief is entered in any such proceeding; or with regard to an Israeli Guarantor (as defined in the Note Purchase Agreement), the occurrence at any time with respect to it of a winding-up, bankruptcy, reorganization dissolution or arrangement pursuant to federal bankruptcy law, administration;
(e) the entry against the Company or any similar federal Guarantor of one or state law, shall be filed by more final judgments or against, consented to, or acquiesced in by, Borrower or Senior Mezzanine Borrower, or if any proceeding orders for the dissolution payment of money in an aggregate amount exceeding $500,000 (to the extent not covered by independent third-party insurance and/or third party indemnity rights as to which the applicable insurer or liquidation indemnitor does not dispute coverage in writing) and such judgment or order remains unpaid for a period of any Borrower, Senior Mezzanine Borrower or Mortgage Borrower shall be instituted; provided, however, if such appointment, adjudication, petition or proceeding was involuntary and not consented to by any Borrower, Senior Mezzanine Borrower or Mortgage Borrower, upon the same not being discharged, stayed or dismissed within ninety thirty (9030) consecutive days;
(viif) if any Operating Company, any Manager, Principal, Holdings or any Guarantor shall make an assignment for default by the benefit of creditors; or if a receiver, liquidator or trustee shall be appointed for any such Operating Company, any such Manager, Principal, Holdings or any such Guarantor, or if any Operating Company, any Manager, Principal, Holdings or any Guarantor shall be adjudicated a bankrupt or insolvent, or if any petition for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by or against, consented to, or acquiesced Company in by, any Operating Company, any Manager, Principal, Holdings or any Guarantor, or if any proceeding for the dissolution or liquidation due performance and observance of any Operating Company, any Manager, Principal, Holdings of the covenants or any Guarantor shall be instituted; provided, however, if such appointment, adjudication, petition or proceeding was involuntary and not consented to by any such Operating Company, any such Manager, Principal, Holdings or any such Guarantor, upon the same not being discharged, stayed or dismissed within ninety (90) daysagreements contained in Section 12;
(viiig) if any Borrower attempts representation, warranty or other written statement of the Company set forth in any Transaction Document or any certification provided by the Company pursuant to assign its rights under any Transaction Document is incorrect or misleading in any material respect when given;
(h) other than as specifically set forth in another clause of this Agreement or Section 4.1, any default by any Obligor in the due performance and observance of any of the other Loan Documents covenants or any interest herein or therein in contravention of the Loan Documents;
(ix) if any Borrower breaches any of its respective negative covenants contained in Section 5.2 or any covenant contained in Section 4.1.30 or Section 5.1.11 hereof (and, with respect to any such breach agreements of any covenant set forth in Section 5.1.11 which is not the subject of any other subsection of this Section 8.1Transaction Document, such Borrower fails to remedy such condition within ten (10) days after notice to Borrower from Lenderexcept, in the case of any such Default under Section 5.1.11 which can be cured by the payment a breach of a sum covenant that is curable, only if such breach remains uncured for a period of money, or for thirty (30) days after notice from Lender following the earlier of the date on which (i) a Responsible Officer (as defined in the case Note Purchase Agreement) of any other Obligor becomes aware of such Default under Section 5.1.11)failure and (ii) notice thereof shall have been given to the Obligors by the Holder;
(xi) any material provision of any Transaction Document shall at any time for any reason (other than pursuant to the express terms thereof) cease to be valid and binding on or enforceable against the Obligors party thereto in any material respect, or the validity or enforceability thereof shall be contested by any Obligor party thereto (other than with respect to indemnification or contribution provisions which may be unenforceable), or a proceeding shall be commenced by the Company or any Guarantor or any governmental authority having jurisdiction over any of them, seeking to establish the invalidity or unenforceability thereof, or the Company or any Guarantor shall deny in writing that it has any liability or obligation purported to be created under any Transaction Document;
(j) shares of Common Stock shall cease to be quoted on the Principal Market for any reason and are not thereafter re-listed, re-traded or re-quoted on another Eligible Market within fifteen (15) Trading Days;
(k) the Company shall fail to comply in any material respect with the reporting requirements of the Exchange Act (including but not limited to becoming delinquent in its filings beyond any available extension); or
(l) any Event of Default (as defined in the Other Notes) occurs with respect to any term, covenant or provision set forth herein which specifically contains a notice requirement or grace period, if any Borrower shall be in default under such term, covenant or condition after the giving of such notice or the expiration of such grace period;
(xi) if any of the assumptions contained in the Insolvency Opinion delivered in connection with the Loan, or in the Additional Insolvency Opinion delivered subsequent to the closing of the Loan, is or shall become untrue in any material respect; or if any of the assumptions contained in the True Lease Opinion in connection with the Loan, or in the Additional True Lease Opinion delivered subsequent to the closing of the Loan, is or shall become untrue in any material respect;
(xii) if any Mortgage Borrower, any Operating Company or any Guarantor (Operating Lease) is in default of any of its material obligations under any Operating Lease (or under another lease and/or management agreement in substitution for such Operating Lease in accordance herewith) or under any such Operating Lease Guaranty (or under another operating lease guaranty in substitution for such Operating Lease Guaranty in accordance herewith) beyond any applicable notice and cure periods contained therein; or if any Operating Lease (or such other lease and/or management agreement) or any Operating Lease Guaranty (or such other operating lease guaranty) shall be surrendered or any Operating Lease or any Operating Lease Guaranty shall be terminated or canceled for any reason or under any circumstances whatsoever, except with the consent of Lender; or if any of the terms, covenants or conditions of any Operating Lease (or such other lease and/or management agreement) or any Operating Lease Guaranty (or such other operating lease guaranty) shall in any manner be modified, changed, supplemented, altered, restated or amended without the consent of Lender except as may otherwise expressly permitted in this Agreement;
(xiii) intentionally omitted;
(xiv) if any Affiliate of any Borrower that is or becomes a party to the Windstorm Insurance Intercreditor Agreement is in default of any of its material obligations under the Windstorm Insurance Intercreditor Agreement beyond any applicable notice and cure periods contained therein; or if the Windstorm Insurance Intercreditor Agreement shall be surrendered, terminated or canceled for any reason or under any circumstances whatsoever, except with the consent of Lender; or if any of the terms, covenants or conditions of the Windstorm Insurance Intercreditor Agreement shall in any manner be modified, changed, supplemented, altered, restated or amended without the consent of Lender;
(xv) if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower fails to comply with the covenants as to Prescribed Laws set forth in Section 5.1.1 hereof;
(xvi) if a material default has occurred and continues beyond any applicable cure period under any Management Agreement and if such default permits the Manager, the Operating Company or the Mortgage Borrower party thereto to terminate or cancel the Management Agreement in question;
(xvii) any Gaming License shall be refused, suspended, revoked, modified in a materially adverse manner or canceled or allowed to lapse or any proceeding is commenced by any Governmental Authority for the purpose of suspending, revoking or canceling any Gaming License in any materially adverse respect, or any Governmental Authority shall have appointed a conservator, supervisor or trustee to or for any of the Casino Components and, in each case of the foregoing, such action could reasonably be expected to (A) have an Individual Material Adverse Effect, (B) materially and adversely affect the continued operation of the Casino Components in the usual course of business and in substantially the same manner and to at least the same standard as was maintained prior to such action, or (C) result in any material decrease in the then expected cash flow and revenues to be derived from the Casino Components;
(xviii) if any Borrower shall continue to be in Default under any of the other terms, covenants or conditions of this Agreement not specified in subsections (i) to (xvii) above, for ten (10) days after notice to Borrower from Lender, in the case of any Default which can be cured by the payment of a sum of money, or for thirty (30) days after notice from Lender in the case of any other Default; provided, however, that if such non-monetary Default is susceptible of cure but cannot reasonably be cured within such thirty (30) day period and provided further that such Borrower shall have commenced to cure such Default within such thirty (30) day period and thereafter diligently and expeditiously proceeds to cure the same, such thirty (30) day period shall be extended for such time as is reasonably necessary for such Borrower in the exercise of due diligence to cure such Default, such additional period not to exceed one hundred twenty (120) days;
(xix) if there shall be a default under any of the other Loan Documents beyond any applicable cure periods contained in such documents, whether as to any Borrower, Mortgage Borrower, Senior Mezzanine Borrower, the Collateral, the Senior Mezzanine Collateral or any Individual Property, or if any other such event shall occur or condition shall exist, if the effect of such event or condition is to accelerate the maturity of any portion of the Debt or to permit Lender to accelerate the maturity of all or any portion of the Debt;
(xx) if the Liens created pursuant to any Loan Document shall cease to be a fully protected enforceable first priority security interest in the Collateral, or any portion of the Collateral is Transferred without Lender’s prior written consent except as permitted hereunder; or
(xxi) if a Mortgage Loan Event of Default or Senior Mezzanine Loan Event of Default shall occurOther Notes.
(b) Upon the occurrence of an Event of Default (other than an Event of Default described in clauses (vi) or (vii) above) and at any time thereafter, in addition to any other rights or remedies available to it pursuant to this Agreement and the other Loan Documents or at law or in equity, Lender may take such action, without notice or demand, that Lender deems advisable to protect and enforce its rights against Borrower and in and to all or any of the Collateral, including, without limitation, declaring the Debt to be immediately due and payable, and Lender may enforce or avail itself of any or all rights or remedies provided in the Loan Documents and may exercise all the rights and remedies of a secured party under the Uniform Commercial Code, as adopted and enacted by the State or States where any of the Collateral is located, against Borrower and any or all of the Collateral, including, without limitation, all rights or remedies available at law or in equity; and upon any Event of Default described in clauses (vi) or (vii) above, the Debt and all other obligations of Borrower hereunder and under the other Loan Documents shall immediately and automatically become due and payable, without notice or demand, and Borrower hereby expressly waives any such notice or demand, anything contained herein or in any other Loan Document to the contrary notwithstanding.
Appears in 2 contracts
Samples: Subordinated Note Agreement (Venus Concept Inc.), Subordinated Note Agreement (Venus Concept Inc.)
Event of Default. If there shall be any Event of Default (a) Each as defined below), at the option and upon the declaration of Holder and upon written notice to the Company, this Note shall accelerate and all principal and accrued interest shall become due and payable. The occurrence of any one or more of the following events shall constitute an event of default hereunder (an “Event of Default”)::
(a) the Company fails to pay timely any of the principal amount or other amounts due under this Note on the date the same becomes due and payable;
(i) if the Company fails to comply with any material provision of this Note (Aother than those set forth in Section 5 of this Note) any portion of or the Debt Purchase Agreement, which failure is not paid in full on the Maturity Date, cured within 30 days of Holder’s written notice of such failure or (Bii) the Debt Service is not paid Company shall fail to observe or perform the covenant contained in full on or before the related Payment Date, or (C) any other portion Section 5 of the Debt is not paid within five (5) days of when duethis Note;
(iic) if the Company files any of the Taxes petition or Other Charges are not paid (with respect to each action for relief under any bankruptcy, reorganization, insolvency or moratorium law or any Individual Property) prior to Delinquency;
(iii) if other law for the Policies (with respect to each relief of, or any Individual Property) are not kept relating to, debtors, now or hereafter in full force and effect, or if certified copies of the Policies (for each Individual Property) are not delivered to Lender upon request (or certificates thereof, if a Policy shall be renewed and certified copies of the Policy are not immediately available upon such renewal (each Borrower agreeing in such instance to provide copies of the Policies to Lender promptly thereafter));
(iv) if makes any Borrower Transfers or otherwise encumbers any portion of the Properties, the Collateral or the Senior Mezzanine Collateral, or there shall otherwise occur a Transfer without Lender’s prior consent in violation of the provisions of this Agreement, the Pledge Agreement or any other Loan Document;
(v) if any representation or warranty made by any Borrower or any other Loan Party herein or in any other Loan Document, or in any report, certificate, financial statement or other instrument, agreement or document or other material or written information furnished to Lender shall have been false or misleading in any material respect as of the date the representation or warranty was made (and, with respect to any such breach which is not the subject of any other subsection of this Section 8.1 and which is capable of being cured, such Borrower fails to remedy such condition within ten (10) days following notice to Borrower from Lender, in the case of any such breach which can be cured by the payment of a sum of money, or within thirty (30) days following notice from Lender in the case of any other such breach);
(vi) if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower shall make an assignment for the benefit of creditorscreditors or takes any corporate action in furtherance of any of the foregoing; or
(d) an involuntary petition is filed against the Company (unless such petition is dismissed or if discharged within 60 days) under any bankruptcy statute now or hereafter in effect, or a custodian, receiver, liquidator or trustee shall be appointed for any Borrower, Senior Mezzanine Borrower or Mortgage Borrowertrustee, or if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower shall be adjudicated a bankrupt or insolvent, or if any petition for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by or against, consented to, or acquiesced in by, Borrower or Senior Mezzanine Borrower, or if any proceeding for the dissolution or liquidation of any Borrower, Senior Mezzanine Borrower or Mortgage Borrower shall be instituted; provided, however, if such appointment, adjudication, petition or proceeding was involuntary and not consented to by any Borrower, Senior Mezzanine Borrower or Mortgage Borrower, upon the same not being discharged, stayed or dismissed within ninety (90) days;
(vii) if any Operating Company, any Manager, Principal, Holdings or any Guarantor shall make an assignment assignee for the benefit of creditors; creditors (or if a receiverother similar official) is appointed to take possession, liquidator custody or trustee shall be appointed for any such Operating Company, any such Manager, Principal, Holdings or any such Guarantor, or if any Operating Company, any Manager, Principal, Holdings or any Guarantor shall be adjudicated a bankrupt or insolvent, or if any petition for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by or against, consented to, or acquiesced in by, any Operating Company, any Manager, Principal, Holdings or any Guarantor, or if any proceeding for the dissolution or liquidation control of any Operating Company, any Manager, Principal, Holdings or any Guarantor shall be instituted; provided, however, if such appointment, adjudication, petition or proceeding was involuntary and not consented to by any such Operating Company, any such Manager, Principal, Holdings or any such Guarantor, upon the same not being discharged, stayed or dismissed within ninety (90) days;
(viii) if any Borrower attempts to assign its rights under this Agreement or any property of the other Loan Documents or any interest herein or therein in contravention of the Loan Documents;
(ix) if any Borrower breaches any of its respective negative covenants contained in Section 5.2 or any covenant contained in Section 4.1.30 or Section 5.1.11 hereof (and, with respect to any such breach of any covenant set forth in Section 5.1.11 which is not the subject of any other subsection of this Section 8.1, such Borrower fails to remedy such condition within ten (10) days after notice to Borrower from Lender, in the case of any such Default under Section 5.1.11 which can be cured by the payment of a sum of money, or for thirty (30) days after notice from Lender in the case of any other such Default under Section 5.1.11);
(x) with respect to any term, covenant or provision set forth herein which specifically contains a notice requirement or grace period, if any Borrower shall be in default under such term, covenant or condition after the giving of such notice or the expiration of such grace period;
(xi) if any of the assumptions contained in the Insolvency Opinion delivered in connection with the Loan, or in the Additional Insolvency Opinion delivered subsequent to the closing of the Loan, is or shall become untrue in any material respect; or if any of the assumptions contained in the True Lease Opinion in connection with the Loan, or in the Additional True Lease Opinion delivered subsequent to the closing of the Loan, is or shall become untrue in any material respect;
(xii) if any Mortgage Borrower, any Operating Company or any Guarantor (Operating Lease) is in default of any of its material obligations under any Operating Lease (or under another lease and/or management agreement in substitution for such Operating Lease in accordance herewith) or under any such Operating Lease Guaranty (or under another operating lease guaranty in substitution for such Operating Lease Guaranty in accordance herewith) beyond any applicable notice and cure periods contained therein; or if any Operating Lease (or such other lease and/or management agreement) or any Operating Lease Guaranty (or such other operating lease guaranty) shall be surrendered or any Operating Lease or any Operating Lease Guaranty shall be terminated or canceled for any reason or under any circumstances whatsoever, except with the consent of Lender; or if any of the terms, covenants or conditions of any Operating Lease (or such other lease and/or management agreement) or any Operating Lease Guaranty (or such other operating lease guaranty) shall in any manner be modified, changed, supplemented, altered, restated or amended without the consent of Lender except as may otherwise expressly permitted in this Agreement;
(xiii) intentionally omitted;
(xiv) if any Affiliate of any Borrower that is or becomes a party to the Windstorm Insurance Intercreditor Agreement is in default of any of its material obligations under the Windstorm Insurance Intercreditor Agreement beyond any applicable notice and cure periods contained therein; or if the Windstorm Insurance Intercreditor Agreement shall be surrendered, terminated or canceled for any reason or under any circumstances whatsoever, except with the consent of Lender; or if any of the terms, covenants or conditions of the Windstorm Insurance Intercreditor Agreement shall in any manner be modified, changed, supplemented, altered, restated or amended without the consent of Lender;
(xv) if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower fails to comply with the covenants as to Prescribed Laws set forth in Section 5.1.1 hereof;
(xvi) if a material default has occurred and continues beyond any applicable cure period under any Management Agreement and if such default permits the Manager, the Operating Company or the Mortgage Borrower party thereto to terminate or cancel the Management Agreement in question;
(xvii) any Gaming License shall be refused, suspended, revoked, modified in a materially adverse manner or canceled or allowed to lapse or any proceeding is commenced by any Governmental Authority for the purpose of suspending, revoking or canceling any Gaming License in any materially adverse respect, or any Governmental Authority shall have appointed a conservator, supervisor or trustee to or for any of the Casino Components and, in each case of the foregoing, such action could reasonably be expected to (A) have an Individual Material Adverse Effect, (B) materially and adversely affect the continued operation of the Casino Components in the usual course of business and in substantially the same manner and to at least the same standard as was maintained prior to such action, or (C) result in any material decrease in the then expected cash flow and revenues to be derived from the Casino Components;
(xviii) if any Borrower shall continue to be in Default under any of the other terms, covenants or conditions of this Agreement not specified in subsections (i) to (xvii) above, for ten (10) days after notice to Borrower from Lender, in the case of any Default which can be cured by the payment of a sum of money, or for thirty (30) days after notice from Lender in the case of any other Default; provided, however, that if such non-monetary Default is susceptible of cure but cannot reasonably be cured within such thirty (30) day period and provided further that such Borrower shall have commenced to cure such Default within such thirty (30) day period and thereafter diligently and expeditiously proceeds to cure the same, such thirty (30) day period shall be extended for such time as is reasonably necessary for such Borrower in the exercise of due diligence to cure such Default, such additional period not to exceed one hundred twenty (120) days;
(xix) if there shall be a default under any of the other Loan Documents beyond any applicable cure periods contained in such documents, whether as to any Borrower, Mortgage Borrower, Senior Mezzanine Borrower, the Collateral, the Senior Mezzanine Collateral or any Individual Property, or if any other such event shall occur or condition shall exist, if the effect of such event or condition is to accelerate the maturity of any portion of the Debt or to permit Lender to accelerate the maturity of all or any portion of the Debt;
(xx) if the Liens created pursuant to any Loan Document shall cease to be a fully protected enforceable first priority security interest in the Collateral, or any portion of the Collateral is Transferred without Lender’s prior written consent except as permitted hereunder; or
(xxi) if a Mortgage Loan Event of Default or Senior Mezzanine Loan Event of Default shall occur.
(b) Company. Upon the occurrence of an Event of Default (other than an Default, to the extent permitted by applicable law and notwithstanding anything to the contrary in this Note, the then-outstanding principal amount of this Note shall bear interest, from the date such Event of Default described in clauses (vi) or (vii) above) and at any time thereafter, in addition to any other rights or remedies available to it pursuant to this Agreement and occurred until the other Loan Documents or at law or in equity, Lender may take date such action, without notice or demand, that Lender deems advisable to protect and enforce its rights against Borrower and in and to all or any of the Collateral, including, without limitation, declaring the Debt to be immediately due and payable, and Lender may enforce or avail itself of any or all rights or remedies provided in the Loan Documents and may exercise all the rights and remedies of a secured party under the Uniform Commercial Code, as adopted and enacted by the State or States where any of the Collateral is located, against Borrower and any or all of the Collateral, including, without limitation, all rights or remedies available at law or in equity; and upon any Event of Default described in clauses (vi) is cured or (vii) abovewaived, the Debt and all other obligations of Borrower hereunder and under the other Loan Documents shall immediately and automatically become due and payable, without notice or demand, and Borrower hereby expressly waives any such notice or demand, anything contained herein or in any other Loan Document at a rate equal to the contrary notwithstandinglesser of 15.0% per annum or the maximum allowed by law.
Appears in 2 contracts
Samples: Convertible Note Purchase Agreement (Sunshine Silver Mining & Refining Corp), Convertible Note Purchase Agreement (Sunshine Silver Mining & Refining Corp)
Event of Default. (a) Each The occurrence of the any of following events shall constitute an event of default hereunder (an “Event of Default”):” hereunder:
(ia) if (A) any portion The failure of the Debt is not paid in full on the Maturity DateCompany to pay any amounts due under this Note when due, (B) the Debt Service is not paid in full on or before the related Payment Date, or (C) any other portion of the Debt is not paid within provided that such failure continues for no less than five (5) consecutive days after the Company’s receipt of when duewritten notice of such failure from the Holder;
(iib) if Unless waived by the Holder, the Company’s material breach of any representations or warranties of the Taxes or Other Charges are Company under this Note, which breach is not paid cured by the Company within sixty (with respect to each or any Individual Property60) prior to Delinquencydays after the Company’s receipt of written notice thereof from the Holder;
(iiic) Unless waived by the Holder, if the Policies (with respect Company fails to each observe or any Individual Property) are not kept in full force and effect, or if certified copies of the Policies (for each Individual Property) are not delivered to Lender upon request (or certificates thereof, if a Policy shall be renewed and certified copies of the Policy are not immediately available upon such renewal (each Borrower agreeing in such instance to provide copies of the Policies to Lender promptly thereafter));
(iv) if any Borrower Transfers or otherwise encumbers any portion of the Properties, the Collateral or the Senior Mezzanine Collateral, or there shall otherwise occur a Transfer without Lender’s prior consent in violation of the provisions of this Agreement, the Pledge Agreement or any other Loan Document;
(v) if any representation or warranty made by any Borrower or any other Loan Party herein or in any other Loan Document, or in any report, certificate, financial statement or other instrument, agreement or document or other material or written information furnished to Lender shall have been false or misleading perform in any material respect as any of the date the representation or warranty was made its covenants contained in this Note and such failure continues for more than sixty (and, with respect to any such breach which is not the subject of any other subsection of this Section 8.1 and which is capable of being cured, such Borrower fails to remedy such condition within ten (1060) days following after the Company’s receipt of written notice to Borrower thereof from Lender, the Holder; and
(d) The filing of a petition in the case of bankruptcy or under any such breach which can be cured similar insolvency law by the payment Company, the making of a sum of money, or within thirty (30) days following notice from Lender in the case of any other such breach);
(vi) if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower shall make an assignment for the benefit of creditors; or if a receiver, liquidator or trustee shall be appointed for any Borrower, Senior Mezzanine Borrower or Mortgage Borrower, or if any Borrower, Senior Mezzanine Borrower voluntary petition in bankruptcy or Mortgage Borrower shall be adjudicated a bankrupt or insolvent, or if any petition for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or under any similar federal or state law, shall be insolvency law is filed by or against, consented to, or acquiesced in by, Borrower or Senior Mezzanine Borrower, or if any proceeding for against the dissolution or liquidation of any Borrower, Senior Mezzanine Borrower or Mortgage Borrower shall be instituted; provided, however, if Company and such appointment, adjudication, petition or proceeding was involuntary and is not consented to by any Borrower, Senior Mezzanine Borrower or Mortgage Borrower, upon the same not being discharged, stayed or dismissed within ninety sixty (90) days;
(vii) if any Operating Company, any Manager, Principal, Holdings or any Guarantor shall make an assignment for the benefit of creditors; or if a receiver, liquidator or trustee shall be appointed for any such Operating Company, any such Manager, Principal, Holdings or any such Guarantor, or if any Operating Company, any Manager, Principal, Holdings or any Guarantor shall be adjudicated a bankrupt or insolvent, or if any petition for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by or against, consented to, or acquiesced in by, any Operating Company, any Manager, Principal, Holdings or any Guarantor, or if any proceeding for the dissolution or liquidation of any Operating Company, any Manager, Principal, Holdings or any Guarantor shall be instituted; provided, however, if such appointment, adjudication, petition or proceeding was involuntary and not consented to by any such Operating Company, any such Manager, Principal, Holdings or any such Guarantor, upon the same not being discharged, stayed or dismissed within ninety (90) days;
(viii) if any Borrower attempts to assign its rights under this Agreement or any of the other Loan Documents or any interest herein or therein in contravention of the Loan Documents;
(ix) if any Borrower breaches any of its respective negative covenants contained in Section 5.2 or any covenant contained in Section 4.1.30 or Section 5.1.11 hereof (and, with respect to any such breach of any covenant set forth in Section 5.1.11 which is not the subject of any other subsection of this Section 8.1, such Borrower fails to remedy such condition within ten (1060) days after notice to Borrower from Lender, in the case of any such Default under Section 5.1.11 which can be cured by the payment of a sum of money, or for thirty (30) days after notice from Lender in the case of any other such Default under Section 5.1.11);
(x) with respect to any term, covenant or provision set forth herein which specifically contains a notice requirement or grace period, if any Borrower shall be in default under such term, covenant or condition after the giving of such notice or the expiration of such grace period;
(xi) if any of the assumptions contained in the Insolvency Opinion delivered in connection with the Loan, or in the Additional Insolvency Opinion delivered subsequent to the closing of the Loan, is or shall become untrue in any material respect; or if any of the assumptions contained in the True Lease Opinion in connection with the Loan, or in the Additional True Lease Opinion delivered subsequent to the closing of the Loan, is or shall become untrue in any material respect;
(xii) if any Mortgage Borrower, any Operating Company or any Guarantor (Operating Lease) is in default of any of its material obligations under any Operating Lease (or under another lease and/or management agreement in substitution for such Operating Lease in accordance herewith) or under any such Operating Lease Guaranty (or under another operating lease guaranty in substitution for such Operating Lease Guaranty in accordance herewith) beyond any applicable notice and cure periods contained therein; or if any Operating Lease (or such other lease and/or management agreement) or any Operating Lease Guaranty (or such other operating lease guaranty) shall be surrendered or any Operating Lease or any Operating Lease Guaranty shall be terminated or canceled for any reason or under any circumstances whatsoever, except with the consent of Lender; or if any of the terms, covenants or conditions of any Operating Lease (or such other lease and/or management agreement) or any Operating Lease Guaranty (or such other operating lease guaranty) shall in any manner be modified, changed, supplemented, altered, restated or amended without the consent of Lender except as may otherwise expressly permitted in this Agreement;
(xiii) intentionally omitted;
(xiv) if any Affiliate of any Borrower that is or becomes a party to the Windstorm Insurance Intercreditor Agreement is in default of any of its material obligations under the Windstorm Insurance Intercreditor Agreement beyond any applicable notice and cure periods contained therein; or if the Windstorm Insurance Intercreditor Agreement shall be surrendered, terminated or canceled for any reason or under any circumstances whatsoever, except with the consent of Lender; or if any of the terms, covenants or conditions of the Windstorm Insurance Intercreditor Agreement shall in any manner be modified, changed, supplemented, altered, restated or amended without the consent of Lender;
(xv) if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower fails to comply with the covenants as to Prescribed Laws set forth in Section 5.1.1 hereof;
(xvi) if a material default has occurred and continues beyond any applicable cure period under any Management Agreement and if such default permits the Manager, the Operating Company or the Mortgage Borrower party thereto to terminate or cancel the Management Agreement in question;
(xvii) any Gaming License shall be refused, suspended, revoked, modified in a materially adverse manner or canceled or allowed to lapse or any proceeding is commenced by any Governmental Authority for the purpose of suspending, revoking or canceling any Gaming License in any materially adverse respect, or any Governmental Authority shall have appointed a conservator, supervisor or trustee to or for any of the Casino Components and, in each case of the foregoing, such action could reasonably be expected to (A) have an Individual Material Adverse Effect, (B) materially and adversely affect the continued operation of the Casino Components in the usual course of business and in substantially the same manner and to at least the same standard as was maintained prior to such action, or (C) result in any material decrease in the then expected cash flow and revenues to be derived from the Casino Components;
(xviii) if any Borrower shall continue to be in Default under any of the other terms, covenants or conditions of this Agreement not specified in subsections (i) to (xvii) above, for ten (10) days after notice to Borrower from Lender, in the case of any Default which can be cured by the payment of a sum of money, or for thirty (30) days after notice from Lender in the case of any other Default; provided, however, that if such non-monetary Default is susceptible of cure but cannot reasonably be cured within such thirty (30) day period and provided further that such Borrower shall have commenced to cure such Default within such thirty (30) day period and thereafter diligently and expeditiously proceeds to cure the same, such thirty (30) day period shall be extended for such time as is reasonably necessary for such Borrower in the exercise of due diligence to cure such Default, such additional period not to exceed one hundred twenty (120) days;
(xix) if there shall be a default under any of the other Loan Documents beyond any applicable cure periods contained in such documents, whether as to any Borrower, Mortgage Borrower, Senior Mezzanine Borrower, the Collateral, the Senior Mezzanine Collateral or any Individual Property, or if any other such event shall occur or condition shall exist, if the effect of such event or condition is to accelerate the maturity of any portion of the Debt or to permit Lender to accelerate the maturity of all or any portion of the Debt;
(xx) if the Liens created pursuant to any Loan Document shall cease to be a fully protected enforceable first priority security interest in the Collateral, or any portion of the Collateral is Transferred without Lender’s prior written consent except as permitted hereunder; or
(xxi) if a Mortgage Loan Event of Default or Senior Mezzanine Loan Event of Default shall occur.
(b) filing thereof. Upon the occurrence of an any Event of Default (other than an Default, the Holder may declare by written notice to the Company that the Outstanding Balance under this Note shall become immediately due and payable. Upon the occurrence of any Event of Default described in clauses (vi) or (vii) above) and at any time thereafterDefault, the Holder may, in addition to any other rights or remedies available to it pursuant to this Agreement and the other Loan Documents or at law or in equity, Lender may take such action, without notice or demand, that Lender deems advisable to protect and enforce its rights against Borrower and in and to declaring all or any of the Collateral, including, without limitation, declaring the Debt amounts due hereunder to be immediately due and payable, and Lender may enforce or avail itself of pursue any or all rights or remedies provided in the Loan Documents and may exercise all the rights and remedies of a secured party under the Uniform Commercial Codeavailable remedy, as adopted and enacted by the State or States where any of the Collateral is located, against Borrower and any or all of the Collateral, including, without limitation, all rights or remedies available whether at law or in equity; and upon any Event of Default described in clauses (vi) or (vii) above, the Debt and all other obligations of Borrower hereunder and under the other Loan Documents shall immediately and automatically become due and payable, without notice or demand, and Borrower hereby expressly waives any such notice or demand, anything contained herein or in any other Loan Document to the contrary notwithstanding.
Appears in 2 contracts
Samples: Convertible Note Agreement (Elephant Talk Communications Corp), Convertible Note Agreement (Elephant Talk Communications Corp)
Event of Default. (a) Each of the following events shall constitute an An event of default hereunder (an “Event of Default”):) with respect to a Party (the “Defaulting Party”) shall mean any of the following:
(ia) if the Party fails to make, when due, any payment (Aother than a payment with regard to a damage claim asserted by a Party that is reasonably disputed by the other Party) required to be made by it under this Agreement or any portion of the Debt Specified Transaction, and such failure is not paid in full on the Maturity Date, (B) the Debt Service is not paid in full on or before the related Payment Date, or (C) any other portion of the Debt is not paid remedied within five (5) days Business Days of when duereceipt of notice of non-payment;
(iib) if any representation or warranty made, or deemed to have been made, by the Party in this Agreement or any agreement or Credit Support provided in connection with this Agreement is false or materially misleading at the time it is made or deemed to have been made;
(c) the Party fails to perform a material obligation under this Agreement (other than a failure to deliver or take delivery of coal, the Taxes exclusive remedy for which is set forth in Section 10.1 above) and such failure is not remedied within five (5) Business Days;
(d) the Party repudiates or Other Charges are not paid challenges the validity of this Agreement;
(e) a Bankruptcy Event occurs with respect to each such Party or any Individual Property) prior to Delinquencysuch Party’s Credit Support Provider;
(iiif) if the Policies a default, event of default or other similar condition or event (with however described) in respect to each of one or any Individual Property) are not kept in full force and effect, or if certified copies more of the Policies (for each Individual Property) are not delivered to Lender upon request (Principals or certificates thereof, if a Policy shall be renewed and certified copies the Credit Support Provider of the Policy are not immediately available upon such renewal (each Borrower agreeing in such instance to provide copies of the Policies to Lender promptly thereafter));
(iv) if any Borrower Transfers or otherwise encumbers any portion of the Properties, the Collateral or the Senior Mezzanine Collateral, or there shall otherwise occur a Transfer without Lender’s prior consent in violation of the provisions of this Agreement, the Pledge Agreement Principals or any other Loan Subsidiary Guarantor or Additional Guarantor occurs and is then continuing under the Credit Agreement or under any Security Document;
(vg) if any representation or warranty made by any Borrower or any other Loan Party herein or in any other Loan Document, or in any report, certificate, financial statement or other instrument, agreement or document or other material or written information furnished to Lender shall have been false or misleading in any material respect as of the date the representation or warranty was made (and, with respect to any such breach which is not the subject of any other subsection of this Section 8.1 and which is capable of being cured, such Borrower fails Seller’s obligations to remedy such condition within ten (10) days following notice to Borrower from Lender, in the case of any such breach which can be cured by the payment of a sum of money, or within thirty (30) days following notice from Lender in the case of any other such breach);
(vi) if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower shall make an assignment for the benefit of creditors; or if a receiver, liquidator or trustee shall be appointed for any Borrower, Senior Mezzanine Borrower or Mortgage Borrower, or if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower shall be adjudicated a bankrupt or insolvent, or if any petition for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by or against, consented to, or acquiesced in by, Borrower or Senior Mezzanine Borrower, or if any proceeding for the dissolution or liquidation of any Borrower, Senior Mezzanine Borrower or Mortgage Borrower shall be instituted; provided, however, if such appointment, adjudication, petition or proceeding was involuntary and not consented to by any Borrower, Senior Mezzanine Borrower or Mortgage Borrower, upon the same not being discharged, stayed or dismissed within ninety (90) days;
(vii) if any Operating Company, any Manager, Principal, Holdings or any Guarantor shall make an assignment for the benefit of creditors; or if a receiver, liquidator or trustee shall be appointed for any such Operating Company, any such Manager, Principal, Holdings or any such Guarantor, or if any Operating Company, any Manager, Principal, Holdings or any Guarantor shall be adjudicated a bankrupt or insolvent, or if any petition for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by or against, consented to, or acquiesced in by, any Operating Company, any Manager, Principal, Holdings or any Guarantor, or if any proceeding for the dissolution or liquidation of any Operating Company, any Manager, Principal, Holdings or any Guarantor shall be instituted; provided, however, if such appointment, adjudication, petition or proceeding was involuntary and not consented to by any such Operating Company, any such Manager, Principal, Holdings or any such Guarantor, upon the same not being discharged, stayed or dismissed within ninety (90) days;
(viii) if any Borrower attempts to assign its rights Buyer under this Agreement or any Credit Support Provider’s obligations to Buyer or to any of Buyer’s Affiliates under the Credit Support Documents (“Seller Obligations”), such Seller Obligations cease to be subject to a valid and perfected Lien on the Collateral pursuant to and subject to the terms of the Security Documents (subject to any termination or release permitted thereunder), in each case free and clear of Liens other Loan Documents than Permitted Liens; or
(h) Credit Support Default.
(1) Failure by the Party or any interest herein Credit Support Provider of such Party to comply with or therein perform any agreement or obligation to be complied with or performed by it in contravention of the Loan Documentsaccordance with any Credit Support Document if such failure is continuing after any applicable grace period has elapsed;
(ix2) if any Borrower breaches any the expiration or termination of its respective negative covenants contained in Section 5.2 such Credit Support Document or the failing or ceasing of such Credit Support Document, or any covenant contained in Section 4.1.30 security interest granted by such Party or Section 5.1.11 hereof (and, with respect such Credit Support Provider to the other Party pursuant to any such breach of any covenant set forth in Section 5.1.11 which is not the subject of any other subsection of this Section 8.1Credit Support Document, such Borrower fails to remedy such condition within ten (10) days after notice to Borrower from Lender, in the case of any such Default under Section 5.1.11 which can be cured by the payment of a sum of money, or for thirty (30) days after notice from Lender in the case of any other such Default under Section 5.1.11);
(x) with respect to any term, covenant or provision set forth herein which specifically contains a notice requirement or grace period, if any Borrower shall be in default under such term, covenant or condition after the giving of such notice or the expiration of such grace period;
(xi) if any of the assumptions contained in the Insolvency Opinion delivered in connection with the Loan, or in the Additional Insolvency Opinion delivered subsequent to the closing of the Loan, is or shall become untrue in any material respect; or if any of the assumptions contained in the True Lease Opinion in connection with the Loan, or in the Additional True Lease Opinion delivered subsequent to the closing of the Loan, is or shall become untrue in any material respect;
(xii) if any Mortgage Borrower, any Operating Company or any Guarantor (Operating Lease) is in default of any of its material obligations under any Operating Lease (or under another lease and/or management agreement in substitution for such Operating Lease in accordance herewith) or under any such Operating Lease Guaranty (or under another operating lease guaranty in substitution for such Operating Lease Guaranty in accordance herewith) beyond any applicable notice full force and cure periods contained therein; or if any Operating Lease (or such other lease and/or management agreement) or any Operating Lease Guaranty (or such other operating lease guaranty) shall be surrendered or any Operating Lease or any Operating Lease Guaranty shall be terminated or canceled for any reason or under any circumstances whatsoever, except with the consent of Lender; or if any of the terms, covenants or conditions of any Operating Lease (or such other lease and/or management agreement) or any Operating Lease Guaranty (or such other operating lease guaranty) shall in any manner be modified, changed, supplemented, altered, restated or amended without the consent of Lender except as may otherwise expressly permitted in this Agreement;
(xiii) intentionally omitted;
(xiv) if any Affiliate of any Borrower that is or becomes a party to the Windstorm Insurance Intercreditor Agreement is in default of any of its material obligations under the Windstorm Insurance Intercreditor Agreement beyond any applicable notice and cure periods contained therein; or if the Windstorm Insurance Intercreditor Agreement shall be surrendered, terminated or canceled for any reason or under any circumstances whatsoever, except with the consent of Lender; or if any of the terms, covenants or conditions of the Windstorm Insurance Intercreditor Agreement shall in any manner be modified, changed, supplemented, altered, restated or amended without the consent of Lender;
(xv) if any Borrower, Senior Mezzanine Borrower or Mortgage Borrower fails to comply with the covenants as to Prescribed Laws set forth in Section 5.1.1 hereof;
(xvi) if a material default has occurred and continues beyond any applicable cure period under any Management Agreement and if such default permits the Manager, the Operating Company or the Mortgage Borrower party thereto to terminate or cancel the Management Agreement in question;
(xvii) any Gaming License shall be refused, suspended, revoked, modified in a materially adverse manner or canceled or allowed to lapse or any proceeding is commenced by any Governmental Authority effect for the purpose of suspending, revoking or canceling any Gaming License in any materially adverse respect, or any Governmental Authority shall have appointed a conservator, supervisor or trustee to or for any of the Casino Components and, this Agreement (in each case of the foregoing, such action could reasonably be expected to (Aother than in accordance with its terms) have an Individual Material Adverse Effect, (B) materially and adversely affect the continued operation of the Casino Components in the usual course of business and in substantially the same manner and to at least the same standard as was maintained prior to the satisfaction of all obligations of such action, or (C) result in any material decrease in Party under this Agreement without the then expected cash flow and revenues to be derived from the Casino Components;
(xviii) if any Borrower shall continue to be in Default under any written consent of the other terms, covenants or conditions of this Agreement not specified in subsections (i) to (xvii) above, for ten (10) days after notice to Borrower from Lender, in the case of any Default which can be cured by the payment of a sum of money, or for thirty (30) days after notice from Lender in the case of any other Default; provided, however, that if such non-monetary Default is susceptible of cure but cannot reasonably be cured within such thirty (30) day period and provided further that such Borrower shall have commenced to cure such Default within such thirty (30) day period and thereafter diligently and expeditiously proceeds to cure the same, such thirty (30) day period shall be extended for such time as is reasonably necessary for such Borrower in the exercise of due diligence to cure such Default, such additional period not to exceed one hundred twenty (120) days;
(xix) if there shall be a default under any of the other Loan Documents beyond any applicable cure periods contained in such documents, whether as to any Borrower, Mortgage Borrower, Senior Mezzanine Borrower, the Collateral, the Senior Mezzanine Collateral or any Individual Property, or if any other such event shall occur or condition shall exist, if the effect of such event or condition is to accelerate the maturity of any portion of the Debt or to permit Lender to accelerate the maturity of all or any portion of the Debt;
(xx) if the Liens created pursuant to any Loan Document shall cease to be a fully protected enforceable first priority security interest in the Collateral, or any portion of the Collateral is Transferred without Lender’s prior written consent except as permitted hereunderParty; or
(xxi3) if a Mortgage Loan Event of Default the Party or Senior Mezzanine Loan Event of Default shall occur.
(b) Upon the occurrence of an Event of Default (other than an Event of Default described in clauses (vi) such Credit Support Provider disaffirms, disclaims, repudiates or (vii) above) and at any time thereafterrejects, in addition to any other rights or remedies available to it pursuant to this Agreement and the other Loan Documents or at law whole or in equitypart, Lender may take or challenges the validity of, such action, without notice Credit Support Document (or demand, that Lender deems advisable such action is taken by any person or entity appointed or empowered to protect and enforce operate it or act on its rights against Borrower and in and to all or any of the Collateral, including, without limitation, declaring the Debt to be immediately due and payable, and Lender may enforce or avail itself of any or all rights or remedies provided in the Loan Documents and may exercise all the rights and remedies of a secured party under the Uniform Commercial Code, as adopted and enacted by the State or States where any of the Collateral is located, against Borrower and any or all of the Collateral, including, without limitation, all rights or remedies available at law or in equity; and upon any Event of Default described in clauses (vi) or (vii) above, the Debt and all other obligations of Borrower hereunder and under the other Loan Documents shall immediately and automatically become due and payable, without notice or demand, and Borrower hereby expressly waives any such notice or demand, anything contained herein or in any other Loan Document to the contrary notwithstandingbehalf).
Appears in 2 contracts
Samples: General Terms and Conditions (Foresight Energy LP), General Terms and Conditions (Foresight Energy Partners LP)
