Lease Events of Default. The following events shall constitute Lease Events of Default hereunder (whether any such event shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body) and each such Lease Event of Default shall be deemed to exist and continue so long as, but only as long as, it shall not have been remedied: (a) Lessee shall fail to (i) make or (ii) be deemed by virtue of the last sentence of Section 3.5 hereof to have made any payment of Basic Rent, Early Purchase Price, any other purchase price to be paid by Lessee for any Units pursuant to this Lease or the Participation Agreement, Stipulated Loss Amount or Termination Amount (x) in the case of any such payment that is required to be made on the Basic Term Expiration Date or on any date within 30 days before the Basic Term Expiration Date, when due, and (y) in the case of any other such payment, within 10 Business Days after the same shall have become due; provided, however, that so long as any Equipment Notes remain outstanding, failure to make (or be deemed to have made) any portion of Basic Rent on any Rent Payment Date shall not be a Lease Event of Default so long as the amounts applied under Section 3.4, clause (4), of the Collateral Agency Agreement are sufficient to make the distributions required under such clause (4) with respect to the obligations owed under this Lease; provided, further, that in the event that the Special Equity Buy-Out has been consummated, failure to make any payment of Basic Rent, Early Purchase Price, any other purchase price to be paid by Lessee for any Units pursuant to this Lease or the Participation Agreement, Stipulated Loss Amount or Termination Amount (to the extent such amount constitutes an Accumulated Equity Deficiency Amount to be applied under Section 3.4, clause 9 of the Collateral Agency Agreement) shall, after receipt by Lessee of written notice of such failure from Lessor or Owner Participant, be a Lease Event of Default; or (b) Lessee shall fail to (i) make or (ii) be deemed by virtue of payments made by the Collateral Agent to have made any payment of Supplemental Rent, including indemnity or tax indemnity payments, but not including Stipulated Loss Amount, Termination Amount, Early Purchase Price, or any other purchase price to be paid by Lessee for any Units pursuant to this Lease or the Participation Agreement (x) in the case of any such payment that is required to be on the Basic Term Expiration Date or on any date within 30 days before the Basic Term Expiration Date, when due, and (y) in the case of any other such payment, after the same shall have become due and such failure shall continue unremedied for 30 days after receipt by Lessee of written notice of such failure from Lessor, Policy Provider, Owner Participant or the Indenture Trustee; provided, however, that so long as any Equipment Notes remain outstanding, failure to make (or be deemed to have made) payment of any of the amounts referred to in or to be applied pursuant to clauses (5) through (15) of Section 3.4 of the Collateral Agency Agreement shall not be a Lease Event of Default; or (c) Lessee shall fail to maintain in effect the insurance required by Section 12 or Section 6.4 of the Collateral Agency Agreement and such failure shall not have been waived as provided for therein; or (d) Lessee shall use or permit the use of the Units or the Pledged Units or any portion thereof in a way which is not permitted by this Lease (with respect to the Units) or the Collateral Agency Agreement (with respect to the Pledged Units), provided that such unauthorized use shall not constitute a Lease Event of Default for a period of 45 days after Lessee's obtaining actual knowledge thereof so long as (i) such unauthorized use is not the result of any willful action of Lessee and (ii) such unauthorized use is capable of being cured and Lessee diligently pursues such cure throughout such 45-day period; or Lessee shall make or permit any unauthorized assignment or transfer of this Lease in violation of Section 18.2; or (e) TILC (or any successor thereto in its capacity as Administrator or Servicer, as applicable) shall have defaulted in any material respect in the performance of any of its obligations under the Administrative Services Agreement or the Servicing Agreement or a default shall occur under Section 6(a) of the Account Administration Agreement, and, in each case, Lessee shall have failed to exercise its rights thereunder in respect of such default for a period of 30 days after receipt by Lessee of written notice from Lessor, Owner Participant, Policy Provider or the Indenture Trustee, demanding that such action be taken; or (f) Any representation or warranty made by Lessee in any Lessee Agreement or any representation or warranty made by TILC in any Operative Agreement to which any such Person is a party, in each case, other than the Tax Indemnity Agreement, is untrue or incorrect in any material respect as of the date of making thereof and such untruth or incorrectness shall continue to be material and unremedied for a period of 30 days after receipt of notice from Lessor, Owner Participant, Indenture Trustee or the Policy Provider; provided that, if such untruth or incorrectness is capable of being remedied, no such untruth or incorrectness shall constitute a Lease Event of Default hereunder for a period of 120 days after receipt of notice from Lessor, Owner Participant, the Indenture Trustee or the Policy Provider so long as Lessee, TILC or TRMI, as the case may be, is diligently proceeding to remedy such untruth or incorrectness and shall in fact remedy such untruth or incorrectness within such period; provided that such untrue or incorrect representation or warranty shall be deemed to be remediable or remedied only after all adverse consequences thereof if any, can be and have been remedied as applicable; or (g) Lessee or the General Partner shall (i) 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 (ii) consent to any such relief or to the appointment of or taking possession by any such official in any voluntary case or other proceeding commenced against it, or (iii) admit in writing its inability to pay its debts generally as they come due, or (iv) make a general assignment for the benefit of creditors, or (v) take any corporate or partnership action to authorize any of the foregoing; or (h) An involuntary case or other proceeding shall be commenced against Lessee or the General Partner seeking liquidation, reorganization or 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 60 days; or (i) Lessee shall fail to observe or perform any other of the covenants or agreements to be observed or performed by Lessee under any Lessee Agreement or any certificate and such failure shall continue unremedied for 30 days after notice from Lessor, Owner Participant, Policy Provider or the Indenture Trustee to Lessee, specifying the failure and demanding the same to be remedied; provided that, if such failure is capable of being remedied, and the remedy requires an action other than, or in addition to, the payment of money, no such failure (other than one relating to the payment of such money) shall constitute a Lease Event of Default hereunder for a period of 150 days after receipt of such notice so long as Lessee is diligently proceeding to remedy such failure and shall in fact remedy such failure within such period; or (j) A Manager Default shall have occurred and be continuing under the Management Agreement, and Lessee shall have failed to exercise its rights under the Management Agreement in respect of such Manager Default for a period of 30 days after receipt by Lessee of written notice from Lessor, Owner Participant or the Indenture Trustee demanding that such action be taken; or
Appears in 6 contracts
Samples: Equipment Lease Agreement (Trinity Industries Inc), Equipment Lease Agreement (Trinity Industries Inc), Equipment Lease Agreement (Trinity Industries Inc)
Lease Events of Default. The occurrence of any one or more of the following events shall constitute Lease Events of Default hereunder (events, whether any such event shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body) and each such , shall constitute a "Lease Event of Default shall be deemed to exist and continue so long as, but only as long as, it shall not have been remedied:Default": ----------------------
(a) Lessee shall fail to make any payment when due (i) make of Base Rent and such failure shall continue for a period of five (5) Business Days, or (ii) be deemed by virtue in connection with the exercise of the last sentence of Section 3.5 hereof to have made any payment of Basic Rent, Early Purchase Price, any other purchase price to be paid by Lessee for any Units pursuant to this Lease Option or the Participation Agreement, Stipulated Loss Amount or Termination Amount (x) in the case of any such payment that is required to be made on the Basic Term Expiration Date or on any date within 30 days before the Basic Term Expiration Date, when due, and (y) in the case of any other such payment, within 10 Business Days after the same shall have become due; provided, however, that so long as any Equipment Notes remain outstanding, failure to make (or be deemed to have made) any portion of Basic Rent on any Rent Payment Date shall not be a Lease Event of Default so long as the amounts applied under Section 3.4, clause (4), of the Collateral Agency Agreement are sufficient to make the distributions required under such clause (4) with respect to the obligations owed under this Lease; provided, further, that in the event that the Special Equity Buy-Out has been consummated, failure to make any payment of Basic Rent, Early Purchase Price, any other purchase price to be paid by Lessee for any Units pursuant to this Lease or the Participation Agreement, Stipulated Loss Amount or Termination Amount (to the extent such amount constitutes an Accumulated Equity Deficiency Amount to be applied under Section 3.4, clause 9 of the Collateral Agency Agreement) shall, after receipt by Lessee of written notice of such failure from Lessor or Owner Participant, be a Lease Event of Default; orSale Option;
(b) Lessee shall fail to (i) make or (ii) be deemed by virtue of payments made by the Collateral Agent to have made any payment of Supplemental Rent, including indemnity or tax indemnity payments, but not including Stipulated Loss Amount, Termination Amount, Early Purchase Price, or any other purchase price to be paid by Lessee for amount payable hereunder or under any Units pursuant to this Lease or of the Participation Agreement other Operative Documents (xother than the Construction Agency Agreement) in the case of any such payment that is required to be on the Basic Term Expiration Date or on any date within 30 days before the Basic Term Expiration Date, when due, and (y) in the case of any other such payment, after the same shall have become due and such failure shall continue unremedied for 30 days after receipt by Lessee a period of written notice of such failure from Lessor, Policy Provider, Owner Participant or the Indenture Trustee; provided, however, that so long as any Equipment Notes remain outstanding, failure to make (or be deemed to have made) payment of any of the amounts referred to in or to be applied pursuant to clauses five (5) through (15) of Section 3.4 of the Collateral Agency Agreement shall not be a Lease Event of Default; orBusiness Days after such amount became due and payable;
(c) Lessee shall fail to maintain in effect the insurance as required by Section 12 9.1, or ----------- Guarantor shall default in the performance or observance of any term, covenant, condition or agreement on its part to be performed or observed pursuant to Section 6.4 6.6(a)(vi) of the Collateral Agency Agreement and such failure shall not have been waived as provided for therein; orParticipation Agreement;
(d) Lessee shall use or permit the use of the Units or the Pledged Units or any portion thereof in a way which is not permitted by this Lease (with respect to the Units) or the Collateral Agency Agreement (with respect to the Pledged Units), provided that such unauthorized use shall not constitute a Lease Event of Default for a period of 45 days after Lessee's obtaining actual knowledge thereof so long as (i) such unauthorized use is not the result of any willful action of Lessee and (ii) such unauthorized use is capable of being cured and Lessee diligently pursues such cure throughout such 45-day period; or Lessee shall make or permit any unauthorized assignment or transfer of this Lease in violation of Section 18.2; or
(e) TILC (or any successor thereto in its capacity as Administrator or Servicer, as applicable) shall have defaulted in any material respect in the performance of any of its obligations under the Administrative Services Agreement or the Servicing Agreement or a default shall occur under Section 6(a) of the Account Administration Agreement, and, in each case, Lessee shall have failed to exercise its rights thereunder in respect of such default for a period of 30 days after receipt by Lessee of written notice from Lessor, Owner Participant, Policy Provider or the Indenture Trustee, demanding that such action be taken; or
(f) Any representation or warranty made by Lessee in any Lessee Agreement or any representation or warranty made by TILC Lessee or Guarantor in any Operative Agreement Document or in any certificate or document delivered to which Lessor, either Agent or any such Person is a party, in each case, other than the Tax Indemnity Agreement, is untrue or Participant pursuant to any Operative Document shall have been incorrect in any material respect as when made;
(e) Lessee or Guarantor shall fail in any material respect timely to perform or observe any covenant, condition or agreement (and not constituting an Event of the date Default under any other paragraph of making thereof this Article XV) to be performed or ---------- observed by it hereunder or under any other Operative Document and such untruth or incorrectness failure shall continue to be material and unremedied for a period of 30 thirty (30) days after receipt the earlier to occur of: (i) written notice thereof by Administrative Lease Agent or any Participant to Lessee or Guarantor, or (ii) the date on which Lessee or Guarantor has Actual Knowledge thereof;
(i) any of notice from LessorLessee, Owner ParticipantGuarantor, Indenture Trustee any Subsidiary that is a sublessee, assignee or transferee of any Leased Assets, or any Interested Subsidiary shall generally fail to pay, or admit in writing its inability to pay, its debts as they become due, or shall voluntarily commence any case or proceeding or file any petition under any bankruptcy, insolvency or similar law or seeking dissolution, liquidation or reorganization or the Policy Provider; provided thatappointment of a receiver, if trustee, custodian or liquidator for itself or a substantial portion of its property, assets or business or to effect a plan or other arrangement with its creditors, or shall file any answer admitting the jurisdiction of the court and the material allegations of any involuntary petition filed against it in any bankruptcy, insolvency or similar case or proceeding, or shall be adjudicated bankrupt, or shall make a general assignment for the benefit or creditors, or shall consent to, or acquiesce in the appointment of, a receiver, trustee, custodian or liquidator for itself or a substantial portion of its property, assets or business, or (ii) corporate action shall be taken by Lessee, Guarantor, any Subsidiary that is a sublessee, assignee or transferee of any Leased Assets, or any Interested Subsidiary for the purpose of effectuating any of the foregoing;
(g) involuntary proceedings or an involuntary petition shall be commenced or filed against Lessee, Guarantor, any Subsidiary that is a sublessee, assignee or transferee of any Leased Assets or any Interested Subsidiary under any bankruptcy, insolvency or similar law or seeking the dissolution, liquidation or reorganization of Lessee, Guarantor, any Subsidiary that is a sublessee, assignee or transferee of any Leased Assets or any Interested Subsidiary or the appointment of a receiver, trustee, custodian or liquidator for Lessee, Guarantor, any Subsidiary that is a sublessee, assignee or transferee of any Leased Assets or any Interested Subsidiary or of a substantial part of the property, assets or business of Lessee, or any writ, judgment, warrant of attachment, execution or similar process shall be issued or levied against a substantial part of the property, assets or business of Lessee, Guarantor, any Subsidiary that is a sublessee, assignee or transferee of any Leased Assets or any Interested Subsidiary, and Lease such untruth proceedings or incorrectness is capable petition shall not be dismissed, or such writ, judgment, warrant of being remediedattachment, no execution or similar process shall not be released, vacated or fully bonded within sixty (60) days after commencement, filing or levy, as the case may be;
(h) a final judgment or final judgments for the payment of money are entered by a court or courts of competent jurisdiction against Guarantor or any Subsidiary and such untruth judgment or incorrectness shall constitute a Lease Event of Default hereunder judgements remain undischarged, unbonded or unstayed for a period (during which execution shall be effectively stayed) of 120 days after receipt thirty (30) days; provided, that the aggregate of notice from Lessorall such judgments exceeds -------- $50,000,000;
(i) any Operative Agreement shall (except in accordance with its terms), Owner Participantin whole or in part, terminate, cease to be effective or cease (or fail) to be the Indenture Trustee legally valid, binding and enforceable obligation of Lessee or the Policy Provider so long as Lessee, TILC or TRMIGuarantor, as the case may be, is diligently proceeding to remedy such untruth or incorrectness and shall in fact remedy such untruth or incorrectness within such period; provided that such untrue or incorrect representation or warranty shall be deemed to be remediable or remedied only after all adverse consequences thereof if any, can be and have been remedied as applicable; or
(g) Lessee or Guarantor or any Affiliate of either of them shall, directly or indirectly, contest in any manner in any court the General Partner shall effectiveness, validity, binding nature or enforceability thereof;
(i) commence an event of default shall occur in the payment when due (subject to any applicable grace period), whether by acceleration or otherwise, of any Indebtedness of Lessee, Guarantor, any Subsidiary that is a voluntary case sublessee, assignee or other proceeding seeking liquidationtransferee of any Leased Assets, 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 Interested Subsidiary or any substantial part of its property, Principal Subsidiary that individually or in the aggregate exceeds $50,000,000 or (ii) consent to any such relief or to the appointment other event of or taking possession by any such official in any voluntary case or other proceeding commenced against it, or (iii) admit in writing its inability to pay its debts generally as they come due, or (iv) make a general assignment for the benefit of creditors, or (v) take any corporate or partnership action to authorize any of the foregoing; or
(h) An involuntary case or other proceeding default shall be commenced against Lessee or the General Partner seeking liquidation, reorganization or other relief occur with respect to it any Indebtedness that individually 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 60 days; oraggregate exceeds $50,000,000;
(ik) Lessee a Plan shall fail to observe or perform any other maintain the minimum funding standard required by Section 412(d) of the covenants Code for any plan year or agreements to be observed a waiver of such standard is sought or performed by Lessee granted under any Lessee Agreement Section 412(d), or any certificate and such failure a Plan is or shall continue unremedied for 30 days after notice from Lessor, Owner Participant, Policy Provider have been terminated or the Indenture Trustee subject of termination proceedings under ERISA, or the Borrower or an ERISA Affiliate has incurred a liability to Lesseeor on account of a Plan under Section 4062, specifying the failure and demanding the same to be remedied; provided that4063, if such failure is capable 4064, 4201 or 4204 of being remediedERISA, and the remedy requires an action other than, there shall result from any such event or in addition to, the payment of money, no such failure (other than one relating to the payment of such money) shall constitute events a Lease Event of Default hereunder for a period of 150 days after receipt of such notice so long as Lessee is diligently proceeding to remedy such failure and shall in fact remedy such failure within such periodMaterial Adverse Effect; or
(j) A Manager Default shall have occurred and be continuing under the Management Agreement, and Lessee shall have failed to exercise its rights under the Management Agreement in respect of such Manager Default for a period of 30 days after receipt by Lessee of written notice from Lessor, Owner Participant or the Indenture Trustee demanding that such action be taken; orand
Appears in 3 contracts
Samples: Participation Agreement (Electric Lightwave Inc), Participation Agreement (Electric Lightwave Inc), Participation Agreement (Electric Lightwave Inc)
Lease Events of Default. The following events shall constitute Lease Events of Default hereunder (whether any such event shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body) and each such Lease Event of Default shall be deemed to exist and continue so long as, but only as long as, it shall not have been remedied:
(a) Lessee shall fail to (i) make or (ii) be deemed by virtue of the last sentence of Section 3.5 hereof to have made any payment of Basic Rent, Early Purchase Price, any other purchase price to be paid by Lessee for any Units pursuant to this Lease or the Participation Agreement, Stipulated Loss Amount or Termination Amount (x) in the case of any such payment that is required to be made on the Basic Term Expiration Date or on any date within 30 days before the Basic Term Expiration Date, when due, and (y) in the case of any other such payment, within 10 Business Days after the same shall have become due; provided, however, that so long as any Equipment Notes remain outstanding, failure to make (or be deemed to have made) any portion of Basic Rent on any Rent Payment Date shall not be a Lease Event of Default so long as the amounts applied under Section 3.4, clause (4), of the Collateral Agency Agreement are sufficient to make the distributions required under such clause (4) with respect to the obligations owed under this Lease; provided, further, that in the event that the Special Equity Buy-Out has been consummated, failure to make any payment of Basic Rent, Early Purchase Price, any other purchase price to be paid by Lessee for any Units pursuant to this Lease or the Participation Agreement, Stipulated Loss Amount or Termination Amount (to the extent such amount constitutes an Accumulated Equity Deficiency Amount to be applied under Section 3.4, clause 9 of the Collateral Agency Agreement) shall, after receipt by Lessee of written notice of such failure from Lessor or Owner Participant, be a Lease Event of Default; or
(b) Lessee shall fail to (i) make or (ii) be deemed by virtue of payments made by the Collateral Agent to have made any payment of Supplemental Rent, including indemnity or tax indemnity payments, but not including Stipulated Loss Amount, Termination Amount, Early Purchase Price, or any other purchase price to be paid by Lessee for any Units pursuant to this Lease or the Participation Agreement (x) in the case of any such payment that is required to be on the Basic Term Expiration Date or on any date within 30 days before the Basic Term Expiration Date, when due, and (y) in the case of any other such payment, after the same shall have become due and such failure shall continue unremedied for 30 days after receipt by Lessee of written notice of such failure from Lessor, Policy Provider, Owner Participant or the Indenture Trustee; provided, however, that so long as any Equipment Notes remain outstanding, failure to make (or be deemed to have made) payment of any of the amounts referred to in or to be applied pursuant to clauses (5) through (15) of Section 3.4 of the Collateral Agency Agreement shall not be a Lease Event of Default; or
(c) Lessee shall fail to maintain in effect the insurance required by Section 12 or Section 6.4 of the Collateral Agency Agreement and such failure shall not have been waived as provided for therein; or
(d) Lessee shall use or permit the use of the Units or the Pledged Units or any portion thereof in a way which is not permitted by this Lease (with respect to the Units) or the Collateral Agency Agreement (with respect to the Pledged Units), provided that such unauthorized use shall not constitute a Lease Event of Default for a period of 45 days after Lessee's obtaining actual knowledge thereof so long as (i) such unauthorized use is not the result of any willful action of Lessee and (ii) such unauthorized use is capable of being cured and Lessee diligently pursues such cure throughout such 45-day period; or Lessee shall make or permit any unauthorized assignment or transfer of this Lease in violation of Section 18.2; or
(e) TILC (or any successor thereto in its capacity as Administrator or Servicer, as applicable) shall have defaulted in any material respect in the performance of any of its obligations under the Administrative Services Agreement or the Servicing Agreement or a default shall occur under Section 6(a) of the Account Administration Agreement, and, in each case, Lessee shall have failed to exercise its rights thereunder in respect of such default for a period of 30 days after receipt by Lessee of written notice from Lessor, Owner Participant, Policy Provider or the Indenture Trustee, demanding that such action be taken; or
(f) Any representation or warranty made by Lessee in any Lessee Agreement or any representation or warranty made by TILC in any Operative Agreement to which any such Person is a party, in each case, other than the Tax Indemnity Agreement, is untrue or incorrect in any material respect as of the date of making thereof and such untruth or incorrectness shall continue to be material and unremedied for a period of 30 days after receipt of notice from Lessor, Owner Participant, Indenture Trustee or the Policy Provider; provided that, if such untruth or incorrectness is capable of being remedied, no such untruth or incorrectness shall constitute a Lease Event of Default hereunder for a period of 120 days after receipt of notice from Lessor, Owner Participant, the Indenture Trustee or the Policy Provider so long as Lessee, TILC or TRMI, as the case may be, is diligently proceeding to remedy such untruth or incorrectness and shall in fact remedy such untruth or incorrectness within such period; provided that such untrue or incorrect representation or warranty shall be deemed to be remediable or remedied only after all adverse consequences thereof if any, can be and have been remedied as applicable; or
(g) Lessee or the General Partner shall (i) 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 (ii) consent to any such relief or to the appointment of or taking possession by any such official in any voluntary case or other proceeding commenced against it, or (iii) admit in writing its inability to pay its debts generally as they come due, or (iv) make a general assignment for the benefit of creditors, or (v) take any corporate or partnership action to authorize any of the foregoing; or
(h) An involuntary case or other proceeding shall be commenced against Lessee or the General Partner seeking liquidation, reorganization or 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 60 days; or
(i) Lessee shall fail to observe or perform any other of the covenants or agreements to be observed or performed by Lessee under any Lessee Agreement or any certificate and such failure shall continue unremedied for 30 days after notice from Lessor, Owner Participant, Policy Provider or the Indenture Trustee to Lessee, specifying the failure and demanding the same to be remedied; provided that, if such failure is capable of being remedied, and the remedy requires an action other than, or in addition to, the payment of money, no such failure (other than one relating to the payment of such money) shall constitute a Lease Event of Default hereunder for a period of 150 days after receipt of such notice so long as Lessee is diligently proceeding to remedy such failure and shall in fact remedy such failure within such period; or
(j) A Manager Default shall have occurred and be continuing under the Management Agreement, and Lessee shall have failed to exercise its rights under the Management Agreement in respect of such Manager Default for a period of 30 days after receipt by Lessee of written notice from Lessor, Owner Participant or the Indenture Trustee demanding that such action be taken; orclause
Appears in 3 contracts
Samples: Equipment Lease Agreement (Trinity Industries Inc), Equipment Lease Agreement (Trinity Industries Inc), Equipment Lease Agreement (Trinity Industries Inc)
Lease Events of Default. The following events shall constitute Lease Events of Default hereunder (whether any such event shall be voluntary or involuntary or come about Lease Agreement (TRLI 2001-1C) or be effected by operation of law or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body) and each such Lease Event of Default shall be deemed to exist and continue so long as, but only as long as, it shall not have been remedied:
(a) Lessee shall fail to (i) make or (ii) be deemed by virtue of the last sentence of Section 3.5 hereof to have made any payment of Basic Rent, Early Purchase Price, any other purchase price to be paid by Lessee for any Units pursuant to this Lease or the Participation Agreement, Stipulated Loss Amount or Termination Amount (x) in the case of any such payment that is required to be made on the Basic Term Expiration Date or on any date within 30 days before the Basic Term Expiration Date, when due, and (y) in the case of any other such payment, within 10 Business Days after the same shall have become due; provided, however, that so long as any Equipment Notes remain outstanding, failure to make (or be deemed to have made) any portion of Basic Rent on any Rent Payment Date shall not be a Lease Event of Default so long as the amounts applied under Section 3.4, clause (4), of the Collateral Agency Agreement are sufficient to make the distributions required under such clause (4) with respect to the obligations owed under this Lease; provided, further, that in the event that the Special Equity Buy-Out has been consummated, failure to make any payment of Basic Rent, Early Purchase Price, any other purchase price to be paid by Lessee for any Units pursuant to this Lease or the Participation Agreement, Stipulated Loss Amount or Termination Amount (to the extent such amount constitutes an Accumulated Equity Deficiency Amount to be applied under Section 3.4, clause 9 of the Collateral Agency Agreement) shall, after receipt by Lessee of written notice of such failure from Lessor or Owner Participant, be a Lease Event of Default; or
(b) Lessee shall fail to (i) make or (ii) be deemed by virtue of payments made by the Collateral Agent to have made any payment of Supplemental Rent, ; including indemnity or tax indemnity payments, but not including Stipulated Loss Amount, Termination Amount, Early Purchase Price, or any other purchase price to be paid by Lessee for any Units pursuant to this Lease or the Participation Agreement (x) in the case of any such payment that is required to be on the Basic Term Expiration Date or on any date within 30 days before the Basic Term Expiration Date, when due, and (y) in the case of any other such payment, after the same shall have become due and such failure shall continue unremedied for 30 days 10 Business Days after receipt by Lessee of written notice of such failure from Lessor, Policy Provider, Owner Participant or the Indenture Trustee; provided, however, that so long as any Equipment Notes remain outstanding, failure to make (or be deemed to have made) payment of any of the amounts referred to in or to be applied pursuant to clauses (5) through (1514) of Section 3.4 of the Collateral Agency Agreement shall not be a Lease Event of Default; or
(c) Lessee shall fail to maintain in effect the insurance required by Section 12 or Section 6.4 of the Collateral Agency Agreement and such failure shall not have been waived as provided for therein; or
(d) Lessee shall use or permit the use of the Units or the Pledged Units or any portion thereof in a way which is not permitted by this Lease (with respect to the Units) or the Collateral Agency Agreement (with respect to the Pledged Units), provided that such unauthorized use shall not constitute a Lease Event of Lease Agreement (TRLI2001-1C) Default for a period of 45 days after Lessee's obtaining actual knowledge the occurrence thereof so long as (i) such unauthorized use is not the result of any willful action of Lessee and (ii) such unauthorized use is capable of being cured and Lessee diligently pursues such cure throughout such 45-day period; or Lessee shall make or permit any unauthorized assignment or transfer of this Lease in violation of Section 18.2; or
(e) TILC (Lessee shall fail to observe or any successor thereto in its capacity as Administrator or Servicer, as applicable) shall have defaulted perform in any material respect in the performance of any of its obligations under the Administrative Services Agreement covenants or the Servicing Agreement agreements to be observed or a default shall occur under performed by Lessee in Section 6(a) 6.2 or 6.3 of the Account Administration Collateral Agency Agreement, and, in each case, Lessee shall have failed to exercise its rights thereunder in respect of such default for a period of 30 days after receipt by Lessee of written notice from Lessor, Owner Participant, Policy Provider or the Indenture Trustee, demanding that such action be taken; or
(f) Any representation or warranty made by Lessee in any Lessee Agreement or any representation or warranty made by TILC or TRMI in any Operative Agreement to which any such Person is a party, in each case, other than the Tax Indemnity Agreement, party is untrue or incorrect in any material respect as of the date of making thereof and such untruth or incorrectness shall continue to be material and unremedied for a period of 30 days after receipt of notice from Lessor, Owner Participant, Indenture Trustee or the Policy Providerunremedied; provided that, if such untruth or incorrectness is capable of being remedied, no such untruth or incorrectness shall constitute a Lease Event of Default hereunder for a period of 120 30 days after receipt of notice from Lessor, Owner Participant, Participant or the Indenture Trustee or the Policy Provider so long as Lessee, TILC or TRMI, as the case may be, is diligently proceeding to remedy such untruth or incorrectness and shall in fact remedy such untruth or incorrectness within such period; provided that such untrue or incorrect representation or warranty shall be deemed to be remediable or remedied only after all adverse consequences thereof thereof, if any, can be and have been remedied as applicable; or
(g) Lessee or the General Partner shall (i) 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 (ii) consent to any such relief or to the appointment of or taking possession by any such official in any voluntary case or other proceeding commenced against it, or (iii) admit in writing its inability to pay its debts generally as they come due, or (iv) make a general assignment for the benefit of creditors, or (v) take any corporate or partnership action to authorize any of the foregoing; or
(h) An involuntary case or other proceeding shall be commenced against Lessee or the General Partner seeking liquidation, reorganization or other relief with respect to it or its debts under any bankruptcy, insolvency or other similar Lease Agreement (TRLI2001-1C) 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 60 days; or
(i) Lessee shall fail to observe or perform any other of the covenants or agreements to be observed or performed by Lessee under any Lessee Agreement or any certificate and such failure shall continue unremedied for 30 days after notice from Lessor, Owner Participant, Policy Provider Participant or the Indenture Trustee to Lessee, specifying the failure and demanding the same to be remedied; provided that, if such failure is capable of being remedied, and the remedy requires an action other than, or in addition to, the payment of money, no such failure (other than one relating to the payment of such money) shall constitute a Lease Event of Default hereunder for a period of 150 90 days after receipt of such notice so long as Lessee is diligently proceeding to remedy such failure and shall in fact remedy such failure within such period; or
(j) A Manager Default shall have occurred and be continuing under the Management Agreement, and Lessee shall have failed to exercise its rights under the Management Agreement in respect of such Manager Default for a period of 30 days after receipt by Lessee of written notice from Lessor, Owner Participant or the Indenture Trustee demanding that such action be taken; or
Appears in 2 contracts
Samples: Equipment Lease Agreement (Trinity Industries Inc), Equipment Lease Agreement (Trinity Industries Inc)
Lease Events of Default. The following events shall constitute Lease Events of Default hereunder (whether any such event shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body) and each such Lease Event of Default shall be deemed to exist and continue so long as, but only as long as, it shall not have been remedied:
(a) Lessee shall fail to (i) make or (ii) be deemed by virtue of the last sentence of Section 3.5 hereof to have made any payment of Basic Rent, Early Purchase Price, any other purchase price to be paid by Lessee for any Units pursuant to this Lease or the Participation Agreement, Stipulated Loss Amount or Termination Amount (x) in the case of any such payment that is required to be made on the Basic Term Expiration Date or on any date within 30 days before the Basic Term Expiration Date, when due, and (y) in the case of any other such payment, within 10 Business Days after the same shall have become due; provided, however, that so long as any Equipment Notes remain outstanding, failure to make (or be deemed to have made) any portion of Basic Rent on any Rent Payment Date shall not be a Lease Event of Default so long as the amounts applied under Section 3.4, clause (4), of the Collateral Agency Agreement are sufficient to make the distributions required under such clause (4) with respect to the obligations owed under this Lease; provided, further, that in the event that the Special Equity Buy-Out has been consummated, failure to make any payment of Basic Rent, Early Purchase Price, any other purchase price to be paid by Lessee for any Units pursuant to this Lease or the Participation Agreement, Stipulated Loss Amount or Termination Amount (to the extent such amount constitutes an Accumulated Equity Deficiency Amount to be applied under Section 3.4, clause 9 of the Collateral Agency Agreement) shall, after receipt by Lessee of written notice of such failure from Lessor or Owner Participant, be a Lease Event of Default; or
(b) Lessee shall fail to (i) make or (ii) be deemed by virtue of payments made by the Collateral Agent to have made any payment of Supplemental Rent, ; including indemnity or tax indemnity payments, but not including Stipulated Loss Amount, Termination Amount, Early Purchase Price, or any other purchase price to be paid by Lessee for any Units pursuant to this Lease or the Participation Agreement (x) in the case of any such payment that is required to be on the Basic Term Expiration Date or on any date within 30 days before the Basic Term Expiration Date, when due, and (y) in the case of any other such payment, after the same shall have become due and such failure shall continue unremedied for 30 days 10 Business Days after receipt by Lessee of written notice of such failure from Lessor, Policy Provider, Owner Participant or the Indenture Trustee; provided, however, that so long as any Equipment Notes remain outstanding, failure to make (or be deemed to have made) payment of any of the amounts referred to in or to be applied pursuant to clauses (5) through (1514) of Section 3.4 of the Collateral Agency Agreement shall not be a Lease Event of Default; or
(c) Lessee shall fail to maintain in effect the insurance required by Section 12 or Section 6.4 of the Collateral Agency Agreement and such failure shall not have been waived as provided for therein; oror Lease Agreement (TRLI 2001-1B)
(d) Lessee shall use or permit the use of the Units or the Pledged Units or any portion thereof in a way which is not permitted by this Lease (with respect to the Units) or the Collateral Agency Agreement (with respect to the Pledged Units), provided that such unauthorized use shall not constitute a Lease Event of Default for a period of 45 days after Lessee's obtaining actual knowledge the occurrence thereof so long as (i) such unauthorized use is not the result of any willful action of Lessee and (ii) such unauthorized use is capable of being cured and Lessee diligently pursues such cure throughout such 45-day period; or Lessee shall make or permit any unauthorized assignment or transfer of this Lease in violation of Section 18.2; or
(e) TILC (Lessee shall fail to observe or any successor thereto in its capacity as Administrator or Servicer, as applicable) shall have defaulted perform in any material respect in the performance of any of its obligations under the Administrative Services Agreement covenants or the Servicing Agreement agreements to be observed or a default shall occur under performed by Lessee in Section 6(a) 6.2 or 6.3 of the Account Administration Collateral Agency Agreement, and, in each case, Lessee shall have failed to exercise its rights thereunder in respect of such default for a period of 30 days after receipt by Lessee of written notice from Lessor, Owner Participant, Policy Provider or the Indenture Trustee, demanding that such action be taken; or
(f) Any representation or warranty made by Lessee in any Lessee Agreement or any representation or warranty made by TILC or TRMI in any Operative Agreement to which any such Person is a party, in each case, other than the Tax Indemnity Agreement, party is untrue or incorrect in any material respect as of the date of making thereof and such untruth or incorrectness shall continue to be material and unremedied for a period of 30 days after receipt of notice from Lessor, Owner Participant, Indenture Trustee or the Policy Providerunremedied; provided that, if such untruth or incorrectness is capable of being remedied, no such untruth or incorrectness shall constitute a Lease Event of Default hereunder for a period of 120 30 days after receipt of notice from Lessor, Owner Participant, Participant or the Indenture Trustee or the Policy Provider so long as Lessee, TILC or TRMI, as the case may be, is diligently proceeding to remedy such untruth or incorrectness and shall in fact remedy such untruth or incorrectness within such period; provided that such untrue or incorrect representation or warranty shall be deemed to be remediable or remedied only after all adverse consequences thereof thereof, if any, can be and have been remedied as applicable; or
(g) Lessee or the General Partner shall (i) 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 (ii) consent to any such relief or to the appointment of or taking possession by any such official in any voluntary case or other proceeding commenced against it, or (iii) admit in writing its inability to pay its debts generally as they come due, or (iv) make a general assignment for the benefit of creditors, or (v) take any corporate or partnership action to authorize any of the foregoing; oror Lease Agreement (TRLI 2001-1B)
(h) An involuntary case or other proceeding shall be commenced against Lessee or the General Partner seeking liquidation, reorganization or 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 60 days; or
(i) Lessee shall fail to observe or perform any other of the covenants or agreements to be observed or performed by Lessee under any Lessee Agreement or any certificate and such failure shall continue unremedied for 30 days after notice from Lessor, Owner Participant, Policy Provider Participant or the Indenture Trustee to Lessee, specifying the failure and demanding the same to be remedied; provided that, if such failure is capable of being remedied, and the remedy requires an action other than, or in addition to, the payment of money, no such failure (other than one relating to the payment of such money) shall constitute a Lease Event of Default hereunder for a period of 150 90 days after receipt of such notice so long as Lessee is diligently proceeding to remedy such failure and shall in fact remedy such failure within such period; or
(j) A Manager Default shall have occurred and be continuing under the Management Agreement, and Lessee shall have failed to exercise its rights under the Management Agreement in respect of such Manager Default for a period of 30 days after receipt by Lessee of written notice from Lessor, Owner Participant or the Indenture Trustee demanding that such action be taken; or
Appears in 2 contracts
Samples: Equipment Lease Agreement (Trinity Industries Inc), Equipment Lease Agreement (Trinity Industries Inc)
Lease Events of Default. The If any one or more of the following events shall constitute Lease Events of Default hereunder (whether any such event shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body) and each such a "Lease Event of Default Default") shall be deemed to exist and continue so long as, but only as long as, it shall not have been remediedoccur:
(ai) Lessee shall fail to make payment of (i) make any Basic Rent within thirty (30) days after the same has become due and payable or (ii) be deemed by virtue of the last sentence of Section 3.5 hereof to have made any payment of Basic RentFinal Rent Payment, Early Purchase Option Price, Equity Proceeds Purchase Option Price, Control Purchase Price, any other purchase price to be paid by Lessee for any Units pursuant to this Lease or the Participation Agreement, Stipulated Loss Amount Excess Proceeds Purchase Price or Termination Amount (x) in the case of any such payment that is required to be made on the Basic Term Expiration Date or on any date within 30 days before the Basic Term Expiration Date, when due, and (y) in the case of any other such payment, within 10 Business Days Value after the same shall have has become due; provided, however, that so long as any Equipment Notes remain outstanding, failure to make (or be deemed to have made) any portion of Basic Rent on any Rent Payment Date shall not be a Lease Event of Default so long as the amounts applied under Section 3.4, clause (4), of the Collateral Agency Agreement are sufficient to make the distributions required under such clause (4) with respect to the obligations owed under this Lease; provided, further, that in the event that the Special Equity Buy-Out has been consummated, failure to make any payment of Basic Rent, Early Purchase Price, any other purchase price to be paid by Lessee for any Units pursuant to this Lease or the Participation Agreement, Stipulated Loss Amount or Termination Amount (to the extent such amount constitutes an Accumulated Equity Deficiency Amount to be applied under Section 3.4, clause 9 of the Collateral Agency Agreement) shall, after receipt by Lessee of written notice of such failure from Lessor or Owner Participant, be a Lease Event of Defaultdue and payable; or
(bii) Lessee shall fail to (i) make or (ii) be deemed by virtue payment of payments made by any Supplemental Rent due and payable to a Securityholder, Certificate Holder, Lessor, the Indenture Trustee, the Collateral Agent to have made any payment of Supplemental Rent, including indemnity or tax indemnity payments, but not including Stipulated Loss Amount, Termination Amount, Early Purchase Price, or any other purchase price to be paid by Lessee for any Units pursuant to this Lease or the Participation Agreement Trust Company within thirty (x30) in the case of any such payment that is required to be on the Basic Term Expiration Date or on any date within 30 days before the Basic Term Expiration Date, when due, and (y) in the case of any other such payment, after the same shall have become due and such failure shall continue unremedied for 30 days after receipt by Lessee of written notice of such failure from Lessor, Policy Provider, Owner Participant or the Indenture Trustee; provided, however, thereof (other than Supplemental Rent that so long as any Equipment Notes remain outstanding, failure to make (or be deemed to have made) payment of any of the amounts referred to in or is permitted to be applied and is actually being contested pursuant to clauses (5) through (15) of Section 3.4 of the Collateral Agency Agreement shall not be a Lease Event of Default13 hereof); or
(ciii) Lessee shall fail to maintain in effect the insurance as required by Section 12 or Section 6.4 of the Collateral Agency Agreement and such failure shall not have been waived as provided for therein14; or
(div) Lessee shall use or permit the use of the Units or the Pledged Units or any portion thereof in a way which is not permitted by this Lease (with respect to the Units) or the Collateral Agency Agreement (with respect to the Pledged Units), provided that such unauthorized use Guarantor shall not constitute a Lease Event of Default for a period of 45 days after Lessee's obtaining actual knowledge thereof so long as (i) such unauthorized use is not the result of any willful action of Lessee and (ii) such unauthorized use is capable of being cured and Lessee diligently pursues such cure throughout such 45-day period; or Lessee shall make or permit any unauthorized assignment or transfer of this Lease in violation of Section 18.2; or
(e) TILC (or any successor thereto in its capacity as Administrator or Servicer, as applicable) shall have defaulted in any material respect default in the observance or performance of any term, covenant or condition of its obligations Lessee or of such Guarantor, respectively, under this Lease, the Administrative Services Agreement or the Servicing Agreement or a default shall occur under Section 6(a) of the Account Administration Participation Agreement, and, in each case, Lessee shall have failed to exercise its rights thereunder in respect of such default for a period of 30 days after receipt by Lessee of written notice from Lessor, Owner Participant, Policy Provider or the Indenture Trustee, demanding that such action be taken; or
(f) Any representation or warranty made by Lessee in any Lessee Agreement Guarantee or any representation or warranty made by TILC in any other Operative Agreement to which any such Person it is a party, in each case, party (other than the Tax Indemnity Agreementthose set forth in Section 17.1(a)(i), is untrue (ii) or incorrect in any material respect as of the date of making thereof (iii) hereof) and such untruth or incorrectness default shall continue to be material and unremedied for a period of 30 days after receipt of notice thereof from Lessor, Owner ParticipantIndenture Trustee, Indenture Trustee Collateral Agent or the Policy Provider; provided thatTrust Company, if such untruth or incorrectness is capable of being remedied, no such untruth or incorrectness shall constitute a Lease Event of Default hereunder for a period of 120 days after receipt of notice from Lessor, Owner Participant, the Indenture Trustee or the Policy Provider so long as Lessee, TILC or TRMI, as the case may be, is diligently proceeding to remedy such untruth or incorrectness and shall in fact remedy such untruth or incorrectness within such period; provided that such untrue or incorrect any representation or warranty by Lessee or any Guarantor, respectively, set forth in this Lease, the Guarantee or in any other Operative Agreement or in any document entered into in connection herewith or therewith or in any document, certificate or financial or other statement delivered in connection herewith or therewith shall be deemed to be remediable false or remedied only after all adverse consequences thereof if any, can be and have been remedied as applicableinaccurate in any material respect; or
(g) Lessee or the General Partner shall (i) 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 (ii) consent to any such relief or to the appointment of or taking possession by any such official in any voluntary case or other proceeding commenced against it, or (iii) admit in writing its inability to pay its debts generally as they come due, or (iv) make a general assignment for the benefit of creditors, or (v) take any corporate or partnership action to authorize any of the foregoing; or
(h) An involuntary case or other proceeding shall be commenced against Lessee or the General Partner seeking liquidation, reorganization or 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 60 days; or
(i) Lessee shall fail to observe or perform any other of the covenants or agreements to be observed or performed by Lessee under any Lessee Agreement or any certificate and such failure shall continue unremedied for 30 days after notice from Lessor, Owner Participant, Policy Provider or the an Indenture Trustee to Lessee, specifying the failure and demanding the same to be remedied; provided that, if such failure is capable of being remedied, and the remedy requires an action other than, or in addition to, the payment of money, no such failure (other than one relating to the payment of such money) shall constitute a Lease Event of Default hereunder for a period that is caused by, or results from, the action or inaction of 150 days after receipt Lessee or any Guarantor or relates to Lessee or any Guarantor (that is, Indenture Sections 6.1(3), (7) but only to the extent caused by the actions or inactions of such notice so long Lessee, (8), (9) but only as it relates to Lessee is diligently proceeding to remedy such failure or any Guarantor, (10) and shall in fact remedy such failure within such period; or
(j11)) A Manager Default shall have occurred and be continuing under continuing. then, in any such event, Lessor may, in addition to the Management Agreementother rights and remedies provided for in this Section 17 and in Section 18.1, terminate this Lease by giving Lessee five (5) days notice of such termination, and this Lease shall terminate. Lessee shall have failed shall, to exercise its rights under the Management Agreement in respect fullest extent permitted by law, pay as Supplemental Rent all costs and expenses incurred by or on behalf of such Manager Default for a period of 30 days after receipt by Lessee of written notice from Lessor, Owner Participant or the Indenture Trustee, the Collateral Agent, the Certificate Holders, the Trustee demanding that such action be taken; orand/or the Trust Company, including fees and expenses of counsel, as a result of any Lease Event of Default hereunder.
Appears in 2 contracts
Samples: Lease Agreement (Hanover Compressor Co /), Lease (Hanover Compressor Co /)
Lease Events of Default. The following events shall constitute Lease Events of Default hereunder (whether any such event shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body) and each such Lease Event of Default shall be deemed to exist and continue so long as, but only as long as, it shall not have been remedied:
(a) Lessee shall fail to (i) make or (ii) be deemed by virtue of the last sentence of Section 3.5 hereof to have made any payment of Basic Rent, Early Purchase Price, any other purchase price to be paid by Lessee for any Units pursuant to this Lease or the Participation Agreement, Stipulated Loss Amount or Termination Amount (x) in the case of any such payment that is required to be made on the Basic Term Expiration Date or on any date within 30 days before the Basic Term Expiration Date, when due, and (y) in the case of any other such payment, within 10 Business Days after the same shall have become due; provided, however, that so long as any Equipment Notes remain outstanding, failure to make (or be deemed to have made) any portion of Basic Rent on any Rent Payment Date shall not be a Lease Event of Default so long as the amounts applied under Section 3.4, clause (4), of the Collateral Agency Agreement are sufficient to make the distributions required under such clause (4) with respect to the obligations owed under this Lease; provided, further, that in the event that the Special Equity Buy-Out has been consummated, failure to make any payment of Basic Rent, Early Purchase Price, any other purchase price to be paid by Lessee for any Units pursuant to this Lease or the Participation Agreement, Stipulated Loss Amount or Termination Amount (to the extent such amount constitutes an Accumulated Equity Deficiency Amount to be applied under Section 3.4, clause 9 of the Collateral Agency Agreement) shall, after receipt by Lessee of written notice of such failure from Lessor or Owner Participant, be a Lease Event of Default; or
(b) Lessee shall fail to (i) make or (ii) be deemed by virtue of payments made by the Collateral Agent to have made any payment of Supplemental Rent, including indemnity or tax indemnity payments, but not including Stipulated Loss Amount, Termination Amount, Early Purchase Price, or any other purchase price to be paid by Lessee for any Units pursuant to this Lease or the Participation Agreement (x) in the case of any such payment that is required to be on the Basic Term Expiration Date or on any date within 30 days before the Basic Term Expiration Date, when due, and (y) in the case of any other such payment, after the same shall have become due and such failure shall continue unremedied for 30 days after receipt by Lessee of written notice of such failure from Lessor, Policy Provider, Owner Participant or the Indenture Trustee; provided, however, that so long as any Equipment Notes remain outstanding, failure to make (or be deemed to have made) payment of any of the amounts referred to in or to be applied pursuant to clauses (5) through (15) of Section 3.4 of the Collateral Agency Agreement shall not be a Lease Event of Default; or
(c) Lessee shall fail to maintain in effect the insurance required by Section 12 or Section 6.4 of the Collateral Agency Agreement and such failure shall not have been waived as provided for therein; or
(d) Lessee shall use or permit the use of the Units or the Pledged Units or any portion thereof in a way which is not permitted by this Lease (with respect to the Units) or the Collateral Agency Agreement (with respect to the Pledged Units), provided that such unauthorized use shall not constitute a Lease Event of Default for a period of 45 days after Lessee's obtaining actual knowledge thereof so long as (i) such unauthorized use is not the result of any willful action of Lessee and (ii) such unauthorized use is capable of being cured and Lessee diligently pursues such cure throughout such 45-day period; or Lessee shall make or permit any unauthorized assignment or transfer of this Lease in violation of Section 18.2; or
(e) TILC (or any successor thereto in its capacity as Administrator or Servicer, as applicable) shall have defaulted in any material respect in the performance of any of its obligations under the Administrative Services Agreement or the Servicing Agreement or a default shall occur under Section 6(a) of the Account Administration Agreement, and, in each case, Lessee shall have failed to exercise its rights thereunder in respect of such default for a period of 30 days after receipt by Lessee of written notice from Lessor, Owner Participant, Policy Provider or the Indenture Trustee, demanding that such action be taken; or
(f) Any representation or warranty made by Lessee in any Lessee Agreement or any representation or warranty made by TILC in any Operative Agreement to which any such Person is a party, in each case, other than the Tax Indemnity Agreement, is untrue or incorrect in any material respect as of the date of making thereof and such untruth or incorrectness shall continue to be material and unremedied for a period of 30 days after receipt of notice from Lessor, Owner Participant, Indenture Trustee or the Policy Provider; provided that, if such untruth or incorrectness is capable of being remedied, no such untruth or incorrectness shall constitute a Lease Event of Default hereunder for a period of 120 days after receipt of notice from Lessor, Owner Participant, the Indenture Trustee or the Policy Provider so long as Lessee, TILC or TRMITILC, as the case may be, is diligently proceeding to remedy such untruth or incorrectness and shall in fact remedy such untruth or incorrectness within such period; provided that such untrue or incorrect representation or warranty shall be deemed to be remediable or remedied only after all adverse consequences thereof if any, can be and have been remedied as applicable; or
(g) Lessee or the General Partner shall (i) 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 (ii) consent to any such relief or to the appointment of or taking possession by any such official in any voluntary case or other proceeding commenced against it, or (iii) admit in writing its inability to pay its debts generally as they come due, or (iv) make a general assignment for the benefit of creditors, or (v) take any corporate or partnership action to authorize any of the foregoing; or
(h) An involuntary case or other proceeding shall be commenced against Lessee or the General Partner seeking liquidation, reorganization or 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 60 days; or
(i) Lessee shall fail to observe or perform any other of the covenants or agreements to be observed or performed by Lessee under any Lessee Agreement or any certificate and such failure shall continue unremedied for 30 days after notice from Lessor, Owner Participant, Policy Provider or the Indenture Trustee to Lessee, specifying the failure and demanding the same to be remedied; provided that, if such failure is capable of being remedied, and the remedy requires an action other than, or in addition to, the payment of money, no such failure (other than one relating to the payment of such money) shall constitute a Lease Event of Default hereunder for a period of 150 days after receipt of such notice so long as Lessee is diligently proceeding to remedy such failure and shall in fact remedy such failure within such period; or
(j) A Manager Default shall have occurred and be continuing under the Management Agreement, and Lessee shall have failed to exercise its rights under the Management Agreement in respect of such Manager Default for a period of 30 days after receipt by Lessee of written notice from Lessor, Owner Participant or the Indenture Trustee demanding that such action be taken; or
Appears in 2 contracts
Samples: Equipment Lease Agreement (Trinity Industries Inc), Equipment Lease Agreement (Trinity Industries Inc)
Lease Events of Default. The If any one (1) or more of the following events shall constitute Lease Events of Default hereunder (whether any such event shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body) and each such a “Lease Event of Default Default”) shall occur and be deemed to exist and continue so long as, but only as long as, it shall not have been remediedcontinuing:
(a) Lessee shall fail to make payment of (i) make or any Basic Rent (except as set forth in clause (ii)) be deemed by virtue of the last sentence of Section 3.5 hereof to have made any payment of Basic Rent, Early Purchase Price, any other purchase price to be paid by Lessee for any Units pursuant to this Lease or the Participation Agreement, Stipulated Loss Amount or Termination Amount within three (x3) in the case of any such payment that is required to be made on the Basic Term Expiration Date or on any date within 30 days before the Basic Term Expiration Date, when due, and (y) in the case of any other such payment, within 10 Business Days after the same shall have has become due; provided, however, that so long as any Equipment Notes remain outstanding, failure to make due and payable or (or be deemed to have madeii) any portion of Basic Rent Termination Value on the date any Rent Payment Date shall not be a Lease Event of Default so long as the amounts applied under Section 3.4such payment is due and payable, clause (4), of the Collateral Agency Agreement are sufficient to make the distributions required under such clause (4) with respect to the obligations owed under this Lease; provided, further, that in the event that the Special Equity Buy-Out has been consummated, failure to make any payment of Basic Rent, Early Purchase Price, Rent or Supplemental Rent due on the due date of any other purchase price to be paid by Lessee for such payment of Termination Value or any Units pursuant to this Lease or amount due on the Participation Agreement, Stipulated Loss Amount or Termination Amount (to the extent such amount constitutes an Accumulated Equity Deficiency Amount to be applied under Section 3.4, clause 9 of the Collateral Agency Agreement) shall, after receipt by Lessee of written notice of such failure from Lessor or Owner Participant, be a Lease Event of Default; orExpiration Date;
(b) Lessee shall fail to (i) make or (ii) be deemed by virtue of payments made by the Collateral Agent to have made any payment of any Supplemental Rent, including indemnity or tax indemnity payments, but not including Stipulated Loss Amount, Termination Amount, Early Purchase Price, or any Rent (other purchase price than Supplemental Rent referred to be paid by Lessee for any Units pursuant to this Lease or the Participation Agreement in Section 17.1(a)(ii)) within three (x3) in the case of any such payment that is required to be on the Basic Term Expiration Date or on any date within 30 days before the Basic Term Expiration Date, when due, and (y) in the case of any other such payment, after the same shall have become due and such failure shall continue unremedied for 30 days Business Days after receipt by Lessee of written notice of that such failure from Lessor, Policy Provider, Owner Participant or the Indenture Trustee; provided, however, that so long as any Equipment Notes remain outstanding, failure to make (or be deemed to have made) payment of any of the amounts referred to in or to be applied pursuant to clauses (5) through (15) of Section 3.4 of the Collateral Agency Agreement shall not be a Lease Event of Default; oris due and payable;
(c) Lessee shall fail to maintain in effect the insurance as required by Section 12 or Section 6.4 of the Collateral Agency Agreement and such failure shall not have been waived as provided for therein; or
(d) Lessee shall use or permit the use of the Units or the Pledged Units or any portion thereof in a way which is not permitted by this Lease (with respect to the Units) or the Collateral Agency Agreement (with respect to the Pledged Units), provided that such unauthorized use shall not constitute a Lease Event of Default for a period of 45 days after Lessee's obtaining actual knowledge thereof so long as (i) such unauthorized use is not the result of any willful action of Lessee and (ii) such unauthorized use is capable of being cured and Lessee diligently pursues such cure throughout such 45-day period; or Lessee shall make or permit any unauthorized assignment or transfer Article XIV of this Lease in violation of Section 18.2; or
or to deliver any requisite annual certificate with respect thereto within ten (e10) TILC (or any successor thereto in its capacity as Administrator or Servicer, as applicable) shall have defaulted in any material respect in the performance of any of its obligations under the Administrative Services Agreement or the Servicing Agreement or a default shall occur under Section 6(a) of the Account Administration Agreement, and, in each case, Lessee shall have failed to exercise its rights thereunder in respect of such default for a period of 30 days after receipt by Lessee of written notice from Lessor, Owner Participant, Policy Provider or the Indenture Trustee, demanding that such action be taken; or
(f) Any representation or warranty made by Lessee in any Lessee Agreement or any representation or warranty made by TILC in any Operative Agreement to which any such Person is a party, in each case, other than the Tax Indemnity Agreement, is untrue or incorrect in any material respect as of the date of making thereof and such untruth or incorrectness shall continue to be material and unremedied for a period of 30 days after receipt of notice from Lessor, Owner Participant, Indenture Trustee or the Policy Provider; provided that, if such untruth or incorrectness is capable of being remedied, no such untruth or incorrectness shall constitute a Lease Event of Default hereunder for a period of 120 days after receipt of notice from Lessor, Owner Participant, the Indenture Trustee or the Policy Provider so long as Lessee, TILC or TRMI, as the case may be, is diligently proceeding to remedy such untruth or incorrectness and shall in fact remedy such untruth or incorrectness within such period; provided that such untrue or incorrect representation or warranty shall be deemed to be remediable or remedied only after all adverse consequences thereof if any, can be and have been remedied as applicable; or
(g) Lessee or certificate is due under the General Partner shall (i) 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 (ii) consent to any such relief or to the appointment of or taking possession by any such official in any voluntary case or other proceeding commenced against it, or (iii) admit in writing its inability to pay its debts generally as they come due, or (iv) make a general assignment for the benefit of creditors, or (v) take any corporate or partnership action to authorize any of the foregoing; or
(h) An involuntary case or other proceeding shall be commenced against Lessee or the General Partner seeking liquidation, reorganization or 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 60 days; orterms hereof;
(i) Lessee shall fail to observe or perform pursuant to Sections 5.11 or 8.3A of the Participation Agreement or (ii) Lessee shall fail to observe or perform any term, covenant, obligation or condition of Lessee under this Lease or any other of the covenants Operative Agreement to which Lessee is a party other than those set forth in Sections 17.1(a), (b), (c) or agreements to be observed or performed by Lessee under any Lessee Agreement or any certificate (d)(i) hereof, and such failure shall continue unremedied for 30 thirty (30) days after the Lessee either has received written notice from Lessorthereof or a Responsible Officer of Lessee shall have actual knowledge thereof; provided, Owner Participant, Policy Provider or that in the Indenture Trustee to Lessee, specifying the failure and demanding the same to be remedied; provided thatcase of this clause (ii), if such failure is not capable of being remediedremedy by the payment of money or otherwise within such thirty (30) day period but may be remedied with further diligence and if Lessee has and continues to pursue diligently such remedy, then Lessee shall be granted additional time to pursue such remedy for such period as the Agent may determine in its reasonable discretion; provided, further, in no event shall such additional period exceed sixty (60) days or (iii) any representation or warranty made by Lessee set forth in this Lease or in any other Operative Agreement or in any document entered into in connection herewith or therewith or in any document, certificate or financial or other statement delivered in connection herewith or therewith shall be false or inaccurate in any material way when made;
(e) Other than with respect to Indebtedness pursuant to the Operative Agreements, Lessee or any Subsidiary of Lessee shall default in any manner (whether such default is with respect to any payment or performance obligation of any type and at any time, including without limitation whether during the term thereof, at scheduled maturity or by required prepayment, acceleration, demand or otherwise) in connection with any Indebtedness (or any agreement or instrument relating to such Indebtedness) of, or guaranteed by, Lessee or any Subsidiary when such payment or performance is due (including without limitation whether during the term thereof, at scheduled maturity or by 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 Indebtedness and the effect of any such default (i) is to permit the acceleration of the maturity of any such Indebtedness in an aggregate principal amount equal to or greater than $5,000,000 or (ii) results in the acceleration of the maturity of any such Indebtedness in an aggregate principal amount equal to or greater than $5,000,000;
(f) The liquidation or dissolution of Lessee, or the suspension of the business of Lessee, or the filing by Lessee of a voluntary petition or an answer seeking reorganization, arrangement, receivership, readjustment of its debts, insolvency, liquidation, dissolution, winding-up or for any other relief under the Bankruptcy Code, or under any other insolvency act or law, state or federal, now or hereafter existing, or any other action of Lessee indicating its consent to, approval of or acquiescence in, any such petition or proceeding; the application by Lessee for, or the appointment by, consent or acquiescence of Lessee of a receiver, a conservator, a trustee or a custodian of Lessee for all or a substantial part of its property; the making by Lessee of any general assignment for the benefit of creditors; the inability of Lessee or the admission by Lessee in writing of its inability to pay its debts as they mature or Lessee is generally not paying its debts and other financial obligations as they become due and payable; or Lessee taking any corporate action to authorize any of the foregoing;
(g) The filing of an involuntary petition against Lessee in bankruptcy or seeking reorganization, arrangement, readjustment of its debts, insolvency, liquidation, dissolution, winding-up or for any other relief under the Bankruptcy Code, or under any other insolvency act or law, state or federal, now or hereafter existing; or the involuntary appointment of a receiver, a conservator, a trustee or a custodian of Lessee for all or a substantial part of its property; or the issuance of a warrant of attachment, execution or similar process against any substantial part of the property of Lessee, and the remedy requires an continuance of any of such events for sixty (60) days undismissed or undischarged;
(h) The entering of any order in any proceedings against Lessee or any Subsidiary of Lessee resulting from any violation of or breach of any contractual or other obligation by Lessee or any Subsidiary of Lessee or otherwise resulting from any shareholder action other thanor matter involving Lessee or a Subsidiary of Lessee decreeing the dissolution, divestiture or split-up of Lessee or any Subsidiary of Lessee and such order remains in addition toeffect for more than sixty (60) days; provided to the extent such is not reasonably expected to have a Material Adverse Effect (determined in a commercially reasonable manner), the payment Subsidiaries of money, no such failure Lessee may be dissolved;
(other than one i) Any Environmental Violation shall have occurred relating to the payment Property and either (i) Lessee shall, not within thirty (30) days after Lessee has actual knowledge of such moneyEnvironmental Violation, either (x) shall constitute deliver to Lessor a Lease Event Termination Notice with respect to the Property pursuant to Section 16.1, if applicable, (y) at Lessee’s sole cost and expense, promptly during such thirty (30) day period deliver to Lessor notice of Default hereunder for a period intention to remediate or (z) respecting any Release of 150 days after receipt any Hazardous Substance from any off-site point source, not caused in any way by Lessee, satisfy in full the obligations of Lessee pursuant to Section 15.2 or (ii) such notice so long as Lessee Environmental Violation is diligently proceeding reasonably expected to remedy such failure and shall exceed $100,000 in fact remedy such failure within such period; orremediation costs;
(j) A Manager final judgment or judgments for the payment of money shall be rendered by a court or courts against Lessee or any Subsidiary of Lessee in excess of $5,000,000 in the aggregate above amounts covered by insurance, and (i) the same shall not be discharged (or provision shall not be made for such discharge), or a stay of execution thereof shall not be procured, within thirty (30) days from the date of entry thereof, or (ii) Lessee or any such Subsidiary shall not, within said period of thirty (30) days, or such longer period during which execution of the same shall have been stayed, appeal therefrom and cause the execution thereof to be stayed during such appeal, or (iii) such judgment or judgments shall not be discharged (or provisions shall not be made for such discharge) within thirty (30) days after a final decision has been reached with respect to such appeal and the related stay has been lifted;
(k) Lessee or any member of the Controlled Group shall fail to pay when due an amount or amounts aggregating in excess of $2,000,000 which it shall have become liable to pay to the PBGC or shall fail to pay within thirty (30) days after becoming due an amount or amounts aggregating in excess of $2,000,000 which it shall have become liable to pay to a Pension Plan under Title IV of ERISA; or notice of intent to terminate a Pension Plan or Pension Plans having aggregate Unfunded Liabilities in excess of $2,000,000 shall be filed under Title IV of ERISA by Lessee or any member of the Controlled Group, any plan administrator or any combination of the foregoing; or the PBGC shall institute proceedings under Title IV of ERISA to terminate or to cause a trustee to be appointed to administer any such Pension Plan or Pension Plans or a proceeding shall be instituted by a fiduciary of any such Pension Plan or Pension Plans against Lessee or any member of the Controlled Group to enforce Section 515 or 4219(c)(5) of ERISA; or a condition shall exist by reason of which the PBGC would be entitled to obtain a decree under ERISA Section 4042(c) adjudicating that any such Pension Plan or Pension Plans must be terminated;
(i) As a result of one (1) or more transactions after the date of this Lease, any “person” or “group” of persons shall have “beneficial ownership” (within the meaning of Section 13(d) or 14(d) of the Securities Exchange Act of 1934, as amended, and the applicable rules and regulations thereunder) of more than fifty percent (50%) of the outstanding common stock of Lessee; or (ii) without limiting the generality of the foregoing, during any period of twelve (12) consecutive months, commencing after the date of this Lease, individuals who at the beginning of such period of twelve (12) months were directors of Lessee shall cease for any reason to constitute a majority of the board of directors of Lessee (excluding for such calculation, directors who retire (other than for reasons of a merger involving Lessee or for reasons involving any sale or transfer of assets) or who die) during any period of twelve (12) consecutive months so long as such directors are replaced by the surviving directors during such period), provided, that the relationships among the respective shareholders of Lessee on the Closing Date shall not be deemed to constitute all or any combination of them as a “group” for purposes of clause (l)(i);
(m) in connection with any court proceeding or any other proceeding of any governmental or quasi-governmental body, Lessee shall take the position that (i) any Basic Document to which Lessee is a party shall cease to be in full force and effect or (ii) any other Operative Agreement to which Lessee is a party shall cease to be in full force and effect and such could reasonably be expected to have a Material Adverse Effect;
(n) Any failure by Lessee to comply with any of its obligations under the Liquid Collateral Agreements and such failure shall continue for three (3) Business Days after the earlier of (i) a Responsible Officer of Lessee has knowledge of such noncompliance or (ii) the date upon which Lessor or the Agent first provides notice thereof;
(o) any default, or event of default which would permit the exercise of remedies under the Ground Lease or any of the Appurtenant Rights or any sublease thereof or the Ground Lease or any of the necessary Appurtenant Rights shall terminate;
(p) any Lien granted under any Security Document shall, in whole or in part, terminate, cease to be effective or lose its first priority status, except as expressly contemplated by the Operative Agreements or as the result of an act or omission of Lessor or the Agent;
(q) a Construction Covenant Event of Default (as defined pursuant to the Restrictive Covenant) or a Use Covenant Event of Default (as defined pursuant to the Restrictive Covenant) shall have occurred and be continuing under continuing; or
(r) in connection with any court proceeding or any other proceeding of any governmental or quasi-governmental body, Lessee shall take the Management Agreementposition that Lessor’s rights pursuant to the Operative Agreements to require Lessee to pledge additional Permitted Investments shall for any reason cease to be a legal, valid and binding agreement with Lessee; then, in any such event, Lessor may, in addition to the other rights and remedies provided for in this Article XVII and in Section 18.1, terminate this Lease by giving Lessee five (5) days written notice of such termination (provided, notwithstanding the foregoing, this Lease shall be deemed to be automatically terminated without the giving of notice upon the occurrence of any Insolvency Event), and (i) this Lease shall terminate and (ii) all rights of Lessee under this Lease shall have failed cease. Lessee shall, to exercise its rights under the Management Agreement in respect fullest extent permitted by law, pay as Supplemental Rent all costs and expenses incurred by or on behalf of such Manager Lessor or any other Financing Party, including without limitation reasonable fees and expenses of counsel, as a result of any Lease Event of Default for a period of 30 days after receipt by Lessee of written notice from Lessor, Owner Participant or the Indenture Trustee demanding that such action be taken; orhereunder. A POWER OF SALE HAS BEEN GRANTED IN THIS LEASE AS SUPPLEMENTED BY THE LEASE SUPPLEMENT. A POWER OF SALE MAY ALLOW LESSOR TO TAKE THE PROPERTY AND SELL THE PROPERTY WITHOUT GOING TO COURT IN A FORECLOSURE ACTION UPON THE OCCURRENCE AND CONTINUANCE OF A LEASE EVENT OF DEFAULT.
Appears in 1 contract
Lease Events of Default. The If any one (1) or more of the following events shall constitute Lease Events of Default hereunder (whether any such event shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body) and each such a "Lease Event of Default Default") shall be deemed to exist and continue so long as, but only as long as, it shall not have been remediedoccur:
(a) Lessee shall fail to make payment of (i) make any Basic Rent (except as set forth in clause (ii)) within three (3) days after the same has become due and payable or (ii) be deemed by virtue of any Termination Value, on the last sentence of Section 3.5 hereof to have made date any such payment is due and payable, or any payment of Basic Rent, Early Purchase Price, any other purchase price to be paid by Lessee for any Units pursuant to this Lease Rent or Supplemental Rent due on the Participation Agreement, Stipulated Loss Amount or Termination Amount (x) in the case due date of any such payment that is required to be made of Termination Value, or any amount due on the Basic Term Expiration Date or on any date within 30 days before the Basic Term Expiration Date, when due, and (y) in the case of any other such payment, within 10 Business Days after the same shall have become due; provided, however, that so long as any Equipment Notes remain outstanding, failure to make (or be deemed to have made) any portion of Basic Rent on any Rent Payment Date shall not be a Lease Event of Default so long as the amounts applied under Section 3.4, clause (4), of the Collateral Agency Agreement are sufficient to make the distributions required under such clause (4) with respect to the obligations owed under this Lease; provided, further, that in the event that the Special Equity Buy-Out has been consummated, failure to make any payment of Basic Rent, Early Purchase Price, any other purchase price to be paid by Lessee for any Units pursuant to this Lease or the Participation Agreement, Stipulated Loss Amount or Termination Amount (to the extent such amount constitutes an Accumulated Equity Deficiency Amount to be applied under Section 3.4, clause 9 of the Collateral Agency Agreement) shall, after receipt by Lessee of written notice of such failure from Lessor or Owner Participant, be a Lease Event of Default; or;
(b) Lessee shall fail to (i) make or (ii) be deemed by virtue of payments made by the Collateral Agent to have made any payment of any Supplemental Rent, including indemnity or tax indemnity payments, but not including Stipulated Loss Amount, Termination Amount, Early Purchase Price, or any Rent (other purchase price than Supplemental Rent referred to be paid by Lessee for any Units pursuant to this Lease or the Participation Agreement (xin Section 17.1(a)(ii)) in the case of any such payment that is required to be on the Basic Term Expiration Date or on any date within 30 days before the Basic Term Expiration Date, when due, and (y) in the case of any other such payment, after the same shall have which has become due and such failure shall continue unremedied for 30 payable within three (3) days after receipt by Lessee of written notice of that such failure from Lessor, Policy Provider, Owner Participant or the Indenture Trustee; provided, however, that so long as any Equipment Notes remain outstanding, failure to make (or be deemed to have made) payment of any of the amounts referred to in or to be applied pursuant to clauses (5) through (15) of Section 3.4 of the Collateral Agency Agreement shall not be a Lease Event of Default; oris due;
(c) Lessee shall fail to maintain in effect the insurance as required by Section 12 or Section 6.4 of the Collateral Agency Agreement and such failure shall not have been waived as provided for therein; or
(d) Lessee shall use or permit the use of the Units or the Pledged Units or any portion thereof in a way which is not permitted by this Lease (with respect to the Units) or the Collateral Agency Agreement (with respect to the Pledged Units), provided that such unauthorized use shall not constitute a Lease Event of Default for a period of 45 days after Lessee's obtaining actual knowledge thereof so long as (i) such unauthorized use is not the result of any willful action of Lessee and (ii) such unauthorized use is capable of being cured and Lessee diligently pursues such cure throughout such 45-day period; or Lessee shall make or permit any unauthorized assignment or transfer Article XIV of this Lease in violation of Section 18.2; or
or to deliver any requisite annual certificate with respect thereto within ten (e10) TILC (or any successor thereto in its capacity as Administrator or Servicer, as applicable) shall have defaulted in any material respect in the performance of any of its obligations under the Administrative Services Agreement or the Servicing Agreement or a default shall occur under Section 6(a) of the Account Administration Agreement, and, in each case, Lessee shall have failed to exercise its rights thereunder in respect of such default for a period of 30 days after receipt by Lessee of written notice from Lessor, Owner Participant, Policy Provider or the Indenture Trustee, demanding that such action be taken; or
(f) Any representation or warranty made by Lessee in any Lessee Agreement or any representation or warranty made by TILC in any Operative Agreement to which any such Person is a party, in each case, other than the Tax Indemnity Agreement, is untrue or incorrect in any material respect as of the date of making thereof and such untruth or incorrectness shall continue to be material and unremedied for a period of 30 days after receipt of notice from Lessor, Owner Participant, Indenture Trustee or certificate is due under the Policy Provider; provided that, if such untruth or incorrectness is capable of being remedied, no such untruth or incorrectness shall constitute a Lease Event of Default hereunder for a period of 120 days after receipt of notice from Lessor, Owner Participant, the Indenture Trustee or the Policy Provider so long as Lessee, TILC or TRMI, as the case may be, is diligently proceeding to remedy such untruth or incorrectness and shall in fact remedy such untruth or incorrectness within such period; provided that such untrue or incorrect representation or warranty shall be deemed to be remediable or remedied only after all adverse consequences thereof if any, can be and have been remedied as applicable; or
(g) Lessee or the General Partner shall (i) 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 (ii) consent to any such relief or to the appointment of or taking possession by any such official in any voluntary case or other proceeding commenced against it, or (iii) admit in writing its inability to pay its debts generally as they come due, or (iv) make a general assignment for the benefit of creditors, or (v) take any corporate or partnership action to authorize any of the foregoing; or
(h) An involuntary case or other proceeding shall be commenced against Lessee or the General Partner seeking liquidation, reorganization or 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 60 days; orterms hereof;
(i) Lessee shall fail to observe or perform any term, covenant or condition of Lessee under this Lease (including without limitation the Incorporated Covenants) or any other of the covenants Operative Agreement to which Lessee is a party other than those set forth in Sections 17.1(a), (b) or agreements (c) hereof, or Lessee shall fail to pay, or cause to be observed paid, any Imposition or performed by Lessee under shall fail to observe any Lessee Agreement or Legal Requirement regarding any certificate Property (to the extent the failure to observe such Legal Requirement results in a Material Adverse Effect) and such failure shall continue unremedied for 30 fifteen (15) days after notice from Lessorthereof to the Lessee, Owner Participantor (ii) any representation or warranty made by Lessee set forth in this Lease (including without limitation the Incorporated Representation and Warranties) or in any other Operative Agreement or in any document entered into in connection herewith or therewith or in any document, Policy Provider certificate or financial or other statement delivered in connection herewith or therewith shall be false or inaccurate in any material way when made;
(e) An Agency Agreement Event of Default shall have occurred and be continuing;
(f) Lessee or any of its Subsidiaries shall default (beyond applicable periods of grace and/or notice and cure) in the payment when due of any principal of or interest on any Indebtedness having an outstanding principal amount of at least $5,000,000; or any event or condition shall occur which results in the acceleration of the maturity of any such Indebtedness or enables the holder of any such Indebtedness or any Person acting on such holder's behalf to accelerate the maturity thereof;
(g) The liquidation or dissolution of Lessee, or the Indenture Trustee to suspension of the business of Lessee, specifying or the failure and demanding filing by Lessee of a voluntary petition or an answer seeking reorganization, arrangement, readjustment of its debts or for any other relief under the same United States Bankruptcy Code, as amended, or under any other insolvency act or law, state or federal, now or hereafter existing, or any other action of Lessee indicating its consent to, approval of or acquiescence in, any such petition or proceeding; the application by Lessee for, or the appointment by consent or acquiescence of Lessee of a receiver, a trustee or a custodian of Lessee for all or a substantial part of its property; the making by Lessee of any assignment for the benefit of creditors; the inability of Lessee or the admission by Lessee in writing of its inability to be remediedpay its debts as they mature; provided thator Lessee taking any corporate action to authorize any of the foregoing;
(h) The filing of an involuntary petition against Lessee in bankruptcy or seeking reorganization, if such failure is capable arrangement, readjustment of being remediedits debts or for any other relief under the United States Bankruptcy Code, as amended, or under any other insolvency act or law, state or federal, now or hereafter existing; or the involuntary appointment of a receiver, a trustee or a custodian of Lessee for all or a substantial part of its property; or the issuance of a warrant of attachment, execution or similar process against any substantial part of the property of Lessee, and the remedy requires an action other than, or in addition to, the payment continuance of money, no such failure (other than one relating to the payment any of such moneyevents for ninety (90) shall constitute a Lease Event days undismissed or undischarged;
(i) The adjudication of Default hereunder for a period of 150 days after receipt of such notice so long Lessee as Lessee is diligently proceeding to remedy such failure and shall in fact remedy such failure within such period; orbankrupt or insolvent;
(j) A Manager The entering of any order in any proceedings against Lessee or any Material Subsidiary decreeing the dissolution, divestiture or split-up of Lessee or any Material Subsidiary, and such order remains in effect for more than sixty (60) days;
(k) Any report, certificate, financial statement or other instrument delivered to Lessor by or on behalf of Lessee pursuant to the terms of this Lease or any other Operative Agreement is false or misleading in any material respect when made or delivered;
(l) Any Lessee Credit Agreement Event of Default shall have occurred and be continuing under and shall not have been waived;
(m) A final judgment or judgments for the Management Agreementpayment of money shall be rendered by a court or courts against Lessee or any of its Material Subsidiaries in excess of $5,000,000 in the aggregate, and (i) the same shall not be discharged (or provision shall not be made for such discharge), or a stay of execution thereof shall not be procured, within forty-five (45) days from the date of entry thereof, or (ii) Lessee or such Material Subsidiary shall not, within said period of forty-five (45) days, or such longer period during which execution of the same shall have been stayed, appeal therefrom and cause the execution thereof to be stayed during such appeal, or (iii) such judgment or judgments shall not be discharged (or provisions shall not be made for such discharge) within forty-five (45) days after a decision has been reached with respect to such appeal and the related stay has been lifted;
(n) Lessee or any member of the Controlled Group shall fail to pay when due an amount or amounts aggregating in excess of $2,000,000 which it shall have become liable to pay to the PBGC or to a Pension Plan under Title IV of ERISA; or notice of intent to terminate a Pension Plan or Pension Plans having aggregate Unfunded Liabilities in excess of $2,000,000 shall be filed under Title IV of ERISA by Lessee or any member of the Controlled Group, any plan administrator or any combination of the foregoing; or the PBGC shall institute proceedings under Title IV of ERISA to terminate or to cause a trustee to be appointed to administer any such Pension Plan or Pension Plans or a proceeding shall be instituted by a fiduciary of any such Pension Plan or Pension Plans against Lessee or any member of the Controlled Group to enforce Section 515 or 4219(c)(5) of ERISA; or a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any such Pension Plan or Pension Plans must be terminated;
(i) As a result of one (1) or more transactions after the date of this Lease, any "person" or "group" of persons shall have "beneficial ownership" (within the meaning of Section 13(d) or 14(d) of the Securities Exchange Act of 1934, as amended, and the applicable rules and regulations thereunder) of fifty percent (50%) or more of the outstanding common stock of Lessee; or (ii) without limiting the generality of the foregoing, during any period of twelve (12) consecutive months, commencing after the date of this Lease, individuals who at the beginning of such period of twelve (12) months were directors of Lessee shall have failed cease for any reason to exercise its constitute a majority of the board of directors of Lessee, provided, that the relationships among the respective shareholders of Lessee on the Initial Closing Date shall not be deemed to constitute all or any combination of them as a "group" for purposes of clause (o)(i); or
(p) Any Operative Agreement shall cease to be in full force and effect; then, in any such event, Lessor may, in addition to the other rights under the Management Agreement and remedies provided for in respect this Article XVII and in Section 18.1, terminate this Lease by giving Lessee five (5) days notice of such Manager Default for a period termination, and this Lease shall terminate, and all rights of 30 days after receipt Lessee under this Lease shall cease. Lessee shall, to the fullest extent permitted by Lessee law, pay as Supplemental Rent all costs and expenses incurred by or on behalf of written notice from Lessor, Owner Participant or the Indenture Trustee demanding that such action be taken; orincluding without limitation reasonable fees and expenses of counsel, as a result of any Lease Event of Default hereunder.
Appears in 1 contract
Lease Events of Default. The following events shall constitute Lease Events of Default hereunder (whether any such event shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body) and each such Lease Event of Default shall be deemed to exist and continue so long as, but only as long as, it shall not have been remedied:
(a) Lessee shall fail to (i) make or (ii) be deemed by virtue of the last sentence of Section 3.5 hereof to have made any payment of Basic Rent, Early Purchase Price, any other purchase price to be paid by Lessee for any Units pursuant to this Lease or the Participation Agreement, Stipulated Loss Amount or Termination Amount (x) in the case of any such payment that is required to be made on the Basic Term Expiration Date or on any date within 30 days before the Basic Term Expiration Date, when due, and (y) in the case of any other such payment, within 10 Business Days after the same shall have become due; provided, however, that so long as any Equipment Notes remain outstanding, failure to make (or be deemed to have made) any portion of Basic Rent on any Rent Payment Date shall not be a Lease Event of Default so long as the amounts applied under Section 3.4, clause (4), of the Collateral Agency Agreement are sufficient to make the distributions required under such clause (4) with respect to the obligations owed under this Lease; provided, further, that in the event that the Special Equity Buy-Out has been consummated, failure to make any payment of Basic Rent, Early Purchase Price, any other purchase price to be paid by Lessee for any Units pursuant to this Lease or the Participation Agreement, Stipulated Loss Amount or Termination Amount (to the extent such amount constitutes an Accumulated Equity Deficiency Amount to be applied under Section 3.4, clause 9 of the Collateral Agency Agreement) shall, after receipt by Lessee of written notice of such failure from Lessor or Owner Participant, be a Lease Event of Default; or
(b) Lessee shall fail to (i) make or (ii) be deemed by virtue of payments made by the Collateral Agent to have made any payment of Supplemental Rent, including indemnity or tax indemnity payments, but not including Stipulated Loss Amount, Termination Amount, Early Purchase Price, or any other purchase price to be paid by Lessee for any Units pursuant to this Lease or the Participation Agreement (x) in the case of any such payment that is required to be on the Basic Term Expiration Date or on any date within 30 days before the Basic Term Expiration Date, when due, and (y) in the case of any other such payment, after the same shall have become due and such failure shall continue unremedied for 30 days after receipt by Lessee of written notice of such failure from Lessor, Policy Provider, Owner Participant or the Indenture Trustee; provided, however, that so long as any Equipment Notes remain outstanding, failure to make (or be deemed to have made) payment of any of the amounts referred to in or to be applied pursuant to clauses (5) through (15) of Section 3.4 of the Collateral Agency Agreement shall not be a Lease Event of Default; or
(c) Lessee shall fail to maintain in effect the insurance required by Section 12 or Section 6.4 of the Collateral Agency Agreement and such failure shall not have been waived as provided for therein; or
(d) Lessee shall use or permit the use of the Units or the Pledged Units or any portion thereof in a way which is not permitted by this Lease (with respect to the Units) or the Collateral Agency Agreement (with respect to the Pledged Units), provided that such unauthorized use shall not constitute a Lease Event of Default for a period of 45 days after Lessee's obtaining actual knowledge thereof so long as (i) such unauthorized use is not the result of any willful action of Lessee and (ii) such unauthorized use is capable of being cured and Lessee diligently pursues such cure throughout such 45-day period; or Lessee shall make or permit any unauthorized assignment or transfer of this Lease in violation of Section 18.2; or
(e) TILC (or any successor thereto in its capacity as Administrator or Servicer, as applicable) shall have defaulted in any material respect in the performance of any of its obligations under the Administrative Services Agreement or the Servicing Agreement or a default shall occur under Section 6(a) of the Account Administration Agreement, and, in each case, Lessee shall have failed to exercise its rights thereunder in respect of such default for a period of 30 days after receipt by Lessee of written notice from Lessor, Owner Participant, Policy Provider or the Indenture Trustee, demanding that such action be taken; or
(f) Any representation or warranty made by Lessee in any Lessee Agreement or any representation or warranty made by TILC in any Operative Agreement to which any such Person is a party, in each case, other than the Tax Indemnity Agreement, is untrue or incorrect in any material respect as of the date of making thereof and such untruth or incorrectness shall continue to be material and unremedied for a period of 30 days after receipt of notice from Lessor, Owner Participant, Indenture Trustee or the Policy Provider; provided that, if such untruth or incorrectness is capable of being remedied, no such untruth or incorrectness shall constitute a Lease Event of Default hereunder for a period of 120 days after receipt of notice from Lessor, Owner Participant, the Indenture Trustee or the Policy Provider so long as Lessee, TILC or TRMI, as the case may be, is diligently proceeding to remedy such untruth or incorrectness and shall in fact remedy such untruth or incorrectness within such period; provided that such untrue or incorrect representation or warranty shall be deemed to be remediable or remedied only after all adverse consequences thereof if any, can be and have been remedied as applicable; or
(g) Lessee or the General Partner shall (i) 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 (ii) consent to any such relief or to the appointment of or taking possession by any such official in any voluntary case or other proceeding commenced against it, or (iii) admit in writing its inability to pay its debts generally as they come due, or (iv) make a general assignment for the benefit of creditors, or (v) take any corporate or partnership action to authorize any of the foregoing; or
(h) An involuntary case or other proceeding shall be commenced against Lessee or the General Partner seeking liquidation, reorganization or 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 60 days; or
(i) Lessee shall fail to observe or perform any other of the covenants or agreements to be observed or performed by Lessee under any Lessee Agreement or any certificate and such failure shall continue unremedied for 30 days after notice from Lessor, Owner Participant, Policy Provider or the Indenture Trustee to Lessee, specifying the failure and demanding the same to be remedied; provided that, if such failure is capable of being remedied, and the remedy requires an action other than, or in addition to, the payment of money, no such failure (other than one relating to the payment of such money) shall constitute a Lease Event of Default hereunder for a period of 150 days after receipt of such notice so long as Lessee is diligently proceeding to remedy such failure and shall in fact remedy such failure within such period; or
(j) A Manager Default shall have occurred and be continuing under the Management Agreement, and Lessee shall have failed to exercise its rights under the Management Agreement in respect of such Manager Default for a period of 30 days after receipt by Lessee of written notice from Lessor, Owner Participant or the Indenture Trustee demanding that such action be taken; orSection
Appears in 1 contract
Lease Events of Default. The If any one or more of the following events shall constitute Lease Events of Default hereunder (whether any such event shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body) and each such a "Lease Event of Default Default") shall be deemed to exist and continue so long as, but only as long as, it shall not have been remediedoccur:
(a) Lessee shall fail to pay (i) make any Basic Rent (except as set forth in clause (ii)) within five (5) days after the same has become due and payable or (ii) be deemed by virtue within one (1) day after the same has become due and payable, any Residual Value Guarantee Amount, or payment of the last sentence of Section 3.5 hereof to have made Termination Value or Purchase Option Price, or any payment of Basic Rent, Early Purchase Price, any other purchase price to be paid by Lessee for any Units pursuant to this Lease Rent or Supplemental Rent due on the Participation Agreement, Stipulated Loss Amount or Termination Amount (x) in the case due date of any such payment that is required to be made of Residual Value Guarantee Amount, Termination Value or Purchase Option Price, or any amount due on the Basic Term Expiration Date or on any date within 30 days before the Basic Term Expiration Date, when due, and (y) in the case of any other such payment, within 10 Business Days after the same shall have become due; provided, however, that so long as any Equipment Notes remain outstanding, failure to make (or be deemed to have made) any portion of Basic Rent on any Rent Payment Date shall not be a Lease Event of Default so long as the amounts applied under Section 3.4, clause (4), of the Collateral Agency Agreement are sufficient to make the distributions required under such clause (4) with respect to the obligations owed under this Lease; provided, further, that in the event that the Special Equity Buy-Out has been consummated, failure to make any payment of Basic Rent, Early Purchase Price, any other purchase price to be paid by Lessee for any Units pursuant to this Lease or the Participation Agreement, Stipulated Loss Amount or Termination Amount (to the extent such amount constitutes an Accumulated Equity Deficiency Amount to be applied under Section 3.4, clause 9 of the Collateral Agency Agreement) shall, after receipt by Lessee of written notice of such failure from Lessor or Owner Participant, be a Lease Event of Default; or;
(b) Lessee shall fail to (i) make or (ii) be deemed by virtue of payments made by the Collateral Agent to have made any payment of any Supplemental Rent, including indemnity or tax indemnity payments, but not including Stipulated Loss Amount, Termination Amount, Early Purchase Price, or any Rent (other purchase price than Supplemental Rent referred to be paid by Lessee for any Units pursuant to this Lease or the Participation Agreement (xin Section 17.1(a)(ii) in the case of any such payment that is required to be on the Basic Term Expiration Date or on any date within 30 days before the Basic Term Expiration Date, when due, and (yhereof) in the case of any other such payment, after the same shall have become due and such failure shall continue unremedied for 30 payable within five (5) days after receipt by Lessee of written notice of such failure from Lessor, Policy Provider, Owner Participant or the Indenture Trustee; provided, however, that so long as any Equipment Notes remain outstanding, failure to make (or be deemed to have made) payment of any of the amounts referred to in or to be applied pursuant to clauses (5) through (15) of Section 3.4 of the Collateral Agency Agreement shall not be a Lease Event of Default; orthereof;
(c) Lessee shall fail to maintain in effect the insurance as required by Section 12 or Section 6.4 14 of the Collateral Agency Agreement and such failure shall not have been waived as provided for therein; orthis Lease;
(d) Lessee shall use fail to observe or permit perform any term, covenant or condition of Lessee under this Lease, the use of the Units or the Pledged Units Participation Agreement or any portion thereof other Operative Agreement to which Lessee is a party other than those set forth in a way which is not permitted by this Lease Section 17.1(a), (with respect to the Unitsb), (c) or the Collateral Agency Agreement (with respect to the Pledged Units), provided that such unauthorized use shall not constitute a Lease Event of Default for a period of 45 days after Lessee's obtaining actual knowledge thereof so long as (i) such unauthorized use is not the result of any willful action of Lessee and (ii) such unauthorized use is capable of being cured and Lessee diligently pursues such cure throughout such 45-day period; or Lessee shall make or permit any unauthorized assignment or transfer of this Lease in violation of Section 18.2; or
(e) TILC (or any successor thereto in its capacity as Administrator or Servicerhereof, as applicable) shall have defaulted in any material respect in the performance of any of its obligations under the Administrative Services Agreement or the Servicing Agreement or a default shall occur under Section 6(a) of the Account Administration Agreement, and, in each case, Lessee shall have failed to exercise its rights thereunder in respect of such default for a period of 30 days after receipt by Lessee of written notice from Lessor, Owner Participant, Policy Provider or the Indenture Trustee, demanding that such action be taken; or
(f) Any representation or warranty made by Lessee in any Lessee Agreement or any representation or warranty made by TILC Lessee set forth in this Lease or in any other Operative Agreement to which or in any such Person is a partydocument entered into in connection herewith or therewith or in any document, certificate or financial or other statement delivered in each case, other than the Tax Indemnity Agreement, is untrue connection herewith or incorrect therewith shall be false or inaccurate in any material respect as of the date of making thereof way, and such untruth failure or incorrectness misrepresentation or breach of warranty is capable of being cured and shall continue to be material and unremedied remain uncured for a period of 30 thirty (30) days after receipt of written notice from Lessor, Owner Participant, Indenture Trustee or the Policy Provider; provided that, if such untruth or incorrectness is capable of being remedied, no such untruth or incorrectness shall constitute a Lease Event of Default hereunder for a period of 120 days after receipt of notice from Lessor, Owner Participant, the Indenture Trustee or the Policy Provider so long as Lessee, TILC or TRMI, as the case may be, is diligently proceeding to remedy such untruth or incorrectness and shall in fact remedy such untruth or incorrectness within such period; provided that such untrue or incorrect representation or warranty shall be deemed to be remediable or remedied only after all adverse consequences thereof if any, can be and have been remedied as applicable; orLessor thereof;
(ge) Lessee or the General Partner shall (i) 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 (ii) consent to any such relief or to the appointment of or taking possession by any such official in any voluntary case or other proceeding commenced against it, or (iii) admit in writing its inability to pay its debts generally as they come become due, (ii) file a petition under the United States bankruptcy laws or any other applicable insolvency law or statute of the United States of America or any State or Commonwealth thereof, (iviii) make a general assignment for the benefit of its creditors, or (viv) take any corporate or partnership action consent to authorize any of the foregoing; or
(h) An involuntary case or other proceeding shall be commenced against Lessee or the General Partner seeking liquidation, reorganization or 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 receiver of itself or other similar official of it the whole or any substantial part of its property, (v) fail to cause the discharge of any custodian, trustee or receiver appointed for Lessee or the whole or a substantial part of its property within sixty (60) days after such appointment, or (vi) file a petition or answer seeking or consenting to reorganization under the United States bankruptcy laws or any other applicable insolvency law or statute of the United States of America or any State or Commonwealth thereof;
(f) insolvency proceedings or a petition under the United States bankruptcy laws or any other applicable insolvency law or statute of the United States of America or any State or Commonwealth thereof shall be filed against Lessee and not dismissed within sixty (60) days from the date of its filing, or a court of competent jurisdiction shall enter an order or decree appointing, without the consent of Lessee, a receiver of Lessee or the whole or a substantial part of its property, and such involuntary case order or other proceeding decree shall remain undismissed not be vacated or set aside within sixty (60) days from the date of the entry thereof;
(g) in the event Lessee shall not have exercised its Expiration Date Purchase Option, Lessee shall have failed to remarket and unstayed consummate a sale of, or return, the Equipment in accordance with Section 23 hereof and make the payments provided for a period therein on the Expiration Date;
(h) Lessee shall (x) fail to make any payment, equal to or exceeding $10,000,000 of 60 daysany Obligation or to make any payment, equal to or exceeding $5,000,000, of any 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 Obligation, or (y) fail to perform or observe any term, covenant or condition on its part to be performed or observed under any agreement or instrument relating to any Obligation when required to be performed or observed, and such failure shall continue after the applicable grace period, if any, specified in such agreement or instrument, if the effect of such failure to perform or observe is to accelerate, or to permit the acceleration of, the maturity of any Obligation, the unpaid principal amount of which then equals or exceeds $10,000,000; or
(i) Lessee shall fail to observe any judgement or perform any other of the covenants or agreements to be observed or performed by Lessee under any Lessee Agreement or any certificate and such failure shall continue unremedied order for 30 days after notice from Lessor, Owner Participant, Policy Provider or the Indenture Trustee to Lessee, specifying the failure and demanding the same to be remedied; provided that, if such failure is capable of being remedied, and the remedy requires an action other than, or in addition to, the payment of money, no money in excess of $10,000,000 shall be rendered against Lessee and either (x) enforcement proceedings shall have been commenced by any creditor upon such failure judgment or order or (other than one relating to the payment y) there shall be any period of thirty (30) consecutive days during which a stay of enforcement of such money) judgment or order, by reason of a pending appeal or otherwise, shall constitute a Lease Event of Default hereunder for a period of 150 days after receipt of such notice so long as Lessee is diligently proceeding to remedy such failure and shall not be in fact remedy such failure within such periodeffect; or
(j) A Manager any Termination Event with respect to a Plan shall have occurred, and, thirty (30) days after notice thereof shall have been given to the Lessee by the Lessor, (i) such Termination Event (if correctable) shall not have been corrected and (ii) the then present value of such Plan's vested benefits exceeds (when aggregated with the amount of any such excess under all other Plans with respect to which a Termination Event shall have occurred) the then current value of assets accumulated in such Plan by more than the amount of $15,000,000 (or in the case of a Termination Event involving the withdrawal of a "substantial employer" (as defined in Section 4001(a)(2) of ERISA), the withdrawing employer's proportionate share of such excess exceeds such amount); or
(k) the Completion Date shall not have occurred by the Outside Completion Date, or if all of the Equipment intended to be subject to the Lease on such date shall not be so subject on such date and the Equipment shall not constitute an integrated gas-fired combustion turbine capable of producing electricity as contemplated by the Preliminary Appraisal; or
(l) the Lease shall cease to be enforceable against Lessee; or
(m) an Installation Agency Agreement Event of Default shall have occurred and be continuing under continuing; then, in any such event, Lessor may, in addition to the Management Agreementother rights and remedies provided for in this Section 17 and in Section 18 hereof, terminate this Lease by giving Lessee written notice of such termination, and this Lease shall terminate, and all rights of Lessee under this Lease shall have failed cease. Lessee shall, to exercise its rights under the Management Agreement in respect fullest extent permitted by law, pay as Supplemental Rent all costs and expenses incurred by or on behalf of such Manager Default for a period of 30 days after receipt by Lessee of written notice from Lessor, Owner Participant the Agent, the Lenders or the Indenture Trustee demanding that such action be taken; orInvestor, including fees and expenses of counsel, as a result of any Lease Event of Default hereunder.
Appears in 1 contract
Lease Events of Default. The If any one or more of the following events shall constitute Lease Events of Default hereunder (whether any such event shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body) and each such a "Lease Event of Default Default") shall be deemed to exist and continue so long as, but only as long as, it shall not have been remediedoccur:
(a) Lessee shall fail to make payment of (i) make any Basic Rent or any Supplemental Rent representing amounts owed on account of principal, premium, if any, or interest on, or Purchase Price of, the Tax Exempt Bonds after the same has become due and payable, or (ii) be deemed by virtue any Basic Rent or any Supplemental Rent representing amounts owed (other than on account of principal, premium, if any, or interest on, or Purchase Price of, the last sentence of Section 3.5 hereof to have made any payment of Basic Rent, Early Purchase Price, any other purchase price to be paid by Lessee for any Units pursuant to Tax Exempt Bonds) under this Lease or the Participation Agreement, Stipulated Loss Amount or Termination Amount other Operative Agreements within five (x5) in the case of any such payment that is required to be made on the Basic Term Expiration Date or on any date within 30 days before the Basic Term Expiration Date, when due, and (y) in the case of any other such payment, within 10 Business Days after the same shall have has become due; provided, however, that so long as any Equipment Notes remain outstanding, failure to make due and payable or (or be deemed to have madeiii) any portion of Basic Rent on any Rent Payment Date shall not be a Lease Event of Default so long as the amounts applied under Section 3.4Maximum Residual Guarantee Amount, clause (4), of the Collateral Agency Agreement are sufficient to make the distributions required under such clause (4) with respect to the obligations owed under this Lease; provided, further, that in the event that the Special Equity Buy-Out has been consummated, failure to make any payment of Basic Rent, Early Purchase Price, any other purchase price to be paid by Lessee for any Units pursuant to this Lease or the Participation Agreement, Stipulated Loss Amount Option Price or Termination Amount (to Value after the extent such amount constitutes an Accumulated Equity Deficiency Amount to be applied under Section 3.4, clause 9 of the Collateral Agency Agreement) shall, after receipt by Lessee of written notice of such failure from Lessor or Owner Participant, be a Lease Event of Defaultsame has become due and payable; or
(b) Lessee shall fail to (i) make or (ii) be deemed by virtue of payments made by the Collateral Agent to have made any payment of Supplemental Rent, including indemnity or tax indemnity payments, but not including Stipulated Loss Amount, Termination Amount, Early Purchase Price, or any other purchase price to be paid by Lessee for any Units pursuant to this Lease or the Participation Agreement (x) in the case of any such payment that is required to be on the Basic Term Expiration Date or on any date within 30 days before the Basic Term Expiration Date, when due, and (y) in the case of any other such payment, after the same shall have become Supplemental Rent due and such failure shall continue unremedied for 30 days after receipt by Lessee of written notice of such failure from Lessor, Policy Provider, Owner Participant or the Indenture Trustee; provided, however, that so long as any Equipment Notes remain outstanding, failure to make (or be deemed to have made) payment of any of the amounts referred to in or to be applied pursuant to clauses payable within five (5) through (15) Business Days after receipt of Section 3.4 of the Collateral Agency Agreement shall not be a Lease Event of Defaultnotice thereof; or
(c) Lessee shall fail to maintain in effect the insurance as required by Section 12 or Section 6.4 14, provided that no Lease Event of Default shall occur until the Collateral Agency Agreement effective date of termination of coverage as to the Lessor and such failure shall not have been waived as provided for thereinthe Issuer; or
(d) Lessee shall use fail to observe or permit perform any term, covenant or condition of Lessee under this Lease, the use of the Units or the Pledged Units Participation Agreement or any portion thereof other Operative Agreement to which it is a party (other than those set forth in a way which is not permitted by this Lease Section 17.1(a), (with respect to the Unitsb) or (c) hereof) or any representation or warranty by Lessee set forth in this Lease, the Collateral Agency Participation Agreement or in any other Operative Agreement or in any document entered into in connection herewith or therewith or in any document, certificate or financial or other statement delivered in connection herewith or therewith shall be false or inaccurate in any material way and such failure or misrepresentation or breach of warranty shall remain uncured for a period of thirty (with respect to the Pledged Units)30) days after written notice thereof; provided, provided that such unauthorized use shall not constitute a however, no Lease Event of Default for a period of 45 days after Lessee's obtaining actual knowledge thereof shall be deemed to occur if such failure, misrepresentation or breach cannot reasonably be cured within such period, so long as (i) such unauthorized use is not the result of any willful action of Lessee and (ii) such unauthorized use is capable of being cured and Lessee diligently pursues such cure throughout such 45-day period; or Lessee shall make have promptly commenced the cure thereof, continues to act with diligence to correct such failure, misrepresentation or permit any unauthorized assignment breach and, in fact corrects such failure, misrepresentation or transfer of this Lease in violation of Section 18.2breach within ninety (90) days after notice thereof; or
(e) TILC (or any successor thereto in its capacity as Administrator or Servicer, as applicable) an Agency Agreement Event of Default shall have defaulted in any material respect in the performance of any of its obligations under the Administrative Services Agreement or the Servicing Agreement or a default shall occur under Section 6(a) of the Account Administration Agreement, and, in each case, Lessee shall have failed to exercise its rights thereunder in respect of such default for a period of 30 days after receipt by Lessee of written notice from Lessor, Owner Participant, Policy Provider or the Indenture Trustee, demanding that such action occurred and be takencontinuing; or
(f) Any representation or warranty made by Lessee in any Lessee Agreement or any representation or warranty made by TILC in any Operative Agreement to which any such Person is a party, in each case, other than the Tax Indemnity Agreement, is untrue or incorrect in any material respect as of the date of making thereof and such untruth or incorrectness shall continue to be material and unremedied for a period of 30 days after receipt of notice from Lessor, Owner Participant, Indenture Trustee or the Policy Provider; provided that, if such untruth or incorrectness is capable of being remedied, no such untruth or incorrectness shall constitute a Lease Event of Default hereunder for a period of 120 days after receipt of notice from Lessor, Owner Participant, the Indenture Trustee or the Policy Provider so long as Lessee, TILC or TRMI, as the case may be, is diligently proceeding to remedy such untruth or incorrectness and shall in fact remedy such untruth or incorrectness within such period; provided that such untrue or incorrect representation or warranty shall be deemed to be remediable or remedied only after all adverse consequences thereof if any, can be and have been remedied as applicable; or
(g) Lessee or the General Partner shall (i) 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 (ii) consent to any such relief or to the appointment of or taking possession by any such official in any voluntary case or other proceeding commenced against it, or (iii) admit in writing its inability be unable to pay its debts generally as they come become due, (ii) file a petition under the United States bankruptcy laws or any other applicable insolvency law or statute of the United States of America or any State or Commonwealth thereof, (iviii) make a general assignment for the benefit of its creditors, or (viv) take any corporate or partnership action consent to authorize any of the foregoing; or
(h) An involuntary case or other proceeding shall be commenced against Lessee or the General Partner seeking liquidation, reorganization or 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 receiver of itself or other similar official of it the whole or any substantial part of its property, (v) fail to cause the discharge of any custodian, trustee or receiver appointed for Lessee or the whole or a substantial part of its property within ninety (90) days after such appointment, or (vi) file a petition or answer seeking or consenting to reorganization under the United States bankruptcy laws or any other applicable insolvency law or statute of the United States of America or any State or Commonwealth thereof; or
(g) insolvency proceedings or a petition under the United States bankruptcy laws or any other applicable insolvency law or statute of the United States of America or any State or Commonwealth thereof shall be filed against Lessee and not dismissed within ninety (90) days from the date of its filing, or a court of competent jurisdiction shall enter an order or decree appointing, without the consent of Lessee, a receiver of Lessee or the whole or a substantial part of its property, and such involuntary case order or other proceeding decree shall remain undismissed not be vacated or set aside within ninety (90) days from the date of the entry thereof; or
(h) a Credit Agreement Event of Default of the type specified in Section 7.1(e), (f), (g), (h), (i), (j), (l), (n), (p) or (q) of the Credit Agreement shall have occurred and unstayed for a period of 60 daysbe continuing; or
(i) Lessee an event of default under the Corporate Credit Agreement shall fail to observe or perform any other of the covenants or agreements to have occurred and be observed or performed by Lessee under any Lessee Agreement or any certificate and such failure shall continue unremedied for 30 days after notice from Lessor, Owner Participant, Policy Provider or the Indenture Trustee to Lessee, specifying the failure and demanding the same to be remedied; provided that, if such failure is capable of being remedied, and the remedy requires an action other than, or in addition to, the payment of money, no such failure (other than one relating to the payment of such money) shall constitute a Lease Event of Default hereunder for a period of 150 days after receipt of such notice so long as Lessee is diligently proceeding to remedy such failure and shall in fact remedy such failure within such periodcontinuing; or
(j) A Manager Default the Easement Agreement shall have occurred cease for any reason to be in full force and effect, or shall cease to give the Issuer and the Lessor the rights, powers and privileges purported to be continuing under granted thereby; then, in any such event, Lessor may, in addition to the Management Agreementother rights and remedies provided for in this Section 17 and in Section 18.1, terminate this Lease by giving Lessee five (5) days notice of such termination, and this Lease shall terminate. Lessee shall have failed shall, to exercise its rights under the Management Agreement in respect fullest extent permitted by law, pay as Supplemental Rent all costs and expenses incurred by or on behalf of such Manager Default for a period of 30 days after receipt by Lessee of written notice from Lessor, Owner Participant or the Indenture Trustee demanding that such action be taken; orincluding fees and expenses of counsel, as a result of any Lease Event of Default hereunder.
Appears in 1 contract
Lease Events of Default. The If any one or more of the following events shall constitute Lease Events of Default hereunder (whether any such event shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body) and each such a "Lease Event of Default Default") shall be deemed to exist and continue so long as, but only as long as, it shall not have been remediedoccur:
(a) Lessee or the Construction Agent shall fail to make payment of (i) make any Basic Rent on the date the same is due or (ii) be deemed by virtue of any Termination Value, Maximum Residual Guaranty Amount or Maximum Amount, on the last sentence of Section 3.5 hereof to have made date any such payment is due, or any payment of Basic Rent, Early Purchase Price, any other purchase price to be paid by Lessee for any Units pursuant to this Lease Rent or Supplemental Rent due on the Participation Agreement, Stipulated Loss Amount or Termination Amount (x) in the case due date of any such payment that is required to be made of Termination Value, Maximum Residual Guaranty Amount or Maximum Amount, or any amount due on the Basic Term Expiration Date or on any date within 30 days before the Basic Term Preliminary Expiration Date, when due, and (y) in the case of any other such payment, within 10 Business Days after the same shall have become due; provided, however, that so long as any Equipment Notes remain outstanding, failure to make (or be deemed to have made) any portion of Basic Rent on any Rent Payment Date shall not be a Lease Event of Default so long as the amounts applied under Section 3.4, clause (4), of the Collateral Agency Agreement are sufficient to make the distributions required under such clause (4) with respect to the obligations owed under this Lease; provided, further, that in the event that the Special Equity Buy-Out has been consummated, failure to make any payment of Basic Rent, Early Purchase Price, any other purchase price to be paid by Lessee for any Units pursuant to this Lease or the Participation Agreement, Stipulated Loss Amount or Termination Amount (to the extent such amount constitutes an Accumulated Equity Deficiency Amount to be applied under Section 3.4, clause 9 of the Collateral Agency Agreement) shall, after receipt by Lessee of written notice of such failure from Lessor or Owner Participant, be a Lease Event of Default; or;
(b) Lessee shall fail to (i) make or (ii) be deemed by virtue of payments made by the Collateral Agent to have made any payment of any Supplemental Rent, including indemnity or tax indemnity payments, but not including Stipulated Loss Amount, Termination Amount, Early Purchase Price, or any Rent (other purchase price than Supplemental Rent referred to be paid by Lessee for any Units pursuant to this Lease or the Participation Agreement (xin SECTION 17(A)(II)) in the case of any such payment that is required to be on the Basic Term Expiration Date or on any date within 30 days before the Basic Term Expiration Date, when due, and (y) in the case of any other such payment, after the same shall have become due and such failure shall continue unremedied for 30 payable within three (3) days after receipt by Lessee of written notice of that such failure from Lessor, Policy Provider, Owner Participant or the Indenture Trustee; provided, however, that so long as any Equipment Notes remain outstanding, failure to make (or be deemed to have made) payment of any of the amounts referred to in or to be applied pursuant to clauses (5) through (15) of Section 3.4 of the Collateral Agency Agreement shall not be a Lease Event of Default; oris due;
(c) Lessee shall fail to maintain insurance of the types, in effect the insurance respective amounts and coverages, with the respective loss payees, additional insureds and insurors required by Section 12 ARTICLE XIV of this Lease;
(d) Lessee, the Construction Agent or Section 6.4 of any Guarantor shall fail to observe or perform any term, covenant or provision (including without limitation the Collateral Agency Incorporated Covenants) under this Lease or any other Operative Agreement to which Lessee, the Construction Agent or such Guarantor is a party other than those set forth in SECTIONS 17.1(A), (B) (C) OR (G) hereof, and such failure shall not have been waived as provided for therein; or
(d) Lessee shall use or permit the use of the Units or the Pledged Units or any portion thereof in a way which is not permitted by this Lease (with respect to the Units) or the Collateral Agency Agreement (with respect to the Pledged Units), provided that such unauthorized use shall not constitute a Lease Event of Default remain uncured for a period of 45 thirty (30) days after Lessee's obtaining actual knowledge the earlier of receipt of written notice from Lessor thereof so long as (i) such unauthorized use is not the result of any willful action or a Responsible Officer of Lessee and (ii) becomes aware of such unauthorized use is capable of being cured and Lessee diligently pursues such cure throughout such 45-day period; or Lessee shall make or permit any unauthorized assignment or transfer of this Lease in violation of Section 18.2; orfailure;
(e) TILC (or any successor thereto in its capacity as Administrator or Servicer, as applicable) An Agency Agreement Event of Default shall have defaulted in any material respect occurred and be continuing;
(i) Any default, which is not waived, in the performance payment of any of its principal, interest, premium or other amount with respect to any Indebtedness (other than obligations under the Administrative Services Agreement or the Servicing Agreement or a default shall occur under Section 6(aOperative Agreements) of Tech Data or any Guarantor in an amount not less than $10,000,000 in the Account Administration Agreementaggregate outstanding, andor (ii) any default, which is not waived, in each casethe performance, Lessee shall have failed to exercise its rights thereunder in respect observance or fulfillment of such default for a period of 30 days after receipt by Lessee of written notice from Lessor, Owner Participant, Policy Provider any term or the Indenture Trustee, demanding that such action be taken; or
(f) Any representation or warranty made by Lessee covenant contained in any Lessee Agreement agreement or any representation instrument under or warranty made by TILC in any Operative Agreement pursuant to which any such Person is a partyIndebtedness referred to in clause (i) may have been issued, created, assumed, guaranteed or secured by Tech Data, or (iii) any other event of default as specified in each caseany agreement or instrument under or pursuant to which any such Indebtedness may have been issued, other created, assumed, guaranteed or secured by Tech Data, and any such default or event of default specified in clauses (i), (ii) or (iii) shall continue for more than the Tax Indemnity Agreement, is untrue or incorrect in any material respect as of the date of making thereof and such untruth or incorrectness shall continue to be material and unremedied for a period of 30 days after receipt of notice from Lessorgrace, Owner Participant, Indenture Trustee or the Policy Provider; provided that, if such untruth or incorrectness is capable of being remedied, no such untruth or incorrectness shall constitute a Lease Event of Default hereunder for a period of 120 days after receipt of notice from Lessor, Owner Participant, the Indenture Trustee or the Policy Provider so long as Lessee, TILC or TRMI, as the case may be, is diligently proceeding to remedy such untruth or incorrectness and shall in fact remedy such untruth or incorrectness within such period; provided that such untrue or incorrect representation or warranty shall be deemed to be remediable or remedied only after all adverse consequences thereof if any, can be and have been remedied as applicable; ortherein specified, or such default or event of default shall permit the holder of any such Indebtedness (or any agent or trustee acting on behalf of one or more holders) to accelerate the maturity thereof;
(g) Lessee The breach of any financial covenant or negative covenant set forth or incorporated by reference in ARTICLE XXVIII hereof (including without limitation any covenant set forth in SECTION 7 or SECTION 8 of the General Partner Existing Tech Data Credit Agreement, to the extent incorporated by reference in ARTICLE XXVIII hereof);
(h) Tech Data or any Guarantor shall (i) be unable to pay its debts generally as they become due; file a petition to take advantage of any insolvency statute; make an assignment for the benefit of its creditors; 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 for the appointment of a receiver, trustee, receiver, liquidator, custodian liquidator or other similar official conservator of it itself or of the whole or any substantial part of its property, ; file a petition or (ii) consent to any such relief or to the appointment of or taking possession by any such official in any voluntary case or other proceeding commenced against it, or (iii) admit in writing its inability to pay its debts generally as they come due, or (iv) make a general assignment for the benefit of creditors, or (v) take any corporate or partnership action to authorize any of the foregoing; or
(h) An involuntary case or other proceeding shall be commenced against Lessee or the General Partner answer seeking liquidation, reorganization or arrangement or similar relief under the federal bankruptcy laws or any other relief with respect to it applicable law or its debts under any bankruptcystatute;
(i) A court of competent jurisdiction shall enter an order, insolvency judgment or other similar law now or hereafter in effect, or seeking the appointment of decree appointing a trusteecustodian, receiver, liquidatortrustee, custodian liquidator or conservator of Tech Data or any Guarantor or of the whole or any substantial part of the properties of Tech Data or any Guarantor, and such order, judgment or decree continues unstayed and in effect for a period of sixty (60) days, or approve a petition filed against Tech Data or any Guarantor seeking liquidation, reorganization or arrangement or similar relief under the federal bankruptcy laws or any other similar official applicable law or statute of it the United States of America or any state, which petition is not dismissed within sixty (60) days; or if, under the provisions of any other law for the relief or aid of debtors, a court of competent jurisdiction shall assume custody or control of Tech Data or of the whole or any substantial part of its propertyproperties, and such involuntary case which control is not relinquished within sixty (60) days; or if there is commenced against Tech Data or any Guarantor any proceeding or petition seeking liquidation, reorganization, arrangement or similar relief under the federal bankruptcy laws or any other applicable law or statute of the United States of America or any state which proceeding shall remain or petition remains undismissed and unstayed for a period of 60 sixty (60) days; or if Tech Data or any Guarantor takes any action to indicate its consent to or approval of any such proceeding or petition;
(j) The entering of any order in any proceedings against Tech Data or any Guarantor decreeing the dissolution, divestiture or split-up of Tech Data or any Guarantor, and such order remains in effect for more than sixty (60) days;
(k) Any representation, warranty or statement of fact contained in any Operative Agreement or in any writing, report, certificate, or statement at any time furnished to Lessor, the Agent, any Holder or any Lender, by or on behalf of Lessee, the Construction Agent or any Guarantor pursuant to or in connection with this Lease or any other Operative Agreement or otherwise, shall be false or misleading in any material respect when made;
(l) One or more judgments or orders where the amount not covered by insurance (or the amount as to which the insurer is found not to be liable for) is in excess of $10,000,000 is rendered against Tech Data or any Guarantor, or (ii) there is any attachment, injunction or execution against any of Tech Data's or any Guarantor's properties for any amount in excess of $10,000,000 in the aggregate; and such judgment, attachment, injunction or execution remains unpaid, unstayed, undischarged, unbonded or undismissed for a period of thirty (30) days; or
(im) Lessee Any material Environmental Violation shall fail to observe or perform any other of the covenants or agreements to have occurred and be observed or performed by Lessee under any Lessee continuing;
(n) Any Tech Data Credit Agreement or any certificate and such failure shall continue unremedied for 30 days after notice from Lessor, Owner Participant, Policy Provider or the Indenture Trustee to Lessee, specifying the failure and demanding the same to be remedied; provided that, if such failure is capable of being remedied, and the remedy requires an action other than, or in addition to, the payment of money, no such failure (other than one relating to the payment of such money) shall constitute a Lease Event of Default hereunder for a period of 150 days after receipt of such notice so long as Lessee is diligently proceeding to remedy such failure and shall in fact remedy such failure within such period; or
(j) A Manager Default shall have occurred and be continuing continuing;
(o) Any Operative Agreement shall cease to be in full force and effect; or
(p) Any material adverse change in (i) the business, condition (financial or otherwise) assets, liabilities or operations of Tech Data or any of its Subsidiaries, (ii) the ability of the Lessee, the Construction Agent or any of their Subsidiaries to perform its respective obligations under any Operative Agreement to which it is a party, (iii) the Management Agreementvalidity or enforceability of any Operative Agreement or the rights and remedies of the Agent, the Lenders, the Holders, or the Lessor thereunder, or (iv) the validity, priority or enforceability of any Lien on any Property created by any of the Operative Agreements, then, in any such event, Lessor may, in addition to the other rights and remedies provided for in this ARTICLE XVII and in SECTION 18.1, terminate this Lease by giving Lessee fifteen (15) days notice of such termination, and this Lease shall terminate, and all rights of Lessee under this Lease shall have failed cease. Lessee shall, to exercise its rights under the Management Agreement in respect fullest extent permitted by law, pay as Supplemental Rent all costs and expenses incurred by or on behalf of such Manager Default for a period of 30 days after receipt by Lessee of written notice from Lessor, Owner Participant or the Indenture Trustee demanding that such action be taken; orincluding without limitation reasonable fees and expenses of counsel, as a result of any Lease Event of Default hereunder.
Appears in 1 contract
Samples: Lease Agreement (Tech Data Corp)
Lease Events of Default. The following events shall constitute Lease Events of Default hereunder (whether any such event shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body) and each such Lease Event of Default shall be deemed to exist and continue so long as, but only as long as, it shall not have been remedied:
(a) Lessee shall fail to (i) make or (ii) be deemed by virtue of the last sentence of Section 3.5 hereof to have made any payment of Basic Rent, Special Purchase Price, Early Purchase Price, Basic Term Purchase Price or any other purchase price to be paid by Lessee for any Units pursuant to this Lease or the Participation Agreement, Stipulated Loss Amount Value or Termination Amount (x) in the case of any such payment that is required to be made on the Basic Term Expiration Date or on any date within 30 days before the Basic Term Expiration Date, when due, and (y) in the case of any other such payment, Value within 10 Business Days after the same shall have become due; provided, however, that so long as any Equipment Notes remain outstanding, failure to make (or be deemed to have made) any portion of Basic Rent on any Rent Payment Date shall not be a Lease Event of Default so long as the amounts applied under Section 3.4, clause (4), of the Collateral Agency Agreement are sufficient to make the distributions required under such clause (4) with respect to the obligations owed under this Lease; provided, further, that in the event that the Special Equity Buy-Out has been consummated, failure to make any payment of Basic Rent, Early Purchase Price, any other purchase price to be paid by Lessee for any Units pursuant to this Lease or the Participation Agreement, Stipulated Loss Amount or Termination Amount (to the extent such amount constitutes an Accumulated Equity Deficiency Amount to be applied under Section 3.4, clause 9 of the Collateral Agency Agreement) shall, after receipt by Lessee of written notice of such failure from Lessor or Owner Participant, be a Lease Event of Default; or
(b) Lessee shall fail to (i) make or (ii) be deemed by virtue of payments made by the Collateral Agent to have made any payment of Supplemental Rent, including indemnity or tax indemnity payments, but not including Stipulated Loss AmountValue, Termination AmountSpecial Purchase Price, Early Purchase Price, Basic Term Purchase Price or any other purchase price to be paid by Lessee for any Units pursuant to this Lease or the Participation Agreement (x) in the case of any such payment that is required to be on the Basic Term Expiration Date or on any date within 30 days before the Basic Term Expiration Date, when due, and (y) in the case of any other such payment, after the same shall have become due and such failure shall continue unremedied for 30 days 10 Business Days after receipt by Lessee of written notice of such failure from Lessor, Policy Provider, Owner Participant or the Indenture Trustee; provided, however, that so long as any Equipment Notes remain outstanding, failure to make (or be deemed to have made) payment of any of the amounts referred to in or to be applied pursuant to clauses (5) through (15) of Section 3.4 of the Collateral Agency Agreement shall not be a Lease Event of Default; or
(c) Lessee shall fail to maintain in effect the insurance required by Section 12 or Section 6.4 of the Collateral Agency Agreement and such failure shall not have been waived as provided for therein; or
(d) Lessee shall use make or permit the use any possession of the Units or the Pledged Units Equipment or any portion thereof in a way which is not permitted by this Lease (with respect to the Units) or the Collateral Agency Agreement (with respect to the Pledged Units)Lease, provided that such unauthorized use possession shall not constitute a Lease Event of Default for a period of 45 days after Lessee's obtaining actual knowledge the occurrence thereof so long as (i) such unauthorized use possession is not the result of any willful action of Lessee and (ii) such unauthorized use possession is capable of being cured and Lessee diligently pursues such cure throughout such 45-day period; or Lessee shall make or permit any unauthorized assignment or transfer of this Lease in violation of Section 18.2; or
(e) TILC (Lessee shall fail to observe or any successor thereto in its capacity as Administrator or Servicer, as applicable) shall have defaulted in any material respect in the performance of perform any of its obligations under the Administrative Services Agreement covenants or the Servicing Agreement agreements to be observed or a default shall occur under performed by Lessee in Section 6(a) 6.8 of the Account Administration Participation Agreement, and, in each case, and such failure shall continue unremedied for 30 days during which period Lessee shall have failed to exercise its rights thereunder in respect diligently pursues the cure of such default for a period of 30 days after receipt by Lessee of written notice from Lessor, Owner Participant, Policy Provider or the Indenture Trustee, demanding that such action be takenfailure; or
(f) Any any representation or warranty made by Lessee in any Lessee Agreement or any representation or warranty made by TILC in any Operative Agreement to which any such Person is a party, in each case, (other than the Tax Indemnity Agreement, ) is untrue or incorrect in any material respect as of the date of making thereof and such untruth or incorrectness shall continue to be material and unremedied for a period of 30 days after receipt by Lessee of written notice thereof from Lessor, Owner Participant, Indenture Trustee Participant or the Policy ProviderIndenture Trustee; provided that, if such untruth or incorrectness is capable of being remedied, no such untruth or incorrectness shall constitute a Lease Event of Default hereunder for a period of 120 60 days after receipt of such notice from Lessor, Owner Participant, the Indenture Trustee or the Policy Provider so long as Lessee, TILC or TRMI, as the case may be, Lessee is diligently proceeding to remedy such untruth or incorrectness and shall in fact remedy such untruth or incorrectness within such period; provided that such untrue or incorrect representation or warranty shall be deemed to be remediable or remedied only after all adverse consequences thereof thereof, if any, can be and have been remedied as applicableremedied; or
(g) Lessee or the General Partner shall (i) 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 (ii) consent to any such relief or to the appointment of or taking possession by any such official in any voluntary case or other proceeding commenced against it, or (iii) admit in writing its inability to pay its debts generally as they come due, or (iv) make a general assignment for the benefit of creditors, or (v) take any corporate or partnership action to authorize any of the foregoing; or
(h) An an involuntary case or other proceeding shall be commenced against Lessee or the General Partner seeking liquidation, reorganization or 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 60 days; or
(i) Lessee shall fail to observe or perform any other of the covenants or agreements to be observed or performed by Lessee under any Lessee Agreement (other than the Tax Indemnity Agreement) or any certificate and such failure shall continue unremedied for 30 days after notice from Lessor, Owner Participant, Policy Provider Participant or the Indenture Trustee to Lessee, specifying the failure and demanding the same to be remedied; provided that, if such failure is capable of being remedied, and the remedy requires an action other than, or in addition to, the payment of money, no such failure (other than one relating to the payment of such money) shall constitute a Lease Event of Default hereunder for a period of 150 90 days after receipt of such notice so long as Lessee is diligently proceeding to remedy such failure and shall in fact remedy such failure within such period; or
(j) A Manager provided that, notwithstanding anything to the contrary contained in this Lease, any failure of Lessee to perform or observe any covenant or agreement herein shall not constitute a Lease Event of Default shall have occurred and be if such failure is caused solely by reason of an event referred to in the definition of "Event of Loss" so long as Lessee is continuing under to comply with the Management Agreement, and Lessee shall have failed to exercise its rights under the Management Agreement in respect applicable terms of such Manager Default for a period of 30 days after receipt by Lessee of written notice from Lessor, Owner Participant or the Indenture Trustee demanding that such action be taken; orSection 11.
Appears in 1 contract
Lease Events of Default. The Each of the following events shall constitute Lease Events of Default hereunder (whether any such event shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body) and each such a “Lease Event of Default shall be deemed to exist and continue so long as, but only as long as, it shall not have been remediedDefault”:
(a) Lessee shall fail to (i) make or (ii) be deemed by virtue of the last sentence of Section 3.5 hereof to have made any payment of Basic Rent, Early Purchase Price, any other purchase price to be paid by Lessee for any Units pursuant to this Lease or the Participation Agreement, Stipulated Loss Amount or Termination Amount (x) in the case of any such payment that is required to be made on the Basic Term Expiration Date or on any date within 30 days before the Basic Term Expiration Date, when due, and (y) in the case of any other such payment, within 10 Business Days after the same shall have become due; provided, however, that so long as any Equipment Notes remain outstanding, failure to make (or be deemed to have made) any portion of Basic Rent on any Rent Payment Date shall not be a Lease Event of Default so long as the amounts applied under Section 3.4, clause (4), of the Collateral Agency Agreement are sufficient to make the distributions required under such clause (4) with respect to the obligations owed under this Lease; provided, further, that in the event that the Special Equity Buy-Out has been consummated, failure to make any payment of Basic Rent, Early Purchase Price, any other purchase price Base Rent and such failure shall continue for a period of five (5) Business Days after written notice from Lessor to be paid by Lessee for any Units pursuant to this Lease or the Participation Agreement, Stipulated Loss Amount or Termination Amount (to the extent that such amount constitutes an Accumulated Equity Deficiency Amount is due and unpaid (except that Lessor shall not be required to be applied under Section 3.4, clause 9 of the Collateral Agency Agreement) shall, after receipt by Lessee of provide written notice of such the failure from Lessor or Owner Participant, be a Lease Event of Default; orto pay Base Rent more than two (2) times in any twelve (12) month period);
(b) Lessee shall fail to (i) make or (ii) be deemed by virtue of payments made by the Collateral Agent to have made any payment of Supplemental Rent, including indemnity or tax indemnity payments, but not including Stipulated Loss Amount, Termination Amount, Early Purchase Price, or any other purchase price to be paid by Lessee for any Units pursuant to this Lease or the Participation Agreement (x) in the case of any such payment that is required to be on the Basic Term Expiration Date or on any date within 30 days before the Basic Term Expiration Date, when due, and (y) in the case of any other such payment, after the same shall have become due and such failure shall continue unremedied for 30 days a period of five (5) Business Days after receipt by Lessee of written notice of such failure to Lessee from Lessor, Policy Provider, Owner Participant or the Indenture Trustee; provided, however, Lessor (except that so long as any Equipment Notes remain outstanding, failure to make (or be deemed to have made) payment of any of the amounts referred to in or to be applied pursuant to clauses (5) through (15) of Section 3.4 of the Collateral Agency Agreement Lessor shall not be a Lease Event required to provide written notice of Default; orthe failure to pay Supplemental Rent more than two (2) times in any twelve (12) month period);
(c) Lessee shall fail to maintain timely perform or observe any covenant or agreement (not otherwise specified in effect the insurance required this Article 16) to be performed or observed by Section 12 or Section 6.4 of the Collateral Agency Agreement it hereunder and such failure shall not have been waived as provided continue for thereina period of thirty (30) days after written notice thereof from Lessor to Lessee; or
(d) Lessee shall use or permit the use of the Units or the Pledged Units or any portion thereof in a way which is not permitted by this Lease (with respect to the Units) or the Collateral Agency Agreement (with respect to the Pledged Units), provided that the continuation of such unauthorized use a failure for thirty (30) days or longer after such notice shall not constitute a Lease Event of Default if such failure can be cured, but cannot reasonably be cured within such thirty (30) day period, and Lessee shall commence to cure such failure within such thirty (30) day period and shall be diligently and continuously prosecuting the cure of such failure;
(d) Lessee shall fail to carry or maintain in full force any insurance required hereunder, and such failure shall continue for a period of 45 thirty (30) days after Lessee's obtaining actual knowledge thereof so long as (i) such unauthorized use is obligations arise, but not beyond the result expiration date of any willful action required policy of Lessee and (ii) such unauthorized use is capable of being cured and Lessee diligently pursues such cure throughout such 45-day period; or Lessee shall make or permit any unauthorized assignment or transfer of this Lease in violation of Section 18.2; orinsurance;
(e) TILC (or any successor thereto in its capacity as Administrator or Servicer, as applicable) shall have defaulted in any material respect in the performance of any of its obligations under the Administrative Services Agreement or the Servicing Agreement or a default shall occur under Section 6(a) of the Account Administration Agreement, and, in each case, Lessee shall have failed to exercise its rights thereunder in respect of such default for a period of 30 days after receipt by Lessee of written notice from Lessor, Owner Participant, Policy Provider or the Indenture Trustee, demanding that such action be taken; or
(f) Any representation or warranty made by Lessee in any Lessee Agreement or any representation or warranty made by TILC in any Operative Agreement herein shall prove to which any such Person is a party, in each case, other than the Tax Indemnity Agreement, is untrue or have been incorrect in any material respect as of when such representation or warranty was made, shall remain materially incorrect at the date of making thereof time in question and such untruth or incorrectness shall continue to not be cured in all material and unremedied for a period of 30 respects within thirty (30) days after receipt written notice to Lessee thereof, provided that the continuation of such a failure for thirty (30) days or longer after such notice from Lessor, Owner Participant, Indenture Trustee or the Policy Provider; provided that, if such untruth or incorrectness is capable of being remedied, no such untruth or incorrectness shall not constitute a Lease Event of Default hereunder for a if such failure can be cured, but cannot reasonably be cured within such thirty (30) day period, and Lessee shall commence to cure such failure within such thirty (30) day period of 120 days after receipt of notice from Lessor, Owner Participant, the Indenture Trustee or the Policy Provider so long as Lessee, TILC or TRMI, as the case may be, is diligently proceeding to remedy such untruth or incorrectness and shall in fact remedy be diligently and continuously prosecuting the cure of such untruth or incorrectness within such periodfailure; provided that such untrue or incorrect representation or warranty shall be deemed to be remediable or remedied only after all adverse consequences thereof if any, can be and have been remedied as applicable; orand
(gi) Lessee or Guarantor makes any general arrangement or assignment for the General Partner benefit of creditors, a transfer in fraud of creditors or shall become insolvent; (iii) commence Lessee or Guarantor becomes a voluntary “debtor” as defined in 11 U.S.C. § 101 or any successor statute thereto (unless, in the case or other proceeding seeking liquidationof a petition filed against Lessee, 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 same is dismissed within ninety (90) days); (iii) the appointment of a trusteetrustee or receiver to take possession of substantially all of the assets of Lessee or Guarantor where possession is not restored to Lessee within ninety (90) days; (iv) the attachment, receiver, liquidator, custodian execution or other similar official judicial seizure of it substantially all of the assets of Lessee or any substantial part of its property, Guarantor where such seizure is not discharged within ninety (90) days; (v) Lessee or (ii) consent to any such relief or to the appointment of or taking possession by any such official in any voluntary case or other proceeding commenced against it, or (iii) admit Guarantor admits in writing its inability to pay its debts generally as they come become due; (vi) Lessee or Guarantor files a petition or answer seeking reorganization, arrangement or other protection under the Federal bankruptcy laws or any other applicable law or statute of the United States of America or any State thereof; (vii) Lessee or Guarantor is liquidated or dissolved, or (iv) make a general assignment for the benefit of creditors, or (v) take any corporate or partnership action to authorize any of the foregoing; or
(h) An involuntary case placed under conservatorship or other proceeding shall be commenced protection under any applicable Federal or state law; (viii) any petition is filed by or against Lessee or the General Partner Guarantor under Federal bankruptcy laws, or any other proceeding is instituted by or against Lessee or Guarantor seeking to adjudicate it a bankrupt or insolvent, or seeking liquidation, reorganization reorganization, arrangement, adjustment or other relief with respect to composition of it or its debts under any law relating to bankruptcy, insolvency or other similar law now reorganization or hereafter in effectrelief of debtors, or seeking the entry of an order for relief or the appointment of a trustee, receiver, liquidatortrustee, custodian or other similar official of it for Lessee or Guarantor, or for any substantial part of its propertythe property of Lessee, and such involuntary case proceeding is not dismissed within ninety (90) days after institution thereof; or (ix) Lessee or Guarantor shall take any action to authorize or effect any of the actions set forth above in this clause (f).
(g) Lessee’s interest under this Lease is sold under execution or other proceeding shall remain undismissed and unstayed for a period legal process.
(h) Lessee’s interest under this Lease is modified or altered by any unauthorized assignment or subletting or by operation of 60 days; orlaw.
(i) Lessee shall fail Lessee’s failure to observe or perform any other take occupancy of the covenants or agreements to be observed or performed Property when same is tendered by Lessee under any Lessee Agreement or any certificate and such failure shall continue unremedied for 30 days after notice from Lessor, Owner Participant, Policy Provider or the Indenture Trustee Lessor to Lessee, specifying unless Base Rent and Supplemental Rent have been prepaid to cover the applicable period of non-occupancy.
(j) Lessee’s or Guarantor’s failure and demanding to comply with the same to requirements of Section 25.26 of this Lease. Any notice required under this Section 16.1 shall be remedied; provided that, if such failure is capable of being remediedin lieu of, and the remedy requires an action other than, or not in addition to, the payment any notice required under California Code of money, no such failure (other than one relating to the payment of such money) shall constitute a Lease Event of Default hereunder for a period of 150 days after receipt of such notice so long as Lessee is diligently proceeding to remedy such failure and shall in fact remedy such failure within such period; or
(j) A Manager Default shall have occurred and be continuing under the Management Agreement, and Lessee shall have failed to exercise its rights under the Management Agreement in respect of such Manager Default for a period of 30 days after receipt by Lessee of written notice from Lessor, Owner Participant Civil Procedure Section 1161 or the Indenture Trustee demanding that such action be taken; orany successor law.
Appears in 1 contract
Samples: Lease Agreement (Carter Validus Mission Critical REIT, Inc.)
Lease Events of Default. The If any one (1) or more of the following events shall constitute Lease Events of Default hereunder (whether any such event shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body) and each such a "Lease Event of Default Default") shall be deemed to exist and continue so long as, but only as long as, it shall not have been remediedoccur:
(a) Lessee shall fail to make payment of (i) make any Basic Rent (except as set forth in clause (ii)) within three (3) days after the same has become due and payable or (ii) be deemed by virtue of any Termination Value, on the last sentence of Section 3.5 hereof to have made date any such payment is due and payable, or any payment of Basic Rent, Early Purchase Price, any other purchase price to be paid by Lessee for any Units pursuant to this Lease Rent or Supplemental Rent due on the Participation Agreement, Stipulated Loss Amount or Termination Amount (x) in the case due date of any such payment that is required to be made of Termination Value, or any amount due on the Basic Term Expiration Date or on any date within 30 days before the Basic Term Expiration Date, when due, and (y) in the case of any other such payment, within 10 Business Days after the same shall have become due; provided, however, that so long as any Equipment Notes remain outstanding, failure to make (or be deemed to have made) any portion of Basic Rent on any Rent Payment Date shall not be a Lease Event of Default so long as the amounts applied under Section 3.4, clause (4), of the Collateral Agency Agreement are sufficient to make the distributions required under such clause (4) with respect to the obligations owed under this Lease; provided, further, that in the event that the Special Equity Buy-Out has been consummated, failure to make any payment of Basic Rent, Early Purchase Price, any other purchase price to be paid by Lessee for any Units pursuant to this Lease or the Participation Agreement, Stipulated Loss Amount or Termination Amount (to the extent such amount constitutes an Accumulated Equity Deficiency Amount to be applied under Section 3.4, clause 9 of the Collateral Agency Agreement) shall, after receipt by Lessee of written notice of such failure from Lessor or Owner Participant, be a Lease Event of Default; or;
(b) Lessee shall fail to (i) make or (ii) be deemed by virtue of payments made by the Collateral Agent to have made any payment of any Supplemental Rent, including indemnity or tax indemnity payments, but not including Stipulated Loss Amount, Termination Amount, Early Purchase Price, or any Rent (other purchase price than Supplemental Rent referred to be paid by Lessee for any Units pursuant to this Lease or the Participation Agreement (xin Section 17.1(a)(ii)) in the case of any such payment that is required to be on the Basic Term Expiration Date or on any date within 30 days before the Basic Term Expiration Date, when due, and (y) in the case of any other such payment, after the same shall have which has become due and such failure shall continue unremedied for 30 payable within three (3) days after receipt by Lessee of written notice of that such failure from Lessor, Policy Provider, Owner Participant or the Indenture Trustee; provided, however, that so long as any Equipment Notes remain outstanding, failure to make (or be deemed to have made) payment of any of the amounts referred to in or to be applied pursuant to clauses (5) through (15) of Section 3.4 of the Collateral Agency Agreement shall not be a Lease Event of Default; oris due;
(c) Lessee shall fail to maintain in effect the insurance as required by Section 12 or Section 6.4 of the Collateral Agency Agreement and such failure shall not have been waived as provided for therein; or
(d) Lessee shall use or permit the use of the Units or the Pledged Units or any portion thereof in a way which is not permitted by this Lease (with respect to the Units) or the Collateral Agency Agreement (with respect to the Pledged Units), provided that such unauthorized use shall not constitute a Lease Event of Default for a period of 45 days after Lessee's obtaining actual knowledge thereof so long as (i) such unauthorized use is not the result of any willful action of Lessee and (ii) such unauthorized use is capable of being cured and Lessee diligently pursues such cure throughout such 45-day period; or Lessee shall make or permit any unauthorized assignment or transfer Article XIV of this Lease in violation of Section 18.2; or
or to deliver any requisite annual certificate with respect thereto within ten (e10) TILC (or any successor thereto in its capacity as Administrator or Servicer, as applicable) shall have defaulted in any material respect in the performance of any of its obligations under the Administrative Services Agreement or the Servicing Agreement or a default shall occur under Section 6(a) of the Account Administration Agreement, and, in each case, Lessee shall have failed to exercise its rights thereunder in respect of such default for a period of 30 days after receipt by Lessee of written notice from Lessor, Owner Participant, Policy Provider or the Indenture Trustee, demanding that such action be taken; or
(f) Any representation or warranty made by Lessee in any Lessee Agreement or any representation or warranty made by TILC in any Operative Agreement to which any such Person is a party, in each case, other than the Tax Indemnity Agreement, is untrue or incorrect in any material respect as of the date of making thereof and such untruth or incorrectness shall continue to be material and unremedied for a period of 30 days after receipt of notice from Lessor, Owner Participant, Indenture Trustee or certificate is due under the Policy Provider; provided that, if such untruth or incorrectness is capable of being remedied, no such untruth or incorrectness shall constitute a Lease Event of Default hereunder for a period of 120 days after receipt of notice from Lessor, Owner Participant, the Indenture Trustee or the Policy Provider so long as Lessee, TILC or TRMI, as the case may be, is diligently proceeding to remedy such untruth or incorrectness and shall in fact remedy such untruth or incorrectness within such period; provided that such untrue or incorrect representation or warranty shall be deemed to be remediable or remedied only after all adverse consequences thereof if any, can be and have been remedied as applicable; or
(g) Lessee or the General Partner shall (i) 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 (ii) consent to any such relief or to the appointment of or taking possession by any such official in any voluntary case or other proceeding commenced against it, or (iii) admit in writing its inability to pay its debts generally as they come due, or (iv) make a general assignment for the benefit of creditors, or (v) take any corporate or partnership action to authorize any of the foregoing; or
(h) An involuntary case or other proceeding shall be commenced against Lessee or the General Partner seeking liquidation, reorganization or 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 60 days; orterms hereof;
(i) Lessee shall fail to observe or perform any term, covenant or condition of Lessee under this Lease or any other Operative Agreement to which Lessee is a party other than those set forth in Sections 17.1(a), (b) or (c) hereof, or Lessee shall fail to pay, or cause to be paid, any Imposition or shall fail to observe any Legal Requirement regarding any Property, in each case after thirty (30) days from the earlier to occur of Lessee's knowledge of such Default or written notice from the Agent of such Default so long as during such thirty (30) day period Lessee proceeds in good faith and with due diligence to cure such Default or (ii) any representation or warranty made by Lessee set forth in this Lease or in any other Operative Agreement or in any document entered into in connection herewith or therewith or in any document, certificate or financial or other statement delivered in connection herewith or therewith shall be false or inaccurate in any material respect when made; provided, however, if the Default was not intentional and is reasonably susceptible to cure and the related representation or warranty could not reasonably be expected to be a material inducement to the Lessor or any other Person to enter into the transactions contemplated by the Participation Agreement (or a basis on which to take or refrain from taking any significant action hereunder or under any other Operative Agreement) and no adverse effect (other than a de minimis adverse effect) has resulted or would be expected to result from such default, then Lessee shall have thirty (30) days to cure such Default so long as it proceeds in good faith and with due diligence to cure such Default and no other Default arises hereunder;
(e) [Intentionally Omitted];
(f) Lessee or any of its Subsidiaries shall default (beyond applicable periods of grace and/or notice and cure) in the payment when due of any principal of or interest on any Indebtedness having an outstanding principal amount of at least $5,000,000; or any event or condition shall occur which results in the acceleration of the covenants maturity of any Indebtedness having an outstanding principal amount of at least $5,000,000 of Lessee or agreements any of its Subsidiaries or enables the holder of any such Indebtedness or any Person acting on such holder's behalf to be observed accelerate the maturity thereof;
(g) The liquidation or performed dissolution of Lessee or any of its Material Subsidiaries, or the suspension of the business of Lessee or any of its Material Subsidiaries, or the filing by Lessee or any of its Material Subsidiaries of a voluntary petition or an answer seeking reorganization, arrangement, readjustment of its debts or for any other relief under the United States Bankruptcy Code, as amended, or under any Lessee Agreement other insolvency act or law, state or federal, now or hereafter existing, or any certificate and other action of Lessee or any of its Material Subsidiaries indicating its consent to, approval of or acquiescence in, any such failure shall continue unremedied for 30 days after notice from Lessorpetition or proceeding; the application by Lessee or any of its Material Subsidiaries for, Owner Participant, Policy Provider or the Indenture Trustee appointment by consent or acquiescence of Lessee or any of its Material Subsidiaries of a receiver, a trustee or a custodian of Lessee or any of its Material Subsidiaries for all or a substantial part of its property; the making by Lessee or any of its Material Subsidiaries of any assignment for the benefit of creditors; the inability of Lessee or any of its Material Subsidiaries or the admission by Lessee or any of its Material Subsidiaries in writing of its inability to Lesseepay its debts as they mature; or Lessee or any of its Material Subsidiaries taking any corporate action to authorize any of the foregoing;
(h) The filing of an involuntary petition against Lessee or any of its Material Subsidiaries in bankruptcy or seeking reorganization, specifying arrangement, readjustment of its debts or for any other relief under the failure and demanding United States Bankruptcy Code, as amended, or under any other insolvency act or law, state or federal, now or hereafter existing; or the same to be remediedinvoluntary appointment of a receiver, a trustee or a custodian of Lessee or any of its Material Subsidiaries for all or a substantial part of its property; provided thator the issuance of a warrant of attachment, if such failure is capable execution or similar process against any substantial part of being remediedthe property of Lessee or any of its Material Subsidiaries, and the remedy requires an continuance of any of such events for ninety (90) days undismissed or undischarged;
(i) The adjudication of Lessee or any of its Material Subsidiaries as bankrupt or insolvent;
(j) The entering of any order in any proceedings against Lessee or any Material Subsidiary decreeing the dissolution, divestiture or split-up of Lessee or any Material Subsidiary, and such order remains in effect for more than sixty (60) days;
(k) Any report, certificate, financial statement or other instrument delivered to Lessor or the Agent by or on behalf of Lessee pursuant to the terms of this Lease or any other Operative Agreement or Bond Document is false or misleading in any material respect when made or delivered; provided, however, if the Default was not intentional and is reasonably susceptible to cure and the related report, certificate, financial statement or other instrument could not reasonably be expected to be a material inducement to the Lessor or any other Person to enter into the transactions contemplated by the Participation Agreement (or a basis on which to take or refrain from taking any significant action hereunder or under any other thanOperative Agreement) and no adverse effect (other than a de minimis adverse effect) has resulted or would be expected to result from such Default, then Lessee shall have thirty (30) days to cure such Default so long as Lessee proceeds in good faith and with due diligence to cure such Default and no other Default arises hereunder;
(l) Any default (attributable to a Lease Default, Lease Event of Default, Guaranty Default or in addition to, Guaranty Event of Default) shall occur under the Head Lease or any other Bond Document after the expiration of any express cure or grace periods;
(m) A final judgment or judgments for the payment of moneymoney shall be rendered by a court or courts against Lessee or any of its Material Subsidiaries in excess of $1,000,000 in the aggregate, no and (i) the same shall not be discharged (or provision shall not be made for such failure discharge), or a stay of execution thereof shall not be procured, within thirty (other than one relating 30) days from the date of entry thereof, or (ii) Lessee or any of its Material Subsidiaries shall not, within said period of thirty (30) days, or such longer period during which execution of the same shall have been stayed, appeal therefrom and cause the execution thereof to be stayed during such appeal, or (iii) such judgment or judgments shall not be discharged (or provisions shall not be made for such discharge) within thirty (30) days after a decision has been reached with respect to such appeal and the related stay has been lifted;
(n) Lessee or any member of the Controlled Group shall fail to pay when due an amount or amounts aggregating in excess of $2,000,000 which it shall have become liable to pay to the payment PBGC or to a Pension Plan under Title IV of ERISA; or notice of intent to terminate a Pension Plan or Pension Plans having aggregate Unfunded Liabilities in excess of $1,000,000 shall be filed under Title IV of ERISA by Lessee or any member of the Controlled Group, any plan administrator or any combination of the foregoing; or the PBGC shall institute proceedings under Title IV of ERISA to terminate or to cause a trustee to be appointed to administer any such Pension Plan or Pension Plans or a proceeding shall be instituted by a fiduciary of any such Pension Plan or Pension Plans against Lessee or any member of the Controlled Group to enforce Section 515 or 4219(c)(5) of ERISA; or a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any such Pension Plan or Pension Plans must be terminated;
(o) A Change of Control shall have occurred with respect to the Lessee;
(p) Lessee or any Material Subsidiary shall have violated any Environmental Law, or such Environmental Violation, in the reasonable opinion of Lessor, will require response, clean-up, remedial or other action which will or might result in a cost in excess of $500,000; and
(q) Any Operative Agreement or Bond Document shall cease to be in full force and effect as a result of any act, omission or breach by the Construction Agent, the Lessee or the Guarantor of any of their respective obligations under the Operative Agreements. then, in any such event, Lessor may, in addition to the other rights and remedies provided for in this Article XVII and in Section 18.1, terminate this Lease by giving Lessee five (5) days notice of such money) termination, and this Lease shall constitute terminate, and all rights of Lessee under this Lease shall cease. Lessee shall, to the fullest extent permitted by law, pay as Supplemental Rent all costs and expenses incurred by or on behalf of Lessor, including without limitation reasonable fees and expenses of counsel, as a result of any Lease Event of Default hereunder for a period of 150 days after receipt of such notice so long as Lessee is diligently proceeding to remedy such failure and shall in fact remedy such failure within such period; or
(j) A Manager Default shall have occurred and be continuing under the Management Agreement, and Lessee shall have failed to exercise its rights under the Management Agreement in respect of such Manager Default for a period of 30 days after receipt by Lessee of written notice from Lessor, Owner Participant or the Indenture Trustee demanding that such action be taken; orhereunder.
Appears in 1 contract
Lease Events of Default. The following events shall constitute Lease Events of Default hereunder (whether any such event shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental bodyGovernmental Authority) and each such Lease Event of Default shall be deemed to exist and continue so long as, but only as long as, it shall not have been remedied:
(a) Lessee shall fail to (i) make or (ii) be deemed by virtue of the last sentence of Section 3.5 hereof to have made any payment of Basic Rent, Early Purchase Price, any other purchase price Rent to be paid by Lessee for any Units pursuant to this Lease or the Participation Agreement, Stipulated Loss Amount or Termination Amount (x) in the case of any such payment that is required to be made on the Basic Term Expiration Date or on any date within 30 five days before the Basic Term Expiration Date, when due, and (y) in the case of any other such payment, within 10 Business Days after the same shall have become due; provided, however, that so long as any Equipment Notes remain outstanding, failure to make (or be deemed to have made) any portion of Basic Rent on any Rent Payment Date shall not be a Lease Event of Default so long as the amounts applied under Section 3.4, clause (4), of the Collateral Agency Agreement are sufficient to make the distributions required under such clause (4) with respect to the obligations owed under this Lease; provided, further, that in the event that the Special Equity Buy-Out has been consummated, failure to make any payment of Basic Rent, Early Purchase Price, any other purchase price to be paid by Lessee for any Units pursuant to this Lease or the Participation Agreement, Stipulated Loss Amount or Termination Amount (to the extent such amount constitutes an Accumulated Equity Deficiency Amount to be applied under Section 3.4, clause 9 of the Collateral Agency Agreement) shall, after receipt by Lessee of written notice of such failure from Lessor or Owner Participant, be a Lease Event of Default; or
(b) Lessee shall fail to (i) make or (ii) be deemed by virtue of payments made by the Collateral Agent to have made any payment of any Supplemental Rent, including indemnity or tax indemnity payments, but not including Stipulated Loss Amount, Termination Amount, Early Purchase Price, or any other purchase price Rent (excluding Supplemental Rent covered by clause (a) preceding) to be paid by Lessee for any Units pursuant to this Lease or the Participation Agreement (x) in the case of any such payment that is required to be on the Basic Term Expiration Date or on any date within 30 days before the Basic Term Expiration Date, when due, and (y) in the case of any other such payment, after the same shall have become due and such failure shall continue unremedied for 30 ten days after receipt by Lessee of written notice of such failure the original demand therefor from Lessor, Policy Provider, Owner Participant or the Indenture Trustee; provided, however, that so long as any Equipment Notes remain outstanding, failure to make (or be deemed to have made) payment of any of the amounts referred to in or to be applied pursuant to clauses (5) through (15) of Section 3.4 of the Collateral Agency Agreement shall not be a Lease Event of Default; or
(c) Lessee shall fail to maintain in effect the insurance required by Section 12 or Section 6.4 of the Collateral Agency Agreement and such failure shall not have been waived as provided for therein; or
(d) Lessee shall use or permit the use of the Units or the Pledged Units or any portion thereof in a way which is not permitted by this Lease (with respect to the Units) or the Collateral Agency Agreement (with respect to the Pledged Units), provided that such unauthorized use shall not constitute a Lease Event of Default for a period of 45 days after Lessee's obtaining actual knowledge thereof so long as (i) such unauthorized use is not the result of any willful action of Lessee and (ii) such unauthorized use is capable of being cured and Lessee diligently pursues such cure throughout such 45-day period; or Lessee shall make or permit any unauthorized assignment or transfer of this Lease in violation of Section 18.2; or
(e) TILC (or any successor thereto in its capacity as Administrator or Servicer, as applicable) shall have defaulted in any material respect in the performance of any of its obligations under the Administrative Services Agreement or the Servicing Agreement or a default shall occur under Section 6(a) of the Account Administration Agreement, and, in each case, Lessee shall have failed to exercise its rights thereunder in respect of such default for a period of 30 days after receipt by Lessee of written notice from Lessor, Owner Participant, Policy Provider or the Indenture Trustee, demanding that such action be taken; or
(f) Any representation or warranty made by Lessee in any Lessee Agreement or any representation or warranty made by TILC in any Operative Agreement to which any such Person is a party, in each case, other than the Tax Indemnity Agreement, this Lease is untrue or incorrect in any material respect as of the date of making thereof and such untruth or incorrectness shall continue to be material and unremedied for a period of 30 days after receipt by Lessee of written notice thereof from Lessor, Owner Participant, Indenture Trustee or the Policy Provider; provided that, if such untruth or incorrectness is capable of being remedied, no such untruth or incorrectness shall constitute a Lease Event of Default hereunder for a period of 120 days after receipt of notice from Lessor, Owner Participant, the Indenture Trustee or the Policy Provider so long as Lessee, TILC or TRMI, as the case may be, is diligently proceeding to remedy such untruth or incorrectness and shall in fact remedy such untruth or incorrectness within such period; provided that such untrue or incorrect representation or warranty shall be deemed to be remediable or remedied only after all adverse consequences thereof if any, can be and have been remedied as applicable; or
(gd) Lessee or the General Partner shall (i) 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 (ii) consent to any such relief or to the appointment of or taking possession by any such official in any voluntary case or other proceeding commenced against it, or (iii) admit in writing its inability to pay its debts generally as they come due, or (iv) make a general assignment for the benefit of creditors, or (v) take any corporate or partnership action to authorize any of the foregoing; or
(he) An an involuntary case or other proceeding shall be commenced against Lessee or the General Partner seeking liquidation, reorganization or 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 60 days; or
(if) Lessee shall fail to observe or perform in any material respect any other of the covenants or agreements to be observed or performed by Lessee under any Lessee Agreement or any certificate this Lease and such failure shall continue unremedied for 30 days after notice from Lessor, Owner Participant, Policy Provider or the Indenture Trustee Lessor to Lessee, specifying the failure and demanding the same to be remedied; provided thator
(g) Lessee has failed, if such after the expiration of any applicable notice or cure period or both, to make one or more payments due or has otherwise defaulted on any indebtedness for borrowed money, which failure is capable or default relates to a payment (or a sum of being remedied, and the remedy requires an action other thanpayments); in excess of $500,000; or
(h) A Change of Control of Lessee occurs; or
(i) Lessee sells or disposes of all, or in addition tosubstantially all, the payment of money, no such failure (other than one relating to the payment of such money) shall constitute a Lease Event of Default hereunder for a period of 150 days after receipt of such notice so long as Lessee is diligently proceeding to remedy such failure and shall in fact remedy such failure within such periodits assets; or
(j) A Manager Default shall have occurred and be continuing under the Management Agreement, and Lessee shall have failed makes any dividend payment to exercise its rights under the Management Agreement in respect of such Manager Default for a period of 30 days after receipt by Lessee of written notice from Lessor, Owner Participant any common stockholder or the Indenture Trustee demanding that such action be taken; orrepurchases or redeems any equity.
Appears in 1 contract
Samples: Lease Agreement (Geokinetics Inc)
Lease Events of Default. The following events shall constitute a Lease Events of Default hereunder (whether any such event shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body) and each such Lease Event of Default shall be deemed to exist and continue so long as, but only as long as, it shall not have been remediedDefault:
(a) Lessee shall fail to (i) make or (ii) be deemed by virtue of the last sentence of Section 3.5 hereof to have made any payment of Basic Rent, Early Purchase Price, any other purchase price to be paid by Lessee for any Units pursuant to this Lease or the Participation Agreement, Stipulated Loss Amount or Termination Amount (x) in the case of any such payment that is required to be made on the Basic Term Expiration Date or on any date within 30 days before the Basic Term Expiration Date, when due, and (y) in the case of any other such payment, within 10 Business Days after the same shall have become due; provided, however, that so long as any Equipment Notes remain outstanding, failure to make (or be deemed to have made) any portion of Basic Rent on any Rent Payment Date shall not be a Lease Event of Default so long as the amounts applied under Section 3.4, clause (4), of the Collateral Agency Agreement are sufficient to make the distributions required under such clause (4) with respect to the obligations owed under this Lease; provided, further, that in the event that the Special Equity Buy-Out has been consummated, failure to make any payment of Basic Base Rent, Early Purchase Price, any other purchase price to be paid by Lessee for any Units pursuant to this Lease or the Participation Agreement, Stipulated Loss Amount or Termination Amount within five (to the extent 5) Business Days after notice that such amount constitutes an Accumulated Equity Deficiency Amount to be applied under Section 3.4, clause 9 of the Collateral Agency Agreement) shall, after receipt by Lessee of written notice of such failure from Lessor or Owner Participant, be a Lease Event of Default; oris due and unpaid;
(b) Lessee shall fail to make any late payment and/or pay interest at the Default Rate within ten (i10) make or (ii) be deemed by virtue of payments made by the Collateral Agent to have made any payment of Supplemental Rent, including indemnity or tax indemnity payments, but not including Stipulated Loss Amount, Termination Amount, Early Purchase Price, or any other purchase price to be paid by Lessee for any Units pursuant to this Lease or the Participation Agreement (x) in the case of any days after notice that such payment that amount is required to be on the Basic Term Expiration Date or on any date within 30 days before the Basic Term Expiration Date, when due, and (y) in the case of any other such payment, after the same shall have become due and such failure shall continue unremedied for 30 days after receipt by Lessee of written notice of such failure from Lessor, Policy Provider, Owner Participant or the Indenture Trustee; provided, however, that so long as any Equipment Notes remain outstanding, failure to make (or be deemed to have made) payment of any of the amounts referred to in or to be applied pursuant to clauses (5) through (15) of Section 3.4 of the Collateral Agency Agreement shall not be a Lease Event of Default; orunpaid;
(c) Lessee shall fail to maintain make any other payment of Supplemental Rent, other than any amount described in effect the insurance required by Section 12 clause (a) or Section 6.4 clause (b) of the Collateral Agency Agreement this Article 16, and such failure shall not have been waived as provided continue for therein; ora period of ten (10) days after notice of such failure to Lessee from Lessor or Lender;
(d) Lessee shall use fail to timely perform or permit the use observe any covenant or agreement (not otherwise specified in this Article 16) to be performed or observed by it hereunder and such failure shall continue for a period of the Units thirty (30) days after written notice thereof from Lessor or the Pledged Units or any portion thereof in a way which is not permitted by this Lease (with respect to the Units) or the Collateral Agency Agreement (with respect to the Pledged Units), Lender; provided that the continuation of such unauthorized use a failure for thirty (30) days or longer after such notice shall not constitute a Lease Event of Default for a period of 45 days after Lessee's obtaining actual knowledge thereof so long as if such failure can be cured, but cannot reasonably be cured within such thirty (i30) such unauthorized use is not the result of any willful action of Lessee and (ii) such unauthorized use is capable of being cured day period, and Lessee shall commence to cure such failure within such thirty (30) day period and shall be diligently pursues and continuously prosecuting the cure of such cure throughout such 45-day period; or Lessee shall make or permit any unauthorized assignment or transfer of this Lease in violation of Section 18.2; orfailure.
(e) TILC (or any successor thereto in its capacity as Administrator or Servicer, as applicableexcept to the extent the Lessee is permitted to self-insure pursuant to Section 9.1(b) shall have defaulted in any material respect in the performance of any of its obligations under the Administrative Services Agreement or the Servicing Agreement or a default shall occur under Section 6(a) of the Account Administration Agreement, and, in each caseand Schedule 9.1, Lessee shall have failed fail to exercise its rights thereunder carry or maintain in respect of full force any insurance required hereunder, and such default failure shall continue for a period of 30 ten (10) business days after receipt by Lessee such obligations arises. but not beyond the expiration date of written notice from Lessor, Owner Participant, Policy Provider or the Indenture Trustee, demanding that such action be taken; orany required policy of insurance;
(f) Any representation or warranty made by Lessee in any Lessee Agreement or any representation or warranty made by TILC in any Operative Agreement the Lessee herein shall prove to which any such Person is a party, in each case, other than the Tax Indemnity Agreement, is untrue or have been incorrect in any material respect as of when such representation or warranty was made and shall remain materially incorrect at the date of making thereof time in question, and such untruth or incorrectness shall continue to be is not cured in all material and unremedied for a period of 30 respects within thirty (30) days after receipt of notice from Lessor, Owner Participant, Indenture Trustee or the Policy Providerto Lessee of such breach; provided that, if that the continuation of such untruth a failure for thirty (30) days or incorrectness is capable of being remedied, no longer after such untruth or incorrectness notice shall not constitute a Lease Event of Default hereunder if such failure can be cured, but cannot reasonably be cured within such thirty (30) day period, and Lessee shall commence to cure such failure within such thirty (30) day period and shall be diligently and continuously prosecuting the cure of such failure.
(A) Lessee makes any general arrangement or assignment for the benefit of creditors; (B) Lessee becomes a period debtoras defined in 11 U.S.C. 101 or any successor statute thereto (unless, in the case of 120 days after receipt of notice from Lessor, Owner Participanta petition filed against Lessee, the Indenture Trustee or the Policy Provider so long as Lessee, TILC or TRMI, as the case may be, same is diligently proceeding to remedy such untruth or incorrectness and shall in fact remedy such untruth or incorrectness dismissed within such periodninety (90) days); provided that such untrue or incorrect representation or warranty shall be deemed to be remediable or remedied only after all adverse consequences thereof if any, can be and have been remedied as applicable; or
(gC) Lessee or the General Partner shall (i) 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 trusteetrustee or receiver to take possession of substantially all of the assets of Lessee where possession is not restored to Lessee within ninety (90) days; (D) the attachment, receiver, liquidator, custodian execution or other similar official judicial seizure of it or any substantial part substantially all of its property, or the assets of Lessee where such seizure is not discharged within ninety (ii90) consent to any such relief or to the appointment of or taking possession by any such official in any voluntary case or other proceeding commenced against it, or days; (iiiE) admit Lessee admits in writing its inability to pay its debts generally as they come become due; (F) Lessee files a petition or answer seeking reorganization or arrangement or other protection under the Federal bankruptcy laws or any other applicable law or statute of the United States of America or any State thereof; (G) Lessee is liquidated or dissolved, or placed under conservatorship or other protection under any applicable federal or state law; (ivH) make a general assignment for the benefit of creditorsany petition is filed by or against Lessee under Federal bankruptcy laws, or (v) take any corporate or partnership action to authorize any of the foregoing; or
(h) An involuntary case or other proceeding shall be commenced is instituted by or against Lessee seeking to adjudicate it a bankrupt or the General Partner insolvent, or seeking liquidation, reorganization reorganization, arrangement, adjustment or other relief with respect to composition of it or its debts under any law relating to bankruptcy, insolvency or other similar law now reorganization or hereafter in effectrelief of debtors, or seeking the entry of an order for relief or the appointment of a trustee, receiver, liquidatortrustee, custodian or other similar official of it for Lessee, or for any substantial part of its propertythe property of Lessee, and such involuntary case proceeding is not dismissed within ninety (90) days after institution thereof, or other proceeding Lessee shall remain undismissed and unstayed for a period take any action to authorize or effect any of 60 days; orthe actions set forth above in this subsection (g).
(ih) Lessee shall fail to observe or perform any other of the covenants or agreements to be observed or performed by commit a Lessee under any Lessee Agreement or any certificate and such failure shall continue unremedied for 30 days after notice from Lessor, Owner Participant, Policy Provider or the Indenture Trustee to Lessee, specifying the failure and demanding the same to be remedied; provided that, if such failure is capable of being remedied, and the remedy requires an action other than, or in addition to, the payment of money, no such failure (other than one relating to the payment of such money) shall constitute a Lease Event of Default hereunder for a period of 150 days after receipt of such notice so long as Lessee is diligently proceeding to remedy such failure and shall in fact remedy such failure within such period; or
(j) A Manager Default shall have occurred and be continuing under the Management Agreement, and Lessee shall have failed to exercise its rights under the Management Agreement in respect of such Manager Default for a period of 30 days after receipt by Lessee of written notice from Lessor, Owner Participant or the Indenture Trustee demanding that such action be taken; orGround Lease.
Appears in 1 contract
Samples: Lease Agreement (Cost Plus Inc/Ca/)
Lease Events of Default. The If any one or more of the following ----------------------- events shall constitute Lease Events of Default hereunder (whether any such event shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body) and each such a "Lease Event of Default Default") shall be deemed to exist and continue so long as, but only as long as, it shall not have been remedied:occur: ----------------------
(a) Lessee shall fail to make payment of (i) make any Basic Rent or any Supplemental Rent representing amounts owed under the Credit Agreement or the other Credit Documents within five (5) days after the same has become due and payable or (ii) be deemed by virtue of the last sentence of Section 3.5 hereof to have made any payment of Basic RentMaximum Residual Guarantee Amount, Early Purchase Price, any other purchase price to be paid by Lessee for any Units pursuant to this Lease or the Participation Agreement, Stipulated Loss Amount Option Price or Termination Amount (x) in the case of any such payment that is required to be made on the Basic Term Expiration Date or on any date within 30 days before the Basic Term Expiration Date, when due, and (y) in the case of any other such payment, within 10 Business Days Value after the same shall have has become due; provided, however, that so long as any Equipment Notes remain outstanding, failure to make (or be deemed to have made) any portion of Basic Rent on any Rent Payment Date shall not be a Lease Event of Default so long as the amounts applied under Section 3.4, clause (4), of the Collateral Agency Agreement are sufficient to make the distributions required under such clause (4) with respect to the obligations owed under this Lease; provided, further, that in the event that the Special Equity Buy-Out has been consummated, failure to make any payment of Basic Rent, Early Purchase Price, any other purchase price to be paid by Lessee for any Units pursuant to this Lease or the Participation Agreement, Stipulated Loss Amount or Termination Amount (to the extent such amount constitutes an Accumulated Equity Deficiency Amount to be applied under Section 3.4, clause 9 of the Collateral Agency Agreement) shall, after receipt by Lessee of written notice of such failure from Lessor or Owner Participant, be a Lease Event of Defaultdue and payable; or
(b) Lessee shall fail to (i) make or (ii) be deemed by virtue of payments made by the Collateral Agent to have made any payment of Supplemental Rent, including indemnity or tax indemnity payments, but not including Stipulated Loss Amount, Termination Amount, Early Purchase Price, or any other purchase price to be paid by Lessee for any Units pursuant to this Lease or the Participation Agreement (x) in the case of any such payment that is required to be on the Basic Term Expiration Date or on any date within 30 days before the Basic Term Expiration Date, when due, and (y) in the case of any other such payment, after the same shall have become Supplemental Rent due and such failure shall continue unremedied for 30 payable within five (5) days after receipt by Lessee of written notice of such failure from Lessor, Policy Provider, Owner Participant or the Indenture Trustee; provided, however, that so long as any Equipment Notes remain outstanding, failure to make (or be deemed to have made) payment of any of the amounts referred to in or to be applied pursuant to clauses (5) through (15) of Section 3.4 of the Collateral Agency Agreement shall not be a Lease Event of Defaultthereof; or
(c) Lessee shall fail to maintain in effect the insurance as required by Section 12 or Section 6.4 of the Collateral Agency Agreement and such failure shall not have been waived as provided for therein14; or
(d) Lessee shall use or permit the use of the Units or the Pledged Units or any portion thereof Guarantor shall default in the observance or performance of any term, covenant or condition of Lessee or any Guarantor, respectively, under this Lease, the Participation Agreement, the Guarantee or any other Operative Agreement to which it is a way which is not permitted by this Lease party (with respect to the Unitsother than those set forth in Section 17.1(a), (b), (c) or the Collateral Agency Agreement (with respect to the Pledged Units), provided that h) hereof) and such unauthorized use default shall not constitute a Lease Event of Default continue unremedied for a period of 45 thirty days after Lessee's obtaining actual knowledge thereof so long or any representation or warranty by Lessee or any Guarantor, respectively, set forth in this Lease, the Guarantee or in any other Operative Agreement or in any document entered into in connection herewith or therewith or in any document, certificate or financial or other statement delivered in connection herewith or therewith shall prove to have been incorrect in any material respect on or as (i) such unauthorized use is not of the result of any willful action of Lessee and (ii) such unauthorized use is capable of being cured and Lessee diligently pursues such cure throughout such 45-day period; date made or Lessee shall make or permit any unauthorized assignment or transfer of this Lease in violation of Section 18.2deemed made; or
(e) TILC (or any successor thereto in its capacity as Administrator or Servicer, as applicable) an Agency Agreement Event of Default shall have defaulted in any material respect in the performance of any of its obligations under the Administrative Services Agreement or the Servicing Agreement or a default shall occur under Section 6(a) of the Account Administration Agreement, and, in each case, Lessee shall have failed to exercise its rights thereunder in respect of such default for a period of 30 days after receipt by Lessee of written notice from Lessor, Owner Participant, Policy Provider or the Indenture Trustee, demanding that such action occurred and be takencontinuing; or
(f) Any representation or warranty made by Lessee in any Lessee Agreement or any representation or warranty made by TILC in any Operative Agreement to which any such Person is a party, in each case, other than the Tax Indemnity Agreement, is untrue or incorrect in any material respect as of the date of making thereof and such untruth or incorrectness shall continue to be material and unremedied for a period of 30 days after receipt of notice from Lessor, Owner Participant, Indenture Trustee or the Policy Provider; provided that, if such untruth or incorrectness is capable of being remedied, no such untruth or incorrectness shall constitute a Lease Event of Default hereunder for a period of 120 days after receipt of notice from Lessor, Owner Participant, the Indenture Trustee or the Policy Provider so long as Lessee, TILC or TRMI, as the case may be, is diligently proceeding to remedy such untruth or incorrectness and shall in fact remedy such untruth or incorrectness within such period; provided that such untrue or incorrect representation or warranty shall be deemed to be remediable or remedied only after all adverse consequences thereof if any, can be and have been remedied as applicable; or
(g) Lessee or the General Partner Guarantor shall (i) 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 (ii) consent to any such relief or to the appointment of or taking possession by any such official in any voluntary case or other proceeding commenced against it, or (iii) admit in writing its inability to pay its debts generally as they come become due, (ii) file a petition under the United States bankruptcy laws or any other applicable insolvency law or statute of the United States of America or any State or Commonwealth thereof, (iviii) make a general assignment for the benefit of its creditors, or (viv) take any corporate or partnership action consent to authorize any of the foregoing; or
(h) An involuntary case or other proceeding shall be commenced against Lessee or the General Partner seeking liquidation, reorganization or 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 receiver of itself or other similar official of it the whole or any substantial part of its property, (v) fail to cause the discharge of any custodian, trustee or receiver appointed for Lessee or the Guarantor or the whole or a substantial part of its property within sixty (60) days after such appointment, or (vi) file a petition or answer seeking or consenting to reorganization under the United States bankruptcy laws or any other applicable insolvency law or statute of the United States of America or any State or Commonwealth thereof; or
(g) insolvency proceedings or a petition under the United States bankruptcy laws or any other applicable insolvency law or statute of the United States of America or any State or Commonwealth thereof shall be filed against Lessee or the Guarantor and not dismissed within sixty (60) days from the date of its filing, or a court of competent jurisdiction shall enter an order or decree appointing, without its consent of, a receiver of Lessee or the Guarantor or the whole or a substantial part of its property, and such involuntary case order or decree shall not be vacated or set aside within ninety (90) days from the date of the entry thereof; or
(h) a Credit Agreement Event of Default (other proceeding than a Credit Agreement Event of Default set forth in Section 6.1(d)) shall remain undismissed have occurred and unstayed for a period of 60 daysbe continuing; or
(i) Lessee shall fail to observe or perform any other of the covenants or agreements to be observed or performed by Lessee under any Lessee Agreement or any certificate and such failure shall continue unremedied for 30 days after notice from Lessor, Owner Participant, Policy Provider or the Indenture Trustee to Lessee, specifying the failure and demanding the same to be remedied; provided that, if such failure is capable of being remedied, and the remedy requires an action other than, or in addition to, the payment of money, no such failure (other than one relating to the payment of such money) shall constitute a Lease Event of Default hereunder for a period of 150 days after receipt of such notice so long under and as Lessee is diligently proceeding to remedy such failure and shall defined in fact remedy such failure within such period; or
(j) A Manager Default the Senior Secured Credit Agreement shall have occurred and be continuing under continuing; then, in any such event, Lessor may, in addition to the Management Agreementother rights and remedies provided for in this Section 17 and in Section 18.1, terminate this Lease by giving Lessee ten (10) days notice of such termination, and this Lease shall terminate. Lessee shall have failed shall, to exercise its rights under the Management Agreement in respect fullest extent permitted by law, pay as Supplemental Rent all costs and expenses incurred by or on behalf of such Manager Default for a period of 30 days after receipt by Lessee of written notice from Lessor, Owner Participant or the Indenture Trustee demanding that such action be taken; orincluding fees and expenses of counsel, as a result of any Lease Event of Default hereunder.
Appears in 1 contract
Samples: Lease (Sailors Inc)
Lease Events of Default. The following events shall constitute a “Lease Events of Default hereunder (whether any such event shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body) and each such Lease Event of Default shall be deemed to exist and continue so long as, but only as long as, it shall not have been remediedDefault”:
(a) Lessee shall fail to (i) make or (ii) be deemed by virtue of the last sentence of Section 3.5 hereof to have made any payment of Basic Rent, Early Purchase Price, any other purchase price to be paid by Lessee for any Units pursuant to this Lease or the Participation Agreement, Stipulated Loss Amount or Termination Amount (x) in the case of any such payment that is required to be made on the Basic Term Expiration Date or on any date within 30 days before the Basic Term Expiration Date, when due, and (y) in the case of any other such payment, within 10 Business Days after the same shall have become due; provided, however, that so long as any Equipment Notes remain outstanding, failure to make (or be deemed to have made) any portion of Basic Rent on any Rent Payment Date shall not be a Lease Event of Default so long as the amounts applied under Section 3.4, clause (4), of the Collateral Agency Agreement are sufficient to make the distributions required under such clause (4) with respect to the obligations owed under this Lease; provided, further, that in the event that the Special Equity Buy-Out has been consummated, failure to make any payment of Basic Base Rent, Early Purchase Price, any other purchase price to be paid by Lessee for any Units pursuant to this Lease or the Participation Agreement, Stipulated Loss Amount or Termination Amount within five (to the extent 5) Business Days after notice that such amount constitutes an Accumulated Equity Deficiency Amount to be applied under Section 3.4, clause 9 of the Collateral Agency Agreement) shall, after receipt by Lessee of written notice of such failure from Lessor or Owner Participant, be a Lease Event of Default; oris due and unpaid;
(b) Lessee shall fail to make any late payment and/or pay interest at the Default Rate within ten (i10) make or (ii) be deemed by virtue of payments made by the Collateral Agent to have made any payment of Supplemental Rent, including indemnity or tax indemnity payments, but not including Stipulated Loss Amount, Termination Amount, Early Purchase Price, or any other purchase price to be paid by Lessee for any Units pursuant to this Lease or the Participation Agreement (x) in the case of any days after notice that such payment that amount is required to be on the Basic Term Expiration Date or on any date within 30 days before the Basic Term Expiration Date, when due, and (y) in the case of any other such payment, after the same shall have become due and such failure shall continue unremedied for 30 days after receipt by Lessee of written notice of such failure from Lessor, Policy Provider, Owner Participant or the Indenture Trustee; provided, however, that so long as any Equipment Notes remain outstanding, failure to make (or be deemed to have made) payment of any of the amounts referred to in or to be applied pursuant to clauses (5) through (15) of Section 3.4 of the Collateral Agency Agreement shall not be a Lease Event of Default; orunpaid;
(c) Lessee shall fail to maintain make any other payment of Supplemental Rent, other than any amount described in effect the insurance required by Section 12 clause (a) or Section 6.4 clause (b) of the Collateral Agency Agreement this Article 16, and such failure shall not have been waived as provided continue for therein; ora period of ten (10) days after notice of such failure to Lessee from Lessor or Lender;
(d) Lessee shall use fail to timely perform or permit the use observe any covenant or agreement (not otherwise specified in this Article 16) to be performed or observed by it hereunder and such failure shall continue for a period of the Units thirty (30) days after written notice thereof from Lessor or the Pledged Units or any portion thereof in a way which is not permitted by this Lease (with respect to the Units) or the Collateral Agency Agreement (with respect to the Pledged Units), Lender; provided that the continuation of such unauthorized use a failure for thirty (30) days or longer after such notice shall not constitute a Lease Event of Default for a period of 45 days after Lessee's obtaining actual knowledge thereof so long as if such failure can be cured, but cannot reasonably be cured within such thirty (i30) such unauthorized use is not the result of any willful action of Lessee and (ii) such unauthorized use is capable of being cured day period, and Lessee shall commence to cure such failure within such thirty (30) day period and shall be diligently pursues and continuously prosecuting the cure of such cure throughout such 45-day period; or Lessee shall make or permit any unauthorized assignment or transfer of this Lease in violation of Section 18.2; orfailure.
(e) TILC (or any successor thereto in its capacity as Administrator or Servicer, as applicableexcept to the extent the Lessee is permitted to self-insure pursuant to Section 9.1(b) shall have defaulted in any material respect in the performance of any of its obligations under the Administrative Services Agreement or the Servicing Agreement or a default shall occur under Section 6(a) of the Account Administration Agreement, and, in each caseand Schedule 9.1, Lessee shall have failed fail to exercise its rights thereunder carry or maintain in respect of full force any insurance required hereunder, and such default failure shall continue for a period of 30 ten (10) business days after receipt by Lessee such obligations arises. but not beyond the expiration date of written notice from Lessor, Owner Participant, Policy Provider or the Indenture Trustee, demanding that such action be taken; orany required policy of insurance;
(f) Any representation or warranty made by Lessee in any Lessee Agreement or any representation or warranty made by TILC in any Operative Agreement the Lessee herein shall prove to which any such Person is a party, in each case, other than the Tax Indemnity Agreement, is untrue or have been incorrect in any material respect as of when such representation or warranty was made and shall remain materially incorrect at the date of making thereof time in question, and such untruth or incorrectness shall continue to be is not cured in all material and unremedied for a period of 30 respects within thirty (30) days after receipt of notice from Lessor, Owner Participant, Indenture Trustee or the Policy Providerto Lessee of such breach; provided that, if that the continuation of such untruth a failure for thirty (30) days or incorrectness is capable of being remedied, no longer after such untruth or incorrectness notice shall not constitute a Lease Event of Default hereunder if such failure can be cured, but cannot reasonably be cured within such thirty (30) day period, and Lessee shall commence to cure such failure within such thirty (30) day period and shall be diligently and continuously prosecuting the cure of such failure.
(A) Lessee makes any general arrangement or assignment for the benefit of creditors; (B) Lessee becomes a period “debtor” as defined in 11 U.S.C. § 101 or any successor statute thereto (unless, in the case of 120 days after receipt of notice from Lessor, Owner Participanta petition filed against Lessee, the Indenture Trustee or the Policy Provider so long as Lessee, TILC or TRMI, as the case may be, same is diligently proceeding to remedy such untruth or incorrectness and shall in fact remedy such untruth or incorrectness dismissed within such periodninety (90) days); provided that such untrue or incorrect representation or warranty shall be deemed to be remediable or remedied only after all adverse consequences thereof if any, can be and have been remedied as applicable; or
(gC) Lessee or the General Partner shall (i) 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 trusteetrustee or receiver to take possession of substantially all of the assets of Lessee where possession is not restored to Lessee within ninety (90) days; (D) the attachment, receiver, liquidator, custodian execution or other similar official judicial seizure of it or any substantial part substantially all of its property, or the assets of Lessee where such seizure is not discharged within ninety (ii90) consent to any such relief or to the appointment of or taking possession by any such official in any voluntary case or other proceeding commenced against it, or days; (iiiE) admit Lessee admits in writing its inability to pay its debts generally as they come become due; (F) Lessee files a petition or answer seeking reorganization or arrangement or other protection under the Federal bankruptcy laws or any other applicable law or statute of the United States of America or any State thereof; (G) Lessee is liquidated or dissolved, or placed under conservatorship or other protection under any applicable federal or state law; (ivH) make a general assignment for the benefit of creditorsany petition is filed by or against Lessee under Federal bankruptcy laws, or (v) take any corporate or partnership action to authorize any of the foregoing; or
(h) An involuntary case or other proceeding shall be commenced is instituted by or against Lessee seeking to adjudicate it a bankrupt or the General Partner insolvent, or seeking liquidation, reorganization reorganization, arrangement, adjustment or other relief with respect to composition of it or its debts under any law relating to bankruptcy, insolvency or other similar law now reorganization or hereafter in effectrelief of debtors, or seeking the entry of an order for relief or the appointment of a trustee, receiver, liquidatortrustee, custodian or other similar official of it for Lessee, or for any substantial part of its propertythe property of Lessee, and such involuntary case proceeding is not dismissed within ninety (90) days after institution thereof, or other proceeding Lessee shall remain undismissed and unstayed for a period take any action to authorize or effect any of 60 days; orthe actions set forth above in this subsection (g).
(ih) Lessee shall fail to observe or perform any other of the covenants or agreements to be observed or performed by commit a Lessee under any Lessee Agreement or any certificate and such failure shall continue unremedied for 30 days after notice from Lessor, Owner Participant, Policy Provider or the Indenture Trustee to Lessee, specifying the failure and demanding the same to be remedied; provided that, if such failure is capable of being remedied, and the remedy requires an action other than, or in addition to, the payment of money, no such failure (other than one relating to the payment of such money) shall constitute a Lease Event of Default hereunder for a period of 150 days after receipt of such notice so long as Lessee is diligently proceeding to remedy such failure and shall in fact remedy such failure within such period; or
(j) A Manager Default shall have occurred and be continuing under the Management Agreement, and Lessee shall have failed to exercise its rights under the Management Agreement in respect of such Manager Default for a period of 30 days after receipt by Lessee of written notice from Lessor, Owner Participant or the Indenture Trustee demanding that such action be taken; orGround Lease.
Appears in 1 contract
Samples: Lease Agreement (Cost Plus Inc/Ca/)
Lease Events of Default. The If any one (1) or more of the following events shall constitute Lease Events of Default hereunder (whether any such event shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body) and each such a “Lease Event of Default Default”) shall be deemed to exist and continue so long as, but only as long as, it shall not have been remediedoccur:
(a) Lessee shall fail to make payment of (i) make or any Basic Rent (except as set forth in clause (ii) be deemed by virtue of the last sentence of Section 3.5 hereof to have made any payment of Basic Rent, Early Purchase Price, any other purchase price to be paid by Lessee for any Units pursuant to this Lease or the Participation Agreement, Stipulated Loss Amount or Termination Amount within five (x5) in the case of any such payment that is required to be made on the Basic Term Expiration Date or on any date within 30 days before the Basic Term Expiration Date, when due, and (y) in the case of any other such payment, within 10 Business Days after the same shall have has become due; provided, however, that so long as any Equipment Notes remain outstanding, failure to make due and payable or (or be deemed to have madeii) any portion of Basic Rent Termination Value, on the date any Rent Payment Date shall not be a Lease Event of Default so long as the amounts applied under Section 3.4such payment is due and payable, clause (4), of the Collateral Agency Agreement are sufficient to make the distributions required under such clause (4) with respect to the obligations owed under this Lease; provided, further, that in the event that the Special Equity Buy-Out has been consummated, failure to make or any payment of Basic RentRent or Supplemental Rent due on the due date of any such payment of Termination Value, Early Purchase Price, or any other purchase price to be paid by Lessee for any Units pursuant to this Lease or amount due on the Participation Agreement, Stipulated Loss Amount or Termination Amount (to the extent such amount constitutes an Accumulated Equity Deficiency Amount to be applied under Section 3.4, clause 9 of the Collateral Agency Agreement) shall, after receipt by Lessee of written notice of such failure from Lessor or Owner Participant, be a Lease Event of Default; orExpiration Date;
(b) Lessee shall fail to make payment of any Supplemental Rent (iother than Supplemental Rent referred to in Section 17.1(a)(ii)) or any other Credit Party shall fail to make or (ii) be deemed by virtue of payments made by the Collateral Agent to have made any payment of Supplemental Rent, including indemnity or tax indemnity payments, but not including Stipulated Loss Amount, Termination Amount, Early Purchase Price, or any other purchase price to be paid by Lessee for amount under any Units pursuant to this Lease or the Participation Operative Agreement (x) in the case of any such payment that is required to be on the Basic Term Expiration Date or on any date within 30 days before the Basic Term Expiration Date, when due, and (y) in the case of any other such payment, after the same shall have which has become due and such failure shall continue unremedied for 30 days after receipt by Lessee of written notice of such failure from Lessor, Policy Provider, Owner Participant or the Indenture Trustee; provided, however, that so long as any Equipment Notes remain outstanding, failure to make (or be deemed to have made) payment of any of the amounts referred to in or to be applied pursuant to clauses payable within five (5) through (15) Business Days after receipt of Section 3.4 of the Collateral Agency Agreement shall not be a Lease Event of Default; ornotice that such payment is due;
(c) Lessee shall fail to maintain in effect the insurance as required by Section 12 or Section 6.4 of the Collateral Agency Agreement and such failure shall not have been waived as provided for therein; or
(d) Lessee shall use or permit the use of the Units or the Pledged Units or any portion thereof in a way which is not permitted by this Lease (with respect to the Units) or the Collateral Agency Agreement (with respect to the Pledged Units), provided that such unauthorized use shall not constitute a Lease Event of Default for a period of 45 days after Lessee's obtaining actual knowledge thereof so long as (i) such unauthorized use is not the result of any willful action of Lessee and (ii) such unauthorized use is capable of being cured and Lessee diligently pursues such cure throughout such 45-day period; or Lessee shall make or permit any unauthorized assignment or transfer Article XIV of this Lease in violation of Section 18.2; or
or to deliver any requisite annual certificate with respect thereto within ten (e10) TILC (or any successor thereto in its capacity as Administrator or Servicer, as applicable) shall have defaulted in any material respect in the performance of any of its obligations under the Administrative Services Agreement or the Servicing Agreement or a default shall occur under Section 6(a) of the Account Administration Agreement, and, in each case, Lessee shall have failed to exercise its rights thereunder in respect of such default for a period of 30 days after receipt by Lessee of written notice from Lessor, Owner Participant, Policy Provider or the Indenture Trustee, demanding that such action be taken; or
(f) Any representation or warranty made by Lessee in any Lessee Agreement or any representation or warranty made by TILC in any Operative Agreement to which any such Person is a party, in each case, other than the Tax Indemnity Agreement, is untrue or incorrect in any material respect as of the date of making thereof and such untruth or incorrectness shall continue to be material and unremedied for a period of 30 days after receipt of notice from Lessor, Owner Participant, Indenture Trustee or of Lessee’s failure to provide such certificate when due under the Policy Provider; provided that, if such untruth or incorrectness is capable of being remedied, no such untruth or incorrectness shall constitute a Lease Event of Default hereunder for a period of 120 days after receipt of notice from Lessor, Owner Participant, the Indenture Trustee or the Policy Provider so long as Lessee, TILC or TRMI, as the case may be, is diligently proceeding to remedy such untruth or incorrectness and shall in fact remedy such untruth or incorrectness within such period; provided that such untrue or incorrect representation or warranty shall be deemed to be remediable or remedied only after all adverse consequences thereof if any, can be and have been remedied as applicable; or
(g) Lessee or the General Partner shall (i) 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 (ii) consent to any such relief or to the appointment of or taking possession by any such official in any voluntary case or other proceeding commenced against it, or (iii) admit in writing its inability to pay its debts generally as they come due, or (iv) make a general assignment for the benefit of creditors, or (v) take any corporate or partnership action to authorize any of the foregoing; or
(h) An involuntary case or other proceeding shall be commenced against Lessee or the General Partner seeking liquidation, reorganization or 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 60 days; orterms hereof;
(i) Lessee shall fail to observe or perform any other term, covenant, obligation or condition of the covenants or agreements to be observed or performed by Lessee under any Lessee Agreement this Lease (including without limitation the Incorporated Covenants) or any certificate other Operative Agreement to which Lessee is a party other than those set forth in Sections 17.1(a), (b) or (c) hereof, or any other Credit Party shall fail to observe or perform any term, covenant, obligation or condition of such Credit Party under any Operative Agreement other than those set forth in Section 17.1(b) hereof and such failure shall continue unremedied for 30 thirty (30) days (or with respect to the Incorporated Covenants, the grace period, if any, applicable thereto) after the earlier of (A) notice from Lessorthereof to the Lessee or such Credit Party and (B) the date the Lessee or such Credit Party otherwise has notice thereof, Owner Participantor (ii) any representation or warranty made by Lessee or any other Credit Party set forth in this Lease (including without limitation the Incorporated Representations and Warranties) or in any other Operative Agreement or in any document entered into in connection herewith or therewith or in any document, Policy Provider certificate or financial or other statement delivered in connection herewith or therewith shall be false or inaccurate in any material way when made;
(e) An Agency Agreement Event of Default shall have occurred and be continuing;
(f) Any Credit Party or any Subsidiary of any Credit Party shall default (beyond applicable periods of grace and/or notice and cure) in the payment when due of any principal of or interest on any Indebtedness having an outstanding principal amount of at least $25,000,000; or any other event or condition shall occur which results in a default of any such Indebtedness or enables the holder of any such Indebtedness or any Person acting on such holder’s behalf to accelerate the maturity thereof;
(g) The liquidation or dissolution of any Credit Party, or the Indenture Trustee suspension of the business of any Credit Party, or the filing by any Credit Party of a voluntary petition or an answer seeking reorganization, arrangement, readjustment of its debts or for any other relief under the United States Bankruptcy Code, as amended, or under any other insolvency act or law, state or federal, now or hereafter existing, or any other action of any Credit Party indicating its consent to, approval of or acquiescence in, any such petition or proceeding; the application by any Credit Party for, or the appointment by consent or acquiescence of any Credit Party of a receiver, a trustee or a custodian of any Credit Party for all or a substantial part of its property; the making by any Credit Party of any assignment for the benefit of creditors; the inability of any Credit Party or the admission by any Credit Party in writing of its inability to Lesseepay its debts as they mature or any Credit Party is generally not paying its debts and other financial obligations as they become due and payable; or any Credit Party taking any corporate action to authorize any of the foregoing;
(h) The filing of an involuntary petition against any Credit Party in bankruptcy or seeking reorganization, specifying arrangement, readjustment of its debts or for any other relief under the failure and demanding United States Bankruptcy Code, as amended, or under any other insolvency act or law, state or federal, now or hereafter existing; or the same to be remediedinvoluntary appointment of a receiver, a trustee or a custodian of any Credit Party for all or a substantial part of its property; provided thator the issuance of a warrant of attachment, if such failure is capable execution or similar process against any substantial part of being remediedthe property of any Credit Party, and the remedy requires an action other than, or in addition to, the payment continuance of money, no such failure (other than one relating to the payment any of such moneyevents for ninety (90) shall constitute a Lease Event days undismissed or undischarged;
(i) The adjudication of Default hereunder for a period of 150 days after receipt of such notice so long any Credit Party as Lessee is diligently proceeding to remedy such failure and shall in fact remedy such failure within such period; orbankrupt or insolvent;
(j) A Manager The entering of any order in any proceedings against any Credit Party or any Subsidiary of any Credit Party decreeing the dissolution, divestiture or split-up of any Credit Party or any Subsidiary of any Credit Party, and such order remains in effect for more than sixty (60) days;
(k) Any report, certificate, financial statement or other instrument delivered to Lessor by or on behalf of any Credit Party pursuant to the terms of this Lease or any other Operative Agreement is false or misleading in any material respect when made or delivered;
(l) Any Parent Credit Agreement Event of Default shall have occurred and be continuing and shall not have been waived;
(m) A final judgment or judgments for the payment of money shall be rendered by a court or courts against any Credit Party or any Subsidiary of any Credit Party in excess of $1,000,000, in the aggregate, over amounts paid by insurance policies (other than self-insurance), and (i) the same shall not be discharged (or provision shall not be made for such discharge), or a stay of execution thereof shall not be procured, within thirty (30) days from the date of entry thereof, or (ii) any Credit Party or any such Subsidiary shall not, within said period of thirty (30) days, or such longer period during which execution of the same shall have been stayed, appeal therefrom and cause the execution thereof to be stayed during such appeal, or (iii) such judgment or judgments shall not be discharged (or provisions shall not be made for such discharge) within thirty (30) days after a decision has been reached with respect to such appeal and the related stay has been lifted;
(n) Any Credit Party or any member of the Controlled Group shall fail to pay when due an amount or amounts aggregating in excess of $2,000,000 which it shall have become liable to pay to the PBGC or to a Pension Plan under Title IV of ERISA; or notice of intent to terminate a Pension Plan or Pension Plans having aggregate Unfunded Liabilities in excess of $2,000,000 shall be filed under Title IV of ERISA by any Credit Party or any member of the Controlled Group, any plan administrator or any combination of the foregoing; or the PBGC shall institute proceedings under Title IV of ERISA to terminate or to cause a trustee to be appointed to administer any such Pension Plan or Pension Plans or a proceeding shall be instituted by a fiduciary of any such Pension Plan or Pension Plans against any Credit Party or any member of the Controlled Group to enforce Section 515 or 4219(c)(5) of ERISA; or a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any such Pension Plan or Pension Plans must be terminated;
(i) As a result of one (1) or more transactions after the date of this Lease, any “person” or “group” (each as used in Sections 13(d)(3) and 14(d)(2) of the Exchange Act), who are not as of the Initial Closing Date owners of one percent (1%) or more of the voting stock of the Parent, either (A) becomes the “beneficial owner” (as defined in Rule 13d-3 of the Exchange Act), directly or indirectly, of voting stock of the Parent (or securities convertible into or exchangeable for such voting stock) representing 15% or more of the combined voting power of all voting stock of the Parent (on a fully diluted basis) or (B) otherwise has the ability, directly or indirectly, to elect a majority of the board of directors of the Parent; or (ii) during any period of up to 24 consecutive months, commencing on the Initial Closing Date, individuals who at the beginning of such period were directors of the Parent shall cease for any reason (other than the death, disability or retirement of an officer of the Parent that is serving as a director at such time so long as another officer of the Parent replaces such Person as a director) to constitute a majority of the board of directors of the Parent; or (iii) any Person or two or more Persons acting in concert shall have acquired by contract or otherwise, or shall have entered into a contract or arrangement that, upon consummation thereof, will result in its or their acquisition, of the power to exercise, directly or indirectly, a controlling influence on the management or policies of the Parent;
(p) Any Operative Agreement shall cease to be in full force and effect;
(q) Except as to any Credit Party which is released in connection with the Operative Agreements, the guaranty given by the Guarantor under the Management Participation Agreement or any provision thereof shall cease to be in full force and effect, or the Guarantor or any Person acting by or on behalf of the Guarantor shall deny or disaffirm the Guarantor’s obligations under such guaranty, or the Guarantor shall default in the due performance or observance of any term, covenant or agreement on its part to be performed or observed pursuant to any guaranty;
(r) Lessee shall fail to deposit or maintain Cash Equivalents equal to the amount required by Section 5.11 of the Participation Agreement in the Cash Collateral Account;
(s) Lessee shall fail to purchase all Tranche A Notes in accordance with the terms of the Operative Agreements, including without limitation Section 8.3(w) of the Participation Agreement;
(t) there shall occur (i) any cancellation, revocation, suspension or termination of any Medicare Certification, Medicare Provider Agreement, and Lessee shall have failed to exercise its rights under Medicaid Certification or Medicaid Provider Agreement affecting the Management Agreement Parent, any Subsidiary or any Contract Provider, or (ii) the loss of any other permits, licenses, authorizations, certifications or approvals from any federal, state or local Governmental Authority or termination of any contract with any such authority, in respect either case which cancellation, revocation, suspension, termination or loss (X) in the case of such Manager Default any suspension or temporary loss only, continues for a period greater than 60 days and (Y) results in the suspension or termination of 30 days after receipt by Lessee operations of written notice from Lessorthe Parent or any Subsidiary or in the failure of the Parent or any Subsidiaries or any Contract Provider to be eligible to participate in Medicare or Medicaid programs or to accept assignments of rights to reimbursement under Medicaid Regulations or Medicare Regulations, Owner Participant if and only if such Person, in the ordinary course of business, participates in the Medicare or Medicare programs or accepts assignments of rights to reimbursement thereunder; provided that any such events described in this Section 17.1(t) shall constitute an Event of Default only if such event shall result either singly or in the Indenture Trustee demanding that such action be takenaggregate in the termination, cancellation, suspension or material impairment of operations or rights to reimbursement which produce 5% or more of the Parent’s gross revenues (on an annualized basis); or
(u) Lessee shall fail to deliver to Lessor and the Agent an insurance certificate on or prior to January 15, 2002 that evidences all risk builder’s risk and all risk of physical loss or damage insurance with respect to the Digital Hospital Property including (i) a deductible amount of $25,000 or less per occurrence, (ii) coverage from January 15, 2002 through the Completion Date, (iii) policy limit amounts of not less than $200,000,000 per occurrence and (iv) all other terms and conditions required pursuant to the Lease which are not in conflict with or less stringent than (i), (ii) or (iii) above. then, in any such event, Lessor may, in addition to the other rights and remedies provided for in this Article XVII and in Section 18.1, terminate this Lease by giving Lessee five (5) days notice of such termination (provided, notwithstanding the foregoing, this Lease shall be deemed to be automatically terminated without the giving of notice upon the occurrence of a Lease Event of Default under Sections 17.1(g), (h), (i) or (j)), and this Lease shall terminate, and all rights of Lessee under this Lease shall cease. Lessee shall, to the fullest extent permitted by law, pay as Supplemental Rent all costs and expenses incurred by or on behalf of Lessor or any other Financing Party, including without limitation reasonable fees and expenses of counsel, as a result of any Lease Event of Default hereunder. A POWER OF SALE HAS BEEN GRANTED IN THIS LEASE. A POWER OF SALE MAY ALLOW LESSOR TO TAKE THE PROPERTIES AND SELL THE PROPERTIES WITHOUT GOING TO COURT IN A FORECLOSURE ACTION UPON THE OCCURRENCE OF A LEASE EVENT OF DEFAULT.
Appears in 1 contract
Samples: Lease Agreement (Healthsouth Corp)
Lease Events of Default. The following events shall constitute Lease Events of Default hereunder (whether any such event shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body) and each such Lease Event of Default shall be deemed to exist and continue so long as, but only as long as, it shall not have been remedied:
(a) Lessee shall fail to (i) make or (ii) be deemed by virtue of the last sentence of Section 3.5 hereof to fail to have made any payment of Basic Rent, Early Purchase Price, or any other purchase price to be paid by Lessee for any Units pursuant to this Lease or the Participation Agreement, Stipulated Loss Amount Value or Termination Amount (x) in the case of any such payment that is required to be made on the Basic Term Expiration Date or on any date within 30 days before the Basic Term Expiration Date, when due, and (y) in the case of any other such payment, Value within 10 Business Days after the same shall have become due; provided, however, that so long as any Equipment Notes remain outstanding, failure to make (or be deemed to have made) any portion an entire payment of Basic Rent on any Rent Payment Date shall not be a Lease Event of Default so long as the amounts applied under Section 3.4, clause (4), of the Collateral Agency Intercreditor Agreement are sufficient to make the distributions required under such clause (4) with respect to the obligations owed under this Lease; provided, further, that in the event that the Special Equity Buy-Out has been consummated, failure to make any payment of Basic Rent, Early Purchase Price, any other purchase price to be paid by Lessee for any Units pursuant to this Lease or the Participation Agreement, Stipulated Loss Amount or Termination Amount (to the extent such amount constitutes an Accumulated Equity Deficiency Amount to be applied under Section 3.4, clause 9 of the Collateral Agency Agreement) shall, after receipt by Lessee of written notice of such failure from Lessor or Owner Participant, be a Lease Event of Default; or
(b) Lessee shall fail to (i) make or (ii) be deemed by virtue of payments made by the Collateral Agent to fail to have made any payment of Supplemental Rent, including indemnity or tax indemnity payments, but not including Stipulated Loss AmountValue, Termination AmountValue, Early Purchase Price, or any other purchase price to be paid by Lessee for any Units pursuant to this Lease or the Participation Agreement (x) in the case of any such payment that is required to be on the Basic Term Expiration Date or on any date within 30 days before the Basic Term Expiration Date, when due, and (y) in the case of any other such payment, after the same shall have become due and such failure shall continue unremedied for 30 days 10 Business Days after receipt by Lessee of written notice of such failure from Lessor, Policy Provider, the Owner Participant or the Indenture Trustee; provided, however, that so long as any Equipment Notes remain outstanding, failure to make (or be deemed to have made) payment of any of the amounts referred to in or to be applied pursuant to clauses (5) through (1514) of Section 3.4 of the Collateral Agency Intercreditor Agreement shall not be a Lease Event of Default; or
(c) Lessee shall fail to maintain in effect the insurance required by Section 12 or Section 6.4 of the Collateral Agency Agreement and such failure shall not have been waived as provided for therein; or
(d) Lessee shall use or permit the use of the Units or the Pledged Units Equipment or any portion thereof in a way which is not permitted by this Lease (with respect to the Units) or the Collateral Agency Agreement (with respect to the Pledged Units)Lease, provided that such unauthorized use shall not constitute a Lease Event of Default for a period of 45 days after Lessee's obtaining actual knowledge the occurrence thereof so long as (i) such unauthorized use is not the result of any willful action of Lessee Lessee, and (ii) such unauthorized use is capable of being cured and Lessee diligently pursues such cure throughout such 45-day period; or Lessee shall make or permit any unauthorized assignment or transfer of this Lease in violation of Section 18.2; or
(e) TILC (Lessee shall fail to observe or any successor thereto in its capacity as Administrator or Servicer, as applicable) shall have defaulted perform in any material respect in the performance of any of its obligations under the Administrative Services Agreement covenants or the Servicing Agreement agreements to be observed or a default shall occur under performed by Lessee in Section 6(a) 6.2 or 6.3 of the Account Administration Intercreditor Agreement, and, in each case, Lessee shall have failed to exercise its rights thereunder in respect of such default for a period of 30 days after receipt by Lessee of written notice from Lessor, Owner Participant, Policy Provider or the Indenture Trustee, demanding that such action be taken; or
(f) Any representation or warranty made by Lessee in any Lessee Agreement or any representation or warranty made by TILC in any Operative Agreement to which any such Person is a party, in each case, other than the Tax Indemnity Agreement, is untrue or incorrect in any material respect as of the date of making thereof and such untruth or incorrectness shall continue to be material and unremedied for a period of 30 days after receipt of notice from Lessor, Owner Participant, Indenture Trustee or the Policy Providerunremedied; provided that, if such untruth or incorrectness is capable of being remedied, no such untruth or incorrectness shall constitute a Lease Event of Default hereunder for a period of 120 30 days after receipt of notice from Lessor, the Owner Participant, Participant or the Indenture Trustee or the Policy Provider so long as Lessee, TILC or TRMI, as the case may be, Lessee is diligently proceeding to remedy such untruth or incorrectness and shall in fact remedy such untruth or incorrectness within such period; provided that such untrue or incorrect representation or warranty shall be deemed to be remediable or remedied only after all adverse consequences thereof thereof, if any, can be and have been remedied as applicable; or
(g) Lessee or the General Partner shall (i) 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 (ii) consent to any such relief or to the appointment of or taking possession by any such official in any voluntary case or other proceeding commenced against it, or (iii) admit in writing its inability to pay its debts generally as they come due, or (iv) make a general assignment for the benefit of creditors, or (v) take any corporate or partnership action to authorize any of the foregoing; or
(h) An involuntary case or other proceeding shall be commenced against Lessee or the General Partner seeking liquidation, reorganization or 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 60 days; or
(i) Lessee shall fail to observe or perform any other of the covenants or agreements to be observed or performed by Lessee under any Lessee Agreement or any certificate and such failure shall continue unremedied for 30 days after notice from Lessor, the Owner Participant, Policy Provider Participant or the Indenture Trustee to Lessee, specifying the failure and demanding the same to be remedied; provided that, if such failure is capable of being remedied, and the remedy requires an action other than, or in addition to, the payment of money, no such failure (other than one relating to the payment of such money) shall constitute a Lease Event of Default hereunder for a period of 150 90 days after receipt of such notice so long as Lessee is diligently proceeding to remedy such failure and shall in fact remedy such failure within such period; or
(j) A Manager Default shall have occurred and be continuing under the Management Agreement, and Lessee shall have failed to exercise its rights under the Management Agreement in respect of such Manager Default for a period of 30 days after receipt by Lessee of written notice from Lessor, Owner Participant or the Indenture Trustee demanding that such action be taken; or
Appears in 1 contract
Samples: Equipment Lease Agreement (General American Railcar Corp Ii)
Lease Events of Default. The following events shall constitute a "Lease Events of Default hereunder (whether any such event shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body) and each such Lease Event of Default shall be deemed to exist and continue so long as, but only as long as, it shall not have been remediedDefault":
(a) Lessee shall fail to (i) make or (ii) be deemed by virtue of the last sentence of Section 3.5 hereof to have made any payment of Basic Base Rent, Early Purchase Pricea Termination Value Payment, a Stipulated Loss Value Payment, any other purchase price to be paid payment owing by the Lessee for any Units pursuant to this Lease Section 3.4, or the Participation Agreement, Stipulated Loss Amount or Termination Amount (x) in the case of any such payment that is required to be made on the Basic Term Expiration Date or on any date within 30 days before the Basic Term Expiration Date, when due, and (y) in the case of any other such payment, regularly scheduled payment of Supplemental Rent due to the Indenture Trustee or Servicer within 10 three (3) Business Days after the same shall have become due; provided, however, that so long as any Equipment Notes remain outstanding, failure to make (or be deemed to have made) any portion of Basic Rent on any Rent Payment Date shall not be a Lease Event of Default so long as the amounts applied under Section 3.4, clause (4), of the Collateral Agency Agreement are sufficient to make the distributions required under such clause (4) with respect to the obligations owed under this Lease; provided, further, that in the event that the Special Equity Buy-Out has been consummated, failure to make any payment of Basic Rent, Early Purchase Price, any other purchase price to be paid by Lessee for any Units pursuant to this Lease or the Participation Agreement, Stipulated Loss Amount or Termination Amount (to the extent such amount constitutes an Accumulated Equity Deficiency Amount to be applied under Section 3.4, clause 9 of the Collateral Agency Agreement) shall, after receipt by Lessee of written notice of such failure from Lessor or Owner Participant, be a Lease Event of Default; or;
(b) Lessee shall fail to (i) make or (ii) be deemed by virtue of payments made by the Collateral Agent to have made any other payment of Supplemental Rent, including indemnity or tax indemnity payments, but not including Stipulated Loss Amount, Termination Amount, Early Purchase Price, or any other purchase price to be paid by Lessee for any Units pursuant to this Lease or the Participation Agreement (x) in the case of any such payment that is required to be on the Basic Term Expiration Date made under this Lease, within thirty (30) days after notice that such amount is due and unpaid;
(c) any of Guarantor or on Lessee shall fail to timely perform or observe any date within 30 days before the Basic Term Expiration Date, when due, and covenant or agreement (ynot otherwise specified in this Article 16) in the case of to be performed or observed by it hereunder or under any other such payment, after the same shall have become due Lease Operative Document and such failure shall continue unremedied for 30 a period of thirty (30) days after receipt by Lessee of written notice of such failure thereof from Lessor, Policy Provider, Owner Participant Lessor or the Indenture Trustee; provided, however, that so long as any Equipment Notes remain outstanding, failure to make (or be deemed to have made) payment of any of the amounts referred to in or to be applied pursuant to clauses (5) through (15) of Section 3.4 of the Collateral Agency Agreement shall not be a Lease Event of Default; or
(c) Lessee shall fail to maintain in effect the insurance required by Section 12 or Section 6.4 of the Collateral Agency Agreement and such failure shall not have been waived as provided for therein; or
(d) Lessee shall use or permit the use of the Units or the Pledged Units or any portion thereof in a way which is not permitted by this Lease (with respect to the Units) or the Collateral Agency Agreement (with respect to the Pledged Units), provided that the continuation of such unauthorized use a failure for thirty (30) days or longer after such notice shall not constitute a Lease Event of Default for a period of 45 days after Lessee's obtaining actual knowledge thereof so long as if such failure can be cured, but cannot reasonably be cured within such thirty (i30) such unauthorized use is not the result of any willful action of Lessee and (ii) such unauthorized use is capable of being cured and Lessee diligently pursues such cure throughout such 45-day period; , and Guarantor or Lessee (as applicable) commences to cure such breach within thirty (30) days of said notice and shall make be diligently and continuously prosecuting the cure of such failure; provided, that such failure must be cured within 270 days of such notice.
(d) except to the extent the Lessee is self-insuring pursuant to Section 9.1(b) and Schedule 9.1, Lessee shall fail to carry or permit maintain in full force any unauthorized assignment or transfer of this Lease in violation of Section 18.2; orinsurance required hereunder, and such failure shall continue for five (5) Business Days after such obligation arises;
(e) TILC (or any successor thereto in its capacity as Administrator or Servicer, as applicable) shall have defaulted in any material respect in the performance of any of its obligations under the Administrative Services Agreement or the Servicing Agreement or a default shall occur under Section 6(a) of the Account Administration Agreement, and, in each case, Lessee shall have failed to exercise its rights thereunder in respect of such default for a period of 30 days after receipt by Lessee of written notice from Lessor, Owner Participant, Policy Provider or the Indenture Trustee, demanding that such action be taken; or
(f) Any representation or warranty made by Lessee in any Lessee Agreement or any representation or warranty made by TILC the Guarantor or Lessee herein or in any Lease Operative Agreement Document to which any such Person Guarantor or Lessee is a party, in each case, other than the Tax Indemnity Agreement, is untrue or party shall prove to have been incorrect in any material respect as of the date of making thereof and when such untruth or incorrectness shall continue to be material and unremedied for a period of 30 days after receipt of notice from Lessor, Owner Participant, Indenture Trustee or the Policy Provider; provided that, if such untruth or incorrectness is capable of being remedied, no such untruth or incorrectness shall constitute a Lease Event of Default hereunder for a period of 120 days after receipt of notice from Lessor, Owner Participant, the Indenture Trustee or the Policy Provider so long as Lessee, TILC or TRMI, as the case may be, is diligently proceeding to remedy such untruth or incorrectness and shall in fact remedy such untruth or incorrectness within such period; provided that such untrue or incorrect representation or warranty shall be deemed to be remediable or remedied only after all adverse consequences thereof if any, can be and have been remedied as applicable; orwas made.
(gA) Lessee or Guarantor makes any general arrangement or assignment for the General Partner shall benefit of creditors; (iB) commence Lessee or Guarantor becomes a voluntary "debtor" as defined in 11 U.S.C. ss. 101 of the Bankruptcy Code or any successor statute thereto (unless, in the case of a petition filed against Lessee or other proceeding seeking liquidationGuarantor, 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 same is dismissed within ninety (90) days); (C) the appointment of a trusteetrustee or receiver to take possession of substantially all of the assets of Lessee or Guarantor where possession is not restored to Lessee or Guarantor within ninety (90) days; (D) the attachment, receiver, liquidator, custodian execution or other similar official judicial seizure of it substantially all of the assets of Lessee or any substantial part of its property, Guarantor where such seizure is not discharged within ninety (90) days; (E) Lessee or (ii) consent to any such relief or to the appointment of or taking possession by any such official in any voluntary case or other proceeding commenced against it, or (iii) admit Guarantor admits in writing its inability to pay its debts generally as they come become due; (F) Lessee or Guarantor files a petition in bankruptcy or a petition to take advantage of any insolvency act; (G) Lessee or Guarantor files a petition or answer seeking reorganization or arrangement or other protection under the Federal bankruptcy laws or any other applicable law or statute of the United States of America or any State thereof; (H) Lessee or Guarantor is liquidated or dissolved, or (iv) make a general assignment for the benefit of creditors, or (v) take any corporate or partnership action to authorize any of the foregoing; or
(h) An involuntary case placed under conservatorship or other proceeding shall be commenced protection under any applicable federal or state law or begins proceedings toward such liquidation or dissolution; (I) any petition is filed by or against Lessee or the General Partner Guarantor or any subsidiary of either under Federal bankruptcy laws, or any other proceeding is instituted by or against Lessee or Guarantor or such subsidiary seeking to adjudicate it a bankrupt or insolvent, or seeking liquidation, reorganization reorganization, arrangement, adjustment or other relief with respect to composition of it or its debts under any law relating to bankruptcy, insolvency or other similar law now reorganization or hereafter in effectrelief of debtors, or seeking the entry of an order for relief or the appointment of a trustee, receiver, liquidatortrustee, custodian or other similar official of it for Lessee or Guarantor or such subsidiary, or for any substantial part of its propertythe property of Lessee or Guarantor or such subsidiary, and such involuntary case proceeding is not dismissed within ninety (90) days after institution thereof, or other proceeding Lessee or Guarantor or such subsidiary shall remain undismissed and unstayed for a period take any action to authorize or effect any of 60 days; orthe actions set forth above in this subsection (f).
(ig) Lessee shall fail to observe or perform any other of the covenants or agreements to be observed or performed by Lessee under any Lessee Agreement or any certificate and such failure shall continue unremedied for 30 days after notice from Lessor, Owner Participant, Policy Provider or the Indenture Trustee to Lessee, specifying the failure and demanding the same to be remedied; provided that, if such failure is capable of being remedied, and the remedy requires an action other than, or in addition to, the payment of money, no such failure (other than one relating to the payment of such money) shall constitute a A Lease Event of Default hereunder for a period described in Section 9(c) of 150 days after receipt of such notice so long as Lessee is diligently proceeding to remedy such failure and shall in fact remedy such failure within such period; or
(j) A Manager Default shall have occurred and be continuing under the Management Agreement, and Lessee shall have failed to exercise its rights under the Management Agreement in respect of such Manager Default for a period of 30 days after receipt by Lessee of written notice from Lessor, Owner Participant or the Indenture Trustee demanding that such action be taken; orGuaranty.
Appears in 1 contract
Samples: Lease Agreement (Txu Corp /Tx/)
Lease Events of Default. The If any one or more of the following events shall constitute Lease Events of Default hereunder (whether any such event shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body) and each such a "Lease Event of Default Default") shall be deemed to exist and continue so long as, but only as long as, it shall not have been remediedoccur:
(a) Lessee shall fail to make payment of (i) make any Capitalized Interest, Basic Rent or any Supplemental Rent (other than as referred to in clauses (a)(ii) or (b) of this Section 17.1) representing amounts owed under the Credit Agreement or the other Credit Documents within five (5) days after the same has become due and payable or (ii) be deemed by virtue of the last sentence of Section 3.5 hereof to have made any payment of Basic RentConstruction Period Maximum Recourse Amount, Early Maximum Residual Guarantee Amount, Permitted Lease Investment Balance, Purchase Option Price, any other purchase price to be paid by Lessee for any Units pursuant to this Lease or the Participation Agreement, Stipulated Loss Amount Partial Purchase Option Price or Termination Amount (x) in the case of any such payment that is required to be made on the Basic Term Expiration Date or on any date within 30 days before the Basic Term Expiration Date, when due, and (y) in the case of any other such payment, within 10 Business Days Value after the same shall have has become due; provided, however, that so long as any Equipment Notes remain outstanding, failure to make (or be deemed to have made) any portion of Basic Rent on any Rent Payment Date shall not be a Lease Event of Default so long as the amounts applied under Section 3.4, clause (4), of the Collateral Agency Agreement are sufficient to make the distributions required under such clause (4) with respect to the obligations owed under this Lease; provided, further, that in the event that the Special Equity Buy-Out has been consummated, failure to make any payment of Basic Rent, Early Purchase Price, any other purchase price to be paid by Lessee for any Units pursuant to this Lease or the Participation Agreement, Stipulated Loss Amount or Termination Amount (to the extent such amount constitutes an Accumulated Equity Deficiency Amount to be applied under Section 3.4, clause 9 of the Collateral Agency Agreement) shall, after receipt by Lessee of written notice of such failure from Lessor or Owner Participant, be a Lease Event of Defaultdue and payable; or
(b) Lessee shall fail to (i) make or (ii) be deemed by virtue of payments made by the Collateral Agent to have made any payment of Supplemental Rent, including indemnity or tax indemnity payments, but not including Stipulated Loss Amount, Termination Amount, Early Purchase Price, or any other purchase price to be paid by Lessee for any Units pursuant to this Lease or the Participation Agreement (x) in the case of any such payment that is required to be on the Basic Term Expiration Date or on any date within 30 days before the Basic Term Expiration Date, when due, and (y) in the case of any other such payment, after the same shall have become Supplemental Rent due and such failure shall continue unremedied for 30 payable within ten (10) days after receipt by Lessee of written notice of such failure from Lessor, Policy Provider, Owner Participant or the Indenture Trustee; provided, however, that so long as any Equipment Notes remain outstanding, failure to make (or be deemed to have made) payment of any of the amounts referred to in or to be applied pursuant to clauses (5) through (15) of Section 3.4 of the Collateral Agency Agreement shall not be a Lease Event of Defaultthereof; or
(c) Lessee shall fail to maintain in effect the insurance as required by Section 12 or Section 6.4 Article XIV of the Collateral Agency Agreement and such failure shall not have been waived as provided for thereinthis Lease; or
(d) Lessee shall use fail to observe or permit perform any obligation or covenant of Lessee (other than those specifically referred to in this Section 17.1), which failure, if capable of cure, continues for thirty (30) days (or five (5) Business Days in the use case of Lessee's failure to observe or perform the obligations or covenants contained in Section 3(a) of the Units or Defeasance Deposit Agreement) after the Pledged Units or any portion thereof in a way which is not permitted by this Lease (with respect to the Units) or the Collateral Agency Agreement (with respect to the Pledged Units), provided that such unauthorized use shall not constitute a Lease Event earlier of Default for a period of 45 days after Lessee's obtaining actual knowledge thereof so long as (i) such unauthorized use is not the result of any willful action of Lessee and Lessee's having knowledge thereof or (ii) such unauthorized use is written notice thereof to Lessee by Agent Lessor; or any representation or warranty by Lessee set forth in this Lease or in any other Operative Agreement or in any document entered into in connection herewith or therewith or in any document, certificate or financial or other statement delivered in connection herewith or therewith shall be false or inaccurate in any material way unless capable of being cure and cured and within thirty (30) days after the earlier of (i) Lessee's having knowledge thereof or (ii) written notice thereof to Lessee diligently pursues such cure throughout such 45-day period; or Lessee shall make or permit any unauthorized assignment or transfer of this Lease in violation of Section 18.2by Agent Lessor; or
(e) TILC (or any successor thereto in its capacity as Administrator or Servicer, as applicable) a Construction Agency Agreement Event of Default shall have defaulted in any material respect in the performance of any of its obligations under the Administrative Services Agreement or the Servicing Agreement or a default shall occur under Section 6(a) of the Account Administration Agreement, and, in each case, Lessee shall have failed to exercise its rights thereunder in respect of such default for a period of 30 days after receipt by Lessee of written notice from Lessor, Owner Participant, Policy Provider or the Indenture Trustee, demanding that such action occurred and be takencontinuing; or
(f) Any representation or warranty made by Lessee in any Lessee Agreement or any representation or warranty made by TILC in any Operative Agreement to which any such Person is a party, in each case, other than the Tax Indemnity Agreement, is untrue or incorrect in any material respect as of the date of making thereof and such untruth or incorrectness shall continue to be material and unremedied for a period of 30 days after receipt of notice from Lessor, Owner Participant, Indenture Trustee or the Policy Provider; provided that, if such untruth or incorrectness is capable of being remedied, no such untruth or incorrectness shall constitute a Lease Event of Default hereunder for a period of 120 days after receipt of notice from Lessor, Owner Participant, the Indenture Trustee or the Policy Provider so long as Lessee, TILC or TRMI, as the case may be, is diligently proceeding to remedy such untruth or incorrectness and shall in fact remedy such untruth or incorrectness within such period; provided that such untrue or incorrect representation or warranty shall be deemed to be remediable or remedied only after all adverse consequences thereof if any, can be and have been remedied as applicable; or
(g) Lessee or the General Partner shall (i) 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 (ii) consent to any such relief or to the appointment of or taking possession by any such official in any voluntary case or other proceeding commenced against it, or (iii) admit in writing its inability to pay its debts generally as they come become due, (ii) file a petition under the United States bankruptcy laws or any other applicable insolvency law or statute of the United States of America or any State or Commonwealth thereof, (iviii) make a general assignment for the benefit of its creditors, or (viv) take any corporate or partnership action consent to authorize any of the foregoing; or
(h) An involuntary case or other proceeding shall be commenced against Lessee or the General Partner seeking liquidation, reorganization or 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 receiver of itself or other similar official of it the whole or any substantial part of its property, (v) fail to cause the discharge of any custodian, trustee or receiver appointed for Lessee or the whole or a substantial part of its property within sixty (60) days after such appointment, or (vi) file a petition or answer seeking or consenting to reorganization under the United States bankruptcy laws or any other applicable insolvency law or statute of the United States of America or any State or Commonwealth thereof; or
(g) insolvency proceedings or a petition under the United States bankruptcy laws or any other applicable insolvency law or statute of the United States of America or any State or Commonwealth thereof shall be filed against Lessee and not dismissed within sixty (60) days from the date of its filing, or a court of competent jurisdiction shall enter an order or decree appointing, without the consent of Lessee, a receiver of Lessee or the whole or a substantial part of its property, and such involuntary case order or other proceeding decree shall remain undismissed not be vacated or set aside within sixty (60) days from the date of the entry thereof; or
(h) there shall be entered against Lessee or any Subsidiary one or more judgments or decrees in an aggregate amount at any one time outstanding in excess of $10,000,000, and unstayed for a period of 60 dayssuch judgments or decrees shall not have been satisfied, vacated, discharged, or stayed or bonded pending appeal within thirty (30) days from entry thereof; or
(i) Lessee shall fail with respect to observe or perform any other of the covenants or agreements to be observed or performed by Lessee under any Lessee Agreement or any certificate and such failure shall continue unremedied for 30 days after notice from Lessor, Owner Participant, Policy Provider or the Indenture Trustee to Lessee, specifying the failure and demanding the same to be remedied; provided that, if such failure is capable of being remedied, and the remedy requires an action other than, or in addition to, the payment of money, no such failure Plan (other than one relating a Multiemployer Plan) as to the payment which Lessee or any ERISA Affiliate of such money) Lessee may have any liability, there shall constitute a Lease Event of Default hereunder exist, for a period of 150 days after receipt thirty (30) days, a deficiency which is $10,000,000 or more in the Plan assets available to satisfy the benefits guaranteeable under ERISA with respect to such Plan, and (i) steps are undertaken to terminate such Plan or (ii) such Plan is terminated or (iii) any Reportable Event which presents a material risk of termination with respect to such notice so long as Lessee is diligently proceeding to remedy such failure and Plan shall in fact remedy such failure within such periodoccur; or
(j) A Manager Default the Lessee or any of its Subsidiaries (i) shall have occurred default in the payment when due, whether at stated maturity or otherwise, of principal, interest or rent in respect of Indebtedness or Off Balance Sheet Debt of $10,000,000 or more; or (ii) shall fail to perform or observe any other condition or covenant, or any other event shall occur or condition exist, under any agreement or instrument relating to any such Indebtedness or Off Balance Sheet Debt of $10,000,000 or more, if the effect of any such failure, event or condition is to cause, or to permit the holder or holders of such Indebtedness or Off Balance Sheet Debt or beneficiary or beneficiaries of such Indebtedness or Off Balance Sheet Debt (or a trustee or agent on behalf of such holder or holders or beneficiary or beneficiaries) to cause such Indebtedness or Off Balance Sheet Debt to be declared to be due and payable prior to its stated maturity, or cash collateral in respect thereof to be continuing under demanded; then, in any such event, Agent Lessor may, in addition to the Management Agreementother rights and remedies provided for in this Article XVII and in Section 18.1, terminate the Commitments and rescind or terminate this Lease by giving Lessee five (5) Business Days' notice of such termination, and this Lease and the Commitments shall terminate; provided that, in the event of the termination of this Lease pursuant to this Section 17.1, in lieu of the statutory right of redemption which is applicable in the event of the foreclosure of liens in Colorado, Lessee shall have failed the right to exercise its rights under acquire the Management Agreement in respect Property from Agent Lessor, which right may be exercised by Lessee by paying the Termination Value to Agent Lessor at any time prior to the end of the seventy-five (75) day period commencing on the date when all of the three following actions have occurred: (i) this Lease has been terminated; (ii) Agent Lessor (or a receiver appointed at the instance of Agent Lessor) has recovered the possession of the Property from Lessee; and (iii) Agent Lessor has given written notice to Lessee that this Lease has been terminated and that the possession of the Property has been recovered from Lessee; and, upon the making of such Manager Default for a period payment, Agent Lessor shall be required to convey the Property to Lessee in the manner provided in Section 20.1(a), except that all performances required of 30 days after receipt Lessee shall have been satisfied by the payment of the Termination Value. Lessee shall, to the fullest extent permitted by law, pay as Supplemental Rent all costs and expenses incurred by or on behalf of written notice from Lessor, Owner Participant or the Indenture Trustee demanding that such action be taken; orincluding fees and expenses of counsel, as a result of any Lease Event of Default hereunder.
Appears in 1 contract
Samples: Lease (McData Corp)
Lease Events of Default. The occurrence of any one or more of the following events shall constitute Lease Events of Default hereunder (whether any such event shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body) and each such shall constitute a "Lease Event of Default shall be deemed to exist and continue so long as, but only as long as, it shall not have been remediedDefault":
(a) the Lessee shall fail to make payment of (i) make or any Basic Rent (iiprovided that the Lessor has given the notice of amount due required under Section 3.1 when required) be deemed by virtue of the last sentence of Section 3.5 hereof to have made any (other than a payment of Basic Rent, Early Purchase Price, any other purchase price to be paid by Lessee for any Units pursuant to this Lease or the Participation Agreement, Stipulated Loss Amount or Termination Amount (x) in the case of any such payment that is required to be made Rent due on the Basic Term Expiration Date or on any date Termination Date) within 30 days before the Basic Term Expiration Date, when due, and five (y5) in the case of any other such payment, within 10 Business Days after the same shall have has become due; provided, however, that so long as any Equipment Notes remain outstanding, failure to make due and payable or (or be deemed to have madeii) any portion of Basic Rent on any Rent Payment Date shall not be a Lease Event of Default so long as the amounts applied under Section 3.4, clause (4), of the Collateral Agency Agreement are sufficient to make the distributions required under such clause (4) with respect to the obligations owed under this Lease; provided, further, that in the event that the Special Equity Buy-Out has been consummated, failure to make any payment of Basic Rent, Early Purchase Option Price, any Asset Termination Value or Residual Value Guarantee Amount or other purchase price to be paid by Lessee for any Units amounts due on the Expiration Date or the Termination Date, including, without limitation, amounts due pursuant to this Lease Sections 16.2, 16.3, 16.4, 20.1, 20.2, 20.3 or the Participation Agreement, Stipulated Loss Amount or Termination Amount (to the extent such amount constitutes an Accumulated Equity Deficiency Amount to be applied under Section 3.4, clause 9 of the Collateral Agency Agreement) shall22.1, after receipt by Lessee of written notice of such failure from Lessor or Owner Participant, be a Lease Event of Default; orthe same has become due and payable;
(b) the Lessee shall fail to (i) make or (ii) be deemed by virtue of payments made by the Collateral Agent to have made any payment of Supplemental Rent, including indemnity or tax indemnity payments, but not including Stipulated Loss Amount, Termination Amount, Early Purchase Price, or any other purchase price to be paid by Lessee for any Units pursuant to this Lease or the Participation Agreement (x) in the case of any such payment that is required to be on the Basic Term Expiration Date or on any date within 30 days before the Basic Term Expiration Date, when due, and (y) in the case of any other such payment, after the same shall have become due and such failure shall continue unremedied for 30 days after receipt by Lessee of written notice of such failure from Lessor, Policy Provider, Owner Participant or the Indenture Trustee; provided, however, that so long as any Equipment Notes remain outstanding, failure to make (or be deemed to have made) payment of any of the amounts Supplemental Rent (other than Supplemental Rent referred to in or to be applied pursuant to clauses clause (5) through (15a) of Section 3.4 of the Collateral Agency Agreement shall not be a Lease Event of Default; orthis Section) due and payable within thirty (30) days after written notice thereof;
(c) the Lessee shall fail to maintain in effect the insurance as required by Section 12 or Section 6.4 Article XIV of the Collateral Agency Agreement and such failure shall not have been waived as provided for therein; orthis Lease;
(d) the Lessee shall use fail to observe or permit the use perform any term, covenant or condition of the Units or Lessee under this Lease, the Pledged Units Participation Agreement or any portion thereof other Operative Document to which it is a party other than those described in a way which is not permitted by Section 17.1(a), (b),or (c) hereof, or any representation or warranty set forth in this Lease (with respect to the Units) or the Collateral Agency Agreement (with respect to the Pledged Units)in any other Operative Document or in any document entered into in connection herewith or therewith or in any document, provided that certificate or financial or other statement delivered in connection herewith or therewith shall be false or inaccurate in any Material way, and such unauthorized use failure or misrepresentation or breach of warranty shall not constitute a Lease Event of Default remain uncured for a period of 45 thirty (30) days after Lessee's obtaining actual knowledge thereof so long as (i) receipt of written notice thereof; provided, that if such unauthorized use failure to perform is not the result capable of any willful action of Lessee and (ii) being cured within such unauthorized use period but is capable of being cured within one hundred eighty (180) days after the occurrence of such default and the Lessee is proceeding diligently pursues to cure such cure throughout such 45-day period; or default, the Lessee shall make or permit any unauthorized assignment or transfer be entitled to request an additional period (not to exceed one hundred eighty (180) days from the date of this Lease such default) to cure such default, which extended cure period may be granted by the Lessor and the Required Participants in violation of Section 18.2; ortheir sole discretion;
(e) TILC (or any successor thereto in its capacity as Administrator or Servicer, as applicable) shall have defaulted in any material respect in the performance of any of its obligations under the Administrative Services Agreement or the Servicing Agreement or a default shall occur under Section 6(a) of the Account Administration Agreement, and, in each case, Lessee shall have failed to exercise its rights thereunder in respect of such default for a period of 30 days after receipt by Lessee of written notice from Lessor, Owner Participant, Policy Provider or the Indenture Trustee, demanding that such action be taken; or
(f) Any representation or warranty made by Lessee in any Lessee Agreement or any representation or warranty made by TILC in any Operative Agreement to which any such Person is a party, in each case, other than the Tax Indemnity Agreement, is untrue or incorrect in any material respect as of the date of making thereof and such untruth or incorrectness shall continue to be material and unremedied for a period of 30 days after receipt of notice from Lessor, Owner Participant, Indenture Trustee or the Policy Provider; provided that, if such untruth or incorrectness is capable of being remedied, no such untruth or incorrectness shall constitute a Lease Event of Default hereunder for a period of 120 days after receipt of notice from Lessor, Owner Participant, the Indenture Trustee or the Policy Provider so long as Lessee, TILC or TRMI, as the case may be, is diligently proceeding to remedy such untruth or incorrectness and shall in fact remedy such untruth or incorrectness within such period; provided that such untrue or incorrect representation or warranty shall be deemed to be remediable or remedied only after all adverse consequences thereof if any, can be and have been remedied as applicable; or
(g) Lessee or the General Partner shall (i) 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 (ii) consent to any such relief or to the appointment of or taking possession by any such official in any voluntary case or other proceeding commenced against it, or (iii) admit in writing its inability to pay its debts generally as they come become due, (ii) file a petition under the United States bankruptcy laws or any other applicable insolvency law or statute of the United States of America or any State or Commonwealth thereof, (iviii) make a general assignment for the benefit of its creditors, or (viv) take any corporate or partnership action consent to authorize any of the foregoing; or
(h) An involuntary case or other proceeding shall be commenced against Lessee or the General Partner seeking liquidation, reorganization or 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 receiver of itself or other similar official of it the whole or any substantial part of its property, (v) fail to cause the discharge of any custodian, trustee or receiver appointed for the Lessee or the whole or a substantial part of its property within sixty (60) days after such appointment, or (vi) file a petition or answer seeking or consenting to reorganization under the United States bankruptcy laws or any other applicable insolvency law or statute of the United States of America or any State or Commonwealth thereof;
(f) insolvency proceedings or a petition under the United States bankruptcy laws or any other applicable insolvency law or statute of the United States of America or any State or Commonwealth thereof shall be filed against the Lessee and not dismissed within sixty (60) days from the date of its filing, or a court of competent jurisdiction shall enter an order or decree appointing, without the consent of the Lessee, a receiver of the Lessee or the whole or a substantial part of its property, and such involuntary case order or decree shall not be vacated or set aside within sixty (60) days from the date of the entry thereof;
(g) if any of the following shall occur, and the aggregate liability of the Lessee in respect thereof would exceed $5,000,000:
(i) any member of the ERISA Group shall fail to pay when due an amount or amounts aggregating in excess of $5,000,000 which it shall have become liable to pay under Title IV of ERISA; or (ii) notice of intent to terminate a Material Plan shall be filed under Title IV of ERISA by any member of the ERISA Group, any plan administrator or any combination of the foregoing; or (iii) the PBGC shall institute proceedings under Title IV of ERISA to terminate, to impose liability (other proceeding than for premiums under Section 4007 of ERISA) in respect of, or to cause a trustee to be appointed to administer any Material Plan; or a condition shall remain undismissed exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any Material Plan must be terminated; or (iv) there shall occur a complete or partial withdrawal from, or a default, within the meaning of Section 4219(c)(5) of ERISA, with respect to, one or more Multiemployer Plans which could cause one or more members of the ERISA Group to incur a current payment obligation in excess of $5,000,000;
(h) a judgment or order for the payment of money in excess of $10,000,000 shall be rendered against the Lessee or any Subsidiary and such judgment or order shall continue unsatisfied and unstayed (pursuant to laws, rules or court orders) for a period of 60 thirty (30) days; or;
(i) the Guarantor, the Lessee or any of their respective Subsidiaries (i) shall default in the payment when due, whether at stated maturity or otherwise, of principal or interest in respect of Indebtedness (other than under the Operative Documents) or obligations in respect of Consolidated Off-Balance Sheet Debt having an aggregate principal amount of $5,000,000 or more; or (ii) shall fail to perform or observe or perform any other condition or covenant, or any other event shall occur or condition exist, under any agreement or instrument relating to any such Indebtedness or Consolidated Off-Balance Sheet Debt, if the effect of any such failure, event or condition is to cause, or to permit the covenants holder or agreements holders of such Indebtedness or beneficiary or beneficiaries of such Indebtedness (or a trustee or agent on behalf of such holder or holders or beneficiary or beneficiaries) or the lessor or the lenders under any such Consolidated Off-Balance Sheet Debt to cause such Indebtedness or Consolidated Off-Balance Sheet Debt to be observed or performed by Lessee under any Lessee Agreement or any certificate and such failure shall continue unremedied for 30 days after notice from Lessor, Owner Participant, Policy Provider or the Indenture Trustee to Lessee, specifying the failure and demanding the same declared to be remedied; provided that, if such failure is capable of being remedied, due and the remedy requires an action other thanpayable prior to its stated maturity, or cash collateral in addition torespect thereof to be demanded or, in the payment case of moneyConsolidated Off-Balance Sheet Debt, no demand that the Lessee purchase the property covered by such failure (other than one relating to the payment of such money) shall constitute a Lease Event of Default hereunder for a period of 150 days after receipt of such notice so long as Lessee is diligently proceeding to remedy such failure and shall in fact remedy such failure within such period; orConsolidated Off-Balance Sheet Debt;
(j) A Manager a Guarantee Event of Default shall have occurred and be continuing under continuing;
(k) [intentionally omitted]
(l) a Construction Agency Agreement Event of Default shall have occurred and be continuing; or
(m) an Environmental Violation shall occur that, in the Management Agreementreasonable opinion of the Lessor and the Required Participants, based on an Environmental Audit, constitutes a Significant Event and the Lessee shall not, within thirty (30) days after notice from the Lessor, have delivered a Termination Notice with respect thereto pursuant to Section 16.1 hereof or, if so delivered, repurchase of the Property shall not have been consummated on the Termination Date pursuant to Section 16.2 hereof;
(n) the Lessee shall have failed elected to exercise its rights under or be required to purchase the Management Agreement in respect Property pursuant to Sections 16.3 or 16.4 hereof and such purchase shall not have been consummated on the Termination Date pursuant to either such Section; or
(o) a Ground Lease Event of such Manager Default for a period of 30 days after receipt by Lessee of written notice from Lessor, Owner Participant shall have occurred and be continuing; or the Indenture Trustee demanding that such action Lessee shall fail to comply with its covenants set forth in Section 32.1 hereof; or the Ground Lease shall, in whole or in part, terminate, cease to be taken; oreffective or cease to be the legal, valid and binding obligation of the Lessee.
Appears in 1 contract
Samples: Master Lease (Peoplesoft Inc)
Lease Events of Default. The occurrence of any one or more of the following events shall constitute Lease Events of Default hereunder (whether any such event shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body) and each such Lease shall constitute an “Event of Default shall be deemed to exist and continue so long as, but only as long as, it shall not have been remediedDefault”:
(a) the Lessee shall fail to make payment of any Supplemental Rent or administrative fee due and payable within thirty (i30) make days after receipt of written notice thereof; or
(b) the Lessee shall fail to observe or (ii) be deemed by virtue perform any material covenant or agreement of the last sentence of Section 3.5 hereof to have made any payment of Basic Rent, Early Purchase Price, any other purchase price to be paid by Lessee for any Units pursuant to under this Lease or the Participation Agreement, Stipulated Loss Amount or Termination Amount (x) in the case of any and such payment that is required to be made on the Basic Term Expiration Date or on any date within 30 days before the Basic Term Expiration Date, when due, and (y) in the case of any other such payment, within 10 Business Days after the same failure shall have become duecontinued for thirty (30) days after Lessee’s receipt of written notice of such default from the Lessor; provided, however, that so long if such failure is capable of cure but cannot be cured by payment of money or cannot be cured by diligent efforts within such thirty (30) day period but such diligent efforts shall be properly commenced within the cure period and the Lessee is diligently and continuously pursuing the remedy of such failure, the cure period shall be extended for an additional period of time as any Equipment Notes remain outstandingmay be necessary to cure, not to extend beyond the Expiration Date; and provided further, that failure by the Lessee to make (or be deemed to have made) any portion fully comply with the requirements of Basic Rent on any Rent Payment Date Section 20.1 hereof shall not be a Lease Event of Default so long as the amounts applied under Section 3.4, clause (4), of the Collateral Agency Agreement are sufficient subject to make the distributions required under such clause (4) with respect to the obligations owed under this Lease; provided, further, that in the event that the Special Equity Buy-Out has been consummated, failure to make any payment of Basic Rent, Early Purchase Price, any other purchase price to be paid by Lessee for any Units pursuant to this Lease or the Participation Agreement, Stipulated Loss Amount or Termination Amount (to the extent such amount constitutes an Accumulated Equity Deficiency Amount to be applied under Section 3.4, clause 9 of the Collateral Agency Agreement) shall, after receipt by Lessee of written notice of such failure from Lessor or Owner Participant, be a Lease Event of Default; or
(b) Lessee shall fail to (i) make or (ii) be deemed by virtue of payments made by the Collateral Agent to have made any payment of Supplemental Rent, including indemnity or tax indemnity payments, but not including Stipulated Loss Amount, Termination Amount, Early Purchase Price, or any other purchase price to be paid by Lessee for any Units pursuant to this Lease or the Participation Agreement (x) in the case of any such payment that is required to be on the Basic Term Expiration Date or on any date within 30 days before the Basic Term Expiration Date, when due, and (y) in the case of any other such payment, after the same shall have become due and such failure shall continue unremedied for 30 days after receipt by Lessee of written notice of such failure from Lessor, Policy Provider, Owner Participant or the Indenture Trustee; provided, however, that so long as any Equipment Notes remain outstanding, failure to make (or be deemed to have made) payment of any of the amounts referred to in or to be applied pursuant to clauses (5) through (15) of Section 3.4 of the Collateral Agency Agreement shall not be a Lease Event of Defaultcure period; or
(c) the Lessee shall fail to maintain in effect the insurance required by Section 12 or Section 6.4 of the Collateral Agency Agreement and such failure shall not have been waived as provided for therein; or
(d) Lessee shall use or permit the use of the Units or the Pledged Units or any portion thereof in a way which is not permitted by this Lease (with respect to the Units) or the Collateral Agency Agreement (with respect to the Pledged Units), provided that such unauthorized use shall not constitute a Lease Event of Default for a period of 45 days after Lessee's obtaining actual knowledge thereof so long as (i) such unauthorized use is not the result of any willful action of Lessee and (ii) such unauthorized use is capable of being cured and Lessee diligently pursues such cure throughout such 45-day period; or Lessee shall make or permit any unauthorized assignment or transfer of this Lease in violation of Section 18.2; or
(e) TILC (or any successor thereto in its capacity as Administrator or Servicer, as applicable) shall have defaulted in any material respect in the performance of any of its obligations under the Administrative Services Agreement or the Servicing Agreement or a default shall occur under Section 6(a) of the Account Administration Agreement, and, in each case, Lessee shall have failed to exercise its rights thereunder in respect of such default for a period of 30 days after receipt by Lessee of written notice from Lessor, Owner Participant, Policy Provider or the Indenture Trustee, demanding that such action be taken; or
(f) Any representation or warranty made by Lessee in any Lessee Agreement or any representation or warranty made by TILC in any Operative Agreement to which any such Person is a party, in each case, other than the Tax Indemnity Agreement, is untrue or incorrect in any material respect as of the date of making thereof and such untruth or incorrectness shall continue to be material and unremedied for a period of 30 days after receipt of notice from Lessor, Owner Participant, Indenture Trustee or the Policy Provider; provided that, if such untruth or incorrectness is capable of being remedied, no such untruth or incorrectness shall constitute a Lease Event of Default hereunder for a period of 120 days after receipt of notice from Lessor, Owner Participant, the Indenture Trustee or the Policy Provider so long as Lessee, TILC or TRMI, as the case may be, is diligently proceeding to remedy such untruth or incorrectness and shall in fact remedy such untruth or incorrectness within such period; provided that such untrue or incorrect representation or warranty shall be deemed to be remediable or remedied only after all adverse consequences thereof if any, can be and have been remedied as applicable; or
(g) Lessee or the General Partner shall (i) 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 (ii) consent to any such relief or to the appointment of or taking possession by any such official in any voluntary case or other proceeding commenced against it, or (iii) admit in writing its inability to pay its debts generally as they come become due, ; (ii) file a petition under the United States bankruptcy laws or any other applicable insolvency law or statute of the United States of America or any State or Commonwealth thereof; (iviii) make a general assignment for the benefit of its creditors, or ; (viv) take any corporate or partnership action consent to authorize any of the foregoing; or
(h) An involuntary case or other proceeding shall be commenced against Lessee or the General Partner seeking liquidation, reorganization or 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 receiver of itself or other similar official of it the whole or any substantial part of its property; (v) fail to cause the discharge of any custodian, and trustee or receiver appointed for the Lessee, as the case may be, or the whole or a substantial part of its property within sixty (60) days after such involuntary case appointment; or (vi) file a petition or answer seeking or consenting to reorganization under the United States bankruptcy laws or any other proceeding shall remain undismissed and unstayed for a period applicable insolvency law or statute of 60 daysthe United States of America or any State or Commonwealth thereof; or
(id) Lessee shall fail to observe insolvency proceedings or perform a petition under the United States bankruptcy laws or any other applicable insolvency law or statute of the covenants or agreements to be observed or performed by Lessee under any Lessee Agreement United States of America or any certificate State or Commonwealth thereof shall be filed against the Lessee and not dismissed within sixty (60) days from the date of its filing, or a court of competent jurisdiction shall enter an order or decree appointing, without the consent of the Lessee, a receiver of the Lessee or the whole or a substantial part of any of its property, and such failure order or decree shall continue unremedied for 30 not be vacated or set aside within sixty (60) days after notice from Lessor, Owner Participant, Policy Provider or the Indenture Trustee to Lessee, specifying date of the failure and demanding the same to be remedied; provided that, if such failure is capable of being remedied, and the remedy requires an action other than, or in addition to, the payment of money, no such failure (other than one relating to the payment of such money) shall constitute a Lease Event of Default hereunder for a period of 150 days after receipt of such notice so long as Lessee is diligently proceeding to remedy such failure and shall in fact remedy such failure within such periodentry thereof; or
(j) A Manager Default shall have occurred and be continuing under the Management Agreement, and Lessee shall have failed to exercise its rights under the Management Agreement in respect of such Manager Default for a period of 30 days after receipt by Lessee of written notice from Lessor, Owner Participant or the Indenture Trustee demanding that such action be taken; or
Appears in 1 contract
Lease Events of Default. The following events shall constitute a “Lease Events of Default hereunder (whether any such event shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body) and each such Lease Event of Default shall be deemed to exist and continue so long as, but only as long as, it shall not have been remediedDefault”:
(a) Lessee shall fail to (i) make or (ii) be deemed by virtue of the last sentence of Section 3.5 hereof to have made any payment of Basic Rent, Early Purchase Price, any other purchase price to be paid by Lessee for any Units pursuant to this Lease or the Participation Agreement, Stipulated Loss Amount or Termination Amount (x) in the case of any such payment that is required to be made on the Basic Term Expiration Date or on any date within 30 days before the Basic Term Expiration Date, when due, and (y) in the case of any other such payment, within 10 Business Days after the same shall have become due; provided, however, that so long as any Equipment Notes remain outstanding, failure to make (or be deemed to have made) any portion of Basic Rent on any Rent Payment Date shall not be a Lease Event of Default so long as the amounts applied under Section 3.4, clause (4), of the Collateral Agency Agreement are sufficient to make the distributions required under such clause (4) with respect to the obligations owed under this Lease; provided, further, that in the event that the Special Equity Buy-Out has been consummated, failure to make any payment of Basic Base Rent, Early Purchase Price, any other purchase price to be paid by Lessee for any Units pursuant to this Lease or the Participation Agreement, Stipulated Loss Amount or Termination Amount within five (to the extent 5) Business Days after notice that such amount constitutes an Accumulated Equity Deficiency Amount to be applied under Section 3.4, clause 9 of the Collateral Agency Agreement) shall, after receipt by Lessee of written notice of such failure from Lessor or Owner Participant, be a Lease Event of Default; oris due and unpaid.
(b) Lessee shall fail to make any late payment and/or pay interest at the Default Rate within ten (i10) make or (ii) be deemed by virtue of payments made by the Collateral Agent to have made any payment of Supplemental Rent, including indemnity or tax indemnity payments, but not including Stipulated Loss Amount, Termination Amount, Early Purchase Price, or any other purchase price to be paid by Lessee for any Units pursuant to this Lease or the Participation Agreement (x) in the case of any days after notice that such payment that amount is required to be on the Basic Term Expiration Date or on any date within 30 days before the Basic Term Expiration Date, when due, and (y) in the case of any other such payment, after the same shall have become due and such failure shall continue unremedied for 30 days after receipt by Lessee of written notice of such failure from Lessor, Policy Provider, Owner Participant or the Indenture Trustee; provided, however, that so long as any Equipment Notes remain outstanding, failure to make (or be deemed to have made) payment of any of the amounts referred to in or to be applied pursuant to clauses (5) through (15) of Section 3.4 of the Collateral Agency Agreement shall not be a Lease Event of Default; orunpaid.
(c) Lessee shall fail to maintain make any other payment of Supplemental Rent, other than any amount described in effect the insurance required by Section 12 clause (a) or Section 6.4 clause (b) of the Collateral Agency Agreement this Article 16, and such failure shall not have been waived as provided continue for therein; ora period of ten (10) days after notice of such failure to Lessee from Lessor or Lender.
(d) Lessee shall use fail to timely perform or permit the use observe any covenant or agreement (not otherwise specified in this Article 16) to be performed or observed by it hereunder and such failure shall continue for a period of the Units thirty (30) days after written notice thereof from Lessor or the Pledged Units or any portion thereof in a way which is not permitted by this Lease (with respect to the Units) or the Collateral Agency Agreement (with respect to the Pledged Units), Lender; provided that the continuation of such unauthorized use a failure for thirty (30) days or longer after such notice shall not constitute a Lease Event of Default for a period of 45 days after Lessee's obtaining actual knowledge thereof so long as if such failure can be cured, but cannot reasonably be cured within such thirty (i30) such unauthorized use is not the result of any willful action of Lessee and (ii) such unauthorized use is capable of being cured day period, and Lessee shall commence to cure such failure within such thirty (30) day period and shall be diligently pursues and continuously prosecuting the cure of such cure throughout such 45-day period; or Lessee shall make or permit any unauthorized assignment or transfer of this Lease in violation of Section 18.2; orfailure.
(e) TILC (or any successor thereto in its capacity as Administrator or Servicer, as applicableexcept to the extent the Lessee is permitted to self-insure pursuant to Section 9.1(b) shall have defaulted in any material respect in the performance of any of its obligations under the Administrative Services Agreement or the Servicing Agreement or a default shall occur under Section 6(a) of the Account Administration Agreement, and, in each caseand Schedule 9.1, Lessee shall have failed fail to exercise its rights thereunder carry or maintain in respect of full force any insurance required hereunder, and such default failure shall continue for a period of 30 ten (10) business days after receipt by Lessee such obligations arise, but not beyond the expiration date of written notice from Lessor, Owner Participant, Policy Provider or the Indenture Trustee, demanding that such action be taken; orany required policy of insurance.
(f) Any representation or warranty made by Lessee in any Lessee Agreement or any representation or warranty made by TILC in any Operative Agreement the Lessee herein shall prove to which any such Person is a party, in each case, other than the Tax Indemnity Agreement, is untrue or have been incorrect in any material respect as of when such representation or warranty was made and shall remain materially incorrect at the date of making thereof time in question, and such untruth or incorrectness shall continue to be is not cured in all material and unremedied for a period of 30 respects within thirty (30) days after receipt of notice from Lessor, Owner Participant, Indenture Trustee or the Policy Providerto Lessee of such breach; provided that, if that the continuation of such untruth a failure for thirty (30) days or incorrectness is capable of being remedied, no longer after such untruth or incorrectness notice shall not constitute a Lease Event of Default hereunder if such failure can be cured, but cannot reasonably be cured within such thirty (30) day period, and Lessee shall commence to cure such failure within such thirty (30) day period and shall be diligently and continuously prosecuting the cure of such failure.
(A) Lessee makes any general arrangement or assignment for the benefit of creditors; (B) Lessee becomes a period “debtor” as defined in 11 U.S.C. § 101 or any successor statute thereto (unless, in the case of 120 days after receipt of notice from Lessor, Owner Participanta petition filed against Lessee, the Indenture Trustee or the Policy Provider so long as Lessee, TILC or TRMI, as the case may be, same is diligently proceeding to remedy such untruth or incorrectness and shall in fact remedy such untruth or incorrectness dismissed within such periodninety (90) days); provided that such untrue or incorrect representation or warranty shall be deemed to be remediable or remedied only after all adverse consequences thereof if any, can be and have been remedied as applicable; or
(gC) Lessee or the General Partner shall (i) 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 trusteetrustee or receiver to take possession of substantially all of the assets of Lessee where possession is not restored to Lessee within ninety (90) days; (D) the attachment, receiver, liquidator, custodian execution or other similar official judicial seizure of it or any substantial part substantially all of its property, or the assets of Lessee where such seizure is not discharged within ninety (ii90) consent to any such relief or to the appointment of or taking possession by any such official in any voluntary case or other proceeding commenced against it, or days; (iiiE) admit Lessee admits in writing its inability to pay its debts generally as they come become due; (F) Lessee files a petition or answer seeking reorganization or arrangement or other protection under the Federal bankruptcy laws or any other applicable law or statute of the United States of America or any State thereof; (G) Lessee is liquidated or dissolved, or placed under conservatorship or other protection under any applicable federal or state law; (ivH) make a general assignment for the benefit of creditorsany petition is filed by or against Lessee under Federal bankruptcy laws, or (v) take any corporate or partnership action to authorize any of the foregoing; or
(h) An involuntary case or other proceeding shall be commenced is instituted by or against Lessee seeking to adjudicate it a bankrupt or the General Partner insolvent, or seeking liquidation, reorganization reorganization, arrangement, adjustment or other relief with respect to composition of it or its debts under any law relating to bankruptcy, insolvency or other similar law now reorganization or hereafter in effectrelief of debtors, or seeking the entry of an order for relief or the appointment of a trustee, receiver, liquidatortrustee, custodian or other similar official of it for Lessee, or for any substantial part of its propertythe property of Lessee, and such involuntary case proceeding is not dismissed within ninety (90) days after institution thereof, or other proceeding shall remain undismissed and unstayed for a period of 60 days; or
(i) Lessee shall fail take any action to observe authorize or perform effect any other of the covenants or agreements to be observed or performed by Lessee under any Lessee Agreement or any certificate and such failure shall continue unremedied for 30 days after notice from Lessor, Owner Participant, Policy Provider or the Indenture Trustee to Lessee, specifying the failure and demanding the same to be remedied; provided that, if such failure is capable of being remedied, and the remedy requires an action other than, or actions set forth above in addition to, the payment of money, no such failure this subsection (other than one relating to the payment of such money) shall constitute a Lease Event of Default hereunder for a period of 150 days after receipt of such notice so long as Lessee is diligently proceeding to remedy such failure and shall in fact remedy such failure within such period; or
(j) A Manager Default shall have occurred and be continuing under the Management Agreement, and Lessee shall have failed to exercise its rights under the Management Agreement in respect of such Manager Default for a period of 30 days after receipt by Lessee of written notice from Lessor, Owner Participant or the Indenture Trustee demanding that such action be taken; org).
Appears in 1 contract
Samples: Lease Agreement (Cost Plus Inc/Ca/)
Lease Events of Default. The Any one or more of the following events shall will constitute Lease Events an event of Default hereunder default (whether any such event shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body) and each such a “Lease Event of Default shall be deemed to exist and continue so long as, but only Default”) as long as, it shall not have been remediedthat term is used herein:
(a) Lessee shall fail to 17.1.1 there occurs a default in the payment of (i) make any Monthly Base Rent, Monthly Variable Rent, Monthly Finance Rent, Termination Payment, Casualty Payment, Monthly Supplemental Payment, Availability Payment or (ii) be deemed by virtue any other amount payable under this Lease, and, in any such case under clause (i) or (ii), that continues for a period of the last sentence of Section 3.5 hereof five (5) Business Days (without giving effect to have made any payment of Basic Rentmade with available Enhancement); provided, Early Purchase Price, any other purchase price to be paid by Lessee for any Units pursuant to this Lease or the Participation Agreement, Stipulated Loss Amount or Termination Amount (x) that in the case of any clause (ii) above, such payment that is required to be made five (5) Business Day period shall commence on the Basic Term Expiration Date earlier of (x) date notice of such event is given by the Lessor, the Master Collateral Agent or on any date within 30 days before the Basic Term Expiration Date, when due, Trustee to the applicable Lessee and the Guarantor and (y) in the case date the Master Servicer or Lessee otherwise obtain actual knowledge thereof;
17.1.2 any unauthorized assignment or transfer of this Lease by a Lessee or the Guarantor occurs;
17.1.3 the failure of a Lessee or the Guarantor to observe or perform any other covenant, condition, agreement or provision hereof, which failure has a Material Adverse Effect on the Lessor, and such payment, within 10 Business Days default continues for more than thirty (30) days after the same shall have become dueearlier to occur of (a) the date a Responsible Officer of such Lessee obtains actual knowledge of such default or (b) the date written notice thereof is delivered by the Lessor, the Master Collateral Agent or the Trustee to such Lessee; provided, however, that so long as any Equipment Notes remain outstandingif such failure cannot reasonably be cured within such thirty (30) day period, failure to make (or be deemed to have made) any portion of Basic Rent on any Rent Payment Date shall not be a no Lease Event of Default shall result therefrom so long as as, within such thirty (30) day period, such Lessee (i) commences to cure same, (ii) delivers written notice to the amounts applied under Section 3.4Lessor, the Master Collateral Agent and the Trustee notifying the Lessor, the Master Collateral Agent and the Trustee of such default and setting forth the steps such Lessee intends to take in order to cure such default and (iii) thereafter diligently prosecutes such cure to completion and completely cures such default on or before the sixtieth (60th) day after the earlier of the dates set forth in clause (4), a) and clause (b) above;
17.1.4 if any representation or warranty made by a Lessee or the Guarantor proves untrue in any respect as of the date of the issuance or making thereof, which inaccuracy or falsehood has a Material Adverse Effect on the Lessor, and the event, circumstance or condition giving rise to such inaccuracy or falsehood is not eliminated or otherwise cured within thirty (30) days after notice thereof from the Lessor, the Master Collateral Agency Agreement are sufficient Agent or the Trustee to make the distributions required under such clause (4) Lessee;
17.1.5 an Event of Bankruptcy occurs with respect to a Lessee or the obligations owed under this LeaseGuarantor;
17.1.6 a Servicer Default occurs; provided, further, that in the event that the Special Equity Buy-Out has been consummated, failure to make any payment of Basic Rent, Early Purchase Price, any other purchase price to be paid by Lessee for any Units pursuant to this Lease or the Participation Agreement, Stipulated Loss Amount or Termination Amount (to the extent such amount constitutes an Accumulated Equity Deficiency Amount to be applied if a Servicer Default occurs under Section 3.4, clause 9 of the Collateral Agency Agreement) shall, after receipt by Lessee of written notice of such failure from Lessor or Owner Participant, be a Lease Event of Default; or
(b) Lessee shall fail to clauses (i) make or (iiiv) be deemed by virtue of payments made by the Collateral Agent to have made any payment of Supplemental Rent, including indemnity or tax indemnity payments, but not including Stipulated Loss Amount, Termination Amount, Early Purchase Price, or any other purchase price to be paid by Lessee for any Units pursuant to this Lease or the Participation Agreement (x) in the case of any such payment that is required to be on the Basic Term Expiration Date or on any date within 30 days before the Basic Term Expiration Date, when due, and (y) in the case of any other such payment, after the same shall have become due and such failure shall continue unremedied for 30 days after receipt by Lessee of written notice of such failure from Lessor, Policy Provider, Owner Participant or the Indenture Trustee; provided, however, that so long as any Equipment Notes remain outstanding, failure to make (or be deemed to have made) payment of any of the amounts referred to in or to be applied pursuant to clauses (5) through (15) definition of Section 3.4 of the Collateral Agency Agreement shall not be a Lease Event of “Servicer Default; or
(c) Lessee shall fail to maintain in effect the insurance required by Section 12 or Section 6.4 of the Collateral Agency Agreement and ”, such failure shall not have been waived as provided for therein; or
(d) Lessee shall use or permit the use of the Units or the Pledged Units or any portion thereof in a way which is not permitted by this Lease (with respect to the Units) or the Collateral Agency Agreement (with respect to the Pledged Units), provided that such unauthorized use Servicer Default shall not constitute a Lease Event of Default for a period unless and until the Trustee takes any action to terminate the Servicers;
17.1.7 the failure, in any material respect, of 45 days after Lessee's obtaining actual knowledge thereof so long the Lessee to maintain, or cause to be maintained, insurance as (i) such unauthorized use is not the result of any willful action of Lessee and (ii) such unauthorized use is capable of being cured and Lessee diligently pursues such cure throughout such 45-day period; or Lessee shall make or permit any unauthorized assignment or transfer of required in Section 6;
17.1.8 this Lease in violation of Section 18.2; or
(e) TILC (Agreement or any successor thereto portion hereof ceases to be in its capacity as Administrator or Servicer, as applicable) shall have defaulted full force and effect in any material respect in (other than following the performance of any of its obligations under the Administrative Services Agreement or the Servicing Agreement Expiration Date) or a default shall occur under Section 6(a) of the Account Administration Agreement, and, in each case, Lessee shall have failed to exercise its rights thereunder in respect of such default for a period of 30 days after receipt by Lessee of written notice from Lessor, Owner Participant, Policy Provider or the Indenture Trustee, demanding that such action be taken; or
(f) Any representation or warranty made by Lessee in any Lessee Agreement or any representation or warranty made by TILC in any Operative Agreement to which any such Person is a party, in each case, other than the Tax Indemnity Agreement, is untrue or incorrect in any material respect as of the date of making thereof and such untruth or incorrectness shall continue to be material and unremedied for a period of 30 days after receipt of notice from Lessor, Owner Participant, Indenture Trustee or the Policy Provider; provided that, if such untruth or incorrectness is capable of being remedied, no such untruth or incorrectness shall constitute a Lease Event of Default hereunder for a period of 120 days after receipt of notice from Lessor, Owner Participant, the Indenture Trustee or the Policy Provider so long as Lessee, TILC or TRMI, as the case may be, is diligently proceeding to remedy such untruth or incorrectness and shall in fact remedy such untruth or incorrectness within such period; provided that such untrue or incorrect representation or warranty shall be deemed to be remediable or remedied only after all adverse consequences thereof if any, can be and have been remedied as applicable; or
(g) Lessee or the General Partner shall (i) 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 (ii) consent to any such relief or to the appointment of or taking possession by any such official in any voluntary case or other proceeding commenced against it, or (iii) admit in writing its inability to pay its debts generally as they come due, or (iv) make a general assignment for the benefit of creditors, or (v) take any corporate or partnership action to authorize any of the foregoing; or
(h) An involuntary case or other proceeding shall be commenced against by the Lessee to establish the invalidity or the General Partner seeking liquidation, reorganization or other relief unenforceability of this Lease; or
17.1.9 a Liquidation Event of Default with respect to it or its debts under any bankruptcy, insolvency or other similar law now or hereafter in effect, or seeking the appointment Group VI Series 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 60 days; or
(i) Lessee shall fail to observe or perform any other of the covenants or agreements to be observed or performed by Lessee under any Lessee Agreement or any certificate and such failure shall continue unremedied for 30 days after notice from Lessor, Owner Participant, Policy Provider or the Indenture Trustee to Lessee, specifying the failure and demanding the same to be remedied; provided that, if such failure is capable of being remedied, and the remedy requires an action other than, or in addition to, the payment of money, no such failure (other than one relating to the payment of such money) shall constitute a Lease Event of Default hereunder for a period of 150 days after receipt of such notice so long as Lessee is diligently proceeding to remedy such failure and shall in fact remedy such failure within such period; or
(j) A Manager Default shall have occurred and be continuing under the Management Agreement, and Lessee shall have failed to exercise its rights under the Management Agreement in respect of such Manager Default for a period of 30 days after receipt by Lessee of written notice from Lessor, Owner Participant or the Indenture Trustee demanding that such action be taken; orNotes occurs.
Appears in 1 contract
Samples: Master Motor Vehicle Lease and Servicing Agreement (Dollar Thrifty Automotive Group Inc)
Lease Events of Default. The following events shall constitute Lease Events of Default hereunder (whether any such event shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body) and each such Lease Event of Default shall be deemed to exist and continue so long as, but only as long as, it shall not have been remedied:
(a) Lessee shall fail to (i) make or (ii) be deemed by virtue of the last sentence of Section 3.5 hereof to have made any payment of Basic Rent, Early Purchase Price, or any other purchase price to be paid by Lessee for any Units pursuant to this Lease or the Participation Agreement, Stipulated Loss Amount Value or Termination Amount (x) in the case of any such payment that is required to be made on the Basic Term Expiration Date or on any date within 30 days before the Basic Term Expiration Date, when due, and (y) in the case of any other such payment, Value within 10 Business Days after the same shall have become due; provided, however, that so long as any Equipment Notes remain outstanding, failure to make (or be deemed to have made) any portion an entire payment of Basic Rent on any Rent Payment Date shall not be a Lease Event of Default so long as the amounts applied under Section 3.4, clause (4), amount of the Collateral Agency Agreement are Basic Rent paid on any Rent Payment Date is sufficient to make meet the distributions required under such clause (4) with respect to Rated Obligations Due, if any, on the obligations owed under this Lease; provided, further, that in the event that the Special Equity Buy-Out has been consummated, failure to make any payment of Basic Rent, Early Purchase Price, any other purchase price to be paid by Lessee for any Units pursuant to this Lease or the Participation Agreement, Stipulated Loss Amount or Termination Amount (to the extent such amount constitutes an Accumulated Equity Deficiency Amount to be applied under Section 3.4, clause 9 of the Collateral Agency Agreement) shall, after receipt by Lessee of written notice of such failure from Lessor or Owner Participant, be a Lease Event of DefaultEquipment Notes; or
(b) Lessee shall fail to (i) make or (ii) be deemed by virtue of payments made by the Collateral Agent to have made any payment of Supplemental Rent, including indemnity or tax indemnity payments, but not including Stipulated Loss AmountValue, Termination AmountValue, Early Purchase Price, or any other purchase price to be paid by Lessee for any Units pursuant to this Lease or the Participation Agreement (x) in the case of any such payment that is required to be on the Basic Term Expiration Date or on any date within 30 days before the Basic Term Expiration Date, when due, and (y) in the case of any other such payment, after the same shall have become due and such failure shall continue unremedied for 30 days 10 Business Days after receipt by Lessee of written notice of such failure from Lessor, Policy Provider, the Owner Participant or the Indenture Trustee; provided, however, that so long as any Equipment Notes remain outstanding, failure to make (or be deemed to have made) payment of any of the amounts referred to in or to be applied pursuant to clauses (5) through (15) of Section 3.4 of the Collateral Agency Agreement shall not be a Lease Event of Default; or
(c) Lessee shall fail to maintain in effect the insurance required by Section 12 or Section 6.4 of the Collateral Agency Agreement and such failure shall not have been waived as provided for therein; or
(d) Lessee shall use or permit the use of the Units or the Pledged Units Equipment or any portion thereof in a way which is not permitted by this Lease (with respect to the Units) or the Collateral Agency Agreement (with respect to the Pledged Units)Lease, provided that such unauthorized use possession shall not constitute a Lease Event of Default for a period of 45 days after Lessee's obtaining actual knowledge the occurrence thereof so long as (i) such unauthorized use is not the result of any willful action of Lessee and (ii) such unauthorized use is capable of being cured and Lessee diligently pursues such cure throughout such 45-day period; or Lessee shall make or permit any unauthorized assignment or transfer of this Lease in violation of Section 18.2; or
(e) TILC (Lessee shall fail to observe or any successor thereto in its capacity as Administrator or Servicer, as applicable) shall have defaulted in any material respect in the performance of perform any of its obligations under the Administrative Services covenants or agreements to be observed or performed by Lessee in Section 6.7 of the Participation Agreement or the Servicing Agreement Section 6.02 or a default shall occur under Section 6(a) 6.03 of the Account Administration Intercreditor Agreement, and, in each case, Lessee shall have failed to exercise its rights thereunder in respect of such default for a period of 30 days after receipt by Lessee of written notice from Lessor, Owner Participant, Policy Provider or the Indenture Trustee, demanding that such action be taken; or
(f) Any representation or warranty made by Lessee in any Lessee Agreement or any representation or warranty made by TILC in any Operative Agreement to which any such Person is a party, in each case, other than the Tax Indemnity Agreement, is untrue or incorrect in any material respect as of the date of making thereof and such untruth or incorrectness shall continue to be material and unremedied for a period of 30 days after receipt by Lessee of written notice thereof from Lessor, the Owner Participant, Indenture Trustee Participant or the Policy ProviderIndenture Trustee; provided that, if such untruth or incorrectness is capable of being remedied, no such untruth or incorrectness shall constitute a Lease Event of Default hereunder for a period of 120 60 days after receipt of such notice from Lessor, Owner Participant, the Indenture Trustee or the Policy Provider so long as Lessee, TILC or TRMI, as the case may be, Lessee is diligently proceeding to remedy such untruth or incorrectness and shall in fact remedy such untruth or incorrectness within such period; provided that such untrue or incorrect representation or warranty shall be deemed to be remediable or remedied only after all adverse consequences thereof thereof, if any, can be and have been remedied as applicableremedied; or
(g) Lessee or the General Partner shall (i) 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 (ii) consent to any such relief or to the appointment of or taking possession by any such official in any voluntary case or other proceeding commenced against it, or (iii) admit in writing its inability to pay its debts generally as they come due, or (iv) make a general assignment for the benefit of creditors, or (v) take any corporate or partnership action to authorize any of the foregoing; or
(h) An involuntary case or other proceeding shall be commenced against Lessee or the General Partner seeking liquidation, reorganization or 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 60 days; or
(i) Lessee shall fail to observe or perform any other of the covenants or agreements to be observed or performed by Lessee under any Lessee Agreement or any certificate and such failure shall continue unremedied for 30 days after notice from Lessor, the Owner Participant, Policy Provider Participant or the Indenture Trustee to Lessee, specifying the failure and demanding the same to be remedied; provided that, if such failure is capable of being remedied, and the remedy requires an action other than, or in addition to, the payment of money, no such failure (other than one relating to the payment of such money) shall constitute a Lease Event of Default hereunder for a period of 150 90 days after receipt of such notice so long as Lessee is diligently proceeding to remedy such failure and shall in fact remedy such failure within such period; or
(j) A The Manager Default shall have occurred and be continuing defaulted in the performance of any of its obligations under the Management Agreement, and Lessee shall have failed to exercise its rights under the Management Agreement in respect of such Manager Default default for a period of 30 days after receipt by Lessee of written notice from Lessor, the Owner Participant or the Indenture Trustee demanding that such action be taken; or. Notwithstanding anything to the contrary contained in this Lease, any failure of Lessee to perform or observe any covenant or agreement herein shall not constitute a Lease Event of Default if such failure is caused solely by reason of an event which constitutes an "Event of Loss" so long as Lessee is continuing to comply with the applicable terms of Section 11.
Appears in 1 contract
Samples: Equipment Lease Agreement (General American Railcar Corp Ii)
Lease Events of Default. The If any one or more of the following events shall constitute Lease Events of Default hereunder (whether any such event shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body) and each such a "Lease Event of Default Default") shall be deemed to exist and continue so long as, but only as long as, it shall not have been remediedoccur:
(a) Lessee shall fail to make payment of (i) make any Basic Rent (except as set forth in clause (ii)) within three (3) days after the same has become due and payable or (ii) be deemed by virtue of any Termination Value, on the last sentence of Section 3.5 hereof to have made date any such payment is due, or any payment of Basic Rent, Early Purchase Price, any other purchase price to be paid by Lessee for any Units pursuant to this Lease Rent or Supplemental Rent due on the Participation Agreement, Stipulated Loss Amount or Termination Amount (x) in the case due date of any such payment that is required to be made of Termination Value, or any amount due on the Basic Term Expiration Date or on any date within 30 days before the Basic Term Expiration Date, when due, and (y) in the case of any other such payment, within 10 Business Days after the same shall have become due; provided, however, that so long as any Equipment Notes remain outstanding, failure to make (or be deemed to have made) any portion of Basic Rent on any Rent Payment Date shall not be a Lease Event of Default so long as the amounts applied under Section 3.4, clause (4), of the Collateral Agency Agreement are sufficient to make the distributions required under such clause (4) with respect to the obligations owed under this Lease; provided, further, that in the event that the Special Equity Buy-Out has been consummated, failure to make any payment of Basic Rent, Early Purchase Price, any other purchase price to be paid by Lessee for any Units pursuant to this Lease or the Participation Agreement, Stipulated Loss Amount or Termination Amount (to the extent such amount constitutes an Accumulated Equity Deficiency Amount to be applied under Section 3.4, clause 9 of the Collateral Agency Agreement) shall, after receipt by Lessee of written notice of such failure from Lessor or Owner Participant, be a Lease Event of Default; or;
(b) Lessee shall fail to (i) make or (ii) be deemed by virtue of payments made by the Collateral Agent to have made any payment of any Supplemental Rent, including indemnity or tax indemnity payments, but not including Stipulated Loss Amount, Termination Amount, Early Purchase Price, or any Rent (other purchase price than Supplemental Rent referred to be paid by Lessee for any Units pursuant to this Lease or the Participation Agreement (xin Section 17(a)(ii)) in the case of any such payment that is required to be on the Basic Term Expiration Date or on any date within 30 days before the Basic Term Expiration Date, when due, and (y) in the case of any other such payment, after the same shall have become due and such failure shall continue unremedied for 30 payable within three (3) days after receipt by Lessee of written notice of that such failure from Lessor, Policy Provider, Owner Participant or the Indenture Trustee; provided, however, that so long as any Equipment Notes remain outstanding, failure to make (or be deemed to have made) payment of any of the amounts referred to in or to be applied pursuant to clauses (5) through (15) of Section 3.4 of the Collateral Agency Agreement shall not be a Lease Event of Default; oris due;
(c) Lessee shall fail to maintain in effect the insurance as required by Section 12 or Section 6.4 Article XIV of the Collateral Agency Agreement and such failure shall not have been waived as provided for therein; orthis Lease;
(d) Lessee or Guarantor shall use fail to observe or permit perform any term, covenant or provision (including without limitation the use Incorporated Covenants) of the Units Lessee or the Pledged Units Guarantor under this Lease or any portion thereof other Operative Agreement to which Lessee or Guarantor is a party other than those set forth in a way which is not permitted by this Lease Sections 17.1(a), (with respect to the Unitsb) (c) or the Collateral Agency Agreement (with respect to the Pledged Units)g) hereof, provided that and such unauthorized use failure shall not constitute a Lease Event of Default remain uncured for a period of 45 thirty (30) days after Lessee's obtaining actual knowledge the earlier of receipt of written notice from Lessor thereof so long as (i) such unauthorized use is not the result of any willful action or a Responsible Officer of Lessee and (ii) becomes aware of such unauthorized use is capable of being cured and Lessee diligently pursues such cure throughout such 45-day period; or Lessee shall make or permit any unauthorized assignment or transfer of this Lease in violation of Section 18.2; orfailure;
(e) TILC (or any successor thereto in its capacity as Administrator or Servicer, as applicable) An Agency Agreement Event of Default shall have defaulted in any material respect occurred and be continuing;
(i) Any default, which is not waived, in the performance payment of any of its principal, interest, premium or other amount with respect to any Indebtedness or Rate Hedging Obligation (as defined in the Existing Wackenhut Corrections Credit Agreement) (other than obligations under the Administrative Services Agreement or the Servicing Agreement or a default shall occur under Section 6(aOperative Agreements) of Lessee in an amount not less than $2,500,000 in the Account Administration Agreementaggregate outstanding, andor (ii) any default, which is not waived, in each casethe performance, Lessee shall have failed to exercise its rights thereunder in respect observance or fulfillment of such default for a period of 30 days after receipt by Lessee of written notice from Lessor, Owner Participant, Policy Provider any term or the Indenture Trustee, demanding that such action be taken; or
(f) Any representation or warranty made by Lessee covenant contained in any Lessee Agreement agreement or any representation instrument under or warranty made by TILC in any Operative Agreement pursuant to which any such Person is a partyIndebtedness or Rate Hedging Obligation referred to in clause (i) may have been issued, created, assumed, guaranteed or secured by Lessee, or (iii) any other event of default as specified in each caseany agreement or instrument under or pursuant to which any such Indebtedness or Rate Hedging Obligation may have been issued, other created, assumed, guaranteed or secured by Lessee, and any such default or event of default specified in clauses (i), (ii) or (iii) shall continue for more than the Tax Indemnity Agreement, is untrue or incorrect in any material respect as of the date of making thereof and such untruth or incorrectness shall continue to be material and unremedied for a period of 30 days after receipt of notice from Lessorgrace, Owner Participant, Indenture Trustee or the Policy Provider; provided that, if such untruth or incorrectness is capable of being remedied, no such untruth or incorrectness shall constitute a Lease Event of Default hereunder for a period of 120 days after receipt of notice from Lessor, Owner Participant, the Indenture Trustee or the Policy Provider so long as Lessee, TILC or TRMI, as the case may be, is diligently proceeding to remedy such untruth or incorrectness and shall in fact remedy such untruth or incorrectness within such period; provided that such untrue or incorrect representation or warranty shall be deemed to be remediable or remedied only after all adverse consequences thereof if any, can be and have been remedied as applicabletherein specified, or such default or event of default shall permit the holder of any such Indebtedness (or any agent or trustee acting on behalf of one or more holders) to accelerate the maturity thereof; or
(g) The breach of any financial covenant incorporated by reference in Article XXVIII hereof or Section 12 of the Guaranty;
(h) The Lessee or shall be unable to pay its debts generally as they become due; file a petition to take advantage of any insolvency statute; make an assignment for the General Partner shall (i) benefit of its creditors; 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 for the appointment of a receiver, trustee, receiver, liquidator, custodian liquidator or other similar official conservator of it itself or of the whole or any substantial part of its property, ; file a petition or (ii) consent to any such relief or to the appointment of or taking possession by any such official in any voluntary case or other proceeding commenced against it, or (iii) admit in writing its inability to pay its debts generally as they come due, or (iv) make a general assignment for the benefit of creditors, or (v) take any corporate or partnership action to authorize any of the foregoing; or
(h) An involuntary case or other proceeding shall be commenced against Lessee or the General Partner answer seeking liquidation, reorganization or arrangement or similar relief under the federal bankruptcy laws or any other relief with respect to it applicable law or its debts under any bankruptcystatute;
(i) A court of competent jurisdiction shall enter an order, insolvency judgment or other similar law now or hereafter in effect, or seeking the appointment of decree appointing a trusteecustodian, receiver, liquidatortrustee, custodian liquidator or other similar official conservator of it the Lessee or of the whole or any substantial part of its property, properties and such involuntary case order, judgment or other proceeding shall remain undismissed decree continues unstayed and unstayed in effect for a period of 60 sixty (60) days, or approve a petition filed against the Lessee seeking liquidation, reorganization or arrangement or similar relief under the federal bankruptcy laws or any other applicable law or statute of the United States of America or any state, which petition is not dismissed within sixty (60) days; or if, under the provisions of any other law for the relief or aid of debtors, a court of competent jurisdiction shall assume custody or control of the Lessee or of the whole or any substantial part of its properties, which control is not relinquished within sixty (60) days; or if there is commenced against the Lessee any proceeding or petition seeking liquidation, reorganization, arrangement or similar relief under the federal bankruptcy laws or any other applicable law or statute of the United States of America or any state which proceeding or petition remains undismissed for a period of sixty (60) days; or if the Lessee takes any action to indicate its consent to or approval of any such proceeding or petition;
(j) The entering of any order in any proceedings against Lessee decreeing the dissolution, divestiture or split-up of Lessee, and such order remains in effect for more than sixty (60) days;
(k) Any representation, warranty or statement of fact contained in any Operative Agreement in any writing, report, certificate, or statement at any time furnished to Lessor, the Agent, any Holder or any Lender by or on behalf of Lessee pursuant to or in connection with this Lease or any other Operative Agreement or otherwise shall be false or misleading in any material respect when given;
(l) One or more judgments or orders where the amount not covered by insurance (or the amount as to which the insurer) is found not to be liable for) is in excess of $500,000 is rendered against Lessee, or (ii) there is any attachment, injunction or execution against any of the Lessee's properties for any amount in excess of $500,000 in the aggregate; and such judgment, attachment, injunction or execution remains unpaid, unstayed, undischarged, unbonded or undismissed for a period of thirty (30) days; or
(im) Lessee Any material Environmental Violation shall fail to observe or perform any other of the covenants or agreements to have occurred and be observed or performed by Lessee under any Lessee continuing;
(n) Any Wackenhut Corrections Credit Agreement or any certificate and such failure shall continue unremedied for 30 days after notice from Lessor, Owner Participant, Policy Provider or the Indenture Trustee to Lessee, specifying the failure and demanding the same to be remedied; provided that, if such failure is capable of being remedied, and the remedy requires an action other than, or in addition to, the payment of money, no such failure (other than one relating to the payment of such money) shall constitute a Lease Event of Default hereunder for a period of 150 days after receipt of such notice so long as Lessee is diligently proceeding to remedy such failure and shall in fact remedy such failure within such period; or
(j) A Manager Default shall have occurred and be continuing under continuing; or
(o) Any Operative Agreement shall cease to be in full force and effect; then, in any such event, Lessor may, in addition to the Management Agreementother rights and remedies provided for in this Article XVII and in Section 18.1, terminate this Lease by giving Lessee fifteen (15) days notice of such termination, and this Lease shall terminate, and all rights of Lessee under this Lease shall have failed cease. Lessee shall, to exercise its rights under the Management Agreement in respect fullest extent permitted by law, pay as Supplemental Rent all costs and expenses incurred by or on behalf of such Manager Default for a period of 30 days after receipt by Lessee of written notice from Lessor, Owner Participant or the Indenture Trustee demanding that such action be taken; orincluding without limitation reasonable fees and expenses of counsel, as a result of any Lease Event of Default hereunder.
Appears in 1 contract
Lease Events of Default. The following events shall constitute Lease Events of Default hereunder (whether any such event shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body) and each such Lease Event of Default shall be deemed to exist and continue so long as, but only as long as, it shall not have been remedied:
(a) Lessee shall fail to (i) make or (ii) be deemed by virtue of the last sentence of Section 3.5 hereof to have made any payment of Basic Rent, Early Purchase Price, any other purchase price to be paid by Lessee for any Units pursuant to this Lease or the Participation Agreement, Stipulated Loss Amount or Termination Amount (x) in the case of any such payment that is required to be made on the Basic Term Expiration Date or on any date within 30 days before the Basic Term Expiration Date, when due, and (y) in the case of any other such payment, within 10 Business Days after the same shall have become due; provided, however, that so long as any Equipment Notes remain outstanding, failure to make (or be deemed to have made) any portion of Basic Rent on any Rent Payment Date shall not be a Lease Event of Default so long as the amounts applied under Section 3.4, clause (4), of the Collateral Agency Agreement are sufficient to make the distributions required under such clause (4) with respect to the obligations owed under this Lease; provided, further, that in the event that the Special Equity Buy-Out has been consummated, failure to make any payment of Basic Rent, Early Purchase Price, any other purchase price to be paid by Lessee for any Units pursuant to this Lease or the Participation Agreement, Stipulated Loss Amount or Termination Amount (to the extent such amount constitutes an Accumulated Equity Deficiency Amount to be applied under Section 3.4, clause 9 of the Collateral Agency Agreement) shall, after receipt by Lessee of written notice of such failure from Lessor or Owner Participant, be a Lease Event of Default; or
(b) Lessee shall fail to (i) make or (ii) be deemed by virtue of payments made by the Collateral Agent to have made any payment of Supplemental Rent, ; including indemnity or tax indemnity payments, but not including Stipulated Loss Amount, Termination Amount, Early Purchase Price, or any other purchase price to be paid by Lessee for any Units pursuant to this Lease or the Participation Agreement (x) in the case of any such payment that is required to be on the Basic Term Expiration Date or on any date within 30 days before the Basic Term Expiration Date, when due, and (y) in the case of any other such payment, after the same shall have become due and such failure shall continue unremedied for 30 days 10 Business Days after receipt by Lessee of written notice of such failure from Lessor, Policy Provider, Owner Participant or the Indenture Trustee; provided, however, that so long as any Equipment Notes remain outstanding, failure to make (or be deemed to have made) payment of any of the amounts referred to in or to be applied pursuant to clauses (5) through (1514) of Section 3.4 of the Collateral Agency Agreement shall not be a Lease Event of Default; or
(c) Lessee shall fail to maintain in effect the insurance required by Section 12 or Section 6.4 of the Collateral Agency Agreement and such failure shall not have been waived as provided for therein; or
(d) Lessee shall use or permit the use of the Units or the Pledged Units or any portion thereof in a way which is not permitted by this Lease (with respect to the Units) or the Collateral Agency Agreement (with respect to the Pledged Units), provided that such unauthorized use shall not constitute a Lease Event of Default for a period of 45 days after Lessee's obtaining actual knowledge the occurrence thereof so long as (i) such unauthorized use is not the result of any willful action of Lessee and (ii) such unauthorized use is capable of being cured and Lessee diligently pursues such cure throughout such 45-day period; or Lessee shall make or permit any unauthorized assignment or transfer of this Lease in violation of Section 18.2; or
(e) TILC (Lessee shall fail to observe or any successor thereto in its capacity as Administrator or Servicer, as applicable) shall have defaulted perform in any material respect in the performance of any of its obligations under the Administrative Services Agreement covenants or the Servicing Agreement agreements to be observed or a default shall occur under performed by Lessee in Section 6(a) 6.2 or 6.3 of the Account Administration Collateral Agency Agreement, and, in each case, Lessee shall have failed to exercise its rights thereunder in respect of such default for a period of 30 days after receipt by Lessee of written notice from Lessor, Owner Participant, Policy Provider or the Indenture Trustee, demanding that such action be taken; or
(f) Any representation or warranty made by Lessee in any Lessee Agreement or any representation or warranty made by TILC or TRMI in any Operative Agreement to which any such Person is a party, in each case, other than the Tax Indemnity Agreement, party is untrue or incorrect in any material respect as of the date of making thereof and such untruth or incorrectness incorrect-ness shall continue to be material and unremedied for a period of 30 days after receipt of notice from Lessor, Owner Participant, Indenture Trustee or the Policy Providerunremedied; provided that, if such untruth or incorrectness is capable of being remedied, no such untruth or incorrectness shall constitute a Lease Event of Default hereunder for a period of 120 30 days after receipt of notice from Lessor, Owner Participant, Participant or the Indenture Trustee or the Policy Provider so long as Lessee, TILC or TRMI, as the case may be, is diligently proceeding to remedy such untruth or incorrectness and shall in fact remedy such untruth or incorrectness within such period; provided that such untrue or incorrect representation or warranty shall be deemed to be remediable or remedied only after all adverse consequences thereof thereof, if any, can be and have been remedied as applicable; or
(g) Lessee or the General Partner shall (i) 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 (ii) consent to any such relief or to the appointment of or taking possession by any such official in any voluntary case or other proceeding commenced against it, or (iii) admit in writing its inability to pay its debts generally as they come due, or (iv) make a general assignment for the benefit of creditors, or (v) take any corporate or partnership action to authorize any of the foregoing; or
(h) An involuntary case or other proceeding shall be commenced against Lessee or the General Partner seeking liquidation, reorganization or 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 60 days; or
(i) Lessee shall fail to observe or perform any other of the covenants or agreements to be observed or performed by Lessee under any Lessee Agreement or any certificate and such failure shall continue unremedied for 30 days after notice from Lessor, Owner Participant, Policy Provider or the Indenture Trustee to Lessee, specifying the failure and demanding the same to be remedied; provided that, if such failure is capable of being remedied, and the remedy requires an action other than, or in addition to, the payment of money, no such failure (other than one relating to the payment of such money) shall constitute a Lease Event of Default hereunder for a period of 150 days after receipt of such notice so long as Lessee is diligently proceeding to remedy such failure and shall in fact remedy such failure within such period; or
(j) A Manager Default shall have occurred and be continuing under the Management Agreement, and Lessee shall have failed to exercise its rights under the Management Agreement in respect of such Manager Default for a period of 30 days after receipt by Lessee of written notice from Lessor, Owner Participant or the Indenture Trustee demanding that such action be taken; or,
Appears in 1 contract
Lease Events of Default. The following events shall each constitute a “Lease Events Event of Default Default” hereunder (whether any such event shall be voluntary or involuntary or come about or be effected effective by operation of law or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental bodyGovernment Body in Chile, the United States or any other jurisdiction, or the administration or interpretation thereof) and each such Lease Event of Default shall be deemed to exist and continue so long as, but only as so long as, it shall not have been remediedremedied in full:
(a) a payment of Basic Rent shall not be made when due in the manner required by this Lease and such failure to pay shall continue for a period of fifteen (15) Business Days after the due date thereof;
(b) the Lessee shall fail to (i) make pay when due in the manner required by this Lease any amount of Supplemental Rent or (ii) be deemed by virtue of the last sentence of Section 3.5 hereof to have made any payment of Basic Rent, Early Purchase Price, any other purchase price to be paid by amount due and owing from the Lessee for any Units pursuant to under this Lease (other than as specified in clause (a) above) or any other Financing Agreement and such failure to pay shall continue for a period of fifteen (15) Business Days after demand has been made on the Participation Agreement, Stipulated Loss Amount or Termination Amount Lessee;
(xc) in the case of any such payment that is Lessee shall fail to carry and maintain Insurances (including Reinsurances) required to be made on maintained in accordance with the Basic Term Expiration Date provisions of this Lease (including Section 10 hereof) or on the Lessee shall fail to perform or observe (or cause to be performed or observed) any date within 30 days before covenant, condition or agreement contained in Sections 7(f) or 10(l) hereof;
(d) the Basic Term Expiration DateLessee shall have failed to perform or observe, when duein any material respect (or, and (y) in the case of any other such paymentobligation, within 10 Business Days after the same shall have become due; providedcovenant or agreement already subject to a materiality qualifier, however, that so long as any Equipment Notes remain outstanding, failure to make (or be deemed to have made) any portion of Basic Rent on any Rent Payment Date shall not be a Lease Event of Default so long as the amounts applied under Section 3.4, clause (4in all respects), of the Collateral Agency Agreement are sufficient to make the distributions required under such clause (4) with respect to the obligations owed under this Lease; provided, further, that in the event that the Special Equity Buy-Out has been consummated, failure to make any payment of Basic Rent, Early Purchase Price, any other purchase price to be paid obligation, covenant or agreement (other than those covenants covered by Lessee for any Units pursuant to this Lease or the Participation Agreementpreceding clauses (a), Stipulated Loss Amount or Termination Amount (to the extent such amount constitutes an Accumulated Equity Deficiency Amount to be applied under Section 3.4, clause 9 of the Collateral Agency Agreement) shall, after receipt by Lessee of written notice of such failure from Lessor or Owner Participant, be a Lease Event of Default; or
(b) Lessee shall fail to (i) make or (ii) be deemed by virtue of payments made by the Collateral Agent to have made any payment of Supplemental Rent, including indemnity or tax indemnity payments, but not including Stipulated Loss Amount, Termination Amount, Early Purchase Price, or any other purchase price to be paid by Lessee for any Units pursuant to this Lease or the Participation Agreement (x) in the case of any such payment that is required to be on the Basic Term Expiration Date or on any date within 30 days before the Basic Term Expiration Date, when due, and (y) in the case of any other such payment, after the same shall have become due and such failure shall continue unremedied for 30 days after receipt by Lessee of written notice of such failure from Lessor, Policy Provider, Owner Participant or the Indenture Trustee; provided, however, that so long as any Equipment Notes remain outstanding, failure to make (or be deemed to have made) payment of any of the amounts referred to in or to be applied pursuant to clauses (5) through (15) of Section 3.4 of the Collateral Agency Agreement shall not be a Lease Event of Default; or
(c) Lessee shall fail to maintain in effect the insurance required by Section 12 or Section 6.4 of the Collateral Agency Agreement and such failure shall not have been waived as provided for therein; or
(d) Lessee shall use or permit the use of the Units or the Pledged Units or any portion thereof in a way which is not permitted by this Lease (with respect to the Units) or the Collateral Agency Agreement (with respect to the Pledged Units), provided that such unauthorized use shall not constitute a Lease Event of Default for a period of 45 days after Lessee's obtaining actual knowledge thereof so long as (i) such unauthorized use is not the result of any willful action of Lessee and (ii) such unauthorized use is capable of being cured and Lessee diligently pursues such cure throughout such 45-day period; or Lessee shall make or permit any unauthorized assignment or transfer of this Lease in violation of Section 18.2; or
(e13) TILC (to be performed or observed by it hereunder or under any successor thereto in its capacity as Administrator or Servicer, as applicable) shall have defaulted in any material respect in the performance of any of its obligations under the Administrative Services Agreement or the Servicing Agreement or a default shall occur under Section 6(a) of the Account Administration Agreement, and, in each case, Lessee shall have failed to exercise its rights thereunder in respect of such default for a period of 30 days after receipt by Lessee of written notice from Lessor, Owner Participant, Policy Provider or the Indenture Trustee, demanding that such action be taken; or
(f) Any representation or warranty made by Lessee in any Lessee Agreement or any representation or warranty made by TILC in any Operative other Financing Agreement to which any such Person it is a party, in each case, other than ; and any such failure is unremediable or if remediable and the Tax Indemnity Agreement, is untrue or incorrect in any material respect as of the date of making thereof and such untruth or incorrectness shall continue to be material and unremedied for a period of 30 days after receipt of notice from Lessor, Owner Participant, Indenture Trustee or the Policy Provider; provided that, if such untruth or incorrectness is capable of being remedied, no such untruth or incorrectness shall constitute a Lease Event of Default hereunder for a period of 120 days after receipt of notice from Lessor, Owner Participant, the Indenture Trustee or the Policy Provider so long as Lessee, TILC or TRMI, as the case may be, Lessee is diligently proceeding to remedy such untruth or incorrectness and failure, shall in fact remedy such untruth or incorrectness within such period; provided that such untrue or incorrect representation or warranty shall be deemed to be remediable or remedied only after all adverse consequences thereof if any, can be and have been remedied as applicable; or
(g) Lessee or the General Partner shall (i) 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 (ii) consent to any such relief or to the appointment of or taking possession by any such official in any voluntary case or other proceeding commenced against it, or (iii) admit in writing its inability to pay its debts generally as they come due, or (iv) make a general assignment for the benefit of creditors, or (v) take any corporate or partnership action to authorize any of the foregoing; or
(h) An involuntary case or other proceeding shall be commenced against Lessee or the General Partner seeking liquidation, reorganization or 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 continue unremedied for a period of 60 days; or
sixty (i60) Lessee shall fail to observe or perform any other of the covenants or agreements to be observed or performed by Lessee under any Lessee Agreement or any certificate and such failure shall continue unremedied for 30 days after notice from Lessor, Owner Participant, Policy Provider thereof has been given by the Lessor or the Indenture Trustee to Lessee, specifying the failure and demanding the same to be remediedLoan Trustee; provided that, if such failure is capable of being remedied, and the remedy requires an action other than, or in addition to, the payment of money, no such failure (other than one relating to the payment of such money) shall constitute a Lease Event of Default hereunder for a period of 150 days one (1) year after receipt of such notice is received by the Lessee so long as the Lessee is diligently proceeding to remedy such failure failure;
(e) any representation, warranty or certification made or deemed made by the Lessee under any of the Financing Agreements or any document or certificate furnished by the Lessee to the Lessor, the Loan Trustee, any Pass Through Trustee or any Liquidity Provider pursuant to the provisions hereof or thereof, shall prove to have been false or misleading in any material respect (or, in the case of any representation, warranty or certification already subject to a materiality qualifier, in all respects) as of the time made, deemed to be made, repeated or furnished and shall in fact is unremediable, or if remediable and the Lessee is diligently proceeding to remedy such failure within failure, shall continue unremedied for a period of sixty (60) days after notice has been given by the Lessor or the Loan Trustee; provided that, if such periodfalse or misleading representation, warranty or certification is capable of being remedied, no such false or misleading representation, warranty or certification shall constitute a Lease Event of Default for a period of one (1) year after such notice is received by the Lessee so long as the Lessee is diligently proceeding to remedy such failure.
(f) any license, consent, approval or authorization of, or any filing or registration with, any Government Body or agency necessary for the performance by the Lessee of its obligations under this Lease or any other Financing Agreement or in connection herewith or therewith (including, without limitation, the registration of the Aircraft or of any mortgage on the Aircraft) shall be revoked, not applied for by the date required or not issued or shall cease to remain in full force and effect or, as applicable, is not duly renewed upon the terms consistent with the original approval or otherwise reasonably satisfactory to the Lessor and the Loan Trustee or any of the foregoing shall be modified and any such revocation, non-application or issuance or modification would materially adversely affect (in the reasonable opinion of the Lessor or the Loan Trustee) the ability of the Lessee to perform its obligations under the Lease and the other Financing Agreement or the rights and remedies of the Lessor hereunder or of any Secured Party under the Financing Agreements and the situation remains unremedied for sixty (60) days; orprovided, however, that there shall be no such remedial period of sixty (60) days with respect to the Lessee’s air carrier license issued in Chile;
(g) the Lessee shall apply for or consent to the appointment of, or the taking of possession by, a receiver, administrator, trustee, custodian or liquidator of itself or of a substantial part of its property, or the Lessee shall admit in writing submitted in connection with judicial or other similar procedures its inability to pay its debts generally as they come due, shall announce a moratorium on payment of its debts or any class of its debts, shall make a general assignment for the benefit of creditors, any creditor exercises a contractual right to assume the operations or financial management of the Lessee;
(h) the Lessee shall file a voluntary petition or commence a case in bankruptcy or a voluntary petition or an answer seeking reorganization in a proceeding under any Bankruptcy Laws or insolvency laws (as now or hereafter in effect) or an answer admitting the material allegations of a petition filed against the Lessee in any such proceedings, or the Lessee shall by voluntary petition, answer or consent to or seek relief under the provisions of any other now existing or future Bankruptcy Law, insolvency, reorganization or other similar law providing for the reorganization or winding-up of corporations, or providing for an agreement, composition, extension or adjustment with its creditors;
(i) an order, judgment or decree shall be entered in any proceeding by any court of competent jurisdiction appointing, without the consent of the Lessee, a receiver, administrator, trustee, custodian or liquidator of the Lessee or of any substantial part of its property, or sequestering any substantial part of the property of the Lessee, and any such order, judgment or decree of appointment or sequestration shall remain in force undismissed, unstayed or unvacated for a period of ninety (90) days after the date of entry thereof (provided that the Lessee shall promptly provide the Lessor and the Loan Trustee with reasonable evidence to show that such order, judgment or decree was made without any merit and the Lessee is diligently contesting and taking all actions required to dismiss, stay or vacate such order, judgment or decree);
(j) A Manager Default a petition against the Lessee in a proceeding under any Bankruptcy Laws or other insolvency laws as now or hereafter in effect shall be filed and shall not be withdrawn or dismissed within ninety (90) days thereafter (provided that the Lessee shall promptly provide the Lessor and the Loan Trustee with reasonable evidence to show that such petition was made without any merit and the Lessee is diligently contesting and taking all actions required to dismiss such petition), or if, under the provisions of any law providing for reorganization or winding-up of corporations which may apply to the Lessee, any court of competent jurisdiction shall assume jurisdiction, custody or control of the Lessee or of any substantial part of its property or the Aircraft and such jurisdiction, custody or control shall remain in force unrelinquished, unstayed or unterminated for a period of sixty (60) days (provided that the Lessee shall promptly provide the Lessor and the Loan Trustee with reasonable evidence to show that such assumption was made without any merit and the Lessee is diligently contesting and taking all actions required to relinquish, stay or terminate such jurisdiction, custody or control);
(k) any additional procedure similar to those referred to in Sections 13(g), (h), (i) and (j) above for the relief of financially distressed debtors under the laws of the United States, Chile or any other jurisdiction is entered into by the Lessee, voluntarily or involuntarily, and is not withdrawn or dismissed within ninety (90) days thereafter;
(l) the Lessee shall fail to pay when due (after giving effect to any applicable grace periods) any principal installment of or interest on any of its Financial Indebtedness (other than Financial Indebtedness under the Financing Agreements) aggregating US$75,000,000 or more (or the equivalent thereof in any currency);
(m) the Lessee shall (i) cease or announce its intention to cease, to conduct its business as a commercial air carrier operating on international scheduled routes, (ii) assign, lease, transfer or otherwise dispose of all or any material part of the assets or property (whether by a single transaction or a number of related or unrelated transactions and whether at the same time or over a period of time) comprising the Lessee’s aircraft or aircraft related business, or (iii) cease to hold, whether by virtue of the revocation, suspension or non-renewal thereof or otherwise, its air transport business license or any air transport license or its equivalent required to enable the Lessee to carry out its principal business, or the franchises, concessions, permits, rights or privileges required for the conduct of the business or operations of the Lessee shall be revoked, canceled or otherwise terminated, or the free and continued use and exercise thereof curtailed or prevented, and as a result thereof the preponderant business activity of the Lessee shall cease to be that of a commercial airline;
(n) Except as otherwise contemplated by the Financing Agreements, the Lessee sells, mortgages or encumbers or executes any bxxx of sale affecting the Aircraft, any Engine or any Part or any interest therein or agrees or purports to do any of the same, or the ownership of the Aircraft, any Engine or any Part by the Lessor or the lease of the Aircraft, any Engine or any Part by the Lessor to the Lessee is contested in legal proceedings by the Lessee;
(o) an “Indenture Event of Default” under (and as defined in) the Indenture shall have occurred and be continuing continuing;
(p) a “Lease Event of Default” under the Management Agreement, (and Lessee as defined in) any Related Lease shall have failed occurred and be continuing;
(q) there shall be any change (or such change shall be enacted or made by notice or otherwise and shall be scheduled to exercise become thereafter effective) in the laws, regulations or treaties of Chile or any governmental or political agency, subdivision or instrumentality thereof which adversely affects the validity, legality or perfection of the Lessor’s title to the Aircraft, or materially adversely affects the Loan Trustee’s or any Secured Parties’ rights in the Aircraft under any Security Document, or which materially adversely affects the Lessor’s interests under this Lease or materially adversely affects the Lessee’s ability to meet its rights obligations under this Lease;
(r) a final judgment, or in the Management Agreement aggregate, judgments, for the payment of money in respect excess of such Manager Default US$75,000,000 (or the equivalent thereof in any currency) shall be rendered against the Lessee and the same shall remain undischarged for a period of 30 thirty (30) calendar days after receipt by during which neither execution of such judgment shall be effectively stayed nor adequate bonding fully covering such judgment shall exist;
(s) any governmental authority shall have condemned, seized or appropriated all or substantially all of the property of the Lessee and is not discharged within ninety (90) days thereof;
(t) the Lessee shall do or cause to be done any act or thing evidencing or establishing its intention to repudiate this Lease or any other Financing Agreement to which it is a party or deny any of written notice from Lessorits payment obligations thereunder or assert that any of its obligations thereunder are invalid or unenforceable, Owner Participant or such Financing Agreement shall cease to be in full force and effect;
(u) the Indenture Trustee demanding that such action registration of the Aircraft is cancelled otherwise than in connection with a re-registration under Section 7(b) or total loss;
(v) any Related Lease shall be takenrevoked, repudiated or terminated or shall otherwise (other than as its terms expressly provide) cease to be legal, valid, binding and enforceable against the parties thereto;
(w) any Financing Agreement shall be revoked, repudiated or terminated or shall otherwise (other than as its terms expressly provide) cease to be legal, valid, binding and enforceable against the parties thereto, or any of the Security Documents shall cease to constitute a duly perfected and enforceable security interest over the Collateral referred to therein, free and clear of all Liens other than Permitted Liens; or
(x) the Lessee suspends or ceases to be an international scheduled air carrier.
Appears in 1 contract
Lease Events of Default. The occurrence of any one or more of the following events shall constitute Lease Events of Default hereunder (events, whether any such event shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body) and each such , shall constitute a "Lease Event of Default shall be deemed to exist and continue so long as, but only as long as, it shall not have been remediedDefault":
(a1) Lessee shall fail to Any payment (i) make of Periodic Rent shall not be paid when due and such failure shall continue unremedied for a period of five (5) Business Days or (ii) of Supplemental Rent or any other amount (other than Periodic Rent) payable by Lessee hereunder or under any other Operative Document shall not be deemed by virtue paid within thirty (30) days of written demand therefor;
(2) Lessee shall default in the performance of its obligations under Section 5.13(d) of the last sentence of Section 3.5 hereof to have made any payment of Basic Rent, Early Purchase Price, any other purchase price to be paid Participation Agreement;
(3) Failure by Lessee for thirty (30) days after notice thereof to comply with any Units pursuant to this Lease of the other agreements in any Operative Document not set forth in clauses (a) and (b) above;
(4) Default under any agreement, mortgage, indenture or instrument under which there may be issued or by which there may be secured or evidenced any Indebtedness for money borrowed by Lessee or any of its Restricted Subsidiaries (or the Participation Agreementpayment of which is guaranteed by Lessee or any of its Restricted Subsidiaries) whether such Indebtedness or guarantee now exists, Stipulated Loss Amount or Termination Amount is created after the Closing Date, if that default:
(x1) is caused by a failure to pay principal of, or interest or premium, if any, on such Indebtedness prior to the expiration of the grace period (if any) provided in such agreement, security agreement, mortgage, indenture or instrument governing such Indebtedness on the date of such default (a "Payment Default"); or
(2) results in the acceleration of such Indebtedness prior to its express maturity and, in each case, the principal amount of any such Indebtedness, together with the principal amount of any other such Indebtedness under which there has been a Payment Default or the maturity of which has been so accelerated (or otherwise has occurred), aggregates $5,000,000 or more;
(5) Failure by Lessee or any of its Restricted Subsidiaries to pay final judgments aggregating in excess of $5,000,000, which judgments are not paid, discharged or stayed for a period of sixty (60) days;
(6) (i) breach by Lessee in any material respect of any representation or warranty or agreement or covenant in any of the Operative Documents or in any certificate, letter, or other writing or instrument furnished or delivered in connection therewith, (ii) the repudiation by Lessee of any of its Obligations under any of the Operative Documents, (iii) the unenforceability of any of the Operative Documents against Lessee for any reason which continues for thirty (30) days after written notice from Lessor, as Lessor and/or Trustee, or Administrative Agent or (iv) Lessee, HCS I or HCS II of any Affiliate or any of them shall, directly or indirectly, contest in any manner the effectiveness, validity, binding nature or enforceability of any Lien granted under any Operative Document; or any of the Liens securing the obligations of Lessee or Lessor, as Trustee and/or Lessor, under the Operative Documents shall, in whole or in part, cease to be a perfected Lien (and, in the case of the Priority Collateral and Liens granted by Lessor, as Trustee and Lessor, pursuant to the Security Documents, a perfected first priority Lien), subject only to Permitted Liens;
(7) Lessee, any of its Restricted Subsidiaries, HCS I or HCS II: (i) commences a voluntary case or proceeding or files any petition under any bankruptcy, insolvency or similar law or seeks dissolution, liquidation or reorganization or the appointment of a receiver, keeper, trustee, custodian or liquidator for itself or a substantial portion of its property, assets or business or to effect a plan or other arrangement with its creditors; (ii) consents to the entry of an order for relief against it in an involuntary case or proceeding under any bankruptcy, insolvency or similar law; (iii) consents to the appointment of a custodian of it or for all or substantially all of its property, assets or business; (iv) makes a general assignment for the benefit of its creditors; or (v) generally is not paying its debts as they become due;
(8) A court of competent jurisdiction enters an order or decree under any Bankruptcy Law that: (i) is for relief against Lessee, any of its Restricted Subsidiaries, HCS I or HCS II in any involuntary case or proceeding; (ii) appoints a custodian of Lessee, any of its Restricted Subsidiaries, HCS I or HCS II for all or substantially all of the property, assets or business of Lessee, any such payment that is required Restricted Subsidiary, HCS I or HCS II; or (iii) orders the liquidation of Lessee, any of its Restricted Subsidiaries, HCS I or HCS II; and the order or decree remains unstayed and in effect for sixty (60) consecutive days;
(10) If HWCC-Louisiana, HCS I, HCS II or Lessee ever fail to own collectively 100% of the issued and outstanding Equity Interests of Shreveport Capital;
(11) The failure of the Resort to be made on Operating by the Basic Term Expiration Date or on Operating Deadline;
(12) There has occurred (i) any date within 30 days before the Basic Term Expiration Date, when due, and (y) License Revocation which results in the case cessation or suspension of gaming business at the Casino for a period of more than five (5) consecutive days or (ii) any other event which results in the cessation or suspension of business at the Resort for a period of more than (a) twenty (20) consecutive days if Lessee is not diligently and continuously proceeding to cure or remedy the event giving rise to such payment, within 10 Business Days after the same shall have become duecessation or suspension of business; or (b) forty-five (45) consecutive days; provided, however, that so long as any Equipment Notes remain outstanding, failure to make (or be deemed to have made) any portion of Basic Rent on any Rent Payment Date there shall not be a Lease Event of Default so long as the amounts applied under Section 3.4, this clause (4)ii) if the suspension of business results from a Casualty and Lessee is complying with Article IX;
(13) Any Pension Plan maintained by Lessee or any of its ERISA Affiliates is determined to have a material "accumulated funding deficiency" as that term is defined in Section 302 of ERISA and such event would reasonably be expected to result in a Material Adverse Effect or if Lessee or any of its ERISA Affiliates fails to otherwise comply with ERISA so that grounds exist to permit the appointment of a trustee under ERISA to administer its Pension Plans or to allow the PBGC to institute proceedings to appoint a trustee to administer its Pension Plans;
(14) To the extent not covered elsewhere in this Section 10.1, any Event of Default under, and as defined in, the Indenture (or under any documentation evidencing a refinancing or replacement of the Collateral Agency Agreement are sufficient to make the distributions required under such clause (4indebtedness created thereunder) with respect to the obligations owed under this Lease; provided, further, that in the event that the Special Equity Buy-Out has been consummated, failure to make any payment of Basic Rent, Early Purchase Price, any other purchase price to be paid by Lessee for any Units pursuant to this Lease or the Participation Agreement, Stipulated Loss Amount or Termination Amount (to the extent such amount constitutes an Accumulated Equity Deficiency Amount to be applied under Section 3.4, clause 9 of the Collateral Agency Agreement) shall, after receipt by Lessee of written notice of such failure from Lessor or Owner Participant, be a Lease Event of Defaultoccurred and is continuing; or
(b) Lessee shall fail to (i) make or (ii) be deemed by virtue of payments made by the Collateral Agent to have made any payment of Supplemental Rent, including indemnity or tax indemnity payments, but not including Stipulated Loss Amount, Termination Amount, Early Purchase Price, or any other purchase price to be paid by Lessee for any Units pursuant to this Lease or the Participation Agreement (x) in the case of any such payment that is required to be on the Basic Term Expiration Date or on any date within 30 days before the Basic Term Expiration Date, when due, and (y) in the case of any other such payment, after the same shall have become due and such failure shall continue unremedied for 30 days after receipt by Lessee of written notice of such failure from Lessor, Policy Provider, Owner Participant or the Indenture Trustee; provided, however, that so long as any Equipment Notes remain outstanding, failure to make (or be deemed to have made) payment of any of the amounts referred to in or to be applied pursuant to clauses (5) through (15) of Section 3.4 of the Collateral Agency Agreement shall not be a Lease Event of Default; or
(c) Lessee shall fail to maintain in effect the insurance required by Section 12 or Section 6.4 of the Collateral Agency Agreement and such failure shall not have been waived as provided for therein; or
(d) Lessee shall use or permit the use of the Units or the Pledged Units or any portion thereof in a way which is not permitted by this Lease (with respect to the Units) or the Collateral Agency Agreement (with respect to the Pledged Units), provided that such unauthorized use shall not constitute a Lease Event of Default for a period of 45 days after Lessee's obtaining actual knowledge thereof so long as (i) such unauthorized use is not the result of any willful action of Lessee and (ii) such unauthorized use is capable of being cured and Lessee diligently pursues such cure throughout such 45-day period; or Lessee shall make or permit any unauthorized assignment or transfer of this Lease in violation of Section 18.2; or
(e) TILC (or any successor thereto in its capacity as Administrator or Servicer, as applicable) shall have defaulted in any material respect in the performance of any of its obligations under the Administrative Services Agreement or the Servicing Agreement or a default shall occur under Section 6(a) of the Account Administration Agreement, and, in each case, Lessee shall have failed to exercise its rights thereunder in respect of such default for a period of 30 days after receipt by Lessee of written notice from Lessor, Owner Participant, Policy Provider or the Indenture Trustee, demanding that such action be taken; or
(f) Any representation or warranty made by Lessee in any Lessee Agreement or any representation or warranty made by TILC in any Operative Agreement to which any such Person is a party, in each case, other than the Tax Indemnity Agreement, is untrue or incorrect in any material respect as of the date of making thereof and such untruth or incorrectness shall continue to be material and unremedied for a period of 30 days after receipt of notice from Lessor, Owner Participant, Indenture Trustee or the Policy Provider; provided that, if such untruth or incorrectness is capable of being remedied, no such untruth or incorrectness shall constitute a Lease Event of Default hereunder for a period of 120 days after receipt of notice from Lessor, Owner Participant, the Indenture Trustee or the Policy Provider so long as Lessee, TILC or TRMI, as the case may be, is diligently proceeding to remedy such untruth or incorrectness and shall in fact remedy such untruth or incorrectness within such period; provided that such untrue or incorrect representation or warranty shall be deemed to be remediable or remedied only after all adverse consequences thereof if any, can be and have been remedied as applicable; or
(g) Lessee or the General Partner shall (i) 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 (ii) consent to any such relief or to the appointment of or taking possession by any such official in any voluntary case or other proceeding commenced against it, or (iii) admit in writing its inability to pay its debts generally as they come due, or (iv) make a general assignment for the benefit of creditors, or (v) take any corporate or partnership action to authorize any of the foregoing; or
(h) An involuntary case or other proceeding shall be commenced against Lessee or the General Partner seeking liquidation, reorganization or 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 60 days; or
(i) Lessee shall fail to observe or perform any other of the covenants or agreements to be observed or performed by Lessee under any Lessee Agreement or any certificate and such failure shall continue unremedied for 30 days after notice from Lessor, Owner Participant, Policy Provider or the Indenture Trustee to Lessee, specifying the failure and demanding the same to be remedied; provided that, if such failure is capable of being remedied, and the remedy requires an action other than, or in addition to, the payment of money, no such failure (other than one relating to the payment of such money) shall constitute a Lease Event of Default hereunder for a period of 150 days after receipt of such notice so long as Lessee is diligently proceeding to remedy such failure and shall in fact remedy such failure within such period; or
(j) A Manager Default There shall have occurred and be continuing under the Management Agreement, and Lessee shall have failed to exercise its rights under the Management Agreement in respect a Change of such Manager Default for a period of 30 days after receipt by Lessee of written notice from Lessor, Owner Participant or the Indenture Trustee demanding that such action be taken; orControl.
Appears in 1 contract
Samples: Participation Agreement (HCS Ii Inc)
Lease Events of Default. The following events shall each constitute Lease Events of Default hereunder (whether any such event shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body) and each such a "Lease Event of Default shall be deemed to exist and continue so long as, but only as long as, it shall not have been remediedDefault":
(a) Lessee shall fail to (i) make or (ii) be deemed by virtue of the last sentence of Section 3.5 hereof to have made any payment of Basic Rent, Early Purchase Price, any other purchase price to be paid by Lessee for any Units pursuant to this Lease or the Participation Agreement, Stipulated Loss Amount or Termination Amount (x) in the case of any such payment that is required to be made on the Basic Term Expiration Date or on any date within 30 days before the Basic Term Expiration Date, when due, and (y) in the case of any other such payment, within 10 Business Days after the same shall have become due; provided, however, that so long as any Equipment Notes remain outstanding, failure to make (or be deemed to have made) any portion of Basic Rent on any Rent Payment Date shall not be a Lease Event of Default so long as the amounts applied under Section 3.4, clause (4), of the Collateral Agency Agreement are sufficient to make the distributions required under such clause (4) with respect to the obligations owed under this Lease; provided, further, that in the event that the Special Equity Buy-Out has been consummated, failure to make any payment of Basic Base Rent, Early Purchase Price, any other purchase price Impositions (unless payment of such Impositions is being contested by Lessee in accordance with Section 4.1.2 of the Loan Agreement) or Insurance Premiums in the time period required to be paid by Lessee for any Units pursuant to under this Lease or the Participation Agreement, Stipulated Loss Amount or Termination Amount (to the extent such amount constitutes an Accumulated Equity Deficiency Amount to be applied under Section 3.4, clause 9 of the Collateral Agency Agreement) shall, after receipt by Lessee of written notice of such failure from Lessor or Owner Participant, be a Lease Event of Default; orLease;
(b) Lessee shall fail to (i) make or (ii) be deemed by virtue of payments made by the Collateral Agent to have made any payment of Supplemental Rent, including indemnity or tax indemnity payments, but not including Stipulated Loss Amount, Termination Amount, Early Purchase Price, or Rent (other than any other purchase price Supplemental Rent required to be paid by Lessee for any Units pursuant to this Lease or the Participation Agreement (xSection 13.1(a)) in the case of any such payment that is required to be on the Basic Term Expiration Date or on any date within 30 days before the Basic Term Expiration Date, when due, and (y) in the case of any other such payment, after the same shall have become due and such failure shall continue unremedied for 30 a period of ten (10) days after receipt written notice by Lessor (or the Lender) to Lessee of written notice of such failure from Lessor, Policy Provider, Owner Participant or the Indenture Trusteefailure; provided, however, that so long as Lessee shall not be entitled to more than two (2) written notices pursuant to this subsection 13.1(b) during any Equipment Notes remain outstandingLease Year, failure to make and if after Lessee receives such two (or 2) written notices in any Lease Year, any other payment of Supplemental Rent is not paid within ten (10) Business Days after it is due within such Lease Year, a Lease Event of Default will be deemed to have made) payment occurred without the requirement of any of the amounts referred to in or to be applied pursuant to clauses (5) through (15) of Section 3.4 of the Collateral Agency Agreement shall not be a Lease Event of Default; orfurther notice by Lessor;
(c) Lessee shall fail to maintain timely perform or observe any covenant or agreement (not otherwise specified in effect the insurance required this Article XIII) to be performed or observed by Section 12 or Section 6.4 of the Collateral Agency Agreement it hereunder and such failure shall not have been waived as provided continue for therein; or
a period of thirty (d30) Lessee shall use or permit the use of the Units days after written notice thereof from Lessor or the Pledged Units or any portion thereof in a way which is not permitted by this Lease (with respect to the Units) or the Collateral Agency Agreement (with respect to the Pledged Units), Lender; provided that the continuation of such unauthorized use a failure for thirty (30) days or longer (such additional period not to exceed ninety (90) days after such notice) shall not constitute a Lease Event of Default for a period of 45 days after Lessee's obtaining actual knowledge thereof so long as if such failure cannot reasonably be cured within such thirty (i30) such unauthorized use is not the result of any willful action of Lessee and (ii) such unauthorized use is capable of being cured day period, and Lessee shall be diligently pursues and continuously prosecuting the cure of such cure throughout such 45-day period; or failure;
(d) Lessee shall make fail to carry or permit maintain in full force any unauthorized assignment or transfer of this Lease in violation of Section 18.2; orinsurance required hereunder;
(e) TILC (or any successor thereto in its capacity as Administrator or Servicer, as applicable) shall have defaulted in any material respect in the performance of any of its obligations under the Administrative Services Agreement or the Servicing Agreement or a default shall occur under Section 6(a) of the Account Administration Agreement, and, in each case, Lessee shall have failed to exercise its rights thereunder in respect of such default for a period of 30 days after receipt by Lessee of written notice from Lessor, Owner Participant, Policy Provider or the Indenture Trustee, demanding that such action be taken; or
(f) Any representation or warranty made by Lessee in any Lessee Agreement or any representation or warranty made by TILC in any Operative Agreement the Lessee herein shall prove to which any such Person is a party, in each case, other than the Tax Indemnity Agreement, is untrue or have been incorrect in any material respect as of the date of making thereof when such representation or warranty was made, and such untruth or incorrectness shall continue to be material and unremedied remain materially incorrect for a period of 30 thirty (30) days after receipt of written notice from Lessor, Owner Participant, Indenture Trustee Lessor or the Policy Provider; provided that, if Lender or such untruth or incorrectness is capable of being remedied, no longer period as may be reasonably necessary to cure such untruth or incorrectness shall constitute a Lease Event of Default hereunder for a breach (such additional period of 120 not to exceed ninety (90) days after receipt of notice from Lessor, Owner Participant, the Indenture Trustee or the Policy Provider so long as Lessee, TILC or TRMI, as the case may be, is diligently proceeding to remedy such untruth or incorrectness and shall in fact remedy such untruth or incorrectness within such period; notice) provided that Lessee commences such untrue or incorrect representation or warranty shall be deemed cure within the original thirty (30) day period and thereafter diligently prosecutes such cure to be remediable or remedied only after all adverse consequences thereof if any, can be and have been remedied as applicablecompletion; or
(gi) Lessee makes any general arrangement or the General Partner shall (i) 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 (ii) consent to any such relief or to the appointment of or taking possession by any such official in any voluntary case or other proceeding commenced against it, or (iii) admit in writing its inability to pay its debts generally as they come due, or (iv) make a general assignment for the benefit of creditors, (ii) becomes a "debtor" as defined in 11 U.S.C. ss. 101 or any successor statute thereto (vunless, in the case of a petition filed against Lessee, the same is dismissed within ninety (90) take any corporate or partnership action to authorize any of the foregoing; or
days), (hiii) An involuntary case or other proceeding shall be commenced against Lessee or the General Partner seeking liquidation, reorganization or 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 trusteetrustee or receiver to take possession of substantially all of Lessee's assets located at the Property or of Lessee's interest in this Lease, receiverwhere possession is not restored to Lessee within ninety (90) days, liquidatoror (iv) the attachment, custodian execution or other similar official judicial seizure of it substantially all of Lessee's assets located at the Property or any substantial part of its property, and Lessee's interest in this Lease where such involuntary case or other proceeding shall remain undismissed and unstayed for a period of 60 seizure is not discharged within ninety (90) days; or
(i) Lessee shall fail to observe or perform any other of the covenants or agreements to be observed or performed by Lessee under any Lessee Agreement or any certificate and such failure shall continue unremedied for 30 days after notice from Lessor, Owner Participant, Policy Provider or the Indenture Trustee to Lessee, specifying the failure and demanding the same to be remedied; provided that, if such failure is capable of being remedied, and the remedy requires an action other than, or in addition to, the payment of money, no such failure (other than one relating to the payment of such money) shall constitute a Lease Event of Default hereunder for a period of 150 days after receipt of such notice so long as Lessee is diligently proceeding to remedy such failure and shall in fact remedy such failure within such period; or
(j) A Manager Default shall have occurred and be continuing under the Management Agreement, and Lessee shall have failed to exercise its rights under the Management Agreement in respect of such Manager Default for a period of 30 days after receipt by Lessee of written notice from Lessor, Owner Participant or the Indenture Trustee demanding that such action be taken; or.
Appears in 1 contract
Samples: Lease Agreement (Kindercare Learning Centers Inc /De)
Lease Events of Default. The occurrence of any one or more of the following events shall constitute Lease Events of Default hereunder (whether any such event shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body) and each such shall constitute a "Lease Event of Default shall be deemed to exist and continue so long as, but only as long as, it shall not have been remediedDefault":
(a) the Lessee shall fail to (i) make or (ii) be deemed by virtue of the last sentence of Section 3.5 hereof to have made any payment of Basic Rent, Early Purchase Price, any other purchase price to be paid by Lessee for any Units pursuant to this Lease Rent or the Participation Agreement, Stipulated Loss Amount or Termination Amount (x) in the case of any such a purchase pursuant to Section 18.1(a) or 16.1 hereof, the Outstanding Lease Balance, Purchase Option Price or Maximum Recourse Amount within five (5) Business Days of the due date thereof; or
(b) the Lessee shall fail to make payment that is required to be made on the Basic Term Expiration Date or on any date within 30 days before the Basic Term Expiration Date, when due, and (y) in the case of any Supplemental Rent (other such payment, than Supplemental Rent referred to in clause (a) of this Section 17.1) within 10 five (5) Business Days after receipt of written demand therefor from the same Lessor or any assignee thereof; or
(c) the Lessee shall have become duefail on the Lease Termination Date to make any payment of the Purchase Option Price or, in the event the Lessee has elected to remarket the Property and satisfied the requirements of Section 18.4 hereof, Maximum Recourse Amount or Gross Remarketing Proceeds;
(d) the Lessee shall fail to maintain the insurance required under Article XIII hereof, shall assign this Master Lease or sublease the Property other than in accordance with Article VI hereof or shall fail to observe or perform any term, covenant or condition to be performed by it under Section 18.3 or 18.4 hereof, or the Guarantor shall fail to observe or perform any term, covenant or condition to be performed by it under the Guaranty or Sections 8.1, 8.2 or 8.3 of the Participation Agreement; provided, however, that so long as any Equipment Notes remain outstandingduring the Base Lease Term, the Lessee's failure to make (or be deemed to have made) any portion of Basic Rent on any Rent Payment Date maintain the insurance required under Article XIII hereof shall not be become a Lease Master Lease Event of Default so long as if the amounts applied under Section 3.4, clause (4), of the Collateral Agency Agreement are sufficient to make the distributions required under such clause (4) with respect to the obligations owed under this Lease; provided, further, that in the event that the Special Equity Buy-Out has been consummated, failure to make any payment of Basic Rent, Early Purchase Price, any other purchase price to be paid by Lessee for any Units pursuant to this Lease or the Participation Agreement, Stipulated Loss Amount or Termination Amount (to the extent such amount constitutes an Accumulated Equity Deficiency Amount to be applied under Section 3.4, clause 9 of the Collateral Agency Agreement) shall, after receipt by Lessee of written notice of corrects such failure from Lessor within one (1) Business Day following such lapse or Owner Participant, be a Lease Event of Default; or
(b) Lessee shall fail to (i) make or (ii) be deemed by virtue of payments made by the Collateral Agent to have made any payment of Supplemental Rent, including indemnity or tax indemnity payments, but not including Stipulated Loss Amount, Termination Amount, Early Purchase Price, or any other purchase price to be paid by Lessee for any Units pursuant to this Lease or the Participation Agreement (x) in the case of any such payment that is required to be on the Basic Term Expiration Date or on any date within 30 days before the Basic Term Expiration Date, when due, and (y) in the case of any other such payment, after the same shall have become due and such failure shall continue unremedied for 30 days after receipt by Lessee of written notice of such failure from Lessor, Policy Provider, Owner Participant or the Indenture Trustee; provided, however, that so long as any Equipment Notes remain outstanding, failure to make (or be deemed to have made) payment of any of the amounts referred to in or to be applied pursuant to clauses (5) through (15) of Section 3.4 of the Collateral Agency Agreement shall not be a Lease Event of Default; or
(c) Lessee shall fail to maintain in effect the insurance required by Section 12 or Section 6.4 of the Collateral Agency Agreement and such failure shall not have been waived as provided for therein; or
(d) Lessee shall use or permit the use of the Units or the Pledged Units or any portion thereof in a way which is not permitted by this Lease (with respect to the Units) or the Collateral Agency Agreement (with respect to the Pledged Units), provided that such unauthorized use shall not constitute a Lease Event of Default for a period of 45 days after Lessee's obtaining actual knowledge thereof so long as (i) such unauthorized use is not the result of any willful action of Lessee and (ii) such unauthorized use is capable of being cured and Lessee diligently pursues such cure throughout such 45-day period; or Lessee shall make or permit any unauthorized assignment or transfer of this Lease in violation of Section 18.2failure; or
(e) TILC (the Lessee or the Guarantor shall fail to observe or perform any material term, covenant or condition of the Lessee or the Guarantor under this Master Lease or any successor thereto other Operative Document to which it is a party other than those described in its capacity as Administrator or Servicer, as applicable) shall have defaulted in any material respect in the performance of any of its obligations under the Administrative Services Agreement or the Servicing Agreement or a default shall occur under this Section 6(a) of the Account Administration Agreement, 17.1 and, in each such case, Lessee such failure shall have failed continued for thirty (30) days or such shorter period as may be specified in any other Operative Document after the earlier of (x) the date on which any Responsible Officer of the Lessee having direct responsibility for the Property of the Lessee or the Guarantor, as applicable, shall have actual knowledge thereof and (y) delivery to exercise its rights thereunder in respect of such default for a period of 30 days after receipt by the Lessee or the Guarantor of written notice thereof from the Lessor, Owner Participant, Policy Provider or the Indenture Trustee, demanding that such action be taken; or
(f) Any representation or warranty made by Lessee in any Lessee Agreement or any representation or warranty made by TILC the Lessee or the Guarantor in any of the Operative Agreement Documents to which any such Person it is a partyparty shall have been inaccurate at the time made, in each caseexcept for such inaccuracies or misstatements which are not material, other than and if capable of remedy, shall remain unremedied for thirty (30) days after the Tax Indemnity Agreement, is untrue or incorrect in earlier of (x) the date on which any material respect as Responsible Officer of the date of making thereof and such untruth or incorrectness shall continue to be material and unremedied Lessee having direct responsibility for a period of 30 days after receipt of notice from Lessor, Owner Participant, Indenture Trustee the Property or the Policy Provider; provided thatGuarantor shall have actual knowledge thereof, if such untruth or incorrectness is capable of being remedied, no such untruth or incorrectness shall constitute a Lease Event of Default hereunder for a period of 120 days after receipt of notice from Lessor, Owner Participant, and (y) delivery to the Indenture Trustee Lessee or the Policy Provider so long as Lessee, TILC Guarantor of written notice thereof from the Lessor or TRMI, as the case may be, is diligently proceeding to remedy such untruth or incorrectness and shall in fact remedy such untruth or incorrectness within such period; provided that such untrue or incorrect representation or warranty shall be deemed to be remediable or remedied only after all adverse consequences thereof if any, can be and have been remedied as applicableany permitted assignee thereof; or
(g) Lessee or the General Partner shall (i) 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 Guarantor or any substantial part of its property, or (ii) consent to any such relief or to the appointment of or taking possession by any such official in any voluntary case or other proceeding commenced against it, or (iii) admit in writing its inability to pay its debts generally as they come due, or (iv) Material Subsidiary shall make a general an assignment for the benefit of creditors, or (v) admit in writing its inability to pay or generally fail to pay its debts as they mature or become due, or shall petition or apply for the appointment of a trustee or other custodian, liquidator or receiver of the Guarantor or any Material Subsidiary or of any substantial part of the assets of the Guarantor or any Material Subsidiary or shall commence any case or other proceeding relating to the Guarantor or any Material Subsidiary under any bankruptcy, arrangement, insolvency, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, or shall take any corporate or partnership action to authorize or in furtherance of any of the foregoing; or
(h) An involuntary , or if any such petition or application shall be filed or any such case or other proceeding shall be commenced against Lessee the Guarantor or any Material Subsidiary and the General Partner seeking liquidationGuarantor or any Material Subsidiary shall indicate its approval thereof, reorganization consent thereto or acquiescence therein or if such petition or application shall not have been dismissed within forty-five (45) days following the filing thereof; or
(h) a decree or order is entered appointing any such trustee, custodian, liquidator or receiver or adjudicating the Guarantor or any Material Subsidiary bankrupt or insolvent, or approving a petition in any such case or other proceeding, or a decree or order for relief with is entered in respect to it of the Guarantor or its debts any Material Subsidiary in any involuntary case under any bankruptcy, insolvency or other similar law federal bankruptcy laws as 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 60 daysconstituted; or
(i) Lessee the Conduit Agent shall fail to observe or perform any other have delivered a Notice of the covenants or agreements to be observed or performed by Lessee under any Lessee Agreement or any certificate and such failure shall continue unremedied for 30 days after notice from Lessor, Owner Participant, Policy Provider or the Indenture Trustee to Lessee, specifying the failure and demanding the same to be remedied; provided that, if such failure is capable of being remedied, and the remedy requires an action other than, or in addition to, the payment of money, no such failure (other than one relating Default to the payment of such money) shall constitute a Lease Event of Default hereunder for a period of 150 days after receipt of such notice so long as Lessee is diligently proceeding to remedy such failure and shall in fact remedy such failure within such periodLessee; or
(j) A Manager Default any provision under any Operative Document with respect to the Property or the payment obligations of the Lessee or the Guarantor or any Lien granted under any Operative Document shall, in whole or in part, other than solely as the result of an intentional act of a Lessor Party, terminate, cease to be effective against, or cease to be the legally valid, binding and enforceable obligation of, the Lessee or the Guarantor, as the case may be, the effect of which, in Master Lease any such case, shall deprive any party to such Operative Document of any material benefits and rights intended to be created thereby, or Guarantor denies or disaffirms its obligations under the Guaranty or, except as permitted under any Operative Document, any Lien securing any Obligation shall, in whole or in part, cease to be a perfected first priority Lien; or
(k) the Lessee or the Guarantor shall directly or indirectly contest in any manner the effectiveness, validity, binding nature or enforceability of any Operative Document or any Lien granted under any Operative Document; or
(l) the Guarantor or any of its Subsidiaries shall (i) default in the payment of any portion of the principal of or interest on any Indebtedness (including, without limitation, payments under the Flatirons Lease) beyond any grace period provided with respect thereto, or (ii) default in the performance or observance of any other term, condition or agreement contained in any such obligation or in any agreement relating thereto if the effect of such default is to cause, or permit (or, with the giving of notice or lapse of time or both, to cause or permit) the holder or holders of Indebtedness the aggregate outstanding principal amount of which is at least $10,000,000 (or a trustee on behalf of holder or holders) to cause any such Indebtedness to become due (or be prepaid or purchased) prior to its stated maturity; or
(m) a final judgment for more than $10,000,000 in the aggregate (net of acknowledged insurance proceeds receivable) shall be rendered against the Guarantor or any of its Subsidiaries and if within sixty (60) days after entry thereof such judgment shall not have been discharged or execution thereof stayed pending appeal; or
(n) with respect to any Guaranteed Pension Plan, an ERISA Reportable Event shall have occurred and the Lessor Parties shall have determined in their reasonable discretion that such event reasonably could be continuing expected to result in liability of the Guarantor or any of its Subsidiaries to the PBGC or such Guaranteed Pension Plan in an aggregate amount exceeding $500,000 and such event in the circumstances occurring reasonably could constitute grounds for the termination of such Guaranteed Pension Plan by the PBGC or for the appointment by the appropriate United States District Court of a trustee to administer such Guaranteed Pension Plan; or a trustee shall have been appointed by the United States District Court to administer such Guaranteed Pension Plan; or the PBGC shall have instituted proceedings to terminate such Guaranteed Pension Plan;
(o) with respect to any Multi-Employer Plan, an event shall have occurred and the Lessor Parties shall have determined in their reasonable discretion that such event reasonably could be expected to result in liability of the Guarantor or any of its Subsidiaries in an aggregate amount exceeding $500,000 and such event in the circumstances occurring reasonably could constitute grounds for, or result in, the termination, reorganization or insolvency of such Multi-Employer Plan;
(p) Guarantor fails to pay amounts due under the Management Agreement, and Lessee shall have failed to exercise its rights under the Management Agreement in respect of such Manager Default for a period of 30 days after receipt by Lessee of written notice from Lessor, Owner Participant or the Indenture Trustee demanding that such action be takenGuaranty when due; or
(q) a Construction Agency Agreement Event of Default of the type described in clauses (a), (d), (e) or (f) of Section 6.1 of the Construction Agency Agreement occurs.
Appears in 1 contract
Samples: Master Lease and Deed of Trust (Electronic Arts Inc)
Lease Events of Default. The If any one (1) or more of the following events shall constitute Lease Events of Default hereunder (whether any such event shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body) and each such a “Lease Event of Default Default”) shall occur and be deemed to exist and continue so long as, but only as long as, it shall not have been remediedcontinuing:
(a) Lessee shall fail to (i) make payment of any Basic Rent or (ii) be deemed by virtue of Termination Value, on the last sentence of Section 3.5 hereof to have made date any such payment is due and payable, or any payment of Basic Rent, Early Purchase Price, any other purchase price to be paid by Lessee for any Units pursuant to this Lease or the Participation Agreement, Stipulated Loss Amount or Termination Amount (x) in the case of any such payment that is required to be made Supplemental Rent due on the Basic Term Expiration Date or on any due date within 30 days before the Basic Term Expiration Date, when due, and (y) in the case of any other such payment, within 10 Business Days after the same shall have become due; provided, however, that so long as any Equipment Notes remain outstanding, failure to make (or be deemed to have made) any portion of Basic Rent on any Rent Payment Date shall not be a Lease Event of Default so long as the amounts applied under Section 3.4, clause (4), of the Collateral Agency Agreement are sufficient to make the distributions required under such clause (4) with respect to the obligations owed under this Lease; provided, further, that in the event that the Special Equity Buy-Out has been consummated, failure to make any payment of Basic RentTermination Value, Early Purchase Price, or any other purchase price to be paid by Lessee for any Units pursuant to this Lease or amount due on the Participation Agreement, Stipulated Loss Amount or Termination Amount (to the extent such amount constitutes an Accumulated Equity Deficiency Amount to be applied under Section 3.4, clause 9 of the Collateral Agency Agreement) shall, after receipt by Lessee of written notice of such failure from Lessor or Owner Participant, be a Lease Event of Default; orExpiration Date;
(b) Lessee shall fail to (i) make or (ii) be deemed by virtue of payments made by the Collateral Agent to have made any payment of any Supplemental Rent, including indemnity or tax indemnity payments, but not including Stipulated Loss Amount, Termination Amount, Early Purchase Price, or Rent (other than Supplemental Rent referred to in Section 17.1(a)) under any other purchase price to be paid by Lessee for any Units pursuant to this Lease or the Participation Operative Agreement (x) in the case of any such payment that is required to be on the Basic Term Expiration Date or on any date within 30 days before the Basic Term Expiration Date, when due, and (y) in the case of any other such payment, after the same shall have which has become due and such failure shall continue unremedied for 30 payable, in either case, within ten (10) days after receipt by Lessee of written notice of that such failure from Lessor, Policy Provider, Owner Participant or the Indenture Trustee; provided, however, that so long as any Equipment Notes remain outstanding, failure to make (or be deemed to have made) payment of any of the amounts referred to in or to be applied pursuant to clauses (5) through (15) of Section 3.4 of the Collateral Agency Agreement shall not be a Lease Event of Default; oris due and payable;
(c) Lessee shall fail to maintain in effect the insurance required by Section 12 or Section 6.4 Article XIV; provided, that in the event that Lessee is otherwise in full compliance with its obligations under Article XIV, Lessee’s failure to timely deliver the certificates of the Collateral Agency Agreement and such failure shall not have been waived as provided for therein; or
(d) Lessee shall use or permit the use of the Units or the Pledged Units or any portion thereof in a way which is not permitted insurance required by this Lease (with respect to the Units) or the Collateral Agency Agreement (with respect to the Pledged Units), provided that such unauthorized use Article XIV shall not constitute a Lease Event of Default unless such failure shall continue for a period of 45 ten (10) days after Lessee's obtaining notice of such failure to Lessee from Lessor or the Agent;
(d) Lessee shall fail to observe or perform any term, covenant, obligation or condition of Lessee under this Lease or any other Operative Agreement to which Lessee is a party (other than those set forth in this Section 17), and such failure shall continue for thirty (30) days after the Lessee either has received written notice thereof or a Responsible Officer of Lessee shall have actual knowledge thereof so long as (i) thereof; provided, if such unauthorized use failure is not the result of any willful action of Lessee and (ii) such unauthorized use is capable of being cured remedy by the payment of money or otherwise within such thirty (30) day period but may be remedied with further diligence and if the Lessee has and continues to pursue diligently pursues such cure throughout such 45-day period; or remedy, then the Lessee shall make be granted additional time to pursue such remedy; provided, further, in no event shall such additional period exceed one hundred twenty (120) days or permit any unauthorized assignment or transfer of this Lease in violation of Section 18.2; orextend beyond the Expiration Date;
(e) TILC (any representation, warranty or statement made or restated by Lessee in this Lease or in any successor thereto other Operative Agreement, or in its capacity as Administrator any statement or Servicercertificate delivered or required to be delivered pursuant hereto or thereto, as applicable) shall have defaulted prove to be untrue in any material respect in on the performance date as of any of its obligations under which made or restated, and (i) the Administrative Services Agreement circumstances rendering such representation or warranty or statement incorrect shall not be remediable, or (ii) if such representation or warranty or statement is remediable and Lessee is proceeding diligently so to remedy, shall continue unremedied for thirty (30) days after the earlier of: (x) the date on which written notice is delivered by Lessor or the Servicing Agreement or a default shall occur under Section 6(aAgent to Lessee specifying such circumstances and demanding that they be remedied and (y) the date on which any Responsible Officer of the Account Administration Agreement, and, in each case, Lessee shall have failed to exercise its rights thereunder in respect has actual knowledge of such incorrectness; provided, however, that if such default is capable of cure but cannot be cured by payment of money or cannot be cured by diligent efforts within such thirty (30) day but such diligent efforts shall be properly commenced within the cure period and Lessee is diligently pursuing, and shall continue to pursue diligently, remedy of such failure, the cure period shall be extended for a an additional period of 30 time as may be necessary to cure, not to exceed an additional one hundred and twenty (120) days after receipt by Lessee of written notice from Lessor, Owner Participant, Policy Provider or and not to extended beyond the Indenture Trustee, demanding that such action be taken; orExpiration Date.
(f) Any representation or warranty made the commencement by Lessee in any Lessee Agreement or any representation or warranty made by TILC in any Operative Agreement to which any such Person is a party, in each case, other than the Tax Indemnity Agreement, is untrue or incorrect in any material respect as of the date its Affiliates of making thereof and such untruth or incorrectness shall continue to be material and unremedied for a period of 30 days after receipt of notice from Lessor, Owner Participant, Indenture Trustee or the Policy Provider; provided that, if such untruth or incorrectness is capable of being remedied, no such untruth or incorrectness shall constitute a Lease Event of Default hereunder for a period of 120 days after receipt of notice from Lessor, Owner Participant, the Indenture Trustee or the Policy Provider so long as Lessee, TILC or TRMI, as the case may be, is diligently proceeding to remedy such untruth or incorrectness and shall in fact remedy such untruth or incorrectness within such period; provided that such untrue or incorrect representation or warranty shall be deemed to be remediable or remedied only after all adverse consequences thereof if any, can be and have been remedied as applicable; or
(g) Lessee or the General Partner shall (i) commence a voluntary case or other proceeding seeking liquidation, reorganization or other relief with respect to itself or its debts under any applicable 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 Lessee or any substantial part of its propertyAffiliates shall have consented to the entry of an order for relief in an involuntary case under any such law, or the failure of Lessee or any of its Affiliates generally to pay its debts as such debts become due (ii) consent to any such relief within the meaning of the Bankruptcy Code), or to the appointment of or taking possession by any such official in any voluntary case a receiver, liquidator or other proceeding commenced against it, similar official for Lessee or (iii) admit in writing any of its inability to pay its debts generally as they come due, Affiliates or (iv) make a general assignment by Lessee or any of its Affiliates for the benefit of its creditors; or the filing against Lessee or any of its Affiliates of an involuntary petition in bankruptcy which results in an order for relief being entered or, notwithstanding that an order for relief has not been entered, the petition is not dismissed within ninety (90) days of the date of the filing of the petition, or (v) take the filing under any corporate law relating to bankruptcy, insolvency or partnership action to authorize relief of debtors of any petition against Lessee or any of its Affiliates for reorganization, composition, extension or arrangement with creditors which either (i) results in a finding or adjudication of insolvency of Lessee or any of its Affiliates or (ii) is not dismissed within ninety (90) days of the foregoing; ordate of the filing of such petition.
(g) [Reserved];
(h) An involuntary case [Reserved];
(i) any default, event of default or other proceeding any event which with the passage of time or the giving of notice, or both, would permit the exercise of remedies under the Ground Lease or any of the Appurtenant Rights or any sublease thereof or the Ground Lease or any of the necessary Appurtenant Rights shall terminate;
(j) Lessee shall default in the due performance and observance of any of its obligations under Sections 5.11, 8.3A(v), (w), (x), (y) or (aa) of the Participation Agreement;
(k) one or more judgments or orders for the payment of money in the aggregate amount in excess of $10,000,000 shall be commenced rendered against Lessee or the General Partner seeking liquidation, reorganization or 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, Affiliates and such involuntary case judgment or other proceeding order shall remain undismissed and continue unsatisfied or unstayed for a period of 60 sixty (60) days;
(l) any Lien granted under any Security Document shall, in whole or in part, terminate, cease to be effective or lose its first priority status, except as expressly contemplated by the Operative Agreements or as the result of an act or omission of Lessor or the Agent;
(m) an “event of default” shall occur in the payment when due (subject to any applicable grace period), whether by acceleration or otherwise, of any Indebtedness of Lessee or any of its Subsidiaries having a principal amount, individually or in the aggregate, in excess of $10,000,000, or an event of default shall occur in the performance or observance of any obligation or condition with respect to such Indebtedness;
(n) an Agency Agreement Event of Default, a Liquid Collateral Agreement Event of Default or a Punch List Liquid Collateral Agreement Event of Default shall have occurred:
(o) Lessor’s rights pursuant to the Operative Agreements to require Lessee to pledge additional Permitted Investments shall for any reason cease to be a legal, valid and binding agreement with Lessee;
(p) the lien of the Security Document with respect to the Liquid Collateral shall cease to constitute a first priority perfected security interest (except as a result of a voluntary release by the Agent of any Liquid Collateral);
(q) Lessee shall default in the due performance and observance of any of its obligations under Section 8.3A(v), (w), (x), (y) or (aa) of the Participation Agreement or under Section 5.11 of the Participation Agreement;
(r) there occurs an Environmental Violation that is reasonably likely to cost or actually costs more than $500,000 to remediate; or
(is) Lessee or any member of the Controlled Group shall fail to observe pay when due an amount or perform amounts aggregating in excess of $2,000,000, which it shall have become liable to pay to the PBGC or to a Pension Plan under Title IV of ERISA; or notice of intent to terminate a Pension Plan or Pension Plans having aggregate Unfunded Liabilities in excess of $2,000,000 shall be filed under Title IV of ERISA by Lessee or any other member of the covenants Controlled Group, any plan administrator or agreements any combination of the foregoing; or the PBGC shall institute proceedings under Title IV of ERISA to terminate or to cause a trustee to be observed appointed to administer any such Pension Plan or performed Pension Plans or a proceeding shall be instituted by a fiduciary of any such Pension Plan or Pension Plans against Lessee under any Lessee Agreement or any certificate member of the Controlled Group to enforce Section 515 or 4219(c)(5) of ERISA; or a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any such Pension Plan or Pension Plans must be terminated; then, in any such event, Lessor may, in addition to the other rights and remedies provided for in this Article XVII and in Section 18.1, terminate this Lease by giving Lessee five (5) days written notice of such failure termination (provided, notwithstanding the foregoing, this Lease shall continue unremedied for 30 days after notice from Lessor, Owner Participant, Policy Provider or the Indenture Trustee to Lessee, specifying the failure and demanding the same be deemed to be remedied; provided that, if such failure is capable automatically terminated without the giving of being remedied, and notice upon the remedy requires an action other than, or in addition to, the payment occurrence of money, no such failure (other than one relating to the payment of such money) shall constitute a Lease Event of Default hereunder for a period of 150 days after receipt of such notice so long as Lessee is diligently proceeding to remedy such failure and shall in fact remedy such failure within such period; or
(j) A Manager Default shall have occurred and be continuing under the Management AgreementSection 17.1(f)), and this Lease shall terminate, and all rights of Lessee under this Lease (other than Lessee’s rights to enforce Lessor’s obligation to convey title to the Property to Lessee in accordance with the provisions of Sections 17.6 and/or 17.11) shall have failed cease. Lessee shall, to exercise its rights under the Management Agreement in respect fullest extent permitted by law, pay as Supplemental Rent all costs and expenses incurred by or on behalf of such Manager Lessor or any other Financing Party, including without limitation reasonable fees and expenses of counsel, as a result of any Lease Event of Default for a period of 30 days after receipt by Lessee of written notice from Lessor, Owner Participant or the Indenture Trustee demanding that such action be taken; orhereunder. A POWER OF SALE HAS BEEN GRANTED IN THIS LEASE AS SUPPLEMENTED BY THE LEASE SUPPLEMENT. A POWER OF SALE MAY ALLOW LESSOR TO TAKE THE PROPERTY AND SELL THE PROPERTY WITHOUT GOING TO COURT IN A FORECLOSURE ACTION UPON THE OCCURRENCE AND CONTINUANCE OF A LEASE EVENT OF DEFAULT.
Appears in 1 contract
Lease Events of Default. The If any one or more of the following events shall constitute Lease Events of Default hereunder (whether any such event shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body) and each such a "Lease Event of Default Default") shall be deemed to exist and continue so long as, but only as long as, it shall not have been remediedoccur:
(a) Lessee shall fail to make payment of (i) make any Basic Rent (except as set forth in clause (ii)) within three (3) days after the same has become due and payable or (ii) be deemed by virtue of any Termination Value, on the last sentence of Section 3.5 hereof to have made date any such payment is due, or any payment of Basic Rent, Early Purchase Price, any other purchase price to be paid by Lessee for any Units pursuant to this Lease Rent or Supplemental Rent due on the Participation Agreement, Stipulated Loss Amount or Termination Amount (x) in the case due date of any such payment that is required to be made of Termination Value, or any amount due on the Basic Term Expiration Date or on any date within 30 days before the Basic Term Expiration Date, when due, and (y) in the case of any other such payment, within 10 Business Days after the same shall have become due; provided, however, that so long as any Equipment Notes remain outstanding, failure to make (or be deemed to have made) any portion of Basic Rent on any Rent Payment Date shall not be a Lease Event of Default so long as the amounts applied under Section 3.4, clause (4), of the Collateral Agency Agreement are sufficient to make the distributions required under such clause (4) with respect to the obligations owed under this Lease; provided, further, that in the event that the Special Equity Buy-Out has been consummated, failure to make any payment of Basic Rent, Early Purchase Price, any other purchase price to be paid by Lessee for any Units pursuant to this Lease or the Participation Agreement, Stipulated Loss Amount or Termination Amount (to the extent such amount constitutes an Accumulated Equity Deficiency Amount to be applied under Section 3.4, clause 9 of the Collateral Agency Agreement) shall, after receipt by Lessee of written notice of such failure from Lessor or Owner Participant, be a Lease Event of Default; or;
(b) Lessee shall fail to (i) make or (ii) be deemed by virtue of payments made by the Collateral Agent to have made any payment of any Supplemental Rent, including indemnity or tax indemnity payments, but not including Stipulated Loss Amount, Termination Amount, Early Purchase Price, or any Rent (other purchase price than Supplemental Rent referred to be paid by Lessee for any Units pursuant to this Lease or the Participation Agreement (xin Section 17(a)(ii)) in the case of any such payment that is required to be on the Basic Term Expiration Date or on any date within 30 days before the Basic Term Expiration Date, when due, and (y) in the case of any other such payment, after the same shall have become due and such failure shall continue unremedied for 30 payable within three (3) days after receipt by Lessee of written notice of that such failure from Lessor, Policy Provider, Owner Participant or the Indenture Trustee; provided, however, that so long as any Equipment Notes remain outstanding, failure to make (or be deemed to have made) payment of any of the amounts referred to in or to be applied pursuant to clauses (5) through (15) of Section 3.4 of the Collateral Agency Agreement shall not be a Lease Event of Default; oris due;
(c) Lessee shall fail to maintain in effect the insurance as required by Section 12 or Section 6.4 Article XIV of the Collateral Agency Agreement and such failure shall not have been waived as provided for therein; orthis Lease;
(d) Lessee or Guarantor shall use fail to observe or permit perform any term, covenant or provision (including without limitation the use Incorporated Covenants) of the Units Lessee or the Pledged Units Guarantor under this Lease or any portion thereof other Operative Agreement to which Lessee or Guarantor is a party other than those set forth in a way which is not permitted by this Lease Sections
17.1 (with respect to the Unitsa), (b) (c) or the Collateral Agency Agreement (with respect to the Pledged Units)g) hereof, provided that and such unauthorized use failure shall not constitute a Lease Event of Default remain uncured for a period of 45 thirty (30) days after Lessee's obtaining actual knowledge the earlier of receipt of written notice from Lessor thereof so long as (i) such unauthorized use is not the result of any willful action or a Responsible Officer of Lessee and (ii) becomes aware of such unauthorized use is capable of being cured and Lessee diligently pursues such cure throughout such 45-day period; or Lessee shall make or permit any unauthorized assignment or transfer of this Lease in violation of Section 18.2; orfailure;
(e) TILC (or any successor thereto in its capacity as Administrator or Servicer, as applicable) An Agency Agreement Event of Default shall have defaulted in any material respect occurred and be continuing;
(i) Any default, which is not waived, in the performance payment of any of its principal, interest, premium or other amount with respect to any Indebtedness or Rate Hedging Obligation (as defined in the Existing Wackenhut Corrections Credit Agreement) (other than obligations under the Administrative Services Agreement or the Servicing Agreement or a default shall occur under Section 6(aOperative Agreements) of Lessee in an amount not less than $2,500,000 in the Account Administration Agreementaggregate outstanding, andor (ii) any default, which is not waived, in each casethe performance, Lessee shall have failed to exercise its rights thereunder in respect observance or fulfillment of such default for a period of 30 days after receipt by Lessee of written notice from Lessor, Owner Participant, Policy Provider any term or the Indenture Trustee, demanding that such action be taken; or
(f) Any representation or warranty made by Lessee covenant contained in any Lessee Agreement agreement or any representation instrument under or warranty made by TILC in any Operative Agreement pursuant to which any such Person is a partyIndebtedness or Rate Hedging Obligation referred to in clause (i) may have been issued, created, assumed, guaranteed or secured by Lessee, or (iii) any other event of default as specified in each caseany agreement or instrument under or pursuant to which any such Indebtedness or Rate Hedging Obligation may have been issued, other created, assumed, guaranteed or secured by Lessee, and any such default or event of default specified in clauses (i), (ii) or (iii) shall continue for more than the Tax Indemnity Agreement, is untrue or incorrect in any material respect as of the date of making thereof and such untruth or incorrectness shall continue to be material and unremedied for a period of 30 days after receipt of notice from Lessorgrace, Owner Participant, Indenture Trustee or the Policy Provider; provided that, if such untruth or incorrectness is capable of being remedied, no such untruth or incorrectness shall constitute a Lease Event of Default hereunder for a period of 120 days after receipt of notice from Lessor, Owner Participant, the Indenture Trustee or the Policy Provider so long as Lessee, TILC or TRMI, as the case may be, is diligently proceeding to remedy such untruth or incorrectness and shall in fact remedy such untruth or incorrectness within such period; provided that such untrue or incorrect representation or warranty shall be deemed to be remediable or remedied only after all adverse consequences thereof if any, can be and have been remedied as applicabletherein specified, or such default or event of default shall permit the holder of any such Indebtedness (or any agent or trustee acting on behalf of one or more holders) to accelerate the maturity thereof; or
(g) The breach of any financial covenant incorporated by reference in Article XXVIII hereof or Section 12 of the Guaranty;
(h) The Lessee or shall be unable to pay its debts generally as they become due; file a petition to take advantage of any insolvency statute; make an assignment for the General Partner shall (i) benefit of its creditors; 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 for the appointment of a receiver, trustee, receiver, liquidator, custodian liquidator or other similar official conservator of it itself or of the whole or any substantial part of its property, ; file a petition or (ii) consent to any such relief or to the appointment of or taking possession by any such official in any voluntary case or other proceeding commenced against it, or (iii) admit in writing its inability to pay its debts generally as they come due, or (iv) make a general assignment for the benefit of creditors, or (v) take any corporate or partnership action to authorize any of the foregoing; or
(h) An involuntary case or other proceeding shall be commenced against Lessee or the General Partner answer seeking liquidation, reorganization or arrangement or similar relief under the federal bankruptcy laws or any other relief with respect to it applicable law or its debts under any bankruptcystatute;
(i) A court of competent jurisdiction shall enter an order, insolvency judgment or other similar law now or hereafter in effect, or seeking the appointment of decree appointing a trusteecustodian, receiver, liquidatortrustee, custodian liquidator or other similar official conservator of it the Lessee or of the whole or any substantial part of its property, properties and such involuntary case order, judgment or other proceeding shall remain undismissed decree continues unstayed and unstayed in effect for a period of 60 sixty (60) days, or approve a petition filed against the Lessee seeking liquidation, reorganization or arrangement or similar relief under the federal bankruptcy laws or any other applicable law or statute of the United States of America or any state, which petition is not dismissed within sixty (60) days; or if, under the provisions of any other law for the relief or aid of debtors, a court of competent jurisdiction shall assume custody or control of the Lessee or of the whole or any substantial part of its properties, which control is not relinquished within sixty (60) days; or if there is commenced against the Lessee any proceeding or petition seeking liquidation, reorganization, arrangement or similar relief under the federal bankruptcy laws or any other applicable law or statute of the United States of America or any state which proceeding or petition remains undismissed for a period of sixty (60) days; or if the Lessee takes any action to indicate its consent to or approval of any such proceeding or petition;
(j) The entering of any order in any proceedings against Lessee decreeing the dissolution, divestiture or split-up of Lessee, and such order remains in effect for more than sixty (60) days;
(k) Any representation, warranty or statement of fact contained in any Operative Agreement in any writing, report, certificate, or statement at any time furnished to Lessor, the Agent, any Holder or any Lender by or on behalf of Lessee pursuant to or in connection with this Lease or any other Operative Agreement or otherwise shall be false or misleading in any material respect when given;
(l) One or more judgments or orders where the amount not covered by insurance (or the amount as to which the insurer) is found not to be liable for) is in excess of $500,000 is rendered against Lessee, or (ii) there is any attachment, injunction or execution against any of the Lessee's properties for any amount in excess of $500,000 in the aggregate; and such judgment, attachment, injunction or execution remains unpaid, unstayed, undischarged, unbonded or undismissed for a period of thirty (30) days; or
(im) Lessee Any material Environmental Violation shall fail to observe or perform any other of the covenants or agreements to have occurred and be observed or performed by Lessee under any Lessee continuing;
(n) Any Wackenhut Corrections Credit Agreement or any certificate and such failure shall continue unremedied for 30 days after notice from Lessor, Owner Participant, Policy Provider or the Indenture Trustee to Lessee, specifying the failure and demanding the same to be remedied; provided that, if such failure is capable of being remedied, and the remedy requires an action other than, or in addition to, the payment of money, no such failure (other than one relating to the payment of such money) shall constitute a Lease Event of Default hereunder for a period of 150 days after receipt of such notice so long as Lessee is diligently proceeding to remedy such failure and shall in fact remedy such failure within such period; or
(j) A Manager Default shall have occurred and be continuing under continuing; or
(o) Any Operative Agreement shall cease to be in full force and effect; then, in any such event, (i) all Construction Period Properties shall automatically become Properties subject to the Management Agreementterms of this Lease as more specifically provided in Section 2.2 and thereafter all references hereunder to "Property" or "Properties" and all obligations of the Lessee with respect to the Properties (including specifically without limitation the obligations of the Lessee contained in this Article XVII) shall be deemed to include such Construction Period Properties, and (ii) Lessor may, in addition to the other rights and remedies provided for in this Article XVII and in Section 18.1, terminate this Lease by giving Lessee shall have failed to exercise its rights under the Management Agreement in respect fifteen (15) days notice of such Manager Default for a period termination, and this Lease shall terminate, and all rights of 30 days after receipt Lessee under this Lease shall cease. Lessee shall, to the fullest extent permitted by Lessee law, pay as Supplemental Rent all costs and expenses incurred by or on behalf of written notice from Lessor, Owner Participant or the Indenture Trustee demanding that such action be taken; orincluding without limitation reasonable fees and expenses of counsel, as a result of any Lease Event of Default hereunder.
Appears in 1 contract
Lease Events of Default. The following events shall constitute Lease Events of Default hereunder (whether any such event shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body) and each such a "Lease Event of Default shall be deemed to exist and continue so long as, but only as long as, it shall not have been remediedDefault":
(a) Lessee shall fail to (i) make or (ii) be deemed by virtue of the last sentence of Section 3.5 hereof to have made any payment of Basic Rent, Early Purchase Price, any other purchase price to be paid by Lessee for any Units pursuant to this Lease or the Participation Agreement, Stipulated Loss Amount or Termination Amount (x) in the case of any such payment that is required to be made on the Basic Term Expiration Date or on any date within 30 days before the Basic Term Expiration Date, when due, and (y) in the case of any other such payment, within 10 Business Days after the same shall have become due; provided, however, that so long as any Equipment Notes remain outstanding, failure to make (or be deemed to have made) any portion of Basic Rent on any Rent Payment Date shall not be a Lease Event of Default so long as the amounts applied under Section 3.4, clause (4), of the Collateral Agency Agreement are sufficient to make the distributions required under such clause (4) with respect to the obligations owed under this Lease; provided, further, that in the event that the Special Equity Buy-Out has been consummated, failure to make any payment of Basic Base Rent, Early Purchase Price, any other purchase price to be paid by Lessee when due and payable and such failure continues for any Units pursuant to this Lease or the Participation Agreement, Stipulated Loss Amount or Termination Amount ten (to the extent such amount constitutes an Accumulated Equity Deficiency Amount to be applied under Section 3.4, clause 9 of the Collateral Agency Agreement10) shall, Business Days after receipt by Lessee of written notice of such failure from Lessor or Owner Participant, be a Lease Event of Default; or
(b) Lessee shall fail to (i) make or (ii) be deemed by virtue of payments made by the Collateral Agent to have made any payment of Supplemental Rent, including indemnity or tax indemnity payments, but not including Stipulated Loss Amount, Termination Amount, Early Purchase Price, or any other purchase price to be paid by Lessee for any Units pursuant to this Lease or the Participation Agreement (x) in the case of any such payment that is required to be on the Basic Term Expiration Date or on any date within 30 days before the Basic Term Expiration Date, when due, and (y) in the case of any other such payment, after the same shall have become due and such failure shall continue unremedied for 30 days after receipt by Lessee of written notice of such failure from Lessor;
(b) Lessee shall fail to make any payment of (i) any item of Supplemental Rent (other than Taxes) within thirty (30) Business Days after notice that such amount is due and unpaid, Policy Provideror (ii) Taxes prior to the date on which such Taxes become delinquent, Owner Participant unless Lessee is contesting the payment of such Taxes in accordance with the terms of this Lease, in which event such non-payment shall not be a default hereunder;
(c) any of Guarantor or Lessee shall fail to timely perform or observe any covenant or agreement (not otherwise specified in this Article 16) to be performed or observed by it hereunder, and Guarantor or Lessee fail to diligently and continuously prosecute the Indenture Trusteecure of such failure after Lessee's receipt of written notice of such failure from Lessor; provided, provided however, that so long as any Equipment Notes remain outstandingthat, to the extent Guarantor's or Lessee's failure relates to make (the timely performance or be deemed observation of a covenant or agreement relating to have made) payment of any of the amounts referred to in or to be applied pursuant to clauses (5) through (15) of Section 3.4 of the Collateral Agency Agreement Property, such failure shall not be a Lease Event of Default; orDefault unless such failure to timely perform or observe such covenant or agreement is material;
(cd) (i) except to the extent Lessee is permitted to self-insure pursuant to Section 9.1(b) and Schedule 9.1 and has given notice of self-insurance, but provided that Guarantor (or Lessee if there is no Guarantor) maintains a Required Rating of the Trigger Rating or higher, Lessee shall fail to carry or maintain in effect the full force any insurance required by Section 12 or Section 6.4 of the Collateral Agency Agreement hereunder and such failure shall not continue for twenty-four (24) hours including at least one (1) Business Day after notice of such failure to Lessee from Lessor; or (i) if Guarantor (or Lessee if there is no Guarantor) fails to maintain a Required Rating of the Trigger Rating or higher and Lessee fails (without the benefit of any notice and grace period) to provide Lessor with copies of insurance certificates as required under Schedule 9.1;
(e) any representation or warranty made by the Guarantor or Lessee (i) herein, or (ii) in any certificate required to be delivered pursuant to the terms of this Lease shall have been waived as provided for therein; or
incorrect in any material respect (dand such misrepresentation or failure of warranty is susceptible to cure) Lessee when such representation or warranty was made and shall use or permit remain materially incorrect at the use of the Units or the Pledged Units or any portion thereof time in a way which question, and is not permitted by this Lease cured in all material respects within thirty (with respect 30) Business Days after notice to the UnitsLessee or Guarantor (as applicable) or the Collateral Agency Agreement (with respect to the Pledged Units), of such breach; provided that the continuation of such unauthorized use a failure for thirty (30) Business Days or longer after such notice shall not constitute a Lease Event of Default for a period of 45 days after Lessee's obtaining actual knowledge thereof so long as if such failure cannot reasonably be cured within such thirty (i30) such unauthorized use is not the result of any willful action of Lessee Business Day period, and (ii) such unauthorized use is capable of being cured and Lessee diligently pursues such cure throughout such 45-day period; Guarantor or Lessee shall make or permit any unauthorized assignment or transfer of this Lease in violation of Section 18.2; or
(e) TILC (or any successor thereto in its capacity as Administrator or Servicer, as applicable) shall have defaulted in any material respect in be diligently and continuously prosecuting the performance of any of its obligations under the Administrative Services Agreement or the Servicing Agreement or a default shall occur under Section 6(a) of the Account Administration Agreement, and, in each case, Lessee shall have failed to exercise its rights thereunder in respect cure of such default for a period of 30 failure; provided, that such failure must be cured within one hundred and eighty (180) days after receipt by Lessee of written notice from Lessor, Owner Participant, Policy Provider or (as such 180-day period may be extended as reasonably necessary giving due consideration to the Indenture Trustee, demanding that such action be taken; orapplicable circumstances);
(f) Any representation or warranty made by Lessee in any Lessee Agreement or any representation or warranty made by TILC in any Operative Agreement to which any such Person is a party, in each case, other than the Tax Indemnity Agreement, is untrue or incorrect in any material respect as of the date of making thereof and such untruth or incorrectness shall continue to be material and unremedied for a period of 30 days after receipt of notice from Lessor, Owner Participant, Indenture Trustee or the Policy Provider; provided that, if such untruth or incorrectness is capable of being remedied, no such untruth or incorrectness shall constitute a Lease Event of Default hereunder for a period of 120 days after receipt of notice from Lessor, Owner Participant, the Indenture Trustee or the Policy Provider so long as Lessee, TILC or TRMI, as the case may be, is diligently proceeding to remedy such untruth or incorrectness and shall in fact remedy such untruth or incorrectness within such period; provided that such untrue or incorrect representation or warranty shall be deemed to be remediable or remedied only after all adverse consequences thereof if any, can be and have been remedied as applicable; or
(gA) Lessee or Guarantor makes any general arrangement or assignment for the General Partner shall benefit of creditors; (iB) commence Lessee or Guarantor becomes a voluntary "debtor" as defined in 11 U.S.C. § 101 of the Bankruptcy Code or any successor statute thereto (unless, in the case of a petition filed against Lessee or other proceeding seeking liquidationGuarantor , 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 same is dismissed within ninety (90) days); (C) the appointment of a trusteetrustee or receiver to take possession of substantially all of the assets of Lessee or Guarantor where possession is not restored to Lessee or Guarantor within ninety (90) days; (D) the attachment, receiver, liquidator, custodian execution or other similar official judicial seizure of it substantially all of the assets of Lessee or· Guarantor where such seizure is not discharged within ninety (90) days; (E) Lessee or any substantial part of its property, or (ii) consent to any such relief or to the appointment of or taking possession by any such official in any voluntary case or other proceeding commenced against it, or (iii) admit Guarantor admits in writing its inability to pay its debts generally as they come become due; (F) Lessee or Guarantor files a petition in bankruptcy or a petition to take advantage of any insolvency act; (G) Lessee or Guarantor files a petition or answer seeking reorganization or arrangement or other protection under the Federal bankruptcy laws (including, without limitation, chapter 12 thereof) or any other applicable law or statute of the United States of America or any State thereof; (H) Lessee or Guarantor is liquidated or dissolved, or (iv) make a general assignment for the benefit of creditors, or (v) take any corporate or partnership action to authorize any of the foregoing; or
(h) An involuntary case placed under conservatorship or other proceeding shall be commenced protection under any applicable federal or state law or begins proceedings toward such liquidation or dissolution; (I) any petition is filed by or against Lessee or the General Partner Guarantor or any subsidiary of either under Federal bankruptcy laws, (including, without limitation, chapter 12 thereof), or any other proceeding is instituted by or against Lessee or Guarantor or such subsidiary seeking to adjudicate it a bankrupt or insolvent, or seeking liquidation, reorganization reorganization, arrangement, adjustment or other relief with respect to composition of it or its debts under any law relating to bankruptcy, insolvency or other similar law now reorganization or hereafter in effectrelief of debtors, or seeking the entry of an order for relief or the appointment of a trustee, receiver, liquidatortrustee, custodian or other similar official of it for Lessee or Guarantor or such subsidiary, or for any substantial part of its propertythe property of Lessee or Guarantor or such subsidiary, and such involuntary case proceeding is not dismissed within ninety (90) days after institution thereof, or other proceeding Lessee or Guarantor or such subsidiary shall remain undismissed and unstayed for a period take any action to authorize or effect any of 60 days; orthe actions set forth above in this subsection (f);
(ig) Lessee the Guaranty, if any, shall fail to observe or perform any other of the covenants or agreements cease to be observed or performed by Lessee under any Lessee Agreement or any certificate in full force and such failure shall continue unremedied for 30 days after notice effect, unless replaced with a guaranty that is acceptable in form and substance to Lessor from Lessor, Owner Participant, Policy Provider or the Indenture Trustee to Lessee, specifying the failure and demanding a replacement guarantor with at least the same to be remedied; provided that, if credit rating as Guarantor at such failure is capable of being remedied, and the remedy requires an action other than, or in addition to, the payment of money, no such failure (other than one relating to the payment of such money) shall constitute a Lease Event of Default hereunder for a period of 150 days after receipt of such notice so long as Lessee is diligently proceeding to remedy such failure and shall in fact remedy such failure within such period; or
(j) A Manager Default shall have occurred and be continuing under the Management Agreement, and Lessee shall have failed to exercise its rights under the Management Agreement in respect of such Manager Default for a period of 30 days after receipt by Lessee of written notice from Lessor, Owner Participant or the Indenture Trustee demanding that such action be taken; ortime.
Appears in 1 contract
Samples: Lease Agreement (Griffin Capital Essential Asset REIT II, Inc.)
Lease Events of Default. The occurrence of any one or more of the following events shall constitute Lease Events of Default hereunder (events, whether any such event shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body) and each such Lease Event of Default , shall be deemed to exist and continue so long as, but only as long as, it shall not have been remediedconstitute a "LEASE EVENT OF DEFAULT":
(a) Lessee shall fail to (i) make or (ii) be deemed by virtue of the last sentence of Section 3.5 hereof to have made any payment of Basic Rent, Early Purchase Price, any other purchase price to be paid by Lessee for any Units pursuant to this Lease or the Participation Agreement, Stipulated Loss Amount or Termination Amount (x) in the case of any such payment that is required to be made on the Basic Term Expiration Date or on any date within 30 days before the Basic Term Expiration Date, when due, and (y) in the case of any other such payment, within 10 Business Days after the same shall have become due; provided, however, that so long as any Equipment Notes remain outstanding, failure to make (or be deemed to have made) any portion of Basic Rent on any Rent Payment Date shall not be a Lease Event of Default so long as the amounts applied under Section 3.4, clause (4), of the Collateral Agency Agreement are sufficient to make the distributions required under such clause (4) with respect to the obligations owed under this Lease; provided, further, that in the event that the Special Equity Buy-Out has been consummated, failure to make any payment of Basic Rent(i) Base Rent when due, Early Purchase Price(ii) any Supplemental Rent when due and such failure shall continue for two (2) Business Days after written demand therefor, any other purchase price to be paid by Lessee for any Units or (iii) amounts payable pursuant to this Lease or the Participation Agreement, Stipulated Loss Amount or Termination Amount (to the extent such amount constitutes an Accumulated Equity Deficiency Amount to be applied under Section 3.4, clause 9 exercise of the Collateral Agency AgreementSale Option when due, or (iv) shallamounts payable pursuant to ARTICLES XIV or XIX, after receipt by Lessee of written notice of such failure from Lessor SECTION 20.1(b) or Owner Participant, be a Lease Event of DefaultSECTION 21.3 when due; or
(b) the failure to pay when due any amount under any Material Indebtedness of Lessee shall fail or any of its Material Subsidiaries; or the default or breach by Lessee or any of its Material Subsidiaries under any agreement under which any such Material Indebtedness was created or is governed arising with respect to (i) make any covenant concerning the maintenance of financial ratios or (ii) be deemed by virtue amounts of payments made by the Collateral Agent to have made any payment of Supplemental Rentindebtedness, including indemnity or tax indemnity restricting investments, payments, but not including Stipulated Loss Amountdividends, Termination Amount, Early Purchase Pricedistributions, or the incurrence of Liens; or any other purchase price Material Indebtedness of Lessee or any of its Material Subsidiaries shall be declared to be paid by Lessee for any Units pursuant to this Lease due and payable or the Participation Agreement (x) in the case of any such payment that is required to be on prepaid or repurchased (other than by a regularly scheduled payment) prior to the Basic Term Expiration Date or on any date within 30 days before the Basic Term Expiration Date, when due, and (y) in the case of any other such payment, after the same shall have become due and such failure shall continue unremedied for 30 days after receipt by Lessee of written notice of such failure from Lessor, Policy Provider, Owner Participant or the Indenture Trustee; provided, however, that so long as any Equipment Notes remain outstanding, failure to make (or be deemed to have made) payment of any of the amounts referred to in or to be applied pursuant to clauses (5) through (15) of Section 3.4 of the Collateral Agency Agreement shall not be a Lease Event of Defaultstated maturity thereof; or
(c) Lessee shall fail default in the performance or observance of any term, covenant, condition or agreement on its part to maintain in effect the insurance required by Section 12 be performed or Section 6.4 observed under SECTIONS 11.1 or 12.1 hereof or SECTIONS 5.7 THROUGH 5.11, INCLUSIVE, 5.14, 5.16 AND 5.18 THROUGH 5.24, INCLUSIVE of the Collateral Agency Agreement and such failure shall not have been waived as provided for thereinParticipation Agreement; or
(d) Subject to Lessee's rights under SECTION 21.4, Lessee shall use or permit fail to offer the use Leased Property for sale in accordance with and satisfy each of the Units or terms, covenants, conditions and agreements set forth at ARTICLES XX and XXI in connection with and following its exercise of the Pledged Units or any portion thereof in a way which is not permitted by this Lease (with respect to the Units) or the Collateral Agency Agreement (with respect to the Pledged Units)Sale Option, provided that such unauthorized use shall not constitute a Lease Event including each of Default for a period of 45 days after Lessee's obtaining actual knowledge thereof so long as (i) such unauthorized use is not the result of any willful action of Lessee obligations at SECTIONS 21.1 and (ii) such unauthorized use is capable of being cured and Lessee diligently pursues such cure throughout such 45-day period; or Lessee shall make or permit any unauthorized assignment or transfer of this Lease in violation of Section 18.2; or21.2;
(e) TILC (Any representation or warranty by Lessee in any successor thereto Operative Document or in its capacity as Administrator any certificate or Servicer, as applicable) document delivered to any Party pursuant to any Operative Document shall have defaulted been incorrect in any material respect in when made, deemed made or reaffirmed, as the performance of any of its obligations under the Administrative Services Agreement or the Servicing Agreement or a default shall occur under Section 6(acase may be;
(f) of the Account Administration Agreement, and, in each case, Lessee shall have failed fail in any material respect to exercise its rights thereunder timely perform or observe any covenant, condition or agreement (not included in respect any other clause of this ARTICLE XVI) to be performed or observed by Lessee hereunder or under any other Operative Document and such default failure shall continue for a period of 30 days (but not later than the Lease Expiration Date) after receipt by Lessee of the earlier to occur of: (i) written notice thereof from Lessorany Party, Owner Participantor (ii) a Responsible Officer of Lessee has knowledge thereof, Policy Provider PROVIDED, HOWEVER, in the case of a failure to comply with the requirements of SECTION 9.1(a), (b), (d), (e), or the Indenture Trustee, demanding that such action be taken; or
(f) Any representation or warranty made by Lessee in any Lessee Agreement or any representation or warranty made by TILC in any Operative Agreement to which any such Person is a party, in each case, other than the Tax Indemnity Agreement, is untrue or incorrect in any material respect as SECTION 9.2 of the date of making thereof and such untruth or incorrectness shall continue to be material and unremedied for a period of 30 days after receipt of notice from Lessor, Owner Participant, Indenture Trustee or the Policy Provider; provided thatthis Lease, if such untruth or incorrectness is capable of being remediedfailure cannot in Lessor's reasonably exercised judgment be cured in 30 days but can in Lessor's reasonably exercised judgment be cured in 90 days, no Lessee may have an additional 60 days in which to cure such untruth or incorrectness shall constitute a Lease Event of Default hereunder for a period of 120 days after receipt of notice from Lessor, Owner Participant, the Indenture Trustee or the Policy Provider so long as Lessee, TILC or TRMI, as the case may be, is diligently proceeding to remedy such untruth or incorrectness and shall in fact remedy such untruth or incorrectness within such period; failure provided that Lessee begins to cure such untrue failure within 30 days following notice or incorrect representation or warranty shall be deemed knowledge thereof as provided above and thereafter continues diligent efforts to be remediable or remedied only after all adverse consequences thereof if any, can be and have been remedied as applicable; orcure such failure;
(g) Lessee or the General Partner shall (i) Lessee shall generally fail to pay, or admit in writing its general inability to pay, its debts as they become due, or shall voluntarily commence a voluntary any case or other proceeding seeking liquidation, reorganization or other relief with respect to itself or its debts file any petition under any bankruptcy, insolvency or other similar law now or hereafter in effect, or seeking dissolution, liquidation or reorganization or the appointment of a trustee, receiver, liquidatortrustee, custodian or other similar official of it liquidator for itself or any a substantial part portion of its property, assets or (ii) consent to any such relief business or to effect a plan or other arrangement with its creditors, or shall file any answer admitting the appointment jurisdiction of or taking possession by the court and the material allegations of any such official involuntary petition filed against it in any voluntary bankruptcy, insolvency or similar case or other proceeding commenced against itproceeding, or (iii) admit in writing its inability to pay its debts generally as they come dueshall be adjudicated bankrupt, or (iv) shall make a general assignment for the benefit of or creditors, or shall consent to, or acquiesce in the appointment of, a receiver, trustee, custodian or liquidator for itself or a substantial portion of its property, assets or business, or (vii) take any corporate or partnership action to authorize shall be taken by Lessee for the purpose of effectuating any of the foregoing; or;
(h) An involuntary case proceedings or other proceeding an involuntary petition shall be commenced or filed against Lessee or the General Partner seeking liquidation, reorganization or 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 dissolution, liquidation or reorganization of any such Person or the appointment of a trustee, receiver, liquidatortrustee, custodian or other similar official liquidator for Lessee or of it or any a substantial part of its the property, assets or business of any such Person, or any writ, judgment, warrant of attachment, execution or similar process shall be issued or levied against a substantial part of the property, assets or business of Lessee and such involuntary proceedings or petition shall not be dismissed, or such writ, judgment, warrant of attachment, execution or similar process shall not be released, vacated or fully bonded, within 60 days after commencement, filing or levy, as the case may be;
(i) any one or other proceeding more judgments, writs or warrants of attachment, executions or similar processes involving an aggregate amount in excess of $1,000,000 (after taking into account the actual amounts of third party insurance recoveries, offsets and contributions received, and amounts thereof not yet received but which the insurer thereon has acknowledged in writing its obligation to pay, without material conditions) shall remain undismissed be entered or filed against Lessee or its Subsidiaries, and unstayed all such judgments and processes shall not be dismissed, vacated, stayed, discharged or bonded for a period of 60 forty-five (45) days;
(j) any member of the ERISA Group shall fail to pay when due an amount or amounts aggregating in excess of $1,000,000 which it shall have become liable to pay under Title IV of ERISA; or notice of intent to terminate a Material Plan shall be filed under Title IV of ERISA by any member of the ERISA Group, any plan administrator or any combination of the foregoing; or the PBGC shall institute proceedings under Title IV of ERISA to terminate, to impose liability (other than for premiums under Section 4007 of ERISA) in respect of, or to cause a trustee to be appointed to administer any Material Plan; or a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any Material Plan must be terminated; or there shall occur a complete or partial withdrawal from, or a default, within the meaning of Section 4219(c)(5) of ERISA, with respect to, one or more Multiemployer Plans which could cause one or more members of the ERISA Group to incur a current payment obligation in excess of $50,000,000;
(k) any Operative Document to which Lessee is a party or the security interest and lien granted under this Lease (except in accordance with its terms), in whole or in part, terminates, ceases to be effective or ceases to be the legal, valid and binding enforceable obligation of Lessee or the security interest or lien securing Lessee's obligations under the Operative Documents, in whole or in part, ceases to be a perfected first priority security interest and lien, in each case unless due to any act or failure to act on the part of Lessor or Agent or Lessee or any of its affiliates shall directly or indirectly contest the effectiveness, validity, binding nature or enforceability of any Operative Document or any Lien granted under any Operative Document; or
(il) Lessee shall fail to observe or perform any other a Change of the covenants or agreements to be observed or performed by Lessee under any Lessee Agreement or any certificate and such failure shall continue unremedied for 30 days after notice from Lessor, Owner Participant, Policy Provider or the Indenture Trustee to Lessee, specifying the failure and demanding the same to be remedied; provided that, if such failure is capable of being remedied, and the remedy requires an action other than, or in addition to, the payment of money, no such failure (other than one relating to the payment of such money) shall constitute a Lease Event of Default hereunder for a period of 150 days after receipt of such notice so long as Lessee is diligently proceeding to remedy such failure and shall in fact remedy such failure within such period; or
(j) A Manager Default shall have occurred and be continuing under the Management Agreement, and Lessee shall have failed to exercise its rights under the Management Agreement in respect of such Manager Default for a period of 30 days after receipt by Lessee of written notice from Lessor, Owner Participant or the Indenture Trustee demanding that such action be taken; orControl occurs. MASTER LEASE
Appears in 1 contract
Samples: Master Lease (Remec Inc)
Lease Events of Default. The Each of the following events shall constitute a “Lease Events Event of Default Default” hereunder (whether any such event shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any administrative Governmental Entity or governmental body) and each such Lease Event of Default shall be deemed to exist and continue so long as, but only as long as, it shall not have been remedied:otherwise):
(a) the Lessee shall fail to (i) make or (ii) be deemed by virtue of the last sentence of Section 3.5 hereof to have made any payment of Basic Rent, Early Purchase Price, any other purchase price to be paid by Lessee for any Units pursuant to this Lease or the Participation Agreement, Stipulated Loss Amount or Termination Amount (x) in the case of any such payment that is required to be made on the Basic Term Expiration Date or on any date within 30 days before the Basic Term Expiration Date, when due, and (y) in the case of any other such payment, within 10 Business Days after the same shall have become due; provided, however, that so long as any Equipment Notes remain outstanding, failure to make (or be deemed to have made) any portion of Basic Rent on any Rent Payment Date shall not be a Lease Event of Default so long as the amounts applied under Section 3.4, clause (4), of the Collateral Agency Agreement are sufficient to make the distributions required under such clause (4) with respect to the obligations owed under this Lease; provided, further, that in the event that the Special Equity Buy-Out has been consummated, failure to make any payment of Basic Rent, Early Purchase Price, any other purchase price to be paid by Lessee for any Units pursuant to this Lease or the Participation Agreement, Stipulated Loss Amount or Termination Amount (to the extent such amount constitutes an Accumulated Equity Deficiency Amount to be applied under Section 3.4, clause 9 of the Collateral Agency Agreement) shall, after receipt by Lessee of written notice of such failure from Lessor or Owner Participant, be a Lease Event of Default; or
(b) Lessee shall fail to (i) make or (ii) be deemed by virtue of payments made by the Collateral Agent to have made any payment of Supplemental Renewal Rent, including indemnity or tax indemnity payments, but not including Stipulated Loss Amount, Termination Amount, Early Purchase Price, PVRR Amount or any other purchase price to be paid by Lessee for any Units pursuant to this Lease or the Participation Agreement (x) in the case of any such payment that is required to be on the Basic Term Expiration Date or on any date within 30 days before the Basic Term Expiration Date, when due, and (y) in the case of any other such payment, Special Event Amount after the same shall have become due and such failure shall continue unremedied have continued for 30 days after receipt by Lessee a period of written notice of such failure from Lessor, Policy Provider, Owner Participant or the Indenture Trustee; provided, however, that so long as any Equipment Notes remain outstanding, failure to make (or be deemed to have made) payment of any of the amounts referred to in or to be applied pursuant to clauses (5) through (15) of Section 3.4 of the Collateral Agency Agreement shall not be a Lease Event of Default; orten days;
(cb) the Lessee shall fail to maintain in effect the insurance required by Section 12 or Section 6.4 make any payment due under any of the Collateral Agency Agreement Operative Documents (except Excepted Payments, unless the Owner Participant shall have declared a default with respect thereto) other than those referred to in clause (a) after the same shall have become due and such failure shall not have been waived as provided for therein; or
(d) Lessee shall use or permit the use of the Units or the Pledged Units or any portion thereof in a way which is not permitted by this Lease (with respect to the Units) or the Collateral Agency Agreement (with respect to the Pledged Units), provided that such unauthorized use shall not constitute a Lease Event of Default for a period of 45 days after Lessee's obtaining actual knowledge thereof so long as (i) such unauthorized use is not the result of any willful action of Lessee and (ii) such unauthorized use is capable of being cured and Lessee diligently pursues such cure throughout such 45-day period; or Lessee shall make or permit any unauthorized assignment or transfer of this Lease in violation of Section 18.2; or
(e) TILC (or any successor thereto in its capacity as Administrator or Servicer, as applicable) shall have defaulted in any material respect in the performance of any of its obligations under the Administrative Services Agreement or the Servicing Agreement or a default shall occur under Section 6(a) of the Account Administration Agreement, and, in each case, Lessee shall have failed to exercise its rights thereunder in respect of such default continued for a period of 30 days after receipt by the Lessee of written notice of such failure from Lessor, the Owner Participant, Policy Provider the Lessor, the Indenture Trustee or the Indenture Pass Through Trustee, demanding that such action be taken; or;
(fc) Any the Lessee shall fail to maintain insurance required to be maintained pursuant to Section 11;
(d) any material representation or warranty made by the Lessee or the Guarantor in the Operative Documents (other than a Tax Representation), or in any document or certificate delivered by the Lessee Agreement or any representation the Guarantor in connection therewith or warranty made by TILC in any Operative Agreement pursuant thereto shall prove to which any such Person is a party, in each case, other than the Tax Indemnity Agreement, is untrue or have been incorrect in any material respect as when made or misleading in any material respect when made because of the date of making thereof omission to state a material fact and such untruth incorrect or incorrectness shall continue misleading representation is and continues to be material and unremedied for a period of 30 days after receipt by the Lessee or the Guarantor of notice thereof from Lessor, the Owner Participant, the Lessor, the Indenture Trustee or the Policy ProviderPass Through Trustee; provided thatprovided, however, that if such untruth condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 180 days, so long as the Lessee or incorrectness the Guarantor, as applicable, diligently pursues such remedy and such condition is reasonably capable of being remediedremedied within such additional 180 day period;
(e) the Lessee shall fail to perform or observe in any material respect its obligations set forth in the Consent Decree or Sections 5, no 10.2(a), 10.2(b) or 10.3(c) hereof or the Lessee or the Guarantor, as applicable, shall fail to perform or observe in any material respect its obligations set forth in Section 5.1, 5.2, 5.4, 5.9 or Section 13.1 of the Participation Agreement or the Guarantor shall fail to perform or observe in any material respect its obligations set forth in Section 3.1, 3.2, 3.3 or 3.4 of the Guaranty;
(f) failure by the Lessee, or the Guarantor where expressly provided, to comply with any other material obligation under the Operative Documents or the Operating Agreement to be performed or observed by the Lessee or the Guarantor and such untruth failure shall continue for a period of 30 days after notice by the Lessor or incorrectness the Indenture Trustee; provided, however, that if such condition cannot be remedied within 30 days, then the period within which to remedy such condition shall be extended up to an additional 180 days (or 365 days once the Notes have been paid), so long as the Lessee diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 180-day, or 365-day, as applicable, period; and provided, further, that in the case of the Lessee’s obligations set forth in clause (a)(ii) of Section 7.1 and in clause (x) of Section 8.1, if, to the extent and for so long as, a test, challenge, appeal or proceeding with respect to or involving any action or inaction giving rise to, causing (in whole or in part) or otherwise resulting in such non-compliance shall be prosecuted in good faith by the Lessee, the failure by the Lessee to comply with such requirement shall not constitute a Lease Event of Default hereunder for if such test, challenge, appeal or proceeding shall not involve (i) any material risk of foreclosure, sale, forfeiture or loss of, or imposition of a period Lien on, any part of 120 days after receipt the Facility or the impairment of notice from the use, operation or maintenance of the Facility in any material respect or any material adverse effect on the right, title and interest of the Lessor, the Owner Participant or the Indenture Trustee in or to the Undivided Interest or the coverage under the provisions of any insurance policy required to be carried pursuant to this Facility Lease, or the imposition of any sanction or (ii) the risk of any criminal or material civil liability being incurred by the Owner Participant, the OP Guarantor, the Lessor or the Indenture Trustee or any Material Adverse Effect, including, without limitation, subjecting the Policy Provider so long Owner Participant, the OP Guarantor or the Lessor to regulation as Lesseea public utility under Applicable Law; and provided, TILC or TRMIfurther, as in the case may beof the Lessee’s obligations set forth in clause (a)(ii) of Section 7.1 and in clause (x) of Section 8.1, if the noncompliance is diligently proceeding not a type that can be immediately remedied, the failure to comply shall not be a Lease Event of Default if the Lessee is taking all reasonable action to remedy such untruth noncompliance and if, but only if, such noncompliance shall not create a material risk that the events described in the preceding clause (i) or incorrectness (ii) will occur; and shall in fact remedy such untruth or incorrectness within such period; provided provided, further, that such untrue noncompliance, test, challenge, appeal or incorrect representation review shall not extend beyond the scheduled expiration of the Basic Term or warranty shall be deemed to be remediable any Renewal Term then in effect or remedied only after all adverse consequences thereof if any, can be and have been remedied as applicable; orirrevocably elected by the Lessee;
(g) the Lessee or the General Partner Guarantor shall (i) commence a voluntary case or other proceeding seeking relief under Title 11 of the Bankruptcy Code or 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 apply for or consent to the appointment of a trustee, receiver, liquidator, custodian or other similar official of it or any substantial part of its property, or (ii) consent to, or fail to controvert in a timely manner, any such relief or to the appointment of or taking possession by any such official in any voluntary involuntary case or other proceeding commenced against it, or (iii) admit file an answer admitting the material allegations of a petition filed against it in writing its inability to pay its debts generally as they come dueany such proceeding, or (iv) make a general assignment for the benefit of creditors, or (v) take any corporate or partnership action to authorize any of the foregoing; or;
(h) An an involuntary case or other proceeding shall be commenced against the Lessee or the General Partner Guarantor seeking (i) liquidation, reorganization or other relief with respect to it or its debts under Title 11 of the Bankruptcy Code or any bankruptcy, insolvency or other similar law now or hereafter in effect, or seeking (ii) the appointment of a trustee, receiver, liquidator, custodian or other similar official of with respect to it or any substantial part of its property, property or (iii) the winding-up or liquidation of such Person; and such involuntary case or other proceeding shall remain undismissed and unstayed for a period of 60 90 days;
(i) any of the Site Lease, the Site Sublease, the Support Agreement, the Operating Agreement or any other material Operative Document shall have been cancelled or terminated by any Lessee Person, or shall otherwise cease to be in full force and effect as a result of any Lessee Person’s action or inaction, unless, in any such case, alternative arrangements satisfactory to the Lessor and the Owner Participant have been made and the Lessor and the Owner Participant shall have so acknowledged in writing;
(j) upon the election of the Owner Participant, a lease event of default under an Other Facility Lease with respect to another undivided interest in the Facility held by or for the benefit of the Owner Participant or any if its Affiliates; or
(ik) Lessee the Guaranty shall fail cease to observe or perform any other be a valid, binding and enforceable obligation of the covenants Guarantor as a result of one or agreements more Lessee Person’s actions or failures to be observed or performed by Lessee under any Lessee Agreement or any certificate and such failure shall continue unremedied for 30 days after notice from Lessor, Owner Participant, Policy Provider act or the Indenture Trustee to LesseeGuarantor shall disavow, specifying reject, rescind or repudiate the failure and demanding the same to be remedied; provided that, if such failure is capable of being remedied, and the remedy requires an action other than, or in addition to, the payment of money, no such failure (other than one relating to the payment of such money) shall constitute a Lease Event of Default hereunder for a period of 150 days after receipt of such notice so long as Lessee is diligently proceeding to remedy such failure and shall in fact remedy such failure within such period; or
(j) A Manager Default shall have occurred and be continuing under the Management Agreement, and Lessee shall have failed to exercise its rights under the Management Agreement in respect of such Manager Default for a period of 30 days after receipt by Lessee of written notice from Lessor, Owner Participant or the Indenture Trustee demanding that such action be taken; orGuaranty.
Appears in 1 contract
Lease Events of Default. The Each of the following events shall constitute a “Lease Events of Default hereunder (whether any such event shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body) and each such Lease Event of Default shall be deemed to exist and continue so long as, but only as long as, it shall not have been remediedDefault”:
(a) Lessee shall fail to (i) make or (ii) be deemed by virtue of the last sentence of Section 3.5 hereof to have made any payment of Basic Rent, Early Purchase Price, any other purchase price to be paid by Lessee for any Units pursuant to this Lease or the Participation Agreement, Stipulated Loss Amount or Termination Amount (x) in the case of any such payment that is required to be made on the Basic Term Expiration Date or on any date within 30 days before the Basic Term Expiration Date, when due, and (y) in the case of any other such payment, within 10 Business Days after the same shall have become due; provided, however, that so long as any Equipment Notes remain outstanding, failure to make (or be deemed to have made) any portion of Basic Rent on any Rent Payment Date shall not be a Lease Event of Default so long as the amounts applied under Section 3.4, clause (4), of the Collateral Agency Agreement are sufficient to make the distributions required under such clause (4) with respect to the obligations owed under this Lease; provided, further, that in the event that the Special Equity Buy-Out has been consummated, failure to make any payment of Basic Rent, Early Purchase Price, any other purchase price to be paid by Lessee Base Rent and such failure shall continue for any Units pursuant to this Lease or the Participation Agreement, Stipulated Loss Amount or Termination Amount a period of five (to the extent such amount constitutes an Accumulated Equity Deficiency Amount to be applied under Section 3.4, clause 9 of the Collateral Agency Agreement5) shall, days after receipt by Lessee of written notice of such failure from Lessor or Owner Participant, be a Lease Event of Default; orLender to Lessee that such amount is due and unpaid;
(b) Lessee shall fail to (i) make or (ii) be deemed by virtue of payments made by the Collateral Agent to have made any other payment of Supplemental Rent, including indemnity or tax indemnity payments, but not including Stipulated Loss Amount, Termination Amount, Early Purchase Price, or any other purchase price to be paid by Lessee for any Units pursuant to this Lease or the Participation Agreement (x) in the case of any such payment that is required to be on the Basic Term Expiration Date or on any date within 30 days before the Basic Term Expiration Date, when due, and (y) in the case of any other such payment, after the same shall have become due and such failure shall continue unremedied for 30 a period of five (5) days after receipt by Lessee of written notice of such failure to Lessee from Lessor, Policy Provider, Owner Participant Lessor or the Indenture Trustee; provided, however, that so long as any Equipment Notes remain outstanding, failure to make (or be deemed to have made) payment of any of the amounts referred to in or to be applied pursuant to clauses (5) through (15) of Section 3.4 of the Collateral Agency Agreement shall not be a Lease Event of Default; orLender;
(c) Lessee shall fail to maintain timely perform or observe any covenant or agreement (not otherwise specified in effect the insurance required this Article 16) to be performed or observed by Section 12 or Section 6.4 of the Collateral Agency Agreement it hereunder and such failure shall not have been waived as provided continue for thereina period of thirty (30) days after written notice thereof from Lessor or Lender; or
(d) Lessee shall use or permit the use of the Units or the Pledged Units or any portion thereof in a way which is not permitted by this Lease (with respect to the Units) or the Collateral Agency Agreement (with respect to the Pledged Units), provided that the continuation of such unauthorized use a failure for thirty (30) days or longer after such notice shall not constitute a Lease Event of Default if such failure can be cured, but cannot reasonably be cured within such thirty (30) day period, and Xxxxxx shall commence to cure such failure within such thirty (30) day period and shall be diligently and continuously prosecuting the cure of such failure;
(d) except to the extent the Lessee is permitted to self-insure pursuant to Section 9.2 and Schedule 9.1, Lessee shall fail to carry or maintain in full force any insurance required hereunder, and such failure shall continue for a period of 45 thirty (30) days after Lessee's obtaining actual knowledge thereof so long as (i) such unauthorized use is obligations arise, but not beyond the result expiration date of any willful action required policy of Lessee and (ii) such unauthorized use is capable of being cured and Lessee diligently pursues such cure throughout such 45-day period; or Lessee shall make or permit any unauthorized assignment or transfer of this Lease in violation of Section 18.2; orinsurance;
(e) TILC (or any successor thereto in its capacity as Administrator or Servicer, as applicable) shall have defaulted in any material respect in the performance of any of its obligations under the Administrative Services Agreement or the Servicing Agreement or a default shall occur under Section 6(a) of the Account Administration Agreement, and, in each case, Lessee shall have failed to exercise its rights thereunder in respect of such default for a period of 30 days after receipt by Lessee of written notice from Lessor, Owner Participant, Policy Provider or the Indenture Trustee, demanding that such action be taken; or
(f) Any representation or warranty made by Lessee in any Lessee Agreement or any representation or warranty made by TILC in any Operative Agreement herein shall prove to which any such Person is a party, in each case, other than the Tax Indemnity Agreement, is untrue or have been incorrect in any material respect as of when such representation or warranty was made, shall remain materially incorrect at the date of making thereof time in question and such untruth or incorrectness shall continue to be not cured in all material and unremedied for a period of 30 respects within thirty (30) days after receipt written notice to Lessee thereof, provided that the continuation of such a failure for thirty (30) days or longer after such notice from Lessor, Owner Participant, Indenture Trustee or the Policy Provider; provided that, if such untruth or incorrectness is capable of being remedied, no such untruth or incorrectness shall not constitute a Lease Event of Default hereunder for a if such failure can be cured, but cannot reasonably be cured within such thirty (30) day period, and Lessee shall commence to cure such failure within such thirty (30) day period of 120 days after receipt of notice from Lessor, Owner Participant, the Indenture Trustee or the Policy Provider so long as Lessee, TILC or TRMI, as the case may be, is diligently proceeding to remedy such untruth or incorrectness and shall in fact remedy be diligently and continuously prosecuting the cure of such untruth or incorrectness within such period; provided that such untrue or incorrect representation or warranty shall be deemed to be remediable or remedied only after all adverse consequences thereof if any, can be and have been remedied as applicable; orfailure;
(g) Lessee or the General Partner shall (i) commence a voluntary case Lessee makes any general arrangement 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 (ii) consent to any such relief or to the appointment of or taking possession by any such official in any voluntary case or other proceeding commenced against it, or (iii) admit in writing its inability to pay its debts generally as they come due, or (iv) make a general assignment for the benefit of creditors; (ii) Xxxxxx becomes a “debtor” as defined in 11 U.S.C. § 101 or any successor statute thereto (unless, or (v) take any corporate or partnership action to authorize any of in the foregoing; or
(h) An involuntary case or other proceeding shall be commenced against Lessee or the General Partner seeking liquidation, reorganization or 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 trusteepetition filed against Xxxxxx, 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 60 days; or
(i) Lessee shall fail to observe or perform any other of the covenants or agreements to be observed or performed by Lessee under any Lessee Agreement or any certificate and such failure shall continue unremedied for 30 days after notice from Lessor, Owner Participant, Policy Provider or the Indenture Trustee to Lessee, specifying the failure and demanding the same to be remedied; provided that, if such failure is capable of being remedied, and the remedy requires an action other than, or in addition to, the payment of money, no such failure (other than one relating to the payment of such money) shall constitute a Lease Event of Default hereunder for a period of 150 days after receipt of such notice so long as Lessee is diligently proceeding to remedy such failure and shall in fact remedy such failure dismissed within such period; or
(j) A Manager Default shall have occurred and be continuing under the Management Agreement, and Lessee shall have failed to exercise its rights under the Management Agreement in respect of such Manager Default for a period of 30 days after receipt by Lessee of written notice from Lessor, Owner Participant or the Indenture Trustee demanding that such action be taken; orninety
Appears in 1 contract
Samples: Lease Agreement
Lease Events of Default. The If any one (1) or more of the following events shall constitute Lease Events of Default hereunder (whether any such event shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with any judgmenteach, decree or order of any court or any order, rule or regulation of any administrative or governmental body) and each such a “Lease Event of Default Default”) shall occur:
(i) Except as otherwise provided in this Section 17.1(a), any payment of Basic Rent payable by Lessee shall not be paid when due, and, such payment shall be overdue for a period of three (3) Business Days, (ii) any payment payable by Lessee on the Expiration Date, including any payment described in Article XX, shall not be paid when due, (iii) any payment of Termination Value or any payment of Basic Rent or Supplemental Rent due on the date of any such payment of Termination Value shall not be paid when due, or (iv) Lessee shall fail to make payment of any Supplemental Rent (other than Supplemental Rent referred to in clause (ii) or (iii) of this Section 17.1(a)) due and payable within five (5) Business Days after receipt by Lessee of notice from Agent demanding payment thereof (as any of the amounts pursuant to this Section 17.1(a) are due and payable, whether at maturity, by acceleration or otherwise);
(b) Any representation, warranty, certification or statement of fact made or expressly deemed made by any Credit Party in this Lease, in any other Operative Agreement, or in any statement or certificate delivered in connection herewith or therewith that is subject to exist materiality or Material Adverse Effect qualifications, shall be incorrect or misleading in any respect when made or expressly deemed made or any representation, warranty, certification or statement of fact made or expressly deemed made by any Credit Party in this Lease, any other Operative Agreement, or in any statement or certificate delivered in connection herewith or therewith that is not subject to materiality or Material Adverse Effect qualifications, shall be incorrect or misleading in any material respect when made or expressly deemed made;
(c) Any Credit Party shall default in the performance or observance of any covenant or agreement contained in Article XIV of this Lease (other than the requirement to deliver annual certificates and any requirement to deliver insurance policies), Sections 8.3A(a), 8.3A(b), 8.3A(c), 8.3A(d) or 8.3B of the Participation Agreement or Section 2.4(d) of the Agency Agreement;
(d) Any Credit Party shall default in the performance or observance of any term, covenant, condition or agreement contained in this Lease (other than as specifically provided for in this Section) or any other Operative Agreement and such default is of a type that is subject to being cured and shall continue so long asfor a period of thirty (30) days after the earlier of (i) the Agent’s delivery of written notice thereof to Lessee and (ii) a Responsible Officer of any Credit Party having obtained knowledge thereof; provided, however, if the nature of the default is such that it cannot with the exercise of reasonable diligence be cured within said thirty (30) day period, then the Lessee shall not be in default hereunder if such Credit Party shall promptly commence with such cure within said thirty (30) day period and thereafter pursue the same to completion with diligence and continuity; provided, further, in no event shall such extended period beyond such period of thirty (30) days extend more than an additional period of thirty (30) days;
(e) Any Credit Party shall or, to the extent it could reasonably be expected to result in a Material Adverse Effect, any Subsidiary of any Credit Party shall (i) default in the payment of any Indebtedness the aggregate principal amount (including undrawn committed or available amounts), or with respect to any Hedge Agreement, the Hedge Termination Value, of which is in excess of the Threshold Amount beyond the period of grace if any, provided in the instrument or agreement under which such Indebtedness was created, or (ii) default in the observance or performance of any other agreement or condition relating to any Indebtedness the aggregate principal amount (including undrawn committed or available amounts), or with respect to any Hedge Agreement, the Hedge Termination Value, of which is in excess of the Threshold Amount or contained in any instrument or agreement evidencing, securing or relating thereto or any other event shall occur or condition exist, the effect of which default or other event or condition is to cause, or to permit the holder or holders of such Indebtedness (or a trustee or agent on behalf of such holder or holders) to cause, with the giving of notice and/or lapse of time, if required, any such Indebtedness to become due prior to its stated maturity (any applicable grace period having expired);
(f) Any Credit Party shall or, to the extent it could reasonably be expected to result in a Material Adverse Effect, any Subsidiary of any Credit Party shall default in the payment when due, or in the performance or observance, of any obligation or condition of any Material Contract beyond any applicable notice and cure period, if any, unless, but only as long as, it shall not have been remedied:
(a) Lessee shall fail to (i) make or (ii) be deemed by virtue of the last sentence of Section 3.5 hereof to have made any payment of Basic Rent, Early Purchase Price, any other purchase price to be paid by Lessee for any Units pursuant to this Lease or the Participation Agreement, Stipulated Loss Amount or Termination Amount (x) in the case existence of any such payment that default is required to be made being contested by such Credit Party or any such Subsidiary in good faith by appropriate proceedings and adequate reserves in respect thereof have been established on the Basic Term Expiration Date books of Lessee or on any date within 30 days before the Basic Term Expiration Date, when due, and (y) in the case of any other such payment, within 10 Business Days after the same shall have become due; provided, however, that so long as any Equipment Notes remain outstanding, failure to make (or be deemed to have made) any portion of Basic Rent on any Rent Payment Date shall not be a Lease Event of Default so long as the amounts applied under Section 3.4, clause (4), of the Collateral Agency Agreement are sufficient to make the distributions required under such clause (4) with respect to the obligations owed under this Lease; provided, further, that in the event that the Special Equity Buy-Out has been consummated, failure to make any payment of Basic Rent, Early Purchase Price, any other purchase price to be paid by Lessee for any Units pursuant to this Lease or the Participation Agreement, Stipulated Loss Amount or Termination Amount (Credit Party to the extent such amount constitutes an Accumulated Equity Deficiency Amount to be applied under Section 3.4, clause 9 of the Collateral Agency Agreement) shall, after receipt by Lessee of written notice of such failure from Lessor or Owner Participant, be a Lease Event of Default; or
(b) Lessee shall fail to (i) make or (ii) be deemed by virtue of payments made by the Collateral Agent to have made any payment of Supplemental Rent, including indemnity or tax indemnity payments, but not including Stipulated Loss Amount, Termination Amount, Early Purchase Price, or any other purchase price to be paid by Lessee for any Units pursuant to this Lease or the Participation Agreement (x) in the case of any such payment that is required to be on the Basic Term Expiration Date or on any date within 30 days before the Basic Term Expiration Date, when due, and (y) in the case of any other such payment, after the same shall have become due and such failure shall continue unremedied for 30 days after receipt by Lessee of written notice of such failure from Lessor, Policy Provider, Owner Participant or the Indenture Trustee; provided, however, that so long as any Equipment Notes remain outstanding, failure to make (or be deemed to have made) payment of any of the amounts referred to in or to be applied pursuant to clauses (5) through (15) of Section 3.4 of the Collateral Agency Agreement shall not be a Lease Event of Default; or
(c) Lessee shall fail to maintain in effect the insurance required by Section 12 or Section 6.4 of the Collateral Agency Agreement and such failure shall not have been waived as provided for therein; or
(d) Lessee shall use or permit the use of the Units or the Pledged Units or any portion thereof in a way which is not permitted by this Lease (with respect to the Units) or the Collateral Agency Agreement (with respect to the Pledged Units), provided that such unauthorized use shall not constitute a Lease Event of Default for a period of 45 days after Lessee's obtaining actual knowledge thereof so long as (i) such unauthorized use is not the result of any willful action of Lessee and (ii) such unauthorized use is capable of being cured and Lessee diligently pursues such cure throughout such 45-day period; or Lessee shall make or permit any unauthorized assignment or transfer of this Lease in violation of Section 18.2; or
(e) TILC (or any successor thereto in its capacity as Administrator or Servicer, as applicable) shall have defaulted in any material respect in the performance of any of its obligations under the Administrative Services Agreement or the Servicing Agreement or a default shall occur under Section 6(a) of the Account Administration Agreement, and, in each case, Lessee shall have failed to exercise its rights thereunder in respect of such default for a period of 30 days after receipt by Lessee of written notice from Lessor, Owner Participant, Policy Provider or the Indenture Trustee, demanding that such action be taken; or
(f) Any representation or warranty made by Lessee in any Lessee Agreement or any representation or warranty made by TILC in any Operative Agreement to which any such Person is a party, in each case, other than the Tax Indemnity Agreement, is untrue or incorrect in any material respect as of the date of making thereof and such untruth or incorrectness shall continue to be material and unremedied for a period of 30 days after receipt of notice from Lessor, Owner Participant, Indenture Trustee or the Policy Provider; provided that, if such untruth or incorrectness is capable of being remedied, no such untruth or incorrectness shall constitute a Lease Event of Default hereunder for a period of 120 days after receipt of notice from Lessor, Owner Participant, the Indenture Trustee or the Policy Provider so long as Lessee, TILC or TRMI, as the case may be, is diligently proceeding to remedy such untruth or incorrectness and shall in fact remedy such untruth or incorrectness within such period; provided that such untrue or incorrect representation or warranty shall be deemed to be remediable or remedied only after all adverse consequences thereof if any, can be and have been remedied as applicable; orGAAP;
(g) Lessee or Any Change in Control shall occur;
(h) Any Credit Party shall or, to the General Partner extent it could reasonably be expected to result in a Material Adverse Effect, any Subsidiary of any Credit Party shall (i) commence a voluntary case under any Debtor Relief Laws, (ii) file a petition seeking to take advantage of any Debtor Relief Laws, (iii) consent to or other proceeding seeking liquidationfail to contest in a timely and appropriate manner any petition filed against it in an involuntary case under any Debtor Relief Laws, reorganization (iv) apply for or other relief with respect consent to, or fail to contest in a timely and appropriate manner, the appointment of, or the taking of possession by, a receiver, custodian, trustee, or liquidator of 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, domestic or foreign, (ii) consent to any such relief or to the appointment of or taking possession by any such official in any voluntary case or other proceeding commenced against it, or (iiiv) admit in writing its inability to pay its debts generally as they come become due, or (ivvi) make a general assignment for the benefit of creditors, or (vvii) take any corporate or partnership action to authorize for the purpose of authorizing any of the foregoing; or;
(hi) An involuntary A case or other proceeding shall be commenced against Lessee or any Credit Party or, to the General Partner extent it could reasonably be expected to result in a Material Adverse Effect, any Subsidiary of any Credit Party in any court of competent jurisdiction seeking liquidation, reorganization or other (i) relief with respect to it or its debts under any bankruptcy, insolvency or other similar law now or hereafter in effectDebtor Relief Laws, or seeking (ii) the appointment of a trustee, receiver, liquidatorcustodian, custodian liquidator or other similar official of it the like for any Credit Party or any Subsidiary thereof or for all or any substantial part of its propertytheir respective assets, domestic or foreign, and such involuntary case or other proceeding shall remain undismissed and unstayed continue without dismissal or stay for a period of 60 ninety (90) consecutive days; or, or an order granting the relief requested in such case or proceeding (including, but not limited to, an order for relief under such federal bankruptcy laws) shall be entered;
(j) Any provision of this Lease or any provision of any other Operative Agreement shall for any reason cease to be valid and binding on any Credit Party thereto or any such Person shall so state in writing, or any Operative Agreement shall for any reason cease to create a valid and perfected first priority Lien (subject to Permitted Liens) on, or security interest in, any of the Collateral purported to be covered thereby, in each case other than in accordance with the express terms hereof or thereof;
(l) The occurrence of any of the following events: (i) any Credit Party or any ERISA Affiliate fails to make full payment when due of all amounts which, under the provisions of any Pension Plan or Sections 412 or 430 of the Code, any Credit Party or any ERISA Affiliate is required to pay as contributions thereto and such unpaid amounts are in excess of the Threshold Amount, (ii) a Termination Event or (iii) any Credit Party or any ERISA Affiliate as employers under one or more Multiemployer Plans makes a complete or partial withdrawal from any such Multiemployer Plan and the plan sponsor of such Multiemployer Plans notifies such withdrawing employer that such employer has incurred a withdrawal liability requiring payments in an amount exceeding the Threshold Amount;
(m) A judgment or order for the payment of money which causes the aggregate amount of all such judgments or orders (net of any amounts paid or fully covered by independent third party insurance as to which the relevant insurance company does not dispute coverage) to exceed the Threshold Amount shall be entered against any Credit Party or, to the extent it could reasonably be expected to result in a Material Adverse Effect, any Subsidiary of any Credit Party by any court and such judgment or order shall continue without having been discharged, vacated or stayed for a period of ninety (90) consecutive days after the entry thereof;
(n) Lessee shall fail to observe or perform any other of the covenants or agreements deliver a certificate when required pursuant to be observed or performed by Lessee under any Lessee Agreement or any certificate and such failure shall continue unremedied for 30 days after notice from Lessor, Owner Participant, Policy Provider or the Indenture Trustee to Lessee, specifying the failure and demanding the same to be remedied; provided that, if such failure is capable of being remedied, and the remedy requires an action other than, or in addition to, the payment of money, no such failure Section 14.3(a) within ten (other than one relating to the payment of such money10) shall constitute a Lease Event of Default hereunder for a period of 150 days Business Days after receipt of notice from Lessor that such notice so long as certificate is due under the terms hereof or to maintain insurance to the extent required by Article XIV;
(o) Lessee is diligently proceeding to remedy such failure shall elect the Sale Option and shall in fact remedy such failure within such periodnot have complied with each of its obligations pursuant to the Operative Agreements by the Expiration Date; or
(jp) A Manager An Agency Agreement Event of Default shall have occurred and be continuing continuing. then, in any such event, Lessor, in addition to the other rights and remedies provided for in this Article XVII and in Section 18.1, shall have all rights and remedies available at law and/or in equity, including, without limitation, selling the Property at public sale or as otherwise permitted under Applicable Law free and clear of rights of Lessee and may terminate this Lease by giving Lessee five (5) days’ notice of such termination (provided, notwithstanding the Management Agreementforegoing, this Lease shall be deemed to be automatically terminated without the giving of notice upon the occurrence of a Lease Event of Default under Sections 17.1(h) or (i)), and this Lease shall terminate, and all rights of Lessee under this Lease shall have failed cease. Lessee shall, to exercise its rights under the Management Agreement fullest extent permitted by law, pay as Supplemental Rent all costs and expenses incurred by or on behalf of Lessor or any other Financing Party, including reasonable fees and expenses of counsel, as a result of any Lease Event of Default hereunder. Notwithstanding the foregoing, with regard to any Lease Event of Default during the Construction Period, the recovery of amounts shall be limited in respect accordance with Section 5.4 of such Manager Default for a period of 30 days after receipt by Lessee of written notice from Lessor, Owner Participant or the Indenture Trustee demanding that such action be taken; orAgency Agreement.
Appears in 1 contract
Lease Events of Default. The If any one (1) or more of the following events shall constitute Lease Events of Default hereunder (whether any such event shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body) and each such a "Lease Event of Default Default") shall be deemed to exist and continue so long as, but only as long as, it shall not have been remediedoccur:
(a) Lessee shall fail to make payment of (i) make or any Basic Rent (except as set forth in clause (ii) be deemed by virtue of the last sentence of Section 3.5 hereof to have made any payment of Basic Rent, Early Purchase Price, any other purchase price to be paid by Lessee for any Units pursuant to this Lease or the Participation Agreement, Stipulated Loss Amount or Termination Amount within five (x5) in the case of any such payment that is required to be made on the Basic Term Expiration Date or on any date within 30 days before the Basic Term Expiration Date, when due, and (y) in the case of any other such payment, within 10 Business Days after the same shall have has become due; provided, however, that so long as any Equipment Notes remain outstanding, failure to make due and payable or (or be deemed to have madeii) any portion of Basic Rent Termination Value, on the date any Rent Payment Date shall not be a Lease Event of Default so long as the amounts applied under Section 3.4such payment is due and payable, clause (4), of the Collateral Agency Agreement are sufficient to make the distributions required under such clause (4) with respect to the obligations owed under this Lease; provided, further, that in the event that the Special Equity Buy-Out has been consummated, failure to make or any payment of Basic RentRent or Supplemental Rent due on the due date of any such payment of Termination Value, Early Purchase Price, or any other purchase price to be paid by Lessee for any Units pursuant to this Lease or amount due on the Participation Agreement, Stipulated Loss Amount or Termination Amount (to the extent such amount constitutes an Accumulated Equity Deficiency Amount to be applied under Section 3.4, clause 9 of the Collateral Agency Agreement) shall, after receipt by Lessee of written notice of such failure from Lessor or Owner Participant, be a Lease Event of Default; orExpiration Date;
(b) Lessee shall fail to make payment of any Supplemental Rent (iother than Supplemental Rent referred to in Section 17.1(a)(ii)) or any other Credit Party shall fail to make or (ii) be deemed by virtue of payments made by the Collateral Agent to have made any payment of Supplemental Rent, including indemnity or tax indemnity payments, but not including Stipulated Loss Amount, Termination Amount, Early Purchase Price, or any other purchase price to be paid by Lessee for amount under any Units pursuant to this Lease or the Participation Operative Agreement (x) in the case of any such payment that is required to be on the Basic Term Expiration Date or on any date within 30 days before the Basic Term Expiration Date, when due, and (y) in the case of any other such payment, after the same shall have which has become due and such failure shall continue unremedied for 30 days after receipt by Lessee of written notice of such failure from Lessor, Policy Provider, Owner Participant or the Indenture Trustee; provided, however, that so long as any Equipment Notes remain outstanding, failure to make (or be deemed to have made) payment of any of the amounts referred to in or to be applied pursuant to clauses payable within five (5) through (15) Business Days after receipt of Section 3.4 of the Collateral Agency Agreement shall not be a Lease Event of Default; ornotice that such payment is due;
(c) Lessee shall fail to maintain in effect the insurance as required by Section 12 or Section 6.4 of the Collateral Agency Agreement and such failure shall not have been waived as provided for therein; or
(d) Lessee shall use or permit the use of the Units or the Pledged Units or any portion thereof in a way which is not permitted by this Lease (with respect to the Units) or the Collateral Agency Agreement (with respect to the Pledged Units), provided that such unauthorized use shall not constitute a Lease Event of Default for a period of 45 days after Lessee's obtaining actual knowledge thereof so long as (i) such unauthorized use is not the result of any willful action of Lessee and (ii) such unauthorized use is capable of being cured and Lessee diligently pursues such cure throughout such 45-day period; or Lessee shall make or permit any unauthorized assignment or transfer Article XIV of this Lease in violation of Section 18.2; or
or to deliver any requisite annual certificate with respect thereto within ten (e10) TILC (or any successor thereto in its capacity as Administrator or Servicer, as applicable) shall have defaulted in any material respect in the performance of any of its obligations under the Administrative Services Agreement or the Servicing Agreement or a default shall occur under Section 6(a) of the Account Administration Agreement, and, in each case, Lessee shall have failed to exercise its rights thereunder in respect of such default for a period of 30 days after receipt by Lessee of written notice from Lessor, Owner Participant, Policy Provider or the Indenture Trustee, demanding that such action be taken; or
(f) Any representation or warranty made by Lessee in any Lessee Agreement or any representation or warranty made by TILC in any Operative Agreement to which any such Person is a party, in each case, other than the Tax Indemnity Agreement, is untrue or incorrect in any material respect as of the date of making thereof and such untruth or incorrectness shall continue to be material and unremedied for a period of 30 days after receipt of notice from Lessor, Owner Participant, Indenture Trustee or of Lessee's failure to provide such certificate when due under the Policy Provider; provided that, if such untruth or incorrectness is capable of being remedied, no such untruth or incorrectness shall constitute a Lease Event of Default hereunder for a period of 120 days after receipt of notice from Lessor, Owner Participant, the Indenture Trustee or the Policy Provider so long as Lessee, TILC or TRMI, as the case may be, is diligently proceeding to remedy such untruth or incorrectness and shall in fact remedy such untruth or incorrectness within such period; provided that such untrue or incorrect representation or warranty shall be deemed to be remediable or remedied only after all adverse consequences thereof if any, can be and have been remedied as applicable; or
(g) Lessee or the General Partner shall (i) 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 (ii) consent to any such relief or to the appointment of or taking possession by any such official in any voluntary case or other proceeding commenced against it, or (iii) admit in writing its inability to pay its debts generally as they come due, or (iv) make a general assignment for the benefit of creditors, or (v) take any corporate or partnership action to authorize any of the foregoing; or
(h) An involuntary case or other proceeding shall be commenced against Lessee or the General Partner seeking liquidation, reorganization or 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 60 days; orterms hereof;
(i) Lessee shall fail to observe or perform any other term, covenant, obligation or condition of the covenants or agreements to be observed or performed by Lessee under any Lessee Agreement this Lease (including without limitation the Incorporated Covenants) or any certificate other Operative Agreement to which Lessee is a party other than those set forth in Sections 17.1(a), (b) or (c) hereof, or any other Credit Party shall fail to observe or perform any term, covenant, obligation or condition of such Credit Party under any Operative Agreement other than those set forth in Section 17.1(b) hereof and such failure shall continue unremedied for 30 thirty (30) days (or with respect to the Incorporated Covenants, the grace period, if any, applicable thereto) after the earlier of (A) notice from Lessorthereof to the Lessee or such Credit Party and (B) the date the Lessee or such Credit Party otherwise has notice thereof, Owner Participantor (ii) any representation or warranty made by Lessee or any other Credit Party set forth in this Lease (including without limitation the Incorporated Representations and Warranties) or in any other Operative Agreement or in any document entered into in connection herewith or therewith or in any document, Policy Provider certificate or financial or other statement delivered in connection herewith or therewith shall be false or inaccurate in any material way when made;
(e) An Agency Agreement Event of Default shall have occurred and be continuing;
(f) Any Credit Party or any Subsidiary of any Credit Party shall default (beyond applicable periods of grace and/or notice and cure) in the payment when due of any principal of or interest on any Indebtedness having an outstanding principal amount of at least $25,000,000; or any other event or condition shall occur which results in a default of any such Indebtedness or enables the holder of any such Indebtedness or any Person acting on such holder's behalf to accelerate the maturity thereof;
(g) The liquidation or dissolution of any Credit Party, or the Indenture Trustee suspension of the business of any Credit Party, or the filing by any Credit Party of a voluntary petition or an answer seeking reorganization, arrangement, readjustment of its debts or for any other relief under the United States Bankruptcy Code, as amended, or under any other insolvency act or law, state or federal, now or hereafter existing, or any other action of any Credit Party indicating its consent to, approval of or acquiescence in, any such petition or proceeding; the application by any Credit Party for, or the appointment by consent or acquiescence of any Credit Party of a receiver, a trustee or a custodian of any Credit Party for all or a substantial part of its property; the making by any Credit Party of any assignment for the benefit of creditors; the inability of any Credit Party or the admission by any Credit Party in writing of its inability to Lesseepay its debts as they mature or any Credit Party is generally not paying its debts and other financial obligations as they become due and payable; or any Credit Party taking any corporate action to authorize any of the foregoing;
(h) The filing of an involuntary petition against any Credit Party in bankruptcy or seeking reorganization, specifying arrangement, readjustment of its debts or for any other relief under the failure and demanding United States Bankruptcy Code, as amended, or under any other insolvency act or law, state or federal, now or hereafter existing; or the same to be remediedinvoluntary appointment of a receiver, a trustee or a custodian of any Credit Party for all or a substantial part of its property; provided thator the issuance of a warrant of attachment, if such failure is capable execution or similar process against any substantial part of being remediedthe property of any Credit Party, and the remedy requires an action other than, or in addition to, the payment continuance of money, no such failure (other than one relating to the payment any of such moneyevents for ninety (90) shall constitute a Lease Event days undismissed or undischarged;
(i) The adjudication of Default hereunder for a period of 150 days after receipt of such notice so long any Credit Party as Lessee is diligently proceeding to remedy such failure and shall in fact remedy such failure within such period; orbankrupt or insolvent;
(j) A Manager The entering of any order in any proceedings against any Credit Party or any Subsidiary of any Credit Party decreeing the dissolution, divestiture or split-up of any Credit Party or any Subsidiary of any Credit Party, and such order remains in effect for more than sixty (60) days;
(k) Any report, certificate, financial statement or other instrument delivered to Lessor by or on behalf of any Credit Party pursuant to the terms of this Lease or any other Operative Agreement is false or misleading in any material respect when made or delivered;
(l) Any Parent Credit Agreement Event of Default shall have occurred and be continuing and shall not have been waived;
(m) A final judgment or judgments for the payment of money shall be rendered by a court or courts against any Credit Party or any Subsidiary of any Credit Party in excess of $1,000,000, in the aggregate, over amounts paid by insurance policies (other than self-insurance), and (i) the same shall not be discharged (or provision shall not be made for such discharge), or a stay of execution thereof shall not be procured, within thirty (30) days from the date of entry thereof, or (ii) any Credit Party or any such Subsidiary shall not, within said period of thirty (30) days, or such longer period during which execution of the same shall have been stayed, appeal therefrom and cause the execution thereof to be stayed during such appeal, or (iii) such judgment or judgments shall not be discharged (or provisions shall not be made for such discharge) within thirty (30) days after a decision has been reached with respect to such appeal and the related stay has been lifted;
(n) Any Credit Party or any member of the Controlled Group shall fail to pay when due an amount or amounts aggregating in excess of $2,000,000 which it shall have become liable to pay to the PBGC or to a Pension Plan under Title IV of ERISA; or notice of intent to terminate a Pension Plan or Pension Plans having aggregate Unfunded Liabilities in excess of $2,000,000 shall be filed under Title IV of ERISA by any Credit Party or any member of the Controlled Group, any plan administrator or any combination of the foregoing; or the PBGC shall institute proceedings under Title IV of ERISA to terminate or to cause a trustee to be appointed to administer any such Pension Plan or Pension Plans or a proceeding shall be instituted by a fiduciary of any such Pension Plan or Pension Plans against any Credit Party or any member of the Controlled Group to enforce Section 515 or 4219(c)(5) of ERISA; or a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any such Pension Plan or Pension Plans must be terminated;
(i) As a result of one (1) or more transactions after the date of this Lease, any "person" or "group" (each as used in Sections 13(d)(3) and 14(d)(2) of the Exchange Act), who are not as of the Initial Closing Date owners of one percent (1%) or more of the voting stock of the Parent, either (A) becomes the "beneficial owner" (as defined in Rule 13d-3 of the Exchange Act), directly or indirectly, of voting stock of the Parent (or securities convertible into or exchangeable for such voting stock) representing 15% or more of the combined voting power of all voting stock of the Parent (on a fully diluted basis) or (B) otherwise has the ability, directly or indirectly, to elect a majority of the board of directors of the Parent; or (ii) during any period of up to 24 consecutive months, commencing on the Initial Closing Date, individuals who at the beginning of such period were directors of the Parent shall cease for any reason (other than the death, disability or retirement of an officer of the Parent that is serving as a director at such time so long as another officer of the Parent replaces such Person as a director) to constitute a majority of the board of directors of the Parent; or (iii) any Person or two or more Persons acting in concert shall have acquired by contract or otherwise, or shall have entered into a contract or arrangement that, upon consummation thereof, will result in its or their acquisition, of the power to exercise, directly or indirectly, a controlling influence on the management or policies of the Parent;
(p) Any Operative Agreement shall cease to be in full force and effect;
(q) Except as to any Credit Party which is released in connection with the Operative Agreements, the guaranty given by the Guarantor under the Management Participation Agreement or any provision thereof shall cease to be in full force and effect, or the Guarantor or any Person acting by or on behalf of the Guarantor shall deny or disaffirm the Guarantor's obligations under such guaranty, or the Guarantor shall default in the due performance or observance of any term, covenant or agreement on its part to be performed or observed pursuant to any guaranty;
(r) Lessee shall fail to deposit or maintain Cash Equivalents equal to the amount required by Section 5.11 of the Participation Agreement in the Cash Collateral Account;
(s) Lessee shall fail to purchase all Tranche A Notes in accordance with the terms of the Operative Agreements, including without limitation Section 8.3(w) of the Participation Agreement;
(t) there shall occur (i) any cancellation, revocation, suspension or termination of any Medicare Certification, Medicare Provider Agreement, and Lessee shall have failed to exercise its rights under Medicaid Certification or Medicaid Provider Agreement affecting the Management Agreement Parent, any Subsidiary or any Contract Provider, or (ii) the loss of any other permits, licenses, authorizations, certifications or approvals from any federal, state or local Governmental Authority or termination of any contract with any such authority, in respect either case which cancellation, revocation, suspension, termination or loss (X) in the case of such Manager Default any suspension or temporary loss only, continues for a period greater than 60 days and (Y) results in the suspension or termination of 30 days after receipt by Lessee operations of written notice from Lessorthe Parent or any Subsidiary or in the failure of the Parent or any Subsidiaries or any Contract Provider to be eligible to participate in Medicare or Medicaid programs or to accept assignments of rights to reimbursement under Medicaid Regulations or Medicare Regulations, Owner Participant if and only if such Person, in the ordinary course of business, participates in the Medicare or Medicare programs or accepts assignments of rights to reimbursement thereunder; provided that any such events described in this Section 17.1(t) shall constitute an Event of Default only if such event shall result either singly or in the Indenture Trustee demanding that such action be takenaggregate in the termination, cancellation, suspension or material impairment of operations or rights to reimbursement which produce 5% or more of the Parent's gross revenues (on an annualized basis); or
(u) Lessee shall fail to deliver to Lessor and the Agent an insurance certificate on or prior to January 15, 2002 that evidences all risk builder's risk and all risk of physical loss or damage insurance with respect to the Digital Hospital Property including (i) a deductible amount of $25,000 or less per occurrence, (ii) coverage from January 15, 2002 through the Completion Date, (iii) policy limit amounts of not less than $200,000,000 per occurrence and (iv) all other terms and conditions required pursuant to the Lease which are not in conflict with or less stringent than (i), (ii) or (iii) above. then, in any such event, Lessor may, in addition to the other rights and remedies provided for in this Article XVII and in Section 18.1, terminate this Lease by giving Lessee five (5) days notice of such termination (provided, notwithstanding the foregoing, this Lease shall be deemed to be automatically terminated without the giving of notice upon the occurrence of a Lease Event of Default under Sections 17.1(g), (h), (i) or (j)), and this Lease shall terminate, and all rights of Lessee under this Lease shall cease. Lessee shall, to the fullest extent permitted by law, pay as Supplemental Rent all costs and expenses incurred by or on behalf of Lessor or any other Financing Party, including without limitation reasonable fees and expenses of counsel, as a result of any Lease Event of Default hereunder. A POWER OF SALE HAS BEEN GRANTED IN THIS LEASE. A POWER OF SALE MAY ALLOW LESSOR TO TAKE THE PROPERTIES AND SELL THE PROPERTIES WITHOUT GOING TO COURT IN A FORECLOSURE ACTION UPON THE OCCURRENCE OF A LEASE EVENT OF DEFAULT.
Appears in 1 contract
Samples: Lease Agreement (Healthsouth Corp)
Lease Events of Default. The following events shall constitute "Lease Events of Default Default" hereunder (whether any such event shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body) and each such Lease Event of Default shall be deemed to exist and continue so long as, but only as long as, it shall not have been remedied:
(a) the Lessee shall fail to make (ix) make or (ii) be deemed by virtue of the last sentence of Section 3.5 hereof to have made any payment of Basic Rent, Early Purchase Price, any other purchase price to be paid by Lessee for any Units pursuant to this Lease or the Participation Agreement, Stipulated Loss Amount or Termination Amount (x) in the case of any such payment that is required to be made on the Basic Term Expiration Date or on any date within 30 days before the Basic Term Expiration Date, when due, and (y) in the case of any other such payment, within 10 five Business Days after the same shall have become due; provided, however, that so long as any Equipment Notes remain outstanding, failure to make due or (or be deemed to have madey) any portion of Basic Rent on any Rent Payment Date shall not be a Lease Event of Default so long as the amounts applied payment under Section 3.410.2, clause (4)10.3, of the Collateral Agency Agreement are sufficient to make the distributions required under such clause (4) with respect to the obligations owed under this Lease; provided, further, that in the event that the Special Equity Buy-Out has been consummated, failure to make any payment of Basic Rent, Early Purchase Price, any other purchase price to be paid by Lessee for any Units pursuant to this Lease 11.2 or the Participation Agreement, Stipulated Loss Amount or Termination Amount (to the extent such amount constitutes an Accumulated Equity Deficiency Amount to be applied under Section 3.4, clause 9 of the Collateral Agency Agreement) shall, after receipt by Lessee of written notice of such failure from Lessor or Owner Participant, be a Lease Event of Default22 when due; or
(b) the Lessee shall fail to make any other payment under the Operative Agreements (i) make or (ii) be deemed by virtue of payments made provided that any failure to pay any amount owed by the Collateral Agent Lessee under the Tax Indemnity Agreement or any failure of the Lessee to have made pay to the Lessor (in its individual or trust capacity) or the Owner Participant when due any amounts constituting Excepted Property shall not constitute a Lease Event of Default prior to the discharge of the Lien of the Indenture in accordance with the terms thereof unless written notice is given by the Owner Participant to the Lessee that such failure shall constitute a Lease Event of Default), including, without limitation, any payment of Supplemental Rent, including indemnity other than Supplemental Rent payable under Section 10.2, 10.3, 11.2 or tax indemnity payments, but not including Stipulated Loss Amount, Termination Amount, Early Purchase Price, or any other purchase price to be paid 22 (which failure is covered by Lessee for any Units pursuant to this Lease or the Participation Agreement paragraph (xa) in the case of any such payment that is required to be on the Basic Term Expiration Date or on any date within 30 days before the Basic Term Expiration Date, when due, and (y) in the case of any other such paymentabove), after the same shall have become due and such failure shall continue unremedied for a period of 30 days after receipt by the Lessee of written notice of such failure from the Lessor, Policy Provider, the Owner Participant or the Indenture Trustee; provided, however, that so long as any Equipment Notes remain outstanding, failure to make (or be deemed to have made) payment of any of the amounts referred to in or to be applied pursuant to clauses (5) through (15) of Section 3.4 of the Collateral Agency Agreement shall not be a Lease Event of Default; or
(c) the Lessee shall fail to maintain in effect the insurance coverages required of it by Section 12 or Section 6.4 of the Collateral Agency Agreement and such failure shall not have been waived as provided for therein12; or
(d) Lessee shall use or permit the use of the Units or the Pledged Units or any portion thereof in a way which is not permitted by this Lease (with respect to the Units) or the Collateral Agency Agreement (with respect to the Pledged Units), provided that such unauthorized use shall not constitute a Lease Event of Default for a period of 45 days after Lessee's obtaining actual knowledge thereof so long as (i) such unauthorized use is not the result of any willful action of Lessee and (ii) such unauthorized use is capable of being cured and Lessee diligently pursues such cure throughout such 45-day period; or Lessee shall make or permit any unauthorized assignment or transfer of this Lease in violation of Section 18.2; or
(e) TILC (or any successor thereto in its capacity as Administrator or Servicer, as applicable) shall have defaulted in any material respect in the performance of any of its obligations under the Administrative Services Agreement or the Servicing Agreement or a default shall occur under Section 6(a) of the Account Administration Agreement, and, in each case, Lessee shall have failed to exercise its rights thereunder in respect of such default for a period of 30 days after receipt by Lessee of written notice from Lessor, Owner Participant, Policy Provider or the Indenture Trustee, demanding that such action be taken; or
(f) Any representation or warranty made by Lessee in any Lessee Agreement or any representation or warranty made by TILC the Lessee in this Lease or in any other Operative Agreement or in any other document or certificate furnished by the Lessee (or a Responsible Officer of the Lessee) pursuant to which any such Person is a party, in each case, the terms of the Operative Agreements (other than representations set forth in the Tax Indemnity Agreement, is ) that was untrue or incorrect in any material respect as of the date of making thereof and such untruth or incorrectness shall continue to be material and unremedied for the facts or circumstances causing such untruth or incorrectness are not modified to conform to such representation or warranty after a period of 30 days after following receipt by the Lessee of written notice thereof from the Lessor, the Owner Participant, Indenture Trustee Participant or the Policy Provider; provided that, if such untruth or incorrectness is capable of being remedied, no such untruth or incorrectness shall constitute a Lease Event of Default hereunder for a period of 120 days after receipt of notice from Lessor, Owner Participant, the Indenture Trustee or the Policy Provider so long as Lessee, TILC or TRMI, as the case may be, is diligently proceeding to remedy such untruth or incorrectness and shall in fact remedy such untruth or incorrectness within such period; provided that such untrue or incorrect representation or warranty shall be deemed to be remediable or remedied only after all adverse consequences thereof if any, can be and have been remedied as applicableTrustee; or
(ge) Lessee the Lessee, LSB or the General Partner Bayer shall (i) 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 (ii) consent to any such relief or to the appointment of or taking possession by any such official in any voluntary case or other proceeding commenced against it, or (iii) generally fail to pay, or admit in writing its inability to pay pay, its debts generally as they come due, or (iv) make a general assignment for the benefit of creditors, or (v) take any corporate or partnership action to authorize or in furtherance of any of the foregoing; or
(hf) An an involuntary case or other proceeding shall be commenced against Lessee the Lessee, LSB or the General Partner Bayer seeking liquidation, reorganization or 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 60 90 days; or
(ig) the Lessee shall fail to observe or perform any other of the its covenants or agreements (other than those described in the foregoing clauses of this Section 14) to be observed or performed by Lessee it under any Lessee Operative Agreement or any certificate (other than the Tax Indemnity Agreement) and such failure shall continue unremedied for 30 days after notice from the Lessor, the Owner Participant, Policy Provider Participant or the Indenture Trustee to Lessee, the Lessee specifying the failure and demanding the same to be remedied; provided that, if such failure is capable of being remedied, remedied and the such remedy requires an action other than, or in addition to, does not involve the payment of moneymoney alone, no such failure (other than one relating to the payment of such money) shall constitute a Lease Event of Default hereunder for a period of 150 days after receipt of such notice so long as the Lessee is diligently proceeding to remedy such failure and failure, but in no event shall in fact remedy such failure within such periodcontinue unremedied for a period in excess of the lesser of 180 days from the notice referred to above and the remaining number of days in the Lease Term; or
(h) any of the Facility Documents shall be, or Bayer or the Lessee shall assert that any of the Facility Documents are, unenforceable, in whole or in part, for any reason, or Bayer or the Lessee repudiates, seeks to disaffirm or terminates its obligations under any of the Facility Documents; or
(i) the Bayer Letter or the Bayer Support Agreement shall be, or Bayer shall assert that either the Bayer Letter or the Bayer Support Agreement is, unenforceable, in whole or in part, for any reason, or Bayer repudiates, or seeks to disaffirm, its obligations under either the Bayer Letter or the Bayer Support Agreement, except pursuant to the express terms of the Bayer Letter or the Bayer Support Agreement, as applicable; or
(j) A Manager Default The Turnkey Construction Agreement shall not have occurred been duly executed and be continuing under delivered by the Management Agreementparties thereto on or before August 31, and Lessee shall have failed to exercise its rights under 1997 on terms materially consistent with the Management Agreement in respect Construction Letter of such Manager Default for a period of 30 days after receipt by Lessee of written notice from Lessor, Owner Participant or the Indenture Trustee demanding that such action be taken; orIntent.
Appears in 1 contract
Samples: Lease Agreement (LSB Industries Inc)
Lease Events of Default. The If any one or more of the following events (each a "LEASE EVENT OF DEFAULT") shall constitute Lease Events of Default hereunder (whether any such event shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body) and each such Lease Event of Default shall be deemed to exist and continue so long as, but only as long as, it shall not have been remediedoccur:
(a) Lessee shall fail to make payment of (i) make any Capitalized Interest, Capitalized Holder Yield, Basic Rent or any Supplemental Rent (other than as referred to in clauses (a)(ii) or (b) of this SECTION 17.1) representing amounts owed under the Credit Agreement or the other Credit Documents within three (3) days after the same has become due and payable or (ii) be deemed by virtue of the last sentence of Section 3.5 hereof to have made any payment of Basic RentConstruction Period Maximum Recourse Amount, Early Maximum Residual Guarantee Amount, Permitted Lease Investment Balance or Purchase Price, any other purchase price to be paid by Lessee for any Units pursuant to this Lease or the Participation Agreement, Stipulated Loss Amount or Termination Amount (x) in the case of any such payment that is required to be made on the Basic Term Expiration Date or on any date within 30 days before the Basic Term Expiration Date, when due, and (y) in the case of any other such payment, within 10 Business Days Option Price after the same shall have has become due; provided, however, that so long as any Equipment Notes remain outstanding, failure to make (or be deemed to have made) any portion of Basic Rent on any Rent Payment Date shall not be a Lease Event of Default so long as the amounts applied under Section 3.4, clause (4), of the Collateral Agency Agreement are sufficient to make the distributions required under such clause (4) with respect to the obligations owed under this Lease; provided, further, that in the event that the Special Equity Buy-Out has been consummated, failure to make any payment of Basic Rent, Early Purchase Price, any other purchase price to be paid by Lessee for any Units pursuant to this Lease or the Participation Agreement, Stipulated Loss Amount or Termination Amount (to the extent such amount constitutes an Accumulated Equity Deficiency Amount to be applied under Section 3.4, clause 9 of the Collateral Agency Agreement) shall, after receipt by Lessee of written notice of such failure from Lessor or Owner Participant, be a Lease Event of Defaultdue and payable; or
(b) Lessee shall fail to (i) make or (ii) be deemed by virtue of payments made by the Collateral Agent to have made any payment of Supplemental Rent, including indemnity or tax indemnity payments, but not including Stipulated Loss Amount, Termination Amount, Early Purchase Price, or any other purchase price to be paid by Lessee for any Units pursuant to this Lease or the Participation Agreement (x) in the case of any such payment that is required to be on the Basic Term Expiration Date or on any date within 30 days before the Basic Term Expiration Date, when due, and (y) in the case of any other such payment, after the same shall have become Supplemental Rent due and such failure shall continue unremedied for 30 payable within ten (10) days after receipt by Lessee of written notice of such failure from Lessor, Policy Provider, Owner Participant or the Indenture Trustee; provided, however, that so long as any Equipment Notes remain outstanding, failure to make (or be deemed to have made) payment of any of the amounts referred to in or to be applied pursuant to clauses (5) through (15) of Section 3.4 of the Collateral Agency Agreement shall not be a Lease Event of Defaultthereof; or
(c) Lessee shall fail to maintain in effect the (i) insurance as required by ARTICLE XIV or (ii) the financial covenants set forth in Section 12 or Section 6.4 8.4(i) of the Collateral Agency Agreement and such failure shall not have been waived as provided for thereinParticipation Agreement; or
(d) Lessee shall use fail to observe or permit perform any obligation or covenant of Lessee (other than those specifically referred to in this SECTION 17.1), which failure, if capable of cure, continues for thirty (30) days (or three (3) days in the use case of Lessee's failure to observe or perform the obligations or covenants contained in Sections 3.1(a) and 4.2 of the Units or Pledge Agreement) after the Pledged Units or any portion thereof in a way which is not permitted by this Lease (with respect to the Units) or the Collateral Agency Agreement (with respect to the Pledged Units), provided that such unauthorized use shall not constitute a Lease Event earlier of Default for a period of 45 days after Lessee's obtaining actual knowledge thereof so long as (i) such unauthorized use is not the result of any willful action of Lessee and Lessee's having knowledge thereof or (ii) such unauthorized use is written notice thereof to Lessee by Lessor; or any representation or warranty by Lessee set forth in this Lease or in any other Operative Agreement or in any document entered into in connection herewith or therewith or in any document, certificate or financial or other statement delivered in connection herewith or therewith shall be false or inaccurate in any material way unless capable of being cure and cured and within thirty (30) days after the earlier of (i) Lessee's having knowledge thereof or (ii) written notice thereof to Lessee diligently pursues such cure throughout such 45-day period; or Lessee shall make or permit any unauthorized assignment or transfer of this Lease in violation of Section 18.2by Lessor; or
(e) TILC (or any successor thereto in its capacity as Administrator or Servicer, as applicable) a Construction Agency Agreement Event of Default shall have defaulted in any material respect in the performance of any of its obligations under the Administrative Services Agreement or the Servicing Agreement or a default shall occur under Section 6(a) of the Account Administration Agreement, and, in each case, Lessee shall have failed to exercise its rights thereunder in respect of such default for a period of 30 days after receipt by Lessee of written notice from Lessor, Owner Participant, Policy Provider or the Indenture Trustee, demanding that such action occurred and be takencontinuing; or
(f) Any representation or warranty made by Lessee in any Lessee Agreement or any representation or warranty made by TILC in any Operative Agreement to which any such Person is a party, in each case, other than the Tax Indemnity Agreement, is untrue or incorrect in any material respect as of the date of making thereof and such untruth or incorrectness shall continue to be material and unremedied for a period of 30 days after receipt of notice from Lessor, Owner Participant, Indenture Trustee or the Policy Provider; provided that, if such untruth or incorrectness is capable of being remedied, no such untruth or incorrectness shall constitute a Lease Event of Default hereunder for a period of 120 days after receipt of notice from Lessor, Owner Participant, the Indenture Trustee or the Policy Provider so long as Lessee, TILC or TRMI, as the case may be, is diligently proceeding to remedy such untruth or incorrectness and shall in fact remedy such untruth or incorrectness within such period; provided that such untrue or incorrect representation or warranty shall be deemed to be remediable or remedied only after all adverse consequences thereof if any, can be and have been remedied as applicable; or
(g) Lessee or the General Partner shall (i) 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 (ii) consent to any such relief or to the appointment of or taking possession by any such official in any voluntary case or other proceeding commenced against it, or (iii) admit in writing its inability to pay its debts generally as they come become due, (ii) file a petition under the United States bankruptcy laws or any other applicable insolvency law or statute of the United States of America or any State or Commonwealth thereof, (iviii) make a general assignment for the benefit of its creditors, or (viv) take any corporate or partnership action consent to authorize any of the foregoing; or
(h) An involuntary case or other proceeding shall be commenced against Lessee or the General Partner seeking liquidation, reorganization or 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 receiver of itself or other similar official of it the whole or any substantial part of its property, (v) fail to cause the discharge of any custodian, trustee or receiver appointed for Lessee or the whole or a substantial part of its property within ninety (90) days after such appointment, or (vi) file a petition or answer seeking or consenting to reorganization under the United States bankruptcy laws or any other applicable insolvency law or statute of the United States of America or any State or Commonwealth thereof; or
(g) insolvency proceedings or a petition under the United States bankruptcy laws or any other applicable insolvency law or statute of the United States of America or any State or Commonwealth thereof shall be filed against Lessee and not dismissed within ninety (90) days from the date of its filing, or a court of competent jurisdiction shall enter an order or decree appointing, without the consent of Lessee, a receiver of Lessee or the whole or a substantial part of its property, and such involuntary case order or other proceeding decree shall remain undismissed and unstayed for a period not be vacated or set aside within ninety (90) days from the date of 60 daysthe entry thereof; or
(h) Lessee shall fail to provide the Pledged Collateral in accordance with the terms of the Operative Agreements; or
(i) there shall be entered against Lessee shall fail to observe or perform any other of the covenants or agreements to be observed or performed by Lessee under any Lessee Agreement or any certificate Subsidiary one or more judgments or decrees in an aggregate amount at any one time outstanding in excess of $1,000,000, and such failure judgments or decrees shall continue unremedied for 30 days after notice from Lessornot have been satisfied, Owner Participantvacated, Policy Provider or the Indenture Trustee to Lessee, specifying the failure and demanding the same to be remedied; provided that, if such failure is capable of being remedied, and the remedy requires an action other thandischarged, or in addition to, the payment of money, no such failure stayed or bonded pending appeal within thirty (other than one relating to the payment of such money30) shall constitute a Lease Event of Default hereunder for a period of 150 days after receipt of such notice so long as Lessee is diligently proceeding to remedy such failure and shall in fact remedy such failure within such periodfrom entry thereof; or
(j) A Manager Default with respect to any Plan (other than a Multiemployer Plan) as to which Lessee or any ERISA Affiliate of Lessee may have any liability, there shall have occurred and be continuing under the Management Agreementexist, and Lessee shall have failed to exercise its rights under the Management Agreement in respect of such Manager Default for a period of 30 days after receipt by thirty (30) days, a deficiency which is $500,000 or more in the Plan assets available to satisfy the benefits guaranteeable under ERISA with respect to such Plan, and (i) steps are undertaken to terminate such Plan or (ii) such Plan is terminated or (iii) any Reportable Event which presents a material risk of termination with respect to such Plan shall occur; or
(k) the Lessee or any of written notice from Lessorits Subsidiaries (i) shall default in the payment when due, Owner Participant whether at stated maturity or otherwise, of principal, interest or rent in respect of Indebtedness or Off Balance Sheet Debt of $2,000,000 or more; or (ii) shall fail to perform or observe any other condition or covenant, or any other event shall occur or condition exist, under any agreement or instrument relating to any such Indebtedness or Off Balance Sheet Debt of $2,000,000 or more, if the effect of any such failure, event or condition is to cause, or to permit the holder or holders of such Indebtedness or Off Balance Sheet Debt or beneficiary or beneficiaries of such Indebtedness or Off Balance Sheet Debt (or a trustee or agent on behalf of such holder or holders or beneficiary or beneficiaries) to cause such Indebtedness or Off Balance Sheet Debt to be declared to be due and payable prior to its stated maturity, or cash collateral in respect thereof to be demanded;
(l) Any Operative Agreement, other than the Credit Agreement, shall cease to be in full force and effect, or the Indenture Trustee demanding that Credit Agreement shall cease to be in full force and effect and such action be takencessation is attributable to Lessee, or Lessee or any Person acting by or on behalf of Lessee shall deny or disaffirm its obligations thereunder or contest the validity of any Operative Agreement or any Lien granted thereunder in any respect, either directly or indirectly; or
(i) any Person or two (2) or more Persons acting in concert shall have acquired beneficial ownership (within the meaning of Rule 13d-3 of the Securities and Exchange Commission under the Securities Exchange Act of 1934), directly or indirectly, of voting stock of Lessee (or other securities convertible into such voting stock) representing greater than fifty percent (50%) of the combined voting power of all voting stock of Lessee; or (ii) the first day on which a majority of the members of the board of directors of Lessee are not Continuing Directors (as defined below); or (iii) any Person or two (2) or more Persons acting in concert shall have acquired by contract or otherwise, or shall have entered into a contract or arrangement that, upon consummation, will result in its or their acquisition of, the power to exercise, directly or indirectly, a controlling influence over the management or policies of Lessee, or control over voting stock of Lessee (or other securities convertible into such securities) representing more than forty-nine percent (49%) of the combined voting power of all voting stock of Lessee;
Appears in 1 contract
Samples: Master Lease (Symantec Corp)
Lease Events of Default. The following events shall constitute Lease Events of Default hereunder (whether any such event shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental bodyGovernmental Authority) and each such Lease Event of Default shall be deemed to exist and continue so long as, but only as long as, it shall not have been remedied:
(a) Subject to Section 6.2, Lessee shall fail to (i) make or (ii) be deemed by virtue of the last sentence of Section 3.5 hereof to have made any payment of Basic Rent, Early Purchase Price, any other purchase price Rent to be paid by Lessee for any Units pursuant to this Lease or the Participation Agreement, Stipulated Loss Amount or Termination Amount (x) in the case of any such payment that is required to be made on the Basic Term Expiration Date or on any date within 30 five days before the Basic Term Expiration Date, when due, and (y) in the case of any other such payment, within 10 Business Days after the same shall have become due; provided, however, that so long as any Equipment Notes remain outstanding, failure to make (or be deemed to have made) any portion of Basic Rent on any Rent Payment Date shall not be a Lease Event of Default so long as the amounts applied under Section 3.4, clause (4), of the Collateral Agency Agreement are sufficient to make the distributions required under such clause (4) with respect to the obligations owed under this Lease; provided, further, that in the event that the Special Equity Buy-Out has been consummated, failure to make any payment of Basic Rent, Early Purchase Price, any other purchase price to be paid by Lessee for any Units pursuant to this Lease or the Participation Agreement, Stipulated Loss Amount or Termination Amount (to the extent such amount constitutes an Accumulated Equity Deficiency Amount to be applied under Section 3.4, clause 9 of the Collateral Agency Agreement) shall, after receipt by Lessee of written notice of such failure from Lessor or Owner Participant, be a Lease Event of Default; or
(b) Lessee shall fail to (i) make or (ii) be deemed by virtue of payments made by the Collateral Agent to have made any payment of any Supplemental Rent, including indemnity or tax indemnity payments, but not including Stipulated Loss Amount, Termination Amount, Early Purchase Price, or any other purchase price Rent (excluding Supplemental Rent covered by clause (a) preceding) to be paid by Lessee for any Units pursuant to this Lease or the Participation Agreement (x) in the case of any such payment that is required to be on the Basic Term Expiration Date or on any date within 30 days before the Basic Term Expiration Date, when due, and (y) in the case of any other such payment, after the same shall have become due and such failure shall continue unremedied for 30 ten days after receipt by Lessee of written notice of such failure the original demand therefor from Lessor, Policy Provider, Owner Participant or (ii) pay the Indenture Trustee; provided, however, that so long as Prior Accrued Balance along with any Equipment Notes remain outstanding, failure to make (or be deemed to have made) payment of any of accrued and unpaid interest thereon upon the amounts referred to in or to be applied pursuant to clauses (5) through (15) of Section 3.4 of the Collateral Agency Agreement shall not be a Lease Event of DefaultBasic Term Expiration Date; or
(c) Lessee shall fail to maintain in effect the insurance required by Section 12 or Section 6.4 of the Collateral Agency Agreement and such failure shall not have been waived as provided for therein; or
(d) Lessee shall use or permit the use of the Units or the Pledged Units or any portion thereof in a way which is not permitted by this Lease (with respect to the Units) or the Collateral Agency Agreement (with respect to the Pledged Units), provided that such unauthorized use shall not constitute a Lease Event of Default for a period of 45 days after Lessee's obtaining actual knowledge thereof so long as (i) such unauthorized use is not the result of any willful action of Lessee and (ii) such unauthorized use is capable of being cured and Lessee diligently pursues such cure throughout such 45-day period; or Lessee shall make or permit any unauthorized assignment or transfer of this Lease in violation of Section 18.2; or
(e) TILC (or any successor thereto in its capacity as Administrator or Servicer, as applicable) shall have defaulted in any material respect in the performance of any of its obligations under the Administrative Services Agreement or the Servicing Agreement or a default shall occur under Section 6(a) of the Account Administration Agreement, and, in each case, Lessee shall have failed to exercise its rights thereunder in respect of such default for a period of 30 days after receipt by Lessee of written notice from Lessor, Owner Participant, Policy Provider or the Indenture Trustee, demanding that such action be taken; or
(f) Any representation or warranty made by Lessee in any Lessee Agreement or any representation or warranty made by TILC in any Operative Agreement to which any such Person is a party, in each case, other than the Tax Indemnity Agreement, this Lease is untrue or incorrect in any material respect as of the date of making thereof and such untruth or incorrectness shall continue to be material and unremedied for a period of 30 days after receipt by Lessee of written notice thereof from Lessor, Owner Participant, Indenture Trustee or the Policy Provider; provided that, if such untruth or incorrectness is capable of being remedied, no such untruth or incorrectness shall constitute a Lease Event of Default hereunder for a period of 120 days after receipt of notice from Lessor, Owner Participant, the Indenture Trustee or the Policy Provider so long as Lessee, TILC or TRMI, as the case may be, is diligently proceeding to remedy such untruth or incorrectness and shall in fact remedy such untruth or incorrectness within such period; provided that such untrue or incorrect representation or warranty shall be deemed to be remediable or remedied only after all adverse consequences thereof if any, can be and have been remedied as applicable; or
(gd) Lessee or the General Partner shall (i) 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 (ii) consent to any such relief or to the appointment of or taking possession by any such official in any voluntary case or other proceeding commenced against it, or (iii) admit in writing its inability to pay its debts generally as they come due, or (iv) make a general assignment for the benefit of creditors, or (v) take any corporate or partnership action to authorize any of the foregoing; or
(he) An an involuntary case or other proceeding shall be commenced against Lessee or the General Partner seeking liquidation, reorganization or 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 60 days; or
(if) Lessee shall fail to observe or perform in any material respect any other of the covenants or agreements to be observed or performed by Lessee under any Lessee Agreement or any certificate this Lease and such failure shall continue unremedied for 30 days after notice from Lessor, Owner Participant, Policy Provider or the Indenture Trustee Lessor to Lessee, specifying the failure and demanding the same to be remedied; provided thator
(g) Lessee has failed, if such after the expiration of any applicable notice or cure period or both, to make one or more payments due or has otherwise defaulted on any indebtedness for borrowed money, which failure is capable or default relates to Indebtedness in aggregate principal amount (or a sum of being remedied, and the remedy requires an action other thanpayments) in excess of $500,000; or
(h) a Change of Control of Lessee occurs; or
(i) Lessee sells or disposes of all, or in addition tosubstantially all, the payment of money, no such failure (other than one relating to the payment of such money) shall constitute a Lease Event of Default hereunder for a period of 150 days after receipt of such notice so long as Lessee is diligently proceeding to remedy such failure and shall in fact remedy such failure within such periodits assets; or
(j) A Manager Default shall have occurred and be continuing under Lessee allows any Liens (other than Permitted Liens); or
(k) except in connection with the Management AgreementRestructuring, and Lessee shall have failed makes any dividend payment to exercise any common stockholder or repurchases or redeems any of its rights under the Management Agreement in respect outstanding equity; or
(l) any provision of such Manager Default for a period of 30 days after receipt by Lessee of written notice from Lessor, Owner Participant Section 10 or the Indenture Trustee demanding that such action Collateral and Guarantee Requirement shall cease to be taken; orin full force and effect or any Guarantor shall disaffirm its obligation hereunder.
Appears in 1 contract
Samples: Lease Agreement (Geokinetics Inc)
Lease Events of Default. The Any one or more of the following events shall constitute a Lease Events Event of Default hereunder (whether any such event shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body) and each such Lease Event of Default shall be deemed to exist and continue so long as, but only as long as, it shall not have been remedied:):
(a) the Lessee shall fail to (i) make or (ii) be deemed by virtue of the last sentence of Section 3.5 hereof to have made any a payment of Basic Rent, Early Purchase Price, any other purchase price to be paid by Lessee for any Units pursuant to this Lease Stipulated Loss Value or the Participation Agreement, Stipulated Loss Amount or Termination Amount Purchase Option Price within three (x3) Business Days after the due date therefor;
(b) the Lessee shall fail to make a payment of Supplemental Rent (other than any amounts specified in the case of any such payment that is required to be made on the Basic Term Expiration Date or on any date within 30 days before the Basic Term Expiration Date, when due, and clause (ya) in the case of any other such payment, above) within 10 (ten) Business Days after the same shall have become due; provided, however, that so long as any Equipment Notes remain outstanding, failure or
(c) the Lessee shall fail to make (carry and maintain on or be deemed to have made) any portion of Basic Rent on any Rent Payment Date shall not be a Lease Event of Default so long as the amounts applied under Section 3.4, clause (4), of the Collateral Agency Agreement are sufficient to make the distributions required under such clause (4) with respect to the obligations owed under this Lease; provided, further, that in the event that the Special Equity Buy-Out has been consummated, failure to make any payment of Basic Rent, Early Purchase Price, any other purchase price Aircraft (or cause to be paid by Lessee for any Units pursuant carried and maintained) insurance required to this Lease be maintained in accordance with the provisions of Section 11 hereof, or such insurance shall lapse, or the Participation Agreement, Stipulated Loss Amount Lessee shall operate such Aircraft after receiving notice that such insurance has lapsed or Termination Amount (to the extent such amount constitutes an Accumulated Equity Deficiency Amount to be applied under Section 3.4, clause 9 outside of the Collateral Agency Agreement) shall, after receipt by Lessee of written notice scope of such failure from Lessor or Owner Participant, be a Lease Event of Defaultinsurance coverage; or
(bd) the Lessee shall make, permit or suffer to exist, any unauthorized assignment or transfer of this Lease, or any interest therein, or of the right to possession of or operational control over any Aircraft, any Airframe, any Engine or any Part; or
(e) the Lessee shall fail to perform or observe (ior cause to be performed or observed) make its obligation under Section 5 to return each Aircraft in the condition specified therein when required to do so hereunder; or
(f) any Lessee Party shall fail to perform or observe (iior cause to be performed or observed) be deemed by virtue of payments made by the Collateral Agent to have made any payment of Supplemental Rent, including indemnity or tax indemnity payments, but not including Stipulated Loss Amount, Termination Amount, Early Purchase Price, or any other purchase price covenant or agreement to be paid performed or observed by Lessee for any Units pursuant to this Lease it hereunder or the Participation Agreement (x) in the case of any such payment that is required to be on the Basic Term Expiration Date or on any date within 30 days before the Basic Term Expiration Date, when due, and (y) in the case of under any other such paymentOperative Agreement, after the same shall have become due and such failure shall continue unremedied for a period of 30 days after receipt by Lessee of written notice of such failure from Lessor, Policy Provider, Owner Participant or the Indenture Trustee; provided, however, that so long as any Equipment Notes remain outstanding, failure to make (or be deemed to have made) payment of any of the amounts referred to in or to be applied pursuant to clauses (5) through (15) of Section 3.4 of the Collateral Agency Agreement shall not be a Lease Event of Defaultdays; or
(cg) Lessee shall fail to maintain in effect the insurance required by Section 12 or Section 6.4 of the Collateral Agency Agreement and such failure shall not have been waived as provided for therein; or
(d) Lessee shall use or permit the use of the Units or the Pledged Units or any portion thereof in a way which is not permitted by this Lease (with respect to the Units) or the Collateral Agency Agreement (with respect to the Pledged Units), provided that such unauthorized use shall not constitute a Lease Event of Default for a period of 45 days after Lessee's obtaining actual knowledge thereof so long as (i) such unauthorized use is not the result of any willful action of Lessee and (ii) such unauthorized use is capable of being cured and Lessee diligently pursues such cure throughout such 45-day period; or Lessee shall make or permit any unauthorized assignment or transfer of this Lease in violation of Section 18.2; or
(e) TILC (or any successor thereto in its capacity as Administrator or Servicer, as applicable) shall have defaulted in any material respect in the performance of any of its obligations under the Administrative Services Agreement or the Servicing Agreement or a default shall occur under Section 6(a) of the Account Administration Agreement, and, in each case, Lessee shall have failed to exercise its rights thereunder in respect of such default for a period of 30 days after receipt by Lessee of written notice from Lessor, Owner Participant, Policy Provider or the Indenture Trustee, demanding that such action be taken; or
(f) Any representation or warranty made by Lessee in any Lessee Agreement or any representation or warranty made by TILC a Lessee Party in any Operative Agreement or any document or certificate furnished by such Lessee Party in connection therewith or pursuant thereto, shall prove to which any such Person is a party, in each case, other than the Tax Indemnity Agreement, is untrue have been incorrect or incorrect misleading in any material respect as of at the date of making thereof and such untruth or incorrectness shall continue to be material and unremedied for a period of 30 days after receipt of notice from Lessor, Owner Participant, Indenture Trustee or the Policy Provider; provided that, if such untruth or incorrectness is capable of being remedied, no such untruth or incorrectness shall constitute a Lease Event of Default hereunder for a period of 120 days after receipt of notice from Lessor, Owner Participant, the Indenture Trustee or the Policy Provider so long as Lessee, TILC or TRMI, as the case may be, is diligently proceeding to remedy such untruth or incorrectness and shall in fact remedy such untruth or incorrectness within such period; provided that such untrue or incorrect representation or warranty shall be deemed to be remediable or remedied only after all adverse consequences thereof if any, can be and have been remedied as applicabletime made; or
(gh) any Lessee or the General Partner Party shall (i) 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 (ii) consent to any such relief or to the appointment of or taking possession by any such official in any voluntary case a receiver, assignee, custodian, sequestrator, trustee or liquidator (or other proceeding commenced against it, similar official) of itself or (iii) of a substantial part of its property or any Lessee Party shall admit in writing its inability to pay its debts generally as they come due, or (iv) shall make a general assignment for the benefit of its creditors, or (v) take any corporate Lessee Party shall file a voluntary petition in bankruptcy or partnership action to authorize any of the foregoing; or
(h) An involuntary case a voluntary petition or other proceeding shall be commenced against Lessee or the General Partner answer seeking liquidation, reorganization or other relief with respect to it itself or its debts under the federal bankruptcy laws, as now or hereafter constituted or any other applicable federal or state bankruptcy, insolvency or other similar law, or shall consent to the entry or order for relief in an involuntary case under any such law or any Lessee Party shall file an answer admitting the material allegations of a petition filed against it in any such proceeding, or shall otherwise seek relief under the provisions of any now existing or future federal or state bankruptcy, insolvency or other similar law now providing for the reorganization or hereafter in effectwinding-up of corporations, or seeking providing for an agreement, arrangement, composition, extension or adjustment with its creditors; or
(i) an order, judgment or decree shall be entered in any proceedings by any court of competent jurisdiction appointing, with or without the appointment consent of any Lessee Party, a trustee, receiver, liquidator, custodian trustee or other similar official liquidator of it such Lessee Party or of any substantial part of its property, or any substantial part of the property of any Lessee Party shall be sequestered, and any such involuntary case order, judgment, decree, appointment or other proceeding sequestration shall remain undismissed and in force undismissed, unstayed or unvacated for a period of 60 days; or
(i) Lessee shall fail to observe or perform any other of the covenants or agreements to be observed or performed by Lessee under any Lessee Agreement or any certificate and such failure shall continue unremedied for 30 days after notice from Lessor, Owner Participant, Policy Provider or the Indenture Trustee to Lessee, specifying the failure date of entry thereof and demanding the same to be remedied; provided that, if such failure is capable not being disputed in good faith with a reasonable chance of being remedied, and the remedy requires an action other than, or in addition to, the payment of money, no such failure (other than one relating to the payment of such money) shall constitute a Lease Event of Default hereunder for a period of 150 days after receipt of such notice so long as Lessee is diligently proceeding to remedy such failure and shall in fact remedy such failure within such periodsuccess; or
(j) A Manager Default shall have occurred and be continuing a petition against any Lessee Party in a proceeding under the Management Agreementfederal bankruptcy laws or other insolvency laws, as now or hereafter in effect, shall be filed and Lessee shall have failed to exercise its rights not be withdrawn or dismissed within 60 days thereafter and is not being disputed in good faith with a reasonable chance of success, or under the Management Agreement in respect provisions of any law providing for reorganization or winding up of corporations which may apply to any Lessee Party, any court of competent jurisdiction shall assume jurisdiction, custody or control of such Manager Default Lessee Party or of any substantial part of its property and such jurisdiction, custody or control shall remain in force unrelinquished, unstayed or unterminated for a period of 60 days and is not being disputed in good faith with a reasonable chance of success; or
(k) final non-appealable judgment for the payment of money in excess of S10,000,000 (or its equivalent) shall be rendered against any Lessee Party and the same shall remain unpaid, unstayed or undischarged for a period of 30 days after receipt by days; or
(l) the Lessee shall voluntarily or involuntarily suspend all or any substantial portion of written notice from Lessor, Owner Participant its commercial airline operations or the Indenture Trustee demanding that such action franchises, concessions, permits, certificates, licenses (including, without limitation, its air carrier operator’s certificate or certificate of public convenience and necessity), rights or privileges required for the conduct of the Lessee’s business operations are revoked, canceled, not renewed or otherwise terminated or the Lessee shall cease to be takena certified air carrier to the extent required to fall within the purview of Section 1110; or
(m) any Lessee Party shall default in the observance or performance of any agreement or condition relating to any Indebtedness (as hereinafter defined) or contained in any instrument or agreement evidencing, securing or relating thereto, or any other event shall occur or condition exist, the effect of which default or other event or condition being that any outstanding Indebtedness in excess of $10,000,000 (or the equivalent in any foreign currency) shall become payable whether by acceleration or otherwise, prior to its stated maturity or due date or the holders of such Indebtedness are entitled by reason of such default to cause such Indebtedness to become so payable; it being understood and agreed for purposes of this Section 14(m) that “Indebtedness” means a Lessee Party’s obligations (A) for borrowed money. (B) under any lease, (C) in respect of Taxes imposed upon such Lessee Party’s income or profits or upon any property belonging to such Lessee Party, it being acknowledged that for purposes of this clause, any such Indebtedness shall be deemed to be “payable prior to its stated maturity or due date” at such time as nonpayment of the same results in the imposition of a Lien on any property of such Lessee Party or (D) under any agreement whereby such Lessee Party guarantees the obligation of any other Person for borrowed money or under a lease by such Person; or
Appears in 1 contract
Samples: Lease Agreement (Abx Air Inc)
Lease Events of Default. The Each of the following events shall constitute a “Lease Events of Default hereunder (whether any such event shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body) and each such Lease Event of Default shall be deemed to exist and continue so long as, but only as long as, it shall not have been remediedDefault”:
(a) Lessee shall fail to (i) make or (ii) be deemed by virtue of the last sentence of Section 3.5 hereof to have made any payment of Basic Rent, Early Purchase Price, any other purchase price to be paid by Lessee for any Units pursuant to this Lease or the Participation Agreement, Stipulated Loss Amount or Termination Amount (x) in the case of any such payment that is required to be made on the Basic Term Expiration Date or on any date within 30 days before the Basic Term Expiration Date, when due, and (y) in the case of any other such payment, within 10 Business Days after the same shall have become due; provided, however, that so long as any Equipment Notes remain outstanding, failure to make (or be deemed to have made) any portion of Basic Rent on any Rent Payment Date shall not be a Lease Event of Default so long as the amounts applied under Section 3.4, clause (4), of the Collateral Agency Agreement are sufficient to make the distributions required under such clause (4) with respect to the obligations owed under this Lease; provided, further, that in the event that the Special Equity Buy-Out has been consummated, failure to make any payment of Basic Rent, Early Purchase Price, any other purchase price to be paid by Lessee Base Rent and such failure shall continue for any Units pursuant to this Lease or the Participation Agreement, Stipulated Loss Amount or Termination Amount a period of five (to the extent such amount constitutes an Accumulated Equity Deficiency Amount to be applied under Section 3.4, clause 9 of the Collateral Agency Agreement5) shall, days after receipt by Lessee of written notice of such failure from Lessor or Owner Participant, be a Lease Event of Default; orLender to Lessee that such amount is due and unpaid;
(b) Lessee shall fail to (i) make or (ii) be deemed by virtue of payments made by the Collateral Agent to have made any other payment of Supplemental Rent, including indemnity or tax indemnity payments, but not including Stipulated Loss Amount, Termination Amount, Early Purchase Price, or any other purchase price to be paid by Lessee for any Units pursuant to this Lease or the Participation Agreement (x) in the case of any such payment that is required to be on the Basic Term Expiration Date or on any date within 30 days before the Basic Term Expiration Date, when due, and (y) in the case of any other such payment, after the same shall have become due and such failure shall continue unremedied for 30 a period of five (5) days after receipt by Lessee of written notice of such failure to Lessee from Lessor, Policy Provider, Owner Participant Lessor or the Indenture Trustee; provided, however, that so long as any Equipment Notes remain outstanding, failure to make (or be deemed to have made) payment of any of the amounts referred to in or to be applied pursuant to clauses (5) through (15) of Section 3.4 of the Collateral Agency Agreement shall not be a Lease Event of Default; orLender;
(c) Lessee shall fail to maintain timely perform or observe any covenant or agreement (not otherwise specified in effect the insurance required this Article 16) to be performed or observed by Section 12 or Section 6.4 of the Collateral Agency Agreement it hereunder and such failure shall not have been waived as provided continue for thereina period of thirty (30) days after written notice thereof from Lessor or Lender; or
(d) Lessee shall use or permit the use of the Units or the Pledged Units or any portion thereof in a way which is not permitted by this Lease (with respect to the Units) or the Collateral Agency Agreement (with respect to the Pledged Units), provided that the continuation of such unauthorized use a failure for thirty (30) days or longer after such notice shall not constitute a Lease Event of Default if such failure can be cured, but cannot reasonably be cured within such thirty (30) day period, and Lessee shall commence to cure such failure within such thirty (30) day period and shall be diligently and continuously prosecuting the cure of such failure;
(d) except to the extent the Lessee is permitted to self-insure pursuant to Section 9.1(b) and Schedule 9.1, Lessee shall fail to carry or maintain in full force any insurance required hereunder, and such failure shall continue for a period of 45 thirty (30) days after Lessee's obtaining actual knowledge thereof so long as (i) such unauthorized use is obligations arise, but not beyond the result expiration date of any willful action required policy of Lessee and (ii) such unauthorized use is capable of being cured and Lessee diligently pursues such cure throughout such 45-day period; or Lessee shall make or permit any unauthorized assignment or transfer of this Lease in violation of Section 18.2; orinsurance;
(e) TILC (or any successor thereto in its capacity as Administrator or Servicer, as applicable) shall have defaulted in any material respect in the performance of any of its obligations under the Administrative Services Agreement or the Servicing Agreement or a default shall occur under Section 6(a) of the Account Administration Agreement, and, in each case, Lessee shall have failed to exercise its rights thereunder in respect of such default for a period of 30 days after receipt by Lessee of written notice from Lessor, Owner Participant, Policy Provider or the Indenture Trustee, demanding that such action be taken; or
(f) Any representation or warranty made by Lessee in any Lessee Agreement or any representation or warranty made by TILC in any Operative Agreement herein shall prove to which any such Person is a party, in each case, other than the Tax Indemnity Agreement, is untrue or have been incorrect in any material respect as of when such representation or warranty was made, shall remain materially incorrect at the date of making thereof time in question and such untruth or incorrectness shall continue to be not cured in all material and unremedied for a period of 30 respects within thirty (30) days after receipt written notice to Lessee thereof, provided that the continuation of such a failure for thirty (30) days or longer after such notice from Lessor, Owner Participant, Indenture Trustee or the Policy Provider; provided that, if such untruth or incorrectness is capable of being remedied, no such untruth or incorrectness shall not constitute a Lease Event of Default hereunder for a if such failure can be cured, but cannot reasonably be cured within such thirty (30) day period, and Lessee shall commence to cure such failure within such thirty (30) day period of 120 days after receipt of notice from Lessor, Owner Participant, the Indenture Trustee or the Policy Provider so long as Lessee, TILC or TRMI, as the case may be, is diligently proceeding to remedy such untruth or incorrectness and shall in fact remedy be diligently and continuously prosecuting the cure of such untruth or incorrectness within such period; provided that such untrue or incorrect representation or warranty shall be deemed to be remediable or remedied only after all adverse consequences thereof if any, can be and have been remedied as applicable; orfailure;
(g) Lessee or the General Partner shall (i) commence Lessee makes any general arrangement or assignment for the benefit of creditors; (ii) Lessee becomes a voluntary “debtor” as defined in 11 U.S.C. § 101 or any successor statute thereto (unless, in the case or other proceeding seeking liquidationof a petition filed against Lessee, 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 same is dismissed within ninety (90) days); (iii) the appointment of a trusteetrustee or receiver to take possession of substantially all of the assets of Lessee where possession is not restored to Lessee within ninety (90) days; (iv) the attachment, receiver, liquidator, custodian execution or other similar official judicial seizure of it or any substantial part substantially all of its property, or the assets of Lessee where such seizure is not discharged within ninety (ii90) consent to any such relief or to the appointment of or taking possession by any such official in any voluntary case or other proceeding commenced against it, or days; (iiiv) admit Lessee admits in writing its inability to pay its debts generally as they come become due; (vi) Lessee files a petition or answer seeking reorganization, arrangement or other protection under the Federal bankruptcy laws or any other applicable law or statute of the United States of America or any State thereof; (vii) Lessee is liquidated or dissolved, or placed under conservatorship or other protection under any applicable Federal or state law; (ivviii) make a general assignment for the benefit of creditorsany petition is filed by or against Lessee under Federal bankruptcy laws, or (v) take any corporate or partnership action to authorize any of the foregoing; or
(h) An involuntary case or other proceeding shall be commenced is instituted by or against Lessee seeking to adjudicate it a bankrupt or the General Partner insolvent, or seeking liquidation, reorganization reorganization, arrangement, adjustment or other relief with respect to composition of it or its debts under any law relating to bankruptcy, insolvency or other similar law now reorganization or hereafter in effectrelief of debtors, or seeking the entry of an order for relief or the appointment of a trustee, receiver, liquidatortrustee, custodian or other similar official of it for Lessee, or for any substantial part of its propertythe property of Lessee, and such involuntary case proceeding is not dismissed within ninety (90) days after institution thereof; or other proceeding shall remain undismissed and unstayed for a period of 60 days; or
(iix) Lessee shall fail take any action to observe authorize or perform effect any other of the covenants or agreements actions set forth above in this clause (f). It is expressly understood and agreed that the Parent Guarantor shall have the right to be observed or performed by Lessee under cure any Lessee Agreement or any certificate and such failure shall continue unremedied for 30 days after notice from Lessor, Owner Participant, Policy Provider or the Indenture Trustee to Lessee, specifying the failure and demanding the same to be remedied; provided that, if such failure is capable of being remedied, and the remedy requires an action other than, or in addition to, the payment of money, no such failure (other than one relating to the payment of such money) shall constitute a Lease Event of Default hereunder on behalf of Lessee within the periods provided for a period of 150 days after receipt of such notice so long as Lessee is diligently proceeding to remedy such failure and shall in fact remedy such failure within such period; or
(j) A Manager Default shall have occurred and be continuing under the Management Agreementthis Lease, and Lessee Lessor shall have failed send copies of all notices under this Article 16 to exercise its rights under the Management Agreement in respect of Parent Guarantor at the same time as such Manager Default for a period of 30 days after receipt by Lessee of written notice from Lessor, Owner Participant or the Indenture Trustee demanding that such action be taken; ornotices are sent to Lessee.
Appears in 1 contract
Samples: Real Estate Sale Contract (Inland American Real Estate Trust, Inc.)
Lease Events of Default. The following events shall constitute Lease Events of Default hereunder (whether any such event shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body) and each such Lease Event of Default shall be deemed to exist and continue so long as, but only as long as, it shall not have been remedied:
(a) Lessee shall fail to (i) make or (ii) be deemed by virtue of the last sentence of Section 3.5 hereof to have made any payment of Basic Rent, Early Purchase Price, Basic Term Purchase Price or any other purchase price to be paid by Lessee for any Units pursuant to this Lease or the Participation Agreement, Stipulated Loss Amount Value or Termination Amount (x) in the case of any such payment that is required to be made on the Basic Term Expiration Date or on any date within 30 days before the Basic Term Expiration Date, when due, and (y) in the case of any other such payment, Value within 10 Business Days after the same shall have become due; provided, however, that so long as any Equipment Notes remain outstanding, failure to make (or be deemed to have made) any portion of Basic Rent on any Rent Payment Date shall not be a Lease Event of Default so long as the amounts applied under Section 3.4, clause (4), of the Collateral Agency Agreement are sufficient to make the distributions required under such clause (4) with respect to the obligations owed under this Lease; provided, further, that in the event that the Special Equity Buy-Out has been consummated, failure to make any payment of Basic Rent, Early Purchase Price, any other purchase price to be paid by Lessee for any Units pursuant to this Lease or the Participation Agreement, Stipulated Loss Amount or Termination Amount (to the extent such amount constitutes an Accumulated Equity Deficiency Amount to be applied under Section 3.4, clause 9 of the Collateral Agency Agreement) shall, after receipt by Lessee of written notice of such failure from Lessor or Owner Participant, be a Lease Event of Default; or
(b) Lessee shall fail to (i) make or (ii) be deemed by virtue of payments made by the Collateral Agent to have made any payment of Supplemental Rent, including indemnity or tax indemnity payments, but not including Stipulated Loss Amount, Termination AmountValue, Early Purchase Price, Basic Term Purchase Price or any other purchase price to be paid by Lessee for any Units 27 33 pursuant to this Lease or the Participation Agreement (x) in the case of any such payment that is required to be on the Basic Term Expiration Date Agreement, Stipulated Loss Value or on any date within 30 days before the Basic Term Expiration Date, when due, and (y) in the case of any other such paymentTermination Value, after the same shall have become due and such failure shall continue unremedied for 30 days 10 Business Days after receipt by Lessee of written notice of such failure demand therefor from Lessor, Policy Provider, Owner Participant Lessor or the Indenture Trustee; provided, however, that so long as any Equipment Notes remain outstanding, failure to make (or be deemed to have made) payment of any of the amounts referred to in or to be applied pursuant to clauses (5) through (15) of Section 3.4 of the Collateral Agency Agreement shall not be a Lease Event of Default; or
(c) Lessee shall fail to maintain in effect the insurance required by Section 12 or Section 6.4 of the Collateral Agency Agreement and such failure shall not have been waived as provided for therein; or
(d) Lessee shall use make or permit the use any possession of the Units or the Pledged Units Equipment or any portion thereof in a way which is not permitted by this Lease (with respect to the Units) or the Collateral Agency Agreement (with respect to the Pledged Units), Lease; provided that such unauthorized use possession shall not constitute a Lease Event of Default for a period of 45 days after Lessee's obtaining actual knowledge thereof so long as (i) such unauthorized use is not the result of any willful action of Lessee and (ii) such unauthorized use is capable of being cured and Lessee diligently pursues such cure throughout such 45-day period; occurrence thereof, or Lessee shall make or permit any unauthorized assignment or transfer of this Lease in violation of Section 18.2; or
(e) TILC (Lessee shall fail to observe or any successor thereto in its capacity as Administrator or Servicer, as applicable) shall have defaulted in any material respect in the performance of perform any of its obligations under the Administrative Services Agreement covenants or the Servicing Agreement agreements to be observed or a default shall occur under performed by Lessee in Section 6(a) 6.8 of the Account Administration Participation Agreement, and, in each case, Lessee and such failure shall have failed to exercise its rights thereunder in respect of such default continue unremedied for a period of 30 days after receipt by Lessee of written notice from Lessor, Owner Participant, Policy Provider or the Indenture Trustee, demanding that such action be takendays; or
(f) Any any representation or warranty made by Lessee in any Lessee Agreement or any representation or warranty made by TILC in any Operative Agreement to which any such Person is a party, in each case, (other than the Tax Indemnity Agreement, ) is untrue or incorrect in any material respect as of the date of making thereof and such untruth or incorrectness shall continue to be material and unremedied for a period of 30 days after receipt by Lessee of written notice thereof from Lessor, Owner Participant, Indenture Trustee Lessor or the Policy ProviderIndenture Trustee; provided that, if such untruth or incorrectness is capable of being remedied, no such untruth or incorrectness shall constitute a Lease Event of Default hereunder for a period of 120 60 days after receipt of such notice from Lessor, Owner Participant, the Indenture Trustee or the Policy Provider so long as Lessee, TILC or TRMI, as the case may be, Lessee is diligently proceeding to remedy such untruth or incorrectness and shall in fact remedy such untruth or incorrectness within such period; provided that such untrue or incorrect representation or warranty shall be deemed to be remediable or remedied only after all adverse consequences thereof thereof, if any, can be and have been remedied as applicableremedied; or
(g) Lessee or the General Partner shall (i) 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 (ii) consent to any such relief or to the appointment of or taking possession by any such official in any voluntary case or other proceeding commenced against it, or (iii) admit in writing its inability to pay its debts generally as they come due, or (iv) make a general assignment for the benefit of creditors, or (v) take any corporate or partnership action to authorize any of the foregoing; or
(h) An an involuntary case or other proceeding shall be commenced against Lessee or the General Partner seeking liquidation, reorganization or other relief with respect to it or its debts under any 28 34 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 60 days; or
(i) Lessee shall fail to observe or perform any other of the covenants or agreements to be observed or performed by Lessee under any Lessee Agreement or any certificate (other than the Tax Indemnity Agreement) and such failure shall continue unremedied for 30 days after notice from Lessor, Owner Participant, Policy Provider Lessor or the Indenture Trustee to Lessee, specifying the failure and demanding the same to be remedied; provided that, if such failure is capable of being remedied, and the remedy requires an action other than, or in addition to, the payment of money, no such failure (other than one relating to the payment of such money) shall constitute a Lease Event of Default hereunder for a period of 150 90 days after receipt of such notice so long as Lessee is diligently proceeding to remedy such failure and shall in fact remedy such failure within such period; or
(j) A Manager Default shall have occurred and be continuing under the Management Agreement, and Lessee shall have failed given notice of its intention to exercise retain any Units at the end of the Basic Term or any Renewal Term and, prior to the last day of the Basic Term or such Renewal Term, as the case may be, Lessee shall not have notified Lessor of its rights under the Management Agreement in respect of election to purchase or continue leasing such Manager Default for a period of 30 days after receipt by Lessee of written notice from Lessor, Owner Participant or the Indenture Trustee demanding that such action be takenUnit; or
(k) The mandatory refinancing of the Equipment Notes required to be effected on the Mandatory Refinancing Date pursuant to Section 10.2 of the Participation Agreement shall not have occurred for any reason whatsoever; provided that, notwithstanding anything to the contrary contained in this Lease, any failure of Lessee to perform or observe any covenant or agreement herein shall not constitute a Lease Event of Default if such failure is caused solely by reason of an event referred to in the definition of "Event of Loss" so long as Lessee is continuing to comply with the applicable terms of Section 11.
Appears in 1 contract
Lease Events of Default. The occurrence of any one or more of the following events shall constitute Lease Events of Default hereunder (whether any such event shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body) and each such Lease Event of Default shall be deemed to exist and continue so long as, but only as long as, it shall not have been remediedconstitute a "LEASE EVENT OF DEFAULT":
(a) the occurrence of a Payment Default; or
(b) the Lessee shall fail to (i) make or (ii) be deemed by virtue of the last sentence of Section 3.5 hereof to have made any payment of Basic Rent, Early Purchase Price, any Supplemental Rent (other purchase price than Supplemental Rent giving rise to be paid by Lessee for any Units pursuant to this Lease or the Participation Agreement, Stipulated Loss Amount or Termination Amount (x) in the case of any such payment that is required to be made on the Basic Term Expiration Date or on any date within 30 days before the Basic Term Expiration Date, when due, and (y) in the case of any other such payment, within 10 Business Days after the same shall have become due; provided, however, that so long as any Equipment Notes remain outstanding, failure to make (or be deemed to have made) any portion of Basic Rent on any Rent Payment Date shall not be a Lease Event of Default so long as under CLAUSE (a) of this SECTION 16.1) due and payable within five (5) Business Days after receipt of notice thereof; or
(c) the amounts applied under Section 3.4, clause (4), insurance required by ARTICLE XIII of the Collateral Agency Agreement are sufficient to make the distributions required under such clause (4) with respect to the obligations owed under this Lease; provided, further, that Lease is not maintained and in the event that the Special Equity Buy-Out has been consummated, failure to make any payment of Basic Rent, Early Purchase Price, any other purchase price to be paid by Lessee place for any Units pursuant reason; or
(d) Lessee or Guarantor shall fail to observe or perform any material term, covenant or condition of Lessee under this Lease or any other Operative Document (other than those described in any other clause of this SECTION 16.1) and such failure shall have continued for thirty (30) days after the Participation Agreement, Stipulated Loss Amount or Termination Amount earlier of (to the extent such amount constitutes an Accumulated Equity Deficiency Amount to be applied under Section 3.4, clause 9 of the Collateral Agency Agreementi) shall, after receipt by Lessee of written notice thereof and (ii) notification by Lessee of such event pursuant to Section 9.1(d) of the Participation Agreement; PROVIDED, HOWEVER, that if such failure from Lessor is capable of cure but cannot be cured by payment of money or Owner Participantcannot be cured by diligent efforts within such thirty (30)-day period, but such diligent efforts shall be properly commenced within such thirty (30)-day cure period and Lessee is diligently pursuing, and shall continue to pursue diligently, remedy of such failure, the cure period shall be extended for an additional 90 days, but not to extend beyond the Expiration Date; or
(e) the occurrence of a Lease Teletech Event of Default; or
(bf) Lessee shall fail to (i) make or (ii) be deemed by virtue sell the Leased Property in accordance with and satisfy each of payments made by the Collateral Agent to have made any payment terms, covenants, conditions and agreements set forth at ARTICLES XX and XXI in connection with and following its exercise of Supplemental Rentthe Sale Option, including indemnity or tax indemnity payments, but not including Stipulated Loss Amount, Termination Amount, Early Purchase Price, or any other purchase price to be paid by Lessee for any Units pursuant to this Lease or the Participation Agreement (x) in the case each of any such payment that is required to be on the Basic Term Expiration Date or on any date within 30 days before the Basic Term Expiration Date, when due, and (y) in the case of any other such payment, after the same shall have become due and such failure shall continue unremedied for 30 days after receipt by Lessee of written notice of such failure from Lessor, Policy Provider, Owner Participant or the Indenture Trustee; provided, however, that so long as any Equipment Notes remain outstanding, failure to make (or be deemed to have made) payment of any of the amounts referred to in or to be applied pursuant to clauses (5) through (15) of Section 3.4 of the Collateral Agency Agreement shall not be a Lease Event of Default; or
(c) Lessee shall fail to maintain in effect the insurance required by Section 12 or Section 6.4 of the Collateral Agency Agreement and such failure shall not have been waived as provided for therein; or
(d) Lessee shall use or permit the use of the Units or the Pledged Units or any portion thereof in a way which is not permitted by this Lease (with respect to the Units) or the Collateral Agency Agreement (with respect to the Pledged Units), provided that such unauthorized use shall not constitute a Lease Event of Default for a period of 45 days after Lessee's obtaining actual knowledge thereof so long as (i) such unauthorized use is not the result of any willful action of Lessee obligations at SECTIONS 20.1 and (ii) such unauthorized use is capable of being cured and Lessee diligently pursues such cure throughout such 45-day period; or Lessee shall make or permit any unauthorized assignment or transfer of this Lease in violation of Section 18.2; or
(e) TILC (or any successor thereto in its capacity as Administrator or Servicer, as applicable) shall have defaulted in any material respect in the performance of any of its obligations under the Administrative Services Agreement or the Servicing Agreement or a default shall occur under Section 6(a) of the Account Administration Agreement, and, in each case, Lessee shall have failed to exercise its rights thereunder in respect of such default for a period of 30 days after receipt by Lessee of written notice from Lessor, Owner Participant, Policy Provider or the Indenture Trustee, demanding that such action be taken; or
(f) Any representation or warranty made by Lessee in any Lessee Agreement or any representation or warranty made by TILC in any Operative Agreement to which any such Person is a party, in each case, other than the Tax Indemnity Agreement, is untrue or incorrect in any material respect as of the date of making thereof and such untruth or incorrectness shall continue to be material and unremedied for a period of 30 days after receipt of notice from Lessor, Owner Participant, Indenture Trustee or the Policy Provider; provided that, if such untruth or incorrectness is capable of being remedied, no such untruth or incorrectness shall constitute a Lease Event of Default hereunder for a period of 120 days after receipt of notice from Lessor, Owner Participant, the Indenture Trustee or the Policy Provider so long as Lessee, TILC or TRMI, as the case may be, is diligently proceeding to remedy such untruth or incorrectness and shall in fact remedy such untruth or incorrectness within such period; provided that such untrue or incorrect representation or warranty shall be deemed to be remediable or remedied only after all adverse consequences thereof if any, can be and have been remedied as applicable21.1; or
(g) Lessee Any Operative Document or the General Partner shall security interest and lien granted under this Lease (i) commence a voluntary case except in accordance with its terms), in whole or other proceeding seeking liquidationin part, reorganization terminates, ceases to be effective or other relief with respect ceases to itself be the legal, valid and binding enforceable obligation of Lessee, Guarantor or its debts under any bankruptcy, insolvency or other similar law now or hereafter in effectof their Affiliates, or seeking the appointment of a trusteeLessee, receiver, liquidator, custodian or other similar official of it Guarantor or any substantial part of its propertysuch Affiliate, directly or (ii) consent to any such relief or to the appointment of or taking possession by any such official indirectly, contests in any voluntary case manner in any court the effectiveness, validity, binding nature or other proceeding commenced against itenforceability thereof; or the security interest and lien securing Xxxxxx's or Guarantor's obligations under the Operative Documents, in whole or (iii) admit in writing its inability part, ceases to pay its debts generally as they come due, or (iv) make be a general assignment for the benefit of creditors, or (v) take any corporate or partnership action to authorize any of the foregoingperfected first priority security interest and lien; or
(h) An involuntary case or other proceeding shall be commenced against The failure of Lessee or to fully satisfy each of the General Partner seeking liquidation, reorganization or other relief terms and provisions of SECTION 3.5 of the Construction Agency Agreement such that the Aggregate Lease Amounts (as defined therein) have been fully repaid to Administrative Agent for application in accordance with respect to it or its debts under any bankruptcy, insolvency or other similar law now or hereafter in effect, or seeking the appointment terms of a trustee, receiver, liquidator, custodian or other similar official such SECTION 3.5 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 60 daysthe Construction Agency Agreement; or
(i) The failure of Lessee shall fail to observe or perform any other establish the Deposit Account in accordance with Section 9.5 of the covenants or agreements to be observed or performed by Lessee under any Lessee Participation Agreement or any certificate and to deposit therein such failure shall continue unremedied for 30 days after notice from Lessor, Owner Participant, Policy Provider or amounts as are required under Section 9.4 of the Indenture Trustee to Lessee, specifying the failure and demanding the same to be remedied; provided that, if such failure is capable of being remedied, and the remedy requires an action other than, or in addition to, the payment of money, no such failure (other than one relating to the payment of such money) shall constitute a Lease Event of Default hereunder for a period of 150 days after receipt of such notice so long as Lessee is diligently proceeding to remedy such failure and shall in fact remedy such failure within such period; or
(j) A Manager Default shall have occurred and be continuing under the Management Participation Agreement, and Lessee shall have failed to exercise its rights under the Management Agreement in respect of such Manager Default for a period of 30 days after receipt by Lessee of written notice from Lessor, Owner Participant or the Indenture Trustee demanding that such action be taken; or.
Appears in 1 contract
Lease Events of Default. The following events shall constitute Lease Events of Default hereunder (whether If at any such event shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body) and each such time a Lease Event of Default has occurred and is continuing or the Lease or the Charter Agreement shall be deemed have terminated, the Borrower may invoke a remarketing period commencing on the date such event occurred to exist and continue so long as, but only as long as, it shall not have been remedied:
the earlier of (a) Lessee shall fail the date falling 40 days thereafter (or such longer period as the Administrative Agent may agree) and (b) the final Maturity Date (a “Remarketing Period”). The start and continuance of such Remarketing Period is subject to (i) make or the Borrower diligently attempting to enter into a new lease and charter arrangement in respect of the Aircraft with a new Eligible Operator, (ii) the Borrower (A) continuing to pay all amounts otherwise due (including but not limited to principal and interest on the Loans) with respect to the Obligations, including but not limited to the Loans and (B) continuing to perform all other obligations, covenants and undertakings under each Loan Document; (iii) the Guaranty remaining in full force and effect and the Guarantors performing all obligations, covenants and undertakings under the Guaranty; (iv) the Borrower causing the Aircraft to be deemed maintained, stored and insured as required by virtue the terms of this Agreement and the other Related Documents (including performing the obligations of the last sentence Lessee in respect of Section 3.5 hereof such matters and associated matters under the Lease, the Charter Agreement and the other Lease Operative Documents as in effect prior to have made any payment termination thereof) and paying the costs of Basic Rentstorage, Early Purchase Pricemaintenance, insurance, ferry flight and associated matters with respect to the Aircraft and (v) no other Event of Default having occurred and being continuing. During any other purchase price Remarketing Period, the Borrower shall use its commercially reasonable efforts, at its own cost and expense, to enter into a new lease and charter arrangement in respect of the Aircraft with a new Eligible Operator. Such new lease and charter arrangement shall be paid permitted only if (1) the proposed new operator is an Eligible Operator, and the proposed new lease and charter arrangement is on terms reasonably acceptable to the Administrative Agent, (2) the Borrower shall submit to the Administrative Agent such information reasonably requested by Lessee for any Units pursuant the Administrative Agent no later than 10 Business Days prior to this Lease or the Participation Agreement, Stipulated Loss Amount or Termination Amount (x) in the case commencement of any such payment that is required to be made on the Basic Term Expiration Date or on any date within 30 days before the Basic Term Expiration Date, when dueproposed new lease and charter arrangement, and (y3) in the case Borrower shall comply with Article IV hereof as if the Aircraft were the subject of any other such payment, within 10 Business Days after the same shall have become dueBorrowing hereunder; provided, however, the Administrative Agent may require conditions to satisfied in addition to those set forth in Article IV to the extent reasonably deemed prudent or necessary by the Administrative Agent, taking into account the identity of the proposed new Eligible Operator, the terms of the proposed new lease and charter arrangement, the structure of the proposed new lease and charter arrangement and such other factors deemed relevant by the Administrative Agent. Prior to or contemporaneously with any new lease and charter arrangement entered into in accordance with this Section 5.17, amendments or other modifications to this Agreement and the other Loan Documents, in each case in form and substance satisfactory to the Administrative Agent, shall be entered into in order to effect any changes to such documents reasonably requested by the Administrative Agent in connection therewith. The remarketing of the Aircraft and the obligations of the Borrower set forth in this Section 5.17 shall be performed in accordance with the Borrower’s own policies and procedures and standards consistent with the reasonable commercial practices of leading international aircraft operating lessors for aircraft coming off lease and subject to financings. Notwithstanding anything to the contrary herein, (x) during any Remarketing Period and provided that so long as any Equipment Notes remain outstanding, failure to make (or be deemed to have made) any portion of Basic Rent on any Rent Payment Date shall not be a Lease no Event of Default so long as is otherwise occurring, no remedies available pursuant to the amounts applied under Section 3.4, clause (4), Security Agreement will be exercised by or on behalf of the Collateral Agency Agreement are sufficient to make the distributions required under such clause (4) with respect to the obligations owed under this Lease; provided, further, that in the event that the Special Equity Buy-Out has been consummated, failure to make any payment of Basic Rent, Early Purchase Price, any other purchase price to be paid by Lessee for any Units pursuant to this Lease Security Trustee or the Participation Agreement, Stipulated Loss Amount or Termination Amount (to the extent such amount constitutes an Accumulated Equity Deficiency Amount to be applied under Section 3.4, clause 9 of the Collateral Agency Agreement) shall, after receipt by Lessee of written notice of such failure from Lessor or Owner Participant, be a Lease Event of Default; or
(b) Lessee shall fail to (i) make or (ii) be deemed by virtue of payments made by the Collateral Agent to have made any payment of Supplemental Rent, including indemnity or tax indemnity payments, but not including Stipulated Loss Amount, Termination Amount, Early Purchase Price, or any other purchase price to be paid by Lessee for any Units pursuant to this Lease or the Participation Agreement (x) in the case of any such payment that is required to be on the Basic Term Expiration Date or on any date within 30 days before the Basic Term Expiration Date, when due, Secured Parties and (y) in any Remarketing Period shall terminate upon the case occurrence of any other such payment, after the same shall have become due and such failure shall continue unremedied for 30 days after receipt by Lessee of written notice of such failure from Lessor, Policy Provider, Owner Participant or the Indenture Trustee; provided, however, that so long as any Equipment Notes remain outstanding, failure to make (or be deemed to have made) payment of any of the amounts referred to in or to be applied pursuant to clauses (5) through (15) of Section 3.4 of the Collateral Agency Agreement shall not be a Lease Event of Default; or
(c) Lessee shall fail to maintain in effect the insurance required by Section 12 or Section 6.4 of the Collateral Agency Agreement and such failure shall not have been waived as provided for therein; or
(d) Lessee shall use or permit the use of the Units or the Pledged Units or any portion thereof in a way which is not permitted by this Lease (with respect to the Units) or the Collateral Agency Agreement (with respect to the Pledged Units), provided that such unauthorized use shall not constitute a Lease Event of Default for a period of 45 days after Lessee's obtaining actual knowledge thereof so long as (i) such unauthorized use is not the result of any willful action of Lessee and (ii) such unauthorized use is capable of being cured and Lessee diligently pursues such cure throughout such 45-day period; or Lessee shall make or permit any unauthorized assignment or transfer of this Lease in violation of Section 18.2; or
(e) TILC (or any successor thereto in its capacity as Administrator or Servicer, as applicable) shall have defaulted in any material respect in the performance of any of its obligations under the Administrative Services Agreement or the Servicing Agreement or a default shall occur under Section 6(a) of the Account Administration Agreement, and, in each case, Lessee shall have failed to exercise its rights thereunder in respect of such default for a period of 30 days after receipt by Lessee of written notice from Lessor, Owner Participant, Policy Provider or the Indenture Trustee, demanding that such action be taken; or
(f) Any representation or warranty made by Lessee in any Lessee Agreement or any representation or warranty made by TILC in any Operative Agreement to which any such Person is a party, in each case, other than the Tax Indemnity Agreement, is untrue or incorrect in any material respect as of the date of making thereof and such untruth or incorrectness shall continue to be material and unremedied for a period of 30 days after receipt of notice from Lessor, Owner Participant, Indenture Trustee or the Policy Provider; provided that, if such untruth or incorrectness is capable of being remedied, no such untruth or incorrectness shall constitute a Lease Event of Default hereunder for a period of 120 days after receipt of notice from Lessor, Owner Participant, the Indenture Trustee or the Policy Provider so long as Lessee, TILC or TRMI, as the case may be, is diligently proceeding to remedy such untruth or incorrectness and shall in fact remedy such untruth or incorrectness within such period; provided that such untrue or incorrect representation or warranty shall be deemed to be remediable or remedied only after all adverse consequences thereof if any, can be and have been remedied as applicable; or
(g) Lessee or the General Partner shall (i) 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 (ii) consent to any such relief or to the appointment of or taking possession by any such official in any voluntary case or other proceeding commenced against it, or (iii) admit in writing its inability to pay its debts generally as they come due, or (iv) make a general assignment for the benefit of creditors, or (v) take any corporate or partnership action to authorize any of the foregoing; or
(h) An involuntary case or other proceeding shall be commenced against Lessee or the General Partner seeking liquidation, reorganization or 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 60 days; or
(i) Lessee shall fail to observe or perform any other of the covenants or agreements to be observed or performed by Lessee under any Lessee Agreement or any certificate and such failure shall continue unremedied for 30 days after notice from Lessor, Owner Participant, Policy Provider or the Indenture Trustee to Lessee, specifying the failure and demanding the same to be remedied; provided that, if such failure is capable of being remedied, and the remedy requires an action other than, or in addition to, the payment of money, no such failure (other than one relating to the payment of such money) shall constitute a Lease Event of Default hereunder for a period of 150 days after receipt of such notice so long as Lessee is diligently proceeding to remedy such failure and shall in fact remedy such failure within such period; or
(j) A Manager Default shall have occurred and be continuing under the Management Agreement, and Lessee shall have failed to exercise its rights under the Management Agreement in respect of such Manager Default for a period of 30 days after receipt by Lessee of written notice from Lessor, Owner Participant or the Indenture Trustee demanding that such action be taken; or.
Appears in 1 contract
Samples: Secured Credit Agreement (Aspirational Consumer Lifestyle Corp.)
Lease Events of Default. The following events shall constitute Lease Events of Default hereunder (whether any such event shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body) and each such Lease Event of Default shall be deemed to exist and continue so long as, but only as long as, it shall not have been remedied:
(a) Lessee shall fail to (i) make or (ii) be deemed by virtue of the last sentence of Section 3.5 hereof to have made any payment of Basic Rent, Early Purchase Price, any other purchase price to be paid by Lessee for any Units pursuant to this Lease or the Participation Agreement, Stipulated Loss Amount or Termination Amount (x) in the case of any such payment that is required to be made on the Basic Term Expiration Date or on any date within 30 days before the Basic Term Expiration Date, when due, and (y) in the case of any other such payment, within 10 Business Days after the same shall have become due; provided, however, that so long as any Equipment Notes remain outstanding, failure to make (or be deemed to have made) any portion of Basic Rent on any Rent Payment Date shall not be a Lease Event of Default so long as the amounts applied under Section 3.4, clause (4), of the Collateral Agency Agreement are sufficient to make the distributions required under such clause (4) with respect to the obligations owed under this Lease; provided, further, that in the event that the Special Equity Buy-Out has been consummated, failure to make any payment of Basic Rent, Early Purchase Price, any other purchase price to be paid by Lessee for any Units pursuant to this Lease or the Participation Agreement, Stipulated Loss Amount or Termination Amount (to the extent such amount constitutes an Accumulated Equity Deficiency Amount to be applied under Section 3.4, clause 9 of the Collateral Agency Agreement) shall, after receipt by Lessee of written notice of such failure from Lessor or Owner Participant, be a Lease Event of Default; or
(b) Lessee shall fail to (i) make or (ii) be deemed by virtue of payments made by the Collateral Agent to have made any payment of Supplemental Rent, ; including indemnity or tax indemnity payments, but not including Stipulated Loss Amount, Termination Amount, Early Purchase Price, or any other purchase price to be paid by Lessee for any Units pursuant to this Lease or the Participation Agreement (x) in the case of any such payment that is required to be on the Basic Term Expiration Date or on any date within 30 days before the Basic Term Expiration Date, when due, and (y) in the case of any other such payment, after the same shall have become due and such failure shall continue unremedied for 30 days 10 Business Days after receipt by Lessee of written notice of such failure from Lessor, Policy Provider, Owner Participant or the Indenture Trustee; provided, however, that so long as any Equipment Notes remain outstanding, failure to make (or be deemed to have made) payment of any of the amounts referred to in or to be applied pursuant to clauses (5) through (1514) of Section 3.4 of the Collateral Agency Agreement shall not be a Lease Event of Default; or
(c) Lessee shall fail to maintain in effect the insurance required by Section 12 or Section 6.4 of the Collateral Agency Agreement and such failure shall not have been waived as provided for therein; or
(d) Lessee shall use or permit the use of the Units or the Pledged Units or any portion thereof in a way which is not permitted by this Lease (with respect to the Units) or the Collateral Agency Agreement (with respect to the Pledged Units), provided that such unauthorized use shall not constitute a Lease Event of Default for a period of 45 days after Lessee's obtaining actual knowledge the occurrence thereof so long as (i) such unauthorized use is not the result of any willful action of Lessee and (ii) such unauthorized use is capable of being cured and Lessee diligently pursues such cure throughout such 45-day period; or Lessee shall make or permit any unauthorized assignment or transfer of this Lease in violation of Section 18.2; or
(e) TILC (Lessee shall fail to observe or any successor thereto in its capacity as Administrator or Servicer, as applicable) shall have defaulted perform in any material respect in the performance of any of its obligations under the Administrative Services Agreement covenants or the Servicing Agreement agreements to be observed or a default shall occur under performed by Lessee in Section 6(a) 6.2 or 6.3 of the Account Administration Collateral Agency Agreement, and, in each case, Lessee shall have failed to exercise its rights thereunder in respect of such default for a period of 30 days after receipt by Lessee of written notice from Lessor, Owner Participant, Policy Provider or the Indenture Trustee, demanding that such action be taken; or
(f) Any representation or warranty made by Lessee in any Lessee Agreement or any representation or warranty made by TILC or TRMI in any Operative Agreement to which any such Person is a party, in each case, other than the Tax Indemnity Agreement, party is untrue or incorrect in any material respect as of the date of making thereof and such untruth or incorrectness incorrect-ness shall continue to be material and unremedied for a period of 30 days after receipt of notice from Lessor, Owner Participant, Indenture Trustee or the Policy Providerunremedied; provided that, if such untruth or incorrectness is capable of being remedied, no such untruth or incorrectness shall constitute a Lease Event of Default hereunder for a period of 120 30 days after receipt of notice from Lessor, Owner Participant, Participant or the Indenture Trustee or the Policy Provider so long as Lessee, TILC or TRMI, as the case may be, is diligently proceeding to remedy such untruth or incorrectness and shall in fact remedy such untruth or incorrectness within such period; provided that such untrue or incorrect representation or warranty shall be deemed to be remediable or remedied only after all adverse consequences thereof thereof, if any, can be and have been remedied as applicable; or
(g) Lessee or the General Partner shall (i) 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 (ii) consent to any such relief or to the appointment of or taking possession by any such official in any voluntary case or other proceeding commenced against it, or (iii) admit in writing its inability to pay its debts generally as they come due, or (iv) make a general assignment for the benefit of creditors, or (v) take any corporate or partnership action to authorize any of the foregoing; or
(h) An involuntary case or other proceeding shall be commenced against Lessee or the General Partner seeking liquidation, reorganization or 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 60 days; or
(i) Lessee shall fail to observe or perform any other of the covenants or agreements to be observed or performed by Lessee under any Lessee Agreement or any certificate and such failure shall continue unremedied for 30 days after notice from Lessor, Owner Participant, Policy Provider Participant or the Indenture Trustee to Lessee, specifying the failure and demanding the same to be remedied; provided that, if such failure is capable of being remedied, and the remedy requires an action other than, or in addition to, the payment of money, no such failure (other than one relating to the payment of such money) shall constitute a Lease Event of Default hereunder for a period of 150 90 days after receipt of such notice so long as Lessee is diligently proceeding to remedy such failure and shall in fact remedy such failure within such period; or
(j) A Manager Default shall have occurred and be continuing under the Management Agreement, and Lessee shall have failed to exercise its rights under the Management Agreement in respect of such Manager Default for a period of 30 days after receipt by Lessee of written notice from Lessor, Owner Participant or the Indenture Trustee demanding that such action be taken; or
(k) An Insurance Manager Default shall have occurred and be continuing under the Insurance Agreement, and Lessee shall have failed to exercise its rights under the Insurance Agreement in respect of such Insurance Manager Default for a period of 30 days after receipt by Lessee of written notice from Lessor, Owner Participant or the Indenture Trustee demanding that such action be taken;
(1) The Administrator shall have defaulted in any material respect in the performance of any of its obligations under the Administrative Services Agreement, and Lessee shall have failed to exercise its rights under the Administrative Services Agreement in respect of such default for a period of 30 days after receipt by Lessee of written notice from Lessor, Owner Participant or the Indenture Trustee , demanding that such action be taken; or
(m) A "Lease Event of Default" (as defined in the Other Lease) shall have occurred and be continuing with respect to the Other Lease. Notwithstanding anything to the contrary contained in this Lease, any failure of Lessee to perform or observe any covenant or agreement herein shall not constitute a Lease Event of Default if such failure is caused solely by reason of an event which constitutes an "Event of Loss" so long as Lessee is continuing to comply with the applicable terms of Section 11.
Appears in 1 contract
Lease Events of Default. The If any one (1) or more of the following events shall constitute Lease Events of Default hereunder (whether any such event shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body) and each such a "Lease Event of Default Default") shall be deemed to exist and continue so long as, but only as long as, it shall not have been remediedoccur:
(a) Lessee shall fail to make payment of (i) make any Basic Rent (except as set forth in clause (ii)) within three (3) days after the same has become due and payable or (ii) be deemed by virtue of any Termination Value, on the last sentence of Section 3.5 hereof to have made date any such payment is due and payable, or any payment of Basic Rent, Early Purchase Price, any other purchase price to be paid by Lessee for any Units pursuant to this Lease Rent or Supplemental Rent due on the Participation Agreement, Stipulated Loss Amount or Termination Amount (x) in the case due date of any such payment that is required to be made of Termination Value, or any amount due on the Basic Term Expiration Date or on any date within 30 days before the Basic Term Expiration Date, when due, and (y) in the case of any other such payment, within 10 Business Days after the same shall have become due; provided, however, that so long as any Equipment Notes remain outstanding, failure to make (or be deemed to have made) any portion of Basic Rent on any Rent Payment Date shall not be a Lease Event of Default so long as the amounts applied under Section 3.4, clause (4), of the Collateral Agency Agreement are sufficient to make the distributions required under such clause (4) with respect to the obligations owed under this Lease; provided, further, that in the event that the Special Equity Buy-Out has been consummated, failure to make any payment of Basic Rent, Early Purchase Price, any other purchase price to be paid by Lessee for any Units pursuant to this Lease or the Participation Agreement, Stipulated Loss Amount or Termination Amount (to the extent such amount constitutes an Accumulated Equity Deficiency Amount to be applied under Section 3.4, clause 9 of the Collateral Agency Agreement) shall, after receipt by Lessee of written notice of such failure from Lessor or Owner Participant, be a Lease Event of Default; or;
(b) Lessee shall fail to make payment of any Supplemental Rent (iother than Supplemental Rent referred to in Section 17.1(a)(ii)) or any other Credit Party shall fail to make or (ii) be deemed by virtue of payments made by the Collateral Agent to have made any payment of Supplemental Rent, including indemnity or tax indemnity payments, but not including Stipulated Loss Amount, Termination Amount, Early Purchase Price, or any other purchase price to be paid by Lessee for amount under any Units pursuant to this Lease or the Participation Operative Agreement (x) in the case of any such payment that is required to be on the Basic Term Expiration Date or on any date within 30 days before the Basic Term Expiration Date, when due, and (y) in the case of any other such payment, after the same shall have which has become due and such failure shall continue unremedied for 30 payable within three (3) days after receipt by Lessee of written notice of that such failure from Lessor, Policy Provider, Owner Participant or the Indenture Trustee; provided, however, that so long as any Equipment Notes remain outstanding, failure to make (or be deemed to have made) payment of any of the amounts referred to in or to be applied pursuant to clauses (5) through (15) of Section 3.4 of the Collateral Agency Agreement shall not be a Lease Event of Default; oris due;
(c) Lessee shall fail to maintain in effect the insurance as required by Section 12 or Section 6.4 of the Collateral Agency Agreement and such failure shall not have been waived as provided for therein; or
(d) Lessee shall use or permit the use of the Units or the Pledged Units or any portion thereof in a way which is not permitted by this Lease (with respect to the Units) or the Collateral Agency Agreement (with respect to the Pledged Units), provided that such unauthorized use shall not constitute a Lease Event of Default for a period of 45 days after Lessee's obtaining actual knowledge thereof so long as (i) such unauthorized use is not the result of any willful action of Lessee and (ii) such unauthorized use is capable of being cured and Lessee diligently pursues such cure throughout such 45-day period; or Lessee shall make or permit any unauthorized assignment or transfer Article XIV of this Lease in violation of Section 18.2; or
or to deliver any requisite annual certificate with respect thereto within ten (e10) TILC (or any successor thereto in its capacity as Administrator or Servicer, as applicable) shall have defaulted in any material respect in the performance of any of its obligations under the Administrative Services Agreement or the Servicing Agreement or a default shall occur under Section 6(a) of the Account Administration Agreement, and, in each case, Lessee shall have failed to exercise its rights thereunder in respect of such default for a period of 30 days after receipt by Lessee of written notice from Lessor, Owner Participant, Policy Provider or the Indenture Trustee, demanding that such action be taken; or
(f) Any representation or warranty made by Lessee in any Lessee Agreement or any representation or warranty made by TILC in any Operative Agreement to which any such Person is a party, in each case, other than the Tax Indemnity Agreement, is untrue or incorrect in any material respect as of the date of making thereof and such untruth or incorrectness shall continue to be material and unremedied for a period of 30 days after receipt of notice from Lessor, Owner Participant, Indenture Trustee or certificate is due under the Policy Provider; provided that, if such untruth or incorrectness is capable of being remedied, no such untruth or incorrectness shall constitute a Lease Event of Default hereunder for a period of 120 days after receipt of notice from Lessor, Owner Participant, the Indenture Trustee or the Policy Provider so long as Lessee, TILC or TRMI, as the case may be, is diligently proceeding to remedy such untruth or incorrectness and shall in fact remedy such untruth or incorrectness within such period; provided that such untrue or incorrect representation or warranty shall be deemed to be remediable or remedied only after all adverse consequences thereof if any, can be and have been remedied as applicable; or
(g) Lessee or the General Partner shall (i) 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 (ii) consent to any such relief or to the appointment of or taking possession by any such official in any voluntary case or other proceeding commenced against it, or (iii) admit in writing its inability to pay its debts generally as they come due, or (iv) make a general assignment for the benefit of creditors, or (v) take any corporate or partnership action to authorize any of the foregoing; or
(h) An involuntary case or other proceeding shall be commenced against Lessee or the General Partner seeking liquidation, reorganization or 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 60 days; orterms hereof;
(i) Lessee shall fail to observe or perform any other term, covenant, obligation or condition of the covenants or agreements to be observed or performed by Lessee under any Lessee Agreement this Lease (including without limitation the Incorporated Covenants) or any certificate other Operative Agreement to which Lessee is a party other than those set forth in Sections 17.1(a), (b) or (c) hereof, or any other Credit Party shall fail to observe or perform any term, covenant, obligation or condition of such Credit Party under any Operative Agreement other than those set forth in Section 17.1(b) hereof and such failure shall continue unremedied for 30 twenty (20) days (or with respect to the Incorporated Covenants, the grace period, if any, applicable thereto) after notice from Lessor, Owner Participant, Policy Provider thereof to the Lessee or the Indenture Trustee to Lessee, specifying the failure and demanding the same to be remedied; provided that, if such failure is capable of being remedied, and the remedy requires an action other thanCredit Party, or (ii) any representation or warranty made by Lessee or any other Credit Party set forth in addition tothis Lease (including without limitation the Incorporated Representation and Warranties) or in any other Operative Agreement or in any document entered into in connection herewith or therewith or in any document, the payment of money, no such failure certificate or financial or other statement delivered in connection herewith or therewith shall be false or inaccurate in any material way when made;
(other than one relating to the payment of such moneye) shall constitute a Lease An Agency Agreement Event of Default hereunder for shall have occurred and be continuing;
(f) The default of any Credit Party in the payment or performance of any terms of (i) any lease of a period Health Care Facility or Indebtedness secured by real property, whether now or hereafter entered into, or (ii) any other obligation or indebtedness to another of 150 days after receipt of such notice so long as Lessee is diligently proceeding to remedy such failure and shall in fact remedy such failure within such period; orFive Hundred Thousand Dollars ($500,000) or more, whether now or hereafter incurred;
(g) [Intentionally Omitted];
(h) [Intentionally Omitted];
(i) [Intentionally Omitted];
(j) A Manager [Intentionally Omitted];
(k) Any report, certificate, financial statement or other instrument delivered to Lessor by or on behalf of any Credit Party pursuant to the terms of this Lease or any other Operative Agreement is false or misleading in any material respect when made or delivered;
(l) Any Lessee Credit Agreement Event of Default shall have occurred and be continuing and shall not have been waived;
(m) If any Credit Party becomes insolvent, bankrupt or generally fails to pay its debts as such debts become due; or is adjudicated insolvent or bankrupt; or admits in writing its inability to pay its debts; or shall suffer a custodian, receiver or trustee for it or substantially all of its property to be appointed and if appointed without its consent, not be discharged within thirty (30) days; or makes an assignment for the benefit of creditors; or suffers proceedings under any law related to bankruptcy, insolvency, liquidation or the reorganization, readjustment or the relief of debtors to be instituted against it and if contested by it not dismissed or stayed within thirty (30) days; or if proceedings under any law related to bankruptcy, insolvency, liquidation, or the reorganization, readjustment or the relief of debtors is instituted or commenced by any Credit Party; of if any order for relief is entered relating to any of the foregoing proceedings; or if any Credit Party shall call a meeting of its creditors with a view to arranging a composition or adjustment of its debts; or if any Credit Party shall by any act or failure to act indicate its consent to, approval of or acquiescence in any of the foregoing;
(n) If (i) any person or group within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended (the "1934 Act") and the rules and regulations promulgated thereunder (other that (x) J. Xxxxxxx Xxxxx and members of his immediate family or trust for the benefit of such family members, (y) South Atlantic Venture Fund II, Limited Partnership and South Atlantic Venture Fund III, Limited Partnership, and (z) Welsh, Carson, Xxxxxxxx & Xxxxx VI, L.P., WCAS Capital Partners II, L.P., WCAS Health Care Partners, L.P. and CID Equity Capital III, L.P.) shall have beneficial ownership (within the meaning of Rule 13d-3 of the 1934 Act), directly or indirectly, of securities of Lessee (or other securities convertible into such securities within the time specified in Rule 13d-3 of the 0000 Xxx) representing ten percent (10%) or more of the combined voting power of all securities of Lessee entitled to vote in the election of directors (hereinafter called a "Controlling Person"); or (ii) a majority of the board of directors of Lessee shall cease for any reason to consist of (A) individuals who on the date hereof were serving as directors of any Credit Party and (B) individuals who subsequently become members of the Board if such individuals' nominations for election or elections to the Board are recommended or approved by a majority of the Board of Directors of Lessee. For purposes of clause (i) above, a person or group shall not be a Controlling Person if such person or group holds voting power in good faith, and not for the purpose of circumventing this Paragraph 17.1 (n) as an agent, bank, broker, nominee, trustee, or holder of revocable proxies given in response to a solicitation pursuant to the 1934 Act, for one or more beneficial owners who do not individually, or if they are a group acting in concert, as a group, have the voting power specified in clause (i) above;
(o) If J. Xxxxxxx Xxxxx shall cease to be Chief Executive Officer of Lessee, provided that if such cessation of service is as a result of death or permanent disability then there shall be no Lease Event of Default under this Section 17.1(o) if a replacement is named within thirty (30) days of such death or permanent disability and Majority Secured Parties have not given written notice to Lessee of their objection to such replacement within fifteen (15) days after such naming;
(p) Any Operative Agreement shall cease to be in full force and effect;
(q) Except as to any Credit Party which is released in connection with the Operative Agreements, the guaranty given by any Guarantor under the Management AgreementParticipation Agreement or any material provision thereof shall cease to be in full force and effect, or any Guarantor or any Person acting by or on behalf of such Guarantor shall deny or disaffirm such Guarantor's obligations under such guaranty, or any Guarantor shall default in the due performance or observance of any term, covenant or agreement on its part to be performed or observed pursuant to any guaranty;
(r) If any Credit Party shall default in or fail to observe at any test date the covenants set forth in Paragraph 5.9(a)(ii), Paragraphs 5.15 through 5.17 of the Lessee Credit Agreement or Section Six of the Lessee Credit Agreement (in each case as such have been incorporated by reference into this Lease pursuant to Section 28.1);
(s) If Lessee shall cease to own directly or indirectly one hundred percent (100%) of each other Credit Party;
(t) If custody or control of any substantial part of the property of any Credit Party shall be assumed by any governmental agency or any court of competent jurisdiction at the instance of any governmental agency; if any License to operate a Health Care Facility or any other material License shall be suspended, revoked, not renewed at expiration or otherwise terminated (other than suspensions of Licenses that do not and are not reasonably expected to prevent the legal operation of the affected Health Care Facility, affect the ability of the Credit Parties to receive reimbursement with respect to such operations, or otherwise have a Material Adverse Effect); or if any governmental regulatory authority or judicial body shall make any other final non-appealable determination which, in any of the foregoing instances, might reasonably be expected to have a Material Adverse Effect;
(u) If judgment, writ, warrant or attachment or execution or similar process which calls for payment or presents liability in excess of Five Hundred Thousand Dollars ($500,000) shall be rendered, issued or levied against any Credit Party or its respective property and such process shall not be paid, waived, stayed, vacated, discharged, settled, satisfied or fully bonded within sixty (60) days after its issuance or levy;
(v) If any event or condition shall occur or exist with respect to any activity or substance regulated under the Environmental Control Statutes and as a result of such event or condition, Credit Parties (or any of them) have incurred or in the opinion of the Majority Secured Parties are reasonably likely to incur a liability or liabilities in excess of Five Hundred Thousand Dollars ($500,000) during any consecutive twelve (12) month period; then, in any such event, Lessor may, in addition to the other rights and remedies provided for in this Article XVII and in Section 18.1, terminate this Lease by giving Lessee five (5) days notice of such termination (provided, notwithstanding the foregoing, this Lease shall be deemed to be automatically terminated without the giving of notice upon the occurrence of a Lease Event of Default under Sections 17.1(g), (h) or (i)), and this Lease shall terminate, and all rights of Lessee under this Lease shall have failed cease. Lessee shall, to exercise its rights under the Management Agreement in respect fullest extent permitted by law, pay as Supplemental Rent all costs and expenses incurred by or on behalf of such Manager Lessor or any other Financing Party, including without limitation reasonable fees and expenses of counsel, as a result of any Lease Event of Default for a period of 30 days after receipt by Lessee of written notice from Lessor, Owner Participant or the Indenture Trustee demanding that such action be taken; orhereunder.
Appears in 1 contract
Lease Events of Default. The If any one (1) or more of the following events shall constitute Lease Events of Default hereunder (whether any such event shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body) and each such a "Lease Event of Default Default") shall be deemed to exist and continue so long as, but only as long as, it shall not have been remediedoccur:
(a) Lessee shall fail to make payment of (i) make or any Basic Rent (except as set forth in clause (ii)) be deemed by virtue of the last sentence of Section 3.5 hereof to have made any payment of Basic Rent, Early Purchase Price, any other purchase price to be paid by Lessee for any Units pursuant to this Lease or the Participation Agreement, Stipulated Loss Amount or Termination Amount within five (x5) in the case of any such payment that is required to be made on the Basic Term Expiration Date or on any date within 30 days before the Basic Term Expiration Date, when due, and (y) in the case of any other such payment, within 10 Business Days after the same shall have has become due; provided, however, that so long as any Equipment Notes remain outstanding, failure to make due and payable or (or be deemed to have madeii) any portion of Basic Rent Termination Value, on the date any Rent Payment Date shall not be a Lease Event of Default so long as the amounts applied under Section 3.4such payment is due and payable, clause (4), of the Collateral Agency Agreement are sufficient to make the distributions required under such clause (4) with respect to the obligations owed under this Lease; provided, further, that in the event that the Special Equity Buy-Out has been consummated, failure to make or any payment of Basic RentRent or Supplemental Rent due on the due date of any such payment of Termination Value, Early Purchase Price, or any other purchase price to be paid by Lessee for any Units pursuant to this Lease or amount due on the Participation Agreement, Stipulated Loss Amount or Termination Amount (to the extent such amount constitutes an Accumulated Equity Deficiency Amount to be applied under Section 3.4, clause 9 of the Collateral Agency Agreement) shall, after receipt by Lessee of written notice of such failure from Lessor or Owner Participant, be a Lease Event of Default; orExpiration Date;
(b) Lessee shall fail to make payment of any Supplemental Rent (iother than Supplemental Rent referred to in Section 17.1(a)(ii)) or any other Credit Party shall fail to make or (ii) be deemed by virtue of payments made by the Collateral Agent to have made any payment of Supplemental Rent, including indemnity or tax indemnity payments, but not including Stipulated Loss Amount, Termination Amount, Early Purchase Price, or any other purchase price to be paid by Lessee for amount under any Units pursuant to this Lease or the Participation Operative Agreement (x) in the case of any such payment that is required to be on the Basic Term Expiration Date or on any date within 30 days before the Basic Term Expiration Date, when due, and (y) in the case of any other such payment, after the same shall have which has become due and such failure shall continue unremedied for 30 days after receipt by Lessee of written notice of such failure from Lessor, Policy Provider, Owner Participant or the Indenture Trustee; provided, however, that so long as any Equipment Notes remain outstanding, failure to make (or be deemed to have made) payment of any of the amounts referred to in or to be applied pursuant to clauses payable within five (5) through (15) Business Days after receipt of Section 3.4 of the Collateral Agency Agreement shall not be a Lease Event of Default; ornotice that such payment is due;
(c) Lessee shall fail to maintain in effect the insurance as required by Section 12 or Section 6.4 of the Collateral Agency Agreement and such failure shall not have been waived as provided for therein; or
(d) Lessee shall use or permit the use of the Units or the Pledged Units or any portion thereof in a way which is not permitted by this Lease (with respect to the Units) or the Collateral Agency Agreement (with respect to the Pledged Units), provided that such unauthorized use shall not constitute a Lease Event of Default for a period of 45 days after Lessee's obtaining actual knowledge thereof so long as (i) such unauthorized use is not the result of any willful action of Lessee and (ii) such unauthorized use is capable of being cured and Lessee diligently pursues such cure throughout such 45-day period; or Lessee shall make or permit any unauthorized assignment or transfer Article XIV of this Lease in violation of Section 18.2; or
or to deliver any requisite annual certificate with respect thereto within ten (e10) TILC (or any successor thereto in its capacity as Administrator or Servicer, as applicable) shall have defaulted in any material respect in the performance of any of its obligations under the Administrative Services Agreement or the Servicing Agreement or a default shall occur under Section 6(a) of the Account Administration Agreement, and, in each case, Lessee shall have failed to exercise its rights thereunder in respect of such default for a period of 30 days after receipt by Lessee of written notice from Lessor, Owner Participant, Policy Provider or the Indenture Trustee, demanding that such action be taken; or
(f) Any representation or warranty made by Lessee in any Lessee Agreement or any representation or warranty made by TILC in any Operative Agreement to which any such Person is a party, in each case, other than the Tax Indemnity Agreement, is untrue or incorrect in any material respect as of the date of making thereof and such untruth or incorrectness shall continue to be material and unremedied for a period of 30 days after receipt of notice from Lessor, Owner Participant, Indenture Trustee or the Policy Provider; provided that, if such untruth or incorrectness is capable of being remedied, no such untruth or incorrectness shall constitute a Lease Event of Default hereunder for a period of 120 days after receipt of notice from Lessor, Owner Participant, the Indenture Trustee or the Policy Provider so long as Lessee, TILC or TRMI, as the case may be, is diligently proceeding to remedy such untruth or incorrectness and shall in fact remedy such untruth or incorrectness within such period; provided that such untrue or incorrect representation or warranty shall be deemed to be remediable or remedied only after all adverse consequences thereof if any, can be and have been remedied as applicable; or
(g) Lessee or certificate is due under the General Partner shall (i) 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 (ii) consent to any such relief or to the appointment of or taking possession by any such official in any voluntary case or other proceeding commenced against it, or (iii) admit in writing its inability to pay its debts generally as they come due, or (iv) make a general assignment for the benefit of creditors, or (v) take any corporate or partnership action to authorize any of the foregoing; or
(h) An involuntary case or other proceeding shall be commenced against Lessee or the General Partner seeking liquidation, reorganization or 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 60 days; orterms hereof;
(i) Lessee shall fail to observe or perform any other term, covenant, obligation or condition of the covenants or agreements to be observed or performed by Lessee under any Lessee Agreement this Lease or any certificate other Operative Agreement to which Lessee is a party other than those set forth in Sections 17.1(a), (b) or (c) hereof, or any other Credit Party shall fail to observe or perform any term, covenant, obligation or condition of such Credit Party under any Operative Agreement other than those set forth in Section 17.1(b) hereof and such failure shall continue unremedied for 30 thirty (30) days after notice from Lessor, Owner Participant, Policy Provider thereof to Lessee or the Indenture Trustee to Lessee, specifying the failure and demanding the same to be remediedsuch Credit Party; provided thatprovided, if such failure is capable of being remediedcannot be cured within such thirty (30) days but can be cured with subsequent diligence and Lessee or such Credit Party diligently pursues such cure, and the remedy requires an action other than, or in addition to, the payment of money, then no such failure (other than one relating to the payment of such money) shall constitute a Lease Event of Default hereunder for a period shall be deemed to occur with respect to such failure until the passage of 150 an additional sixty (60) days after receipt the initial thirty (30) days referenced above or (ii) any representation or warranty made by Lessee or any other Credit Party set forth in this Lease or in any other Operative Agreement or in any document entered into in connection herewith or therewith or in any document, certificate or financial or other statement delivered in connection herewith or therewith shall be false or inaccurate in any material way when made and such matter giving rise to such misrepresentation or breach of warranty shall continue for thirty (30) days after notice thereof to Lessee or such notice so long as Credit Party; provided, if such matter giving rise to such misrepresentation or breach of warranty cannot be cured within such thirty (30) days but can be cured with subsequent diligence and Lessee is or such Credit Party diligently proceeding pursues such cure, then no Lease Event of Default shall be deemed to remedy occur with respect to such failure and shall in fact remedy such failure within such period; oruntil the passage of an additional sixty (60) days after the initial thirty (30) days referenced above;
(je) A Manager An Agency Agreement Event of Default shall have occurred and be continuing continuing;
(f) Any Credit Party or any Subsidiary of any Credit Party shall default (beyond applicable periods of grace and/or notice and cure) under the Management Agreementterms applicable to any Debt of such Credit Party in an aggregate principal amount of at least $30,000,000; or any other event or condition shall occur which results in a default of any such Debt or enables the holder of any such Debt or any Person acting on such holder's behalf to accelerate the maturity thereof;
(g) An involuntary proceeding shall be commenced or an involuntary petition shall be filed seeking (i) liquidation, and Lessee shall have failed to exercise its rights under the Management Agreement reorganization or other relief in respect of any Credit Party or any Subsidiary of any Credit Party 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 any Credit Party or any Subsidiary of any Credit Party or for a substantial part of its assets, and, in any such Manager Default case, such proceeding or petition shall continue undismissed for sixty (60) or more days or an order or decree approving or ordering any of the foregoing shall be entered;
(h) Any Credit Party or any Subsidiary of any Credit Party 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 institution of, or fail to contest in a timely and appropriate manner, any proceeding or petition described in clause (g) of this Section 17.1, (iii) apply for or consent to the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for any Credit Party or any Subsidiary of any Credit Party 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 foregoing;
(i) Any Credit Party or any Subsidiary of any Credit Party shall become unable, admit in writing its inability or fail generally to pay its debts as they become due;
(j) The entering of any order in any proceedings against any Credit Party or any Subsidiary of any Credit Party decreeing the dissolution, divestiture or split-up of any Credit Party or any Subsidiary of any Credit Party, and such order remains in effect for more than sixty (60) days;
(k) Any report, certificate, financial statement or other instrument delivered to Lessor by or on behalf of any Credit Party pursuant to the terms of this Lease or any other Operative Agreement is false or misleading in any material respect when made or delivered;
(l) [Intentionally Omitted];
(m) One or more judgments for the payment of money in an aggregate amount in excess of $25,000,000 shall be rendered against any Credit Party, any Subsidiary thereof or any combination thereof and the same shall remain undischarged for a period of 30 thirty (30) consecutive days after receipt during which execution shall not be effectively stayed, or any action shall be legally taken by Lessee a judgment creditor to attach or levy upon the assets of written notice from Lessorany Credit Party or any Subsidiary thereof to enforce any such judgment;
(n) An ERISA Event shall have occurred that, Owner Participant or in the Indenture Trustee demanding opinion of Lessor (upon the advice of the Agent), when taken together with all other ERISA Events that such action have occurred, could reasonably be takenexpected to result in a Material Adverse Effect; or
(o) A Change in Control shall occur;
(p) Any Operative Agreement shall cease to be in full force and effect; or
(q) Except as to any Credit Party which is released in connection with the Operative Agreements, the guaranty given by any Guarantor under the Participation Agreement or any material provision thereof shall cease to be in full force and effect, or any Guarantor or any Person acting by or on behalf of such Guarantor shall deny or disaffirm such Guarantor's obligations under such guaranty, or any Guarantor shall default in the due performance or observance of any term, covenant or agreement on its part to be performed or observed pursuant to any guaranty; then, in any such event, Lessor may, in addition to the other rights and remedies provided for in this Article XVII and in Section 18.1, terminate this Lease by giving Lessee five (5) days notice of such termination (provided, notwithstanding the foregoing, this Lease shall be deemed to be automatically terminated without the giving of notice upon the occurrence of a Lease Event of Default under Sections 17.1(g), (h) or (i)), and this Lease shall terminate, and all rights of Lessee under this Lease shall cease. Lessee shall, to the fullest extent permitted by law, pay as Supplemental Rent all costs and expenses incurred by or on behalf of Lessor or any other Financing Party, including without limitation reasonable fees and expenses of counsel, as a result of any Lease Event of Default hereunder. A POWER OF SALE HAS BEEN GRANTED IN THIS LEASE. A POWER OF SALE MAY ALLOW LESSOR TO TAKE THE PROPERTIES AND SELL THE PROPERTIES WITHOUT GOING TO COURT IN A FORECLOSURE ACTION UPON THE OCCURRENCE OF A LEASE EVENT OF DEFAULT.
Appears in 1 contract
Samples: Lease Agreement (Convergys Corp)
Lease Events of Default. The If any one (1) or more of the following events shall constitute Lease Events of Default hereunder (whether any such event shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body) and each such a "Lease Event of Default Default") shall be deemed to exist and continue so long as, but only as long as, it shall not have been remediedoccur:
(a) Lessee shall fail to make payment of (i) make or any Basic Rent (except as set forth in clause (ii)) be deemed by virtue of the last sentence of Section 3.5 hereof to have made any payment of Basic Rent, Early Purchase Price, any other purchase price to be paid by Lessee for any Units pursuant to this Lease or the Participation Agreement, Stipulated Loss Amount or Termination Amount within five (x5) in the case of any such payment that is required to be made on the Basic Term Expiration Date or on any date within 30 days before the Basic Term Expiration Date, when due, and (y) in the case of any other such payment, within 10 Business Days after the same shall have has become due; provided, however, that so long as any Equipment Notes remain outstanding, failure to make due and payable or (or be deemed to have madeii) any portion of Basic Rent Termination Value, on the date any Rent Payment Date shall not be a Lease Event of Default so long as the amounts applied under Section 3.4such payment is due and payable, clause (4), of the Collateral Agency Agreement are sufficient to make the distributions required under such clause (4) with respect to the obligations owed under this Lease; provided, further, that in the event that the Special Equity Buy-Out has been consummated, failure to make or any payment of Basic RentRent or Supplemental Rent due on the due date of any such payment of Termination Value, Early Purchase Price, or any other purchase price to be paid by Lessee for any Units pursuant to this Lease or amount due on the Participation Agreement, Stipulated Loss Amount or Termination Amount (to the extent such amount constitutes an Accumulated Equity Deficiency Amount to be applied under Section 3.4, clause 9 of the Collateral Agency Agreement) shall, after receipt by Lessee of written notice of such failure from Lessor or Owner Participant, be a Lease Event of Default; orExpiration Date;
(b) Lessee shall fail to make payment of any Supplemental Rent (iother than Supplemental Rent referred to in Section 17.1(a)(ii)) or shall fail to make or (ii) be deemed by virtue of payments made by the Collateral Agent to have made any payment of Supplemental Rent, including indemnity or tax indemnity payments, but not including Stipulated Loss Amount, Termination Amount, Early Purchase Price, or any other purchase price to be paid by Lessee for amount under any Units pursuant to this Lease or the Participation Operative Agreement (x) in the case of any such payment that is required to be on the Basic Term Expiration Date or on any date within 30 days before the Basic Term Expiration Date, when due, and (y) in the case of any other such payment, after the same shall have which has become due and such failure shall continue unremedied for 30 days after receipt by Lessee of written notice of such failure from Lessor, Policy Provider, Owner Participant or the Indenture Trustee; provided, however, that so long as any Equipment Notes remain outstanding, failure to make (or be deemed to have made) payment of any of the amounts referred to in or to be applied pursuant to clauses payable within five (5) through (15) Business Days after receipt of Section 3.4 of the Collateral Agency Agreement shall not be a Lease Event of Default; ornotice that such payment is due;
(c) Lessee shall fail to maintain in effect the insurance as required by Section 12 or Section 6.4 of the Collateral Agency Agreement and such failure shall not have been waived as provided for therein; or
(d) Lessee shall use or permit the use of the Units or the Pledged Units or any portion thereof in a way which is not permitted by this Lease (with respect to the Units) or the Collateral Agency Agreement (with respect to the Pledged Units), provided that such unauthorized use shall not constitute a Lease Event of Default for a period of 45 days after Lessee's obtaining actual knowledge thereof so long as (i) such unauthorized use is not the result of any willful action of Lessee and (ii) such unauthorized use is capable of being cured and Lessee diligently pursues such cure throughout such 45-day period; or Lessee shall make or permit any unauthorized assignment or transfer Article XIV of this Lease in violation of Section 18.2; or
or to deliver any requisite annual certificate with respect thereto within ten (e10) TILC (or any successor thereto in its capacity as Administrator or Servicer, as applicable) shall have defaulted in any material respect in the performance of any of its obligations under the Administrative Services Agreement or the Servicing Agreement or a default shall occur under Section 6(a) of the Account Administration Agreement, and, in each case, Lessee shall have failed to exercise its rights thereunder in respect of such default for a period of 30 days after receipt by Lessee of written notice from Lessor, Owner Participant, Policy Provider or the Indenture Trustee, demanding that such action be taken; or
(f) Any representation or warranty made by Lessee in any Lessee Agreement or any representation or warranty made by TILC in any Operative Agreement to which any such Person is a party, in each case, other than the Tax Indemnity Agreement, is untrue or incorrect in any material respect as of the date of making thereof and such untruth or incorrectness shall continue to be material and unremedied for a period of 30 days after receipt of notice from Lessor, Owner Participant, Indenture Trustee or certificate is due under the Policy Provider; provided that, if such untruth or incorrectness is capable of being remedied, no such untruth or incorrectness shall constitute a Lease Event of Default hereunder for a period of 120 days after receipt of notice from Lessor, Owner Participant, the Indenture Trustee or the Policy Provider so long as Lessee, TILC or TRMI, as the case may be, is diligently proceeding to remedy such untruth or incorrectness and shall in fact remedy such untruth or incorrectness within such period; provided that such untrue or incorrect representation or warranty shall be deemed to be remediable or remedied only after all adverse consequences thereof if any, can be and have been remedied as applicable; or
(g) Lessee or the General Partner shall (i) 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 (ii) consent to any such relief or to the appointment of or taking possession by any such official in any voluntary case or other proceeding commenced against it, or (iii) admit in writing its inability to pay its debts generally as they come due, or (iv) make a general assignment for the benefit of creditors, or (v) take any corporate or partnership action to authorize any of the foregoing; or
(h) An involuntary case or other proceeding shall be commenced against Lessee or the General Partner seeking liquidation, reorganization or 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 60 days; orterms hereof;
(i) Lessee shall fail to observe or perform any other term, covenant, obligation or condition of the covenants or agreements to be observed or performed by Lessee under any Lessee Agreement this Lease (including without limitation the Incorporated Covenants) or any certificate other Operative Agreement to which Lessee is a party other than those set forth in Sections 17.1(a), (b) or (c) hereof and such failure shall continue unremedied for 30 fifteen (15) days (or with respect to the Incorporated Covenants, the grace period, if any, applicable thereto) after notice from Lessorthereof to the Lessee, Owner Participantor (ii) any representation or warranty made by Lessee set forth in this Lease (including without limitation the Incorporated Representation and Warranties) or in any other Operative Agreement or in any document entered into in connection herewith or therewith or in any document, Policy Provider certificate or financial or other statement delivered in connection herewith or therewith shall be false or inaccurate in any material way when made;
(e) An Agency Agreement Event of Default shall have occurred and be continuing;
(f) The Lessee or any Subsidiary of the Lessee shall default (beyond applicable periods of grace and/or notice and cure) in the payment when due of any principal of or interest on any Indebtedness having an outstanding principal amount of at least $5,000,000; or any other event or condition shall occur which results in a default of any such Indebtedness or enables the holder of any such Indebtedness or any Person acting on such holder's behalf to accelerate the maturity thereof;
(g) The liquidation or dissolution of the Lessee, or the Indenture Trustee to suspension of the business of the Lessee, specifying or the failure and demanding filing by the same Lessee of a voluntary petition or an answer seeking reorganization, arrangement, readjustment of its debts or for any other relief under the United States Bankruptcy Code, as amended, or under any other insolvency act or law, state or federal, now or hereafter existing, or any other action of Lessee indicating its consent to, approval of or acquiescence in, any such petition or proceeding; the application by Lessee for, or the appointment by consent or acquiescence of Lessee of a receiver, a trustee or a custodian of Lessee for all or a substantial part of its property; the making by Lessee of any assignment for the benefit of creditors; the inability of Lessee or the admission by Lessee in writing of its inability to be remediedpay its debts as they mature; provided thator Lessee taking any corporate action to authorize any of the foregoing;
(h) The filing of an involuntary petition against Lessee in bankruptcy or seeking reorganization, if such failure is capable arrangement, readjustment of being remediedits debts or for any other relief under the United States Bankruptcy Code, as amended, or under any other insolvency act or law, state or federal, now or hereafter existing; or the involuntary appointment of a receiver, a trustee or a custodian of Lessee for all or a substantial part of its property; or the issuance of a warrant of attachment, execution or similar process against any substantial part of the property of Lessee, and the remedy requires an action other than, or in addition to, the payment continuance of money, no such failure (other than one relating to the payment any of such moneyevents for ninety (90) shall constitute a Lease Event days undismissed or undischarged;
(i) The adjudication of Default hereunder for a period of 150 days after receipt of such notice so long Lessee as Lessee is diligently proceeding to remedy such failure and shall in fact remedy such failure within such period; orbankrupt or insolvent;
(j) A Manager The entering of any order in any proceedings against the Lessee or any Subsidiary of the Lessee decreeing the dissolution, divestiture or split-up of the Lessee or any Subsidiary of the Lessee, and such order remains in effect for more than sixty (60) days;
(k) Any report, certificate, financial statement or other instrument delivered to Lessor by or on behalf of the Lessee pursuant to the terms of this Lease or any other Operative Agreement is false or misleading in any material respect when made or delivered;
(l) Any Lessee Credit Agreement Event of Default shall have occurred and be continuing and shall not have been waived;
(m) A final judgment or judgments for the payment of money shall be rendered by a court or courts against the Lessee or any Subsidiary of the Lessee in excess of $500,000 in the aggregate, and (i) the same shall not be discharged (or provision shall not be made for such discharge), or a stay of execution thereof shall not be procured, within thirty (30) days from the date of entry thereof, or (ii) the Lessee or any such Subsidiary shall not, within said period of thirty (30) days, or such longer period during which execution of the same shall have been stayed, appeal therefrom and cause the execution thereof to be stayed during such appeal, or (iii) such judgment or judgments shall not be discharged (or provisions shall not be made for such discharge) within thirty (30) days after a decision has been reached with respect to such appeal and the related stay has been lifted;
(n) The Lessee or any member of the Controlled Group shall fail to pay when due an amount or amounts aggregating in excess of $2,000,000 which it shall have become liable to pay to the PBGC or to a Pension Plan under Title IV of ERISA; or notice of intent to terminate a Pension Plan or Pension Plans having aggregate Unfunded Liabilities in excess of $2,000,000 shall be filed under Title IV of ERISA by the Lessee or any member of the Controlled Group, any plan administrator or any combination of the foregoing; or the PBGC shall institute proceedings under Title IV of ERISA to terminate or to cause a trustee to be appointed to administer any such Pension Plan or Pension Plans or a proceeding shall be instituted by a fiduciary of any such Pension Plan or Pension Plans against the Lessee or any member of the Controlled Group to enforce Section 515 or 4219(c)(5) of ERISA; or a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any such Pension Plan or Pension Plans must be terminated;
(i) As a result of one (1) or more transactions after the date of this Lease, any "person" or "group" of persons shall have "beneficial ownership" (within the meaning of Section 13(d) or 14(d) of the Securities Exchange Act of 1934, as amended, and the applicable rules and regulations thereunder) other than Richxxx Xxxx, Xxynx Xxxxxxxx, Xxmex Xxxxxxxx xxx Bertxxx X. Xxxxxx, Xx. xx twenty percent (20%) or more of the outstanding common stock of Lessee; or (ii) without limiting the generality of the foregoing, during any period of twenty-four (24) consecutive months, commencing after the date of this Lease, individuals who at the beginning of such period of twenty-four (24) months were directors of Lessee shall cease for any reason to constitute a majority of the board of directors of Lessee, provided, that the relationships among the respective shareholders of Lessee on the Initial Closing Date shall not be deemed to constitute all or any combination of them as a "group" for purposes of clause (o)(i);
(p) Any Operative Agreement shall cease to be in full force and effect; or
(q) Any default shall occur under the Management AgreementHead Lease or any other Bond Document after the expiration of any express cure or grace periods; then, in any such event, Lessor may, in addition to the other rights and remedies provided for in this Article XVII and in Section 18.1, terminate this Lease by giving Lessee five (5) days notice of such termination (provided, notwithstanding the foregoing, this Lease shall be deemed to be automatically terminated without the giving of notice upon the occurrence of a Lease Event of Default under Sections 17.1(g), (h) or (i)), and this Lease shall terminate, and all rights of Lessee under this Lease shall have failed cease. Lessee shall, to exercise its rights under the Management Agreement in respect fullest extent permitted by law, pay as Supplemental Rent all costs and expenses incurred by or on behalf of such Manager Lessor or any other Financing Party, including without limitation reasonable fees and expenses of counsel, as a result of any Lease Event of Default for a period of 30 days after receipt by Lessee of written notice from Lessor, Owner Participant or the Indenture Trustee demanding that such action be taken; orhereunder. A POWER OF SALE HAS BEEN GRANTED IN THIS LEASE. A POWER OF SALE MAY ALLOW LESSOR TO TAKE THE PROPERTIES AND SELL THE PROPERTIES WITHOUT GOING TO COURT IN A FORECLOSURE ACTION UPON THE OCCURRENCE OF A LEASE EVENT OF DEFAULT.
Appears in 1 contract
Lease Events of Default. The following events shall constitute Lease Events of Default hereunder (whether any such event shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body) and each such Lease Event of Default shall be deemed to exist and continue so long as, but only as long as, it shall not have been remedied:
(a) Lessee shall fail to (i) make or (ii) be deemed by virtue of the last sentence of Section 3.5 hereof to have made any payment of Basic Rent, Special Purchase Price, Early Purchase Price, Basic Term Purchase Price or any other purchase price to be paid by Lessee for any Units pursuant to this Lease or the Participation Agreement, Stipulated Loss Amount Value or Termination Amount (x) in the case of any such payment that is required to be made on the Basic Term Expiration Date or on any date within 30 days before the Basic Term Expiration Date, when due, and (y) in the case of any other such payment, Value within 10 Business Days after the same shall have become due; provided, however, that so long as any Equipment Notes remain outstanding, failure to make (or be deemed to have made) any portion of Basic Rent on any Rent Payment Date shall not be a Lease Event of Default so long as the amounts applied under Section 3.4, clause (4), of the Collateral Agency Agreement are sufficient to make the distributions required under such clause (4) with respect to the obligations owed under this Lease; provided, further, that in the event that the Special Equity Buy-Out has been consummated, failure to make any payment of Basic Rent, Early Purchase Price, any other purchase price to be paid by Lessee for any Units pursuant to this Lease or the Participation Agreement, Stipulated Loss Amount or Termination Amount (to the extent such amount constitutes an Accumulated Equity Deficiency Amount to be applied under Section 3.4, clause 9 of the Collateral Agency Agreement) shall, after receipt by Lessee of written notice of such failure from Lessor or Owner Participant, be a Lease Event of Default; or
(b) Lessee shall fail to (i) make or (ii) be deemed by virtue of payments made by the Collateral Agent to have made any payment of Supplemental Rent, including indemnity or tax indemnity payments, but not including Stipulated Loss AmountValue, Termination AmountSpecial Purchase Price, Early Purchase Price, Basic Term Purchase Price or any other purchase price to be paid by Lessee for any Units pursuant to this Lease or the Participation Agreement (x) in the case of any such payment that is required to be on the Basic Term Expiration Date or on any date within 30 days before the Basic Term Expiration Date, when due, and (y) in the case of any other such payment, after the same shall have become due and such failure shall continue unremedied for 30 days 10 Business Days after receipt by Lessee of written notice of such failure from Lessor, Policy Provider, Owner Participant or the Indenture Trustee; provided, however, that so long as any Equipment Notes remain outstanding, failure to make (or be deemed to have made) payment of any of the amounts referred to in or to be applied pursuant to clauses (5) through (15) of Section 3.4 of the Collateral Agency Agreement shall not be a Lease Event of Default; or
(c) Lessee shall fail to maintain in effect the insurance required by Section 12 or Section 6.4 of the Collateral Agency Agreement and such failure shall not have been waived as provided for therein; or
(d) Lessee shall use make or permit the use any possession of the Units or the Pledged Units Equipment or any portion thereof in a way which is not permitted by this Lease (with respect to the Units) or the Collateral Agency Agreement (with respect to the Pledged Units)Lease, provided that such -------- unauthorized use possession shall not constitute a Lease Event of Default for a period of 45 days after Lessee's obtaining actual knowledge the occurrence thereof so long as (i) such unauthorized use possession is not the result of any willful action of Lessee and (ii) such unauthorized use possession is capable of being cured and Lessee diligently pursues such cure throughout such 45-day period; or Lessee shall make or permit any unauthorized assignment or transfer of this Lease in violation of Section 18.2; or
(e) TILC (Lessee shall fail to observe or any successor thereto in its capacity as Administrator or Servicer, as applicable) shall have defaulted in any material respect in the performance of perform any of its obligations under the Administrative Services Agreement covenants or the Servicing Agreement agreements to be observed or a default shall occur under performed by Lessee in Section 6(a) 6.8 of the Account Administration Participation Agreement, and, in each case, and such failure shall continue unremedied for 30 days during which period Lessee shall have failed to exercise its rights thereunder in respect diligently pursues the cure of such default for a period of 30 days after receipt by Lessee of written notice from Lessor, Owner Participant, Policy Provider or the Indenture Trustee, demanding that such action be takenfailure; or
(f) Any any representation or warranty made by Lessee in any Lessee Agreement or any representation or warranty made by TILC in any Operative Agreement to which any such Person is a party, in each case, (other than the Tax Indemnity Agreement, ) is untrue or incorrect in any material respect as of the date of making thereof and such untruth or incorrectness shall continue to be material and unremedied for a period of 30 days after receipt by Lessee of written notice thereof from Lessor, Owner Participant, Indenture Trustee Participant or the Policy ProviderIndenture Trustee; provided that, if such untruth or -------- incorrectness is capable of being remedied, no such untruth or incorrectness shall constitute a Lease Event of Default hereunder for a period of 120 60 days after receipt of such notice from Lessor, Owner Participant, the Indenture Trustee or the Policy Provider so long as Lessee, TILC or TRMI, as the case may be, Lessee is diligently proceeding to remedy such untruth or incorrectness and shall in fact remedy such untruth or incorrectness within such period; provided that such untrue or -------- incorrect representation or warranty shall be deemed to be remediable or remedied only after all adverse consequences thereof thereof, if any, can be and have been remedied as applicableremedied; or
(g) Lessee or the General Partner shall (i) 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 (ii) consent to any such relief or to the appointment of or taking possession by any such official in any voluntary case or other proceeding commenced against it, or (iii) admit in writing its inability to pay its debts generally as they come due, or (iv) make a general assignment for the benefit of creditors, or (v) take any corporate or partnership action to authorize any of the foregoing; or
(h) An an involuntary case or other proceeding shall be commenced against Lessee or the General Partner seeking liquidation, reorganization or 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 60 days; or
(i) Lessee shall fail to observe or perform any other of the covenants or agreements to be observed or performed by Lessee under any Lessee Agreement (other than the Tax Indemnity Agreement) or any certificate and such failure shall continue unremedied for 30 days after notice from Lessor, Owner Participant, Policy Provider Participant or the Indenture Trustee to Lessee, specifying the failure and demanding the same to be remedied; provided that, if such failure is capable of -------- being remedied, and the remedy requires an action other than, or in addition to, the payment of money, no such failure (other than one relating to the payment of such money) shall constitute a Lease Event of Default hereunder for a period of 150 90 days after receipt of such notice so long as Lessee is diligently proceeding to remedy such failure and shall in fact remedy such failure within such period; or
(j) A Manager provided that, notwithstanding anything to the contrary contained in this Lease, -------- any failure of Lessee to perform or observe any covenant or agreement herein shall not constitute a Lease Event of Default shall have occurred and be if such failure is caused solely by reason of an event referred to in the definition of "Event of Loss" so long ------------- as Lessee is continuing under to comply with the Management Agreement, and Lessee shall have failed to exercise its rights under the Management Agreement in respect applicable terms of such Manager Default for a period of 30 days after receipt by Lessee of written notice from Lessor, Owner Participant or the Indenture Trustee demanding that such action be taken; orSection 11.
Appears in 1 contract
Lease Events of Default. The term "Lease Event of Default," ----------------------- ---------------------- wherever used herein, shall mean any of the following events shall constitute (whatever the reason for such Lease Events Event of Default hereunder (and whether any such event it shall be voluntary or involuntary involuntary, or come about or be effected by operation of law law, or be pursuant to or in compliance with any judgment, decree or order of any court or any order, rule Governmental Rule or regulation of any administrative or governmental body) and each such Lease Event of Default shall be deemed to exist and continue so long as, but only as long as, it shall not have been remedied:Governmental Action):
(a) the Lessee shall fail to pay Basic Rent, Stipulated Loss Value, Termination Value, any purchase price payable pursuant to Section 6 or Section 7 or Supplemental Rent payable under Section 3.8 in respect of Premium, if any, payable by the Lessee, in each case within ten (10) Business Days after the date the same becomes due and payable;
(b) the Lessee shall fail to pay Supplemental Rent or make any other payment (other than (i) make Basic Rent, Stipulated Loss Value, Termination - Value, any purchase price payable pursuant to Section 6 or Section 7 or Supplemental Rent payable under Section 3.8 in respect of Premium, if any, payable by the Lessee; (ii) be deemed by virtue of any Excepted Payment (unless the last sentence of Section 3.5 hereof Lessor elects -- to have made such failure to make such Excepted Payment constitute a Lease Event of Default) or (iii) any payment of Basic Rent, Early Purchase Price, any other purchase price to be paid by Lessee for any Units pursuant to this Lease or the Participation Agreement, Stipulated Loss Amount or Termination Amount (xunder Section 2.4) in the case of any such payment that is required to be made on by --- the Basic Term Expiration Date Lessee under this Lease or on any date within 30 days before the Basic Term Expiration Date, when due, and (y) in the case of under any other such payment, within 10 Operative Document for more than fifteen (15) Business Days after the same Lessee has received written notice from the Lessor or the Indenture Trustee stating that such payment is due;
(c) the Lessee shall have become duefail in any material respect to perform or observe any other material covenant or agreement to be performed or observed by it under this Lease or any other Operative Document (other than any covenant or agreement to make any payment referred to in Section 15(a) or (b)) and such failure shall continue for a period of thirty (30) days after receipt by the Lessee of a written notice from the Lessor or the Indenture Trustee specifying such failure and requiring it to be remedied; provided, however, that so long as the continuation of any Equipment Notes remain outstanding, such failure -------- ------- for such period of thirty (30) days or such longer period (not to make (or be deemed to have madeexceed 365 days) any portion after receipt of Basic Rent on any Rent Payment Date such notice shall not be constitute a Lease Event of Default so long as the amounts applied under Section 3.4, clause (4), of the Collateral Agency Agreement are sufficient to make the distributions required under such clause (4) with respect to the obligations owed under this Lease; provided, further, that in the event that the Special Equity Buy-Out has been consummated, failure to make any payment of Basic Rent, Early Purchase Price, any other purchase price to be paid by Lessee for any Units pursuant to this Lease or the Participation Agreement, Stipulated Loss Amount or Termination Amount (to the extent such amount constitutes an Accumulated Equity Deficiency Amount to be applied under Section 3.4, clause 9 of the Collateral Agency Agreement) shall, after receipt by Lessee of written notice of such failure from Lessor or Owner Participant, be a Lease Event of Default; or
(b) Lessee shall fail to (i) make such failure is curable or correctable and (ii) be deemed by virtue - -- the Lessee is diligently pursuing the cure or correction of payments made by such failure;
(d) the Collateral Agent Guarantor shall fail in any material respect to have made perform or observe any payment of Supplemental Rent, including indemnity covenant or tax indemnity payments, but not including Stipulated Loss Amount, Termination Amount, Early Purchase Price, or any other purchase price agreement to be paid performed or observed by Lessee for any Units pursuant to this Lease or it under the Participation Agreement (x) in the case of any such payment that is required to be on the Basic Term Expiration Date or on any date within 30 days before the Basic Term Expiration Date, when due, and (y) in the case of any other such payment, after the same shall have become due Guaranty and such failure shall continue unremedied for 30 a period of thirty (30) days after receipt by the Guarantor of a written notice from the Lessor or the Indenture Trustee specifying such failure and requiring it to be remedied; provided, however, that the continuation of any such failure for -------- ------- such period of thirty (30) days or such longer period (not to exceed 365 days) after receipt of such notice shall not constitute a Lease Event of Default so long as (i) such failure is curable or correctable and (ii) the - -- Guarantor is diligently pursuing the cure or correction of such failure;
(e) any material representation or warranty made by the Lessee under the Operative Documents (other than the Tax Indemnity Agreement) shall prove to have been inaccurate in any material respect when made, unless such inaccuracy shall not be material to the recipient at the time when the notice referred to below shall have been received by the Lessee or any material adverse impact thereof shall have been cured or corrected within thirty (30) days after receipt by the Lessee of a written notice of such failure thereof from Lessor, Policy Provider, Owner Participant the Lessor or the Indenture Trustee; provided, however, that so long as any Equipment Notes remain outstanding, failure to make (or be deemed to have made) payment the -------- ------- continuation of any such inaccuracy for such period of the amounts referred thirty (30) days or such longer period (not to in or to be applied pursuant to clauses (5exceed 180 days) through (15) after receipt of Section 3.4 of the Collateral Agency Agreement shall not be a Lease Event of Default; or
(c) Lessee shall fail to maintain in effect the insurance required by Section 12 or Section 6.4 of the Collateral Agency Agreement and such failure shall not have been waived as provided for therein; or
(d) Lessee shall use or permit the use of the Units or the Pledged Units or any portion thereof in a way which is not permitted by this Lease (with respect to the Units) or the Collateral Agency Agreement (with respect to the Pledged Units), provided that such unauthorized use notice shall not constitute a Lease Event of Default for a period of 45 days after Lessee's obtaining actual knowledge thereof so long as (i) any material - adverse impact of such unauthorized use inaccuracy is not the result of any willful action of Lessee curable or correctable and (ii) such unauthorized use the -- Lessee is capable of being cured and Lessee diligently pursues such pursuing the cure throughout such 45-day period; or Lessee shall make or permit any unauthorized assignment or transfer of this Lease in violation of Section 18.2; or
(e) TILC (or any successor thereto in its capacity as Administrator or Servicer, as applicable) shall have defaulted in any material respect in the performance of any of its obligations under the Administrative Services Agreement or the Servicing Agreement or a default shall occur under Section 6(a) of the Account Administration Agreement, and, in each case, Lessee shall have failed to exercise its rights thereunder in respect correction of such default for a period of 30 days after receipt by Lessee of written notice from Lessor, Owner Participant, Policy Provider or the Indenture Trustee, demanding that such action be taken; ormaterial adverse impact;
(f) Any any material representation or warranty made by Lessee in any Lessee Agreement or any representation or warranty made by TILC in any Operative Agreement the Guarantor under the Guaranty shall prove to which any such Person is a party, in each case, other than the Tax Indemnity Agreement, is untrue or incorrect have been inaccurate in any material respect as of the date of making thereof and when made, unless such untruth or incorrectness inaccuracy shall continue to not be material and unremedied for a period of 30 to the recipient at the time when the notice referred to below shall have been received by the Guarantor or any material adverse impact thereof shall have been cured or corrected within thirty (30) days after receipt by the Guarantor of a written notice thereof from Lessor, Owner Participant, Indenture Trustee the Lessor or the Policy ProviderIndenture Trustee; provided thatprovided, if however, that the continuation of any -------- ------- such untruth inaccuracy for such period of thirty (30) days or incorrectness is capable such longer period (not to exceed 180 days) after receipt of being remedied, no such untruth or incorrectness notice shall not constitute a Lease Event of Default hereunder for a period of 120 days after receipt of notice from Lessor, Owner Participant, the Indenture Trustee or the Policy Provider so long as Lessee, TILC (i) any material adverse impact of such - inaccuracy is curable or TRMI, as correctable and (ii) the case may be, Guarantor is diligently proceeding to remedy -- pursuing the cure or correction of such untruth or incorrectness and shall in fact remedy such untruth or incorrectness within such period; provided that such untrue or incorrect representation or warranty shall be deemed to be remediable or remedied only after all material adverse consequences thereof if any, can be and have been remedied as applicable; orimpact;
(g) the Lessee or the General Partner Guarantor shall (i) commence a voluntary case or other proceeding seeking liquidation, reorganization or other relief with respect to itself or for its debts under any bankruptcy, insolvency or other similar law now or hereafter in effect, 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 (ii) shall consent to any such relief or to the appointment of or taking possession by any such official or agency in any voluntary an involuntary case or other proceeding commenced against it, or (iii) admit in writing its inability to pay its debts generally as they come due, or (iv) shall make a general assignment for the benefit of creditors, or (v) shall take any corporate or partnership action to authorize any of the foregoing; or
(h) An , or an involuntary case or other proceeding shall be commenced against the Lessee or the General Partner Guarantor seeking liquidation, reorganization or other relief with respect to it or its debts under any bankruptcy, insolvency or other similar law now or hereafter in effect, effect or seeking the appointment of a trustee, receiver, liquidator, custodian or other similar official or agency 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 60 ninety (90) days;
(h) the Guaranty shall cease to be in full force and effect or to be the valid, binding and enforceable agreement of the Guarantor or the Guarantor shall repudiate its material obligations thereunder; or
(i) the Lessee shall fail to observe maintain (or perform cause to be maintained) the insurance coverage required by Section 13.1(a); provided, however, that notwithstanding anything to the contrary contained in -------- ------- this Section 15, any other failure of the covenants Lessee to perform or agreements to be observed observe any covenant or performed by Lessee under any Lessee Agreement or any certificate and such failure shall continue unremedied for 30 days after notice from Lessor, Owner Participant, Policy Provider or the Indenture Trustee to Lessee, specifying the failure and demanding the same to be remedied; provided that, if such failure is capable of being remedied, and the remedy requires an action other than, or agreement specified in addition to, the payment of money, no such failure (other than one relating to the payment of such moneySection 15(c) shall not constitute a Lease Event of Default hereunder for a period if such failure is caused solely by reason of 150 days after receipt any event that constitutes an Event of Loss to the Facility Assets (or any event which with lapse of time would constitute such notice an Event of Loss) or that is described in Section 6.1(e)(iii) so long as the Lessee is diligently proceeding continuing to remedy such failure and shall in fact remedy such failure within such period; or
(j) A Manager Default shall have occurred and be continuing under comply with all the Management Agreementapplicable terms of Section 12 or Section 6.1(e)(iii), and Lessee shall have failed to exercise its rights under as the Management Agreement in respect of such Manager Default for a period of 30 days after receipt by Lessee of written notice from Lessor, Owner Participant or the Indenture Trustee demanding that such action be taken; orcase may be.
Appears in 1 contract
Lease Events of Default. The occurrence of any one or more of the following events shall constitute Lease Events of Default hereunder (whether any such event shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body) and each such Lease Event of Default shall be deemed to exist and continue so long as, but only as long as, it shall not have been remediedconstitute a "LEASE EVENT OF DEFAULT":
(a) the occurrence of a Payment Default; or
(b) the Lessee shall fail to (i) make or (ii) be deemed by virtue of the last sentence of Section 3.5 hereof to have made any payment of Basic Rent, Early Purchase Price, any Supplemental Rent (other purchase price than Supplemental Rent giving rise to be paid by Lessee for any Units pursuant to this Lease or the Participation Agreement, Stipulated Loss Amount or Termination Amount (x) in the case of any such payment that is required to be made on the Basic Term Expiration Date or on any date within 30 days before the Basic Term Expiration Date, when due, and (y) in the case of any other such payment, within 10 Business Days after the same shall have become due; provided, however, that so long as any Equipment Notes remain outstanding, failure to make (or be deemed to have made) any portion of Basic Rent on any Rent Payment Date shall not be a Lease Event of Default so long as under CLAUSE (a) of this SECTION 16.1) due and payable within five (5) Business Days after receipt of notice thereof; or
(c) the amounts applied under Section 3.4, clause (4), insurance required by ARTICLE XIII of the Collateral Agency Agreement are sufficient to make the distributions required under such clause (4) with respect to the obligations owed under this Lease; provided, further, that Lease is not maintained and in the event that the Special Equity Buy-Out has been consummated, failure to make any payment of Basic Rent, Early Purchase Price, any other purchase price to be paid by Lessee place for any Units pursuant reason; or
(d) Lessee or Guarantor shall fail to observe or perform any material term, covenant or condition of Lessee under this Lease or any other Operative Document (other than those described in any other clause of this SECTION 16.1) and such failure shall have continued for thirty (30) days after the Participation Agreement, Stipulated Loss Amount or Termination Amount earlier of (to the extent such amount constitutes an Accumulated Equity Deficiency Amount to be applied under Section 3.4, clause 9 of the Collateral Agency Agreementi) shall, after receipt by Lessee of written notice thereof and (ii) notification by Lessee of such event pursuant to Section 7.1(d) of the Participation Agreement; PROVIDED, HOWEVER, that if such failure from Lessor is capable of cure but cannot be cured by payment of money or Owner Participantcannot be cured by diligent efforts within such thirty (30)-day period, but such diligent efforts shall be properly commenced within such thirty (30)-day cure period and Lessee is diligently pursuing, and shall continue to pursue diligently, remedy of such failure, the cure period shall be extended for an additional 90 days, but not to extend beyond the Expiration Date; or
(e) the occurrence of a Lease Teletech Event of Default; or
(bf) Lessee shall fail to (i) make or (ii) be deemed by virtue of payments made by the Collateral Agent to have made any payment of Supplemental Rent, including indemnity or tax indemnity payments, but not including Stipulated Loss Amount, Termination Amount, Early Purchase Price, or any other purchase price to be paid by Lessee for any Units pursuant to this Lease or the Participation Agreement (x) in the case of any such payment that is required to be on the Basic Term Expiration Date or on any date within 30 days before the Basic Term Expiration Date, when due, and (y) in the case of any other such payment, after the same shall have become due and such failure shall continue unremedied for 30 days after receipt by Lessee of written notice of such failure from Lessor, Policy Provider, Owner Participant or the Indenture Trustee; provided, however, that so long as any Equipment Notes remain outstanding, failure to make (or be deemed to have made) payment of any of the amounts referred to in or to be applied pursuant to clauses (5) through (15) of Section 3.4 of the Collateral a Construction Agency Agreement shall not be a Lease Event of Default; or
(c) Lessee shall fail to maintain in effect the insurance required by Section 12 or Section 6.4 of the Collateral Agency Agreement and such failure shall not have been waived as provided for therein; or
(d) Lessee shall use or permit the use of the Units or the Pledged Units or any portion thereof in a way which is not permitted by this Lease (with respect to the Units) or the Collateral Agency Agreement (with respect to the Pledged Units), provided that such unauthorized use shall not constitute a Lease Event of Default for a period of 45 days after Lessee's obtaining actual knowledge thereof so long as (i) such unauthorized use is not the result of any willful action of Lessee and (ii) such unauthorized use is capable of being cured and Lessee diligently pursues such cure throughout such 45-day period; or Lessee shall make or permit any unauthorized assignment or transfer of this Lease in violation of Section 18.2; or
(e) TILC (or any successor thereto in its capacity as Administrator or Servicer, as applicable) shall have defaulted in any material respect in the performance of any of its obligations under the Administrative Services Agreement or the Servicing Agreement or a default shall occur under Section 6(a) of the Account Administration Agreement, and, in each case, Lessee shall have failed to exercise its rights thereunder in respect of such default for a period of 30 days after receipt by Lessee of written notice from Lessor, Owner Participant, Policy Provider or the Indenture Trustee, demanding that such action occurred and be taken; or
(f) Any representation or warranty made by Lessee in any Lessee Agreement or any representation or warranty made by TILC in any Operative Agreement to which any such Person is a party, in each case, other than the Tax Indemnity Agreement, is untrue or incorrect in any material respect as of the date of making thereof and such untruth or incorrectness shall continue to be material and unremedied for a period of 30 days after receipt of notice from Lessor, Owner Participant, Indenture Trustee or the Policy Provider; provided that, if such untruth or incorrectness is capable of being remedied, no such untruth or incorrectness shall constitute a Lease Event of Default hereunder for a period of 120 days after receipt of notice from Lessor, Owner Participant, the Indenture Trustee or the Policy Provider so long as Lessee, TILC or TRMI, as the case may be, is diligently proceeding to remedy such untruth or incorrectness and shall in fact remedy such untruth or incorrectness within such period; provided that such untrue or incorrect representation or warranty shall be deemed to be remediable or remedied only after all adverse consequences thereof if any, can be and have been remedied as applicablecontinuing; or
(g) Lessee or shall fail to sell the General Partner shall (i) commence a voluntary case or other proceeding seeking liquidation, reorganization or other relief Leased Property in accordance 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 (ii) consent to any such relief or to the appointment of or taking possession by any such official in any voluntary case or other proceeding commenced against it, or (iii) admit in writing its inability to pay its debts generally as they come due, or (iv) make a general assignment for the benefit of creditors, or (v) take any corporate or partnership action to authorize any and satisfy each of the foregoingterms, covenants, conditions and agreements set forth at ARTICLES XX and XXI in connection with and following its exercise of the Sale Option, including each of Lessee's obligations at SECTIONS 20.1 and 21.1; or
(h) An involuntary case or other proceeding shall be commenced against Lessee Any Operative Document or the General Partner seeking liquidationsecurity interest and lien granted under this Lease (except in accordance with its terms), reorganization in whole or other relief with respect in part, terminates, ceases to it be effective or its debts under ceases to be the legal, valid and binding enforceable obligation of Lessee, Guarantor or any bankruptcy, insolvency or other similar law now or hereafter in effectof their Affiliates, or seeking the appointment of a trusteeLessee, receiver, liquidator, custodian or other similar official of it Guarantor or any substantial part of its propertysuch Affiliate, directly or indirectly, contests in any manner in any court the effectiveness, validity, binding nature or enforceability thereof; or the security interest and such involuntary case lien securing Xxxxxx's or other proceeding shall remain undismissed and unstayed for a period of 60 days; or
(i) Lessee shall fail to observe Guarantor's obligations under the Operative Documents, in whole or perform any other of the covenants or agreements in part, ceases to be observed or performed by Lessee under any Lessee Agreement or any certificate a perfected first priority security interest and such failure shall continue unremedied for 30 days after notice from Lessor, Owner Participant, Policy Provider or the Indenture Trustee to Lessee, specifying the failure and demanding the same to be remedied; provided that, if such failure is capable of being remedied, and the remedy requires an action other than, or in addition to, the payment of money, no such failure (other than one relating to the payment of such money) shall constitute a Lease Event of Default hereunder for a period of 150 days after receipt of such notice so long as Lessee is diligently proceeding to remedy such failure and shall in fact remedy such failure within such period; or
(j) A Manager Default shall have occurred and be continuing under the Management Agreement, and Lessee shall have failed to exercise its rights under the Management Agreement in respect of such Manager Default for a period of 30 days after receipt by Lessee of written notice from Lessor, Owner Participant or the Indenture Trustee demanding that such action be taken; orlien.
Appears in 1 contract
Lease Events of Default. The Each of the following events shall constitute a “Lease Events of Default hereunder (whether any such event shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body) and each such Lease Event of Default shall be deemed to exist and continue so long as, but only as long as, it shall not have been remediedDefault”:
(a) Lessee shall fail to (i) make or (ii) be deemed by virtue of the last sentence of Section 3.5 hereof to have made any payment of Basic Rent, Early Purchase Price, any other purchase price to be paid by Lessee for any Units pursuant to this Lease or the Participation Agreement, Stipulated Loss Amount or Termination Amount (x) in the case of any such payment that is required to be made on the Basic Term Expiration Date or on any date within 30 days before the Basic Term Expiration Date, when due, and (y) in the case of any other such payment, within 10 Business Days after the same shall have become due; provided, however, that so long as any Equipment Notes remain outstanding, failure to make (or be deemed to have made) any portion of Basic Rent on any Rent Payment Date shall not be a Lease Event of Default so long as the amounts applied under Section 3.4, clause (4), of the Collateral Agency Agreement are sufficient to make the distributions required under such clause (4) with respect to the obligations owed under this Lease; provided, further, that in the event that the Special Equity Buy-Out has been consummated, failure to make any payment of Basic Rent, Early Purchase Price, any other purchase price to be paid by Lessee Base Rent and such failure shall continue for any Units pursuant to this Lease or the Participation Agreement, Stipulated Loss Amount or Termination Amount a period of five (to the extent such amount constitutes an Accumulated Equity Deficiency Amount to be applied under Section 3.4, clause 9 of the Collateral Agency Agreement5) shall, days after receipt by Lessee of written notice of such failure from Lessor or Owner Participant, be a Lease Event of Default; orLender to Lessee that such amount is due and unpaid;
(b) Lessee shall fail to (i) make or (ii) be deemed by virtue of payments made by the Collateral Agent to have made any other payment of Supplemental Rent, including indemnity or tax indemnity payments, but not including Stipulated Loss Amount, Termination Amount, Early Purchase Price, or any other purchase price to be paid by Lessee for any Units pursuant to this Lease or the Participation Agreement (x) in the case of any such payment that is required to be on the Basic Term Expiration Date or on any date within 30 days before the Basic Term Expiration Date, when due, and (y) in the case of any other such payment, after the same shall have become due and such failure shall continue unremedied for 30 a period of five (5) days after receipt by Lessee of written notice of such failure to Lessee from Lessor, Policy Provider, Owner Participant Lessor or the Indenture Trustee; provided, however, that so long as any Equipment Notes remain outstanding, failure to make (or be deemed to have made) payment of any of the amounts referred to in or to be applied pursuant to clauses (5) through (15) of Section 3.4 of the Collateral Agency Agreement shall not be a Lease Event of Default; orLender;
(c) Lessee shall fail to maintain timely perform or observe any covenant or agreement (not otherwise specified in effect the insurance required this Article 16) to be performed or observed by Section 12 or Section 6.4 of the Collateral Agency Agreement it hereunder and such failure shall not have been waived as provided continue for thereina period of thirty (30) days after written notice thereof from Lessor or Lender; or
(d) Lessee shall use or permit the use of the Units or the Pledged Units or any portion thereof in a way which is not permitted by this Lease (with respect to the Units) or the Collateral Agency Agreement (with respect to the Pledged Units), provided that the continuation of such unauthorized use a failure for thirty (30) days or longer after such notice shall not constitute a Lease Event of Default if such failure can be cured, but cannot reasonably be cured within such thirty (30) day period, and Xxxxxx shall commence to cure such failure within such thirty (30) day period and shall be diligently and continuously prosecuting the cure of such failure;
(d) except to the extent the Lessee is permitted to self-insure pursuant to Section 9.2 and Schedule 9.1, Lessee shall fail to carry or maintain in full force any insurance required hereunder, and such failure shall continue for a period of 45 thirty (30) days after Lessee's obtaining actual knowledge thereof so long as (i) such unauthorized use is obligations arise, but not beyond the result expiration date of any willful action required policy of Lessee and (ii) such unauthorized use is capable of being cured and Lessee diligently pursues such cure throughout such 45-day period; or Lessee shall make or permit any unauthorized assignment or transfer of this Lease in violation of Section 18.2; orinsurance;
(e) TILC (or any successor thereto in its capacity as Administrator or Servicer, as applicable) shall have defaulted in any material respect in the performance of any of its obligations under the Administrative Services Agreement or the Servicing Agreement or a default shall occur under Section 6(a) of the Account Administration Agreement, and, in each case, Lessee shall have failed to exercise its rights thereunder in respect of such default for a period of 30 days after receipt by Lessee of written notice from Lessor, Owner Participant, Policy Provider or the Indenture Trustee, demanding that such action be taken; or
(f) Any representation or warranty made by Lessee in any Lessee Agreement or any representation or warranty made by TILC in any Operative Agreement herein shall prove to which any such Person is a party, in each case, other than the Tax Indemnity Agreement, is untrue or have been incorrect in any material respect as of when such representation or warranty was made, shall remain materially incorrect at the date of making thereof time in question and such untruth or incorrectness shall continue to be not cured in all material and unremedied for a period of 30 respects within thirty (30) days after receipt written notice to Lessee thereof, provided that the continuation of such a failure for thirty (30) days or longer after such notice from Lessor, Owner Participant, Indenture Trustee or the Policy Provider; provided that, if such untruth or incorrectness is capable of being remedied, no such untruth or incorrectness shall not constitute a Lease Event of Default hereunder for a if such failure can be cured, but cannot reasonably be cured within such thirty (30) day period, and Lessee shall commence to cure such failure within such thirty (30) day period of 120 days after receipt of notice from Lessor, Owner Participant, the Indenture Trustee or the Policy Provider so long as Lessee, TILC or TRMI, as the case may be, is diligently proceeding to remedy such untruth or incorrectness and shall in fact remedy be diligently and continuously prosecuting the cure of such untruth or incorrectness within such period; provided that such untrue or incorrect representation or warranty shall be deemed to be remediable or remedied only after all adverse consequences thereof if any, can be and have been remedied as applicable; orfailure;
(g) Lessee or the General Partner shall (i) commence Lessee makes any general arrangement or assignment for the benefit of creditors; (ii) Xxxxxx becomes a voluntary “debtor” as defined in 11 U.S.C. § 101 or any successor statute thereto (unless, in the case or other proceeding seeking liquidationof a petition filed against Xxxxxx, 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 same is dismissed within ninety (90) days); (iii) the appointment of a trusteetrustee or receiver to take possession of substantially all of the assets of Lessee where possession is not restored to Lessee within ninety (90) days; (iv) the attachment, receiver, liquidator, custodian execution or other similar official judicial seizure of it or any substantial part substantially all of its property, or the assets of Lessee where such seizure is not discharged within ninety (ii90) consent to any such relief or to the appointment of or taking possession by any such official in any voluntary case or other proceeding commenced against it, or days; (iiiv) admit Lessee admits in writing its inability to pay its debts generally as they come become due; (vi) Lessee files a petition or answer seeking reorganization, arrangement or other protection under the Federal bankruptcy laws or any other applicable law or statute of the United States of America or any State thereof; (vii) Lessee is liquidated or dissolved, or placed under conservatorship or other protection under any applicable Federal or state law; (ivviii) make a general assignment for the benefit of creditorsany petition is filed by or against Lessee under Federal bankruptcy laws, or (v) take any corporate or partnership action to authorize any of the foregoing; or
(h) An involuntary case or other proceeding shall be commenced is instituted by or against Lessee seeking to adjudicate it a bankrupt or the General Partner insolvent, or seeking liquidation, reorganization reorganization, arrangement, adjustment or other relief with respect to composition of it or its debts under any law relating to bankruptcy, insolvency or other similar law now reorganization or hereafter in effectrelief of debtors, or seeking the entry of an order for relief or the appointment of a trustee, receiver, liquidatortrustee, custodian or other similar official of it for Lessee, or for any substantial part of its propertythe property of Xxxxxx, and such involuntary case or other proceeding shall remain undismissed and unstayed for a period of 60 daysis not dismissed within ninety (90) days after institution thereof; or
(i) Lessee shall fail to observe or perform any other of the covenants or agreements to be observed or performed by Lessee under any Lessee Agreement or any certificate and such failure shall continue unremedied for 30 days after notice from Lessor, Owner Participant, Policy Provider or the Indenture Trustee to Lessee, specifying the failure and demanding the same to be remedied; provided that, if such failure is capable of being remedied, and the remedy requires an action other than, or in addition to, the payment of money, no such failure (other than one relating to the payment of such money) shall constitute a Lease Event of Default hereunder for a period of 150 days after receipt of such notice so long as Lessee is diligently proceeding to remedy such failure and shall in fact remedy such failure within such period; or
(j) A Manager Default shall have occurred and be continuing under the Management Agreement, and Lessee shall have failed to exercise its rights under the Management Agreement in respect of such Manager Default for a period of 30 days after receipt by Lessee of written notice from Lessor, Owner Participant or the Indenture Trustee demanding that such action be taken; or
Appears in 1 contract
Samples: Lease Agreement
Lease Events of Default. The following events shall constitute a “Lease Events of Default hereunder (whether any such event shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body) and each such Lease Event of Default shall be deemed to exist and continue so long as, but only as long as, it shall not have been remediedDefault”:
(a) Lessee shall fail to (i) make or (ii) be deemed by virtue of the last sentence of Section 3.5 hereof to have made any payment of Basic Rent, Early Purchase Price, any other purchase price to be paid by Lessee for any Units pursuant to this Lease or the Participation Agreement, Stipulated Loss Amount or Termination Amount (x) in the case of any such payment that is required to be made on the Basic Term Expiration Date or on any date within 30 days before the Basic Term Expiration Date, when due, and (y) in the case of any other such payment, within 10 Business Days after the same shall have become due; provided, however, that so long as any Equipment Notes remain outstanding, failure to make (or be deemed to have made) any portion of Basic Rent on any Rent Payment Date shall not be a Lease Event of Default so long as the amounts applied under Section 3.4, clause (4), of the Collateral Agency Agreement are sufficient to make the distributions required under such clause (4) with respect to the obligations owed under this Lease; provided, further, that in the event that the Special Equity Buy-Out has been consummated, failure to make any payment of Basic Base Rent, Early Purchase Price, any other purchase price to be paid by Lessee for any Units pursuant to this Lease or the Participation Agreement, Stipulated Loss Amount or Termination Amount within five (to the extent 5) Business Days after notice that such amount constitutes an Accumulated Equity Deficiency Amount to be applied under Section 3.4, clause 9 of the Collateral Agency Agreement) shall, after receipt by Lessee of written notice of such failure from Lessor or Owner Participant, be a Lease Event of Default; oris due and unpaid;
(b) Lessee shall fail to make any late payment and/or pay interest at the Default Rate within ten (i10) make or (ii) be deemed by virtue of payments made by the Collateral Agent to have made any payment of Supplemental Rent, including indemnity or tax indemnity payments, but not including Stipulated Loss Amount, Termination Amount, Early Purchase Price, or any other purchase price to be paid by Lessee for any Units pursuant to this Lease or the Participation Agreement (x) in the case of any days after notice that such payment that amount is required to be on the Basic Term Expiration Date or on any date within 30 days before the Basic Term Expiration Date, when due, and (y) in the case of any other such payment, after the same shall have become due and such failure shall continue unremedied for 30 days after receipt by Lessee of written notice of such failure from Lessor, Policy Provider, Owner Participant or the Indenture Trustee; provided, however, that so long as any Equipment Notes remain outstanding, failure to make (or be deemed to have made) payment of any of the amounts referred to in or to be applied pursuant to clauses (5) through (15) of Section 3.4 of the Collateral Agency Agreement shall not be a Lease Event of Default; orunpaid;
(c) Lessee shall fail to maintain make any other payment of Supplemental Rent, other than any amount described in effect the insurance required by Section 12 clause (a) or Section 6.4 clause (b) of the Collateral Agency Agreement this Article 16, and such failure shall not have been waived as provided continue for therein; ora period of ten (10) days after notice of such failure to Lessee from Lessor or Lender;
(d) Lessee shall use fail to timely perform or permit the use observe any covenant or agreement (not otherwise specified in this Article 16) to be performed or observed by it hereunder and such failure shall continue for a period of the Units thirty (30) days after written notice thereof from Lessor or the Pledged Units or any portion thereof in a way which is not permitted by this Lease (with respect to the Units) or the Collateral Agency Agreement (with respect to the Pledged Units), Lender; provided that the continuation of such unauthorized use a failure for thirty (30) days or longer after such notice shall not constitute a Lease Event of Default for a period of 45 days after Lessee's obtaining actual knowledge thereof so long as if such failure can be cured, but cannot reasonably be cured within such thirty (i30) such unauthorized use is not the result of any willful action of Lessee and (ii) such unauthorized use is capable of being cured day period, and Lessee shall commence to cure such failure within such thirty (30) day period and shall be diligently pursues and continuously prosecuting the cure of such cure throughout such 45-day period; or Lessee shall make or permit any unauthorized assignment or transfer of this Lease in violation of Section 18.2; orfailure.
(e) TILC (or any successor thereto in its capacity as Administrator or Servicer, as applicableexcept to the extent the Lessee is permitted to self-insure pursuant to Section 9.1(b) shall have defaulted in any material respect in the performance of any of its obligations under the Administrative Services Agreement or the Servicing Agreement or a default shall occur under Section 6(a) of the Account Administration Agreement, and, in each caseand Schedule 9.1, Lessee shall have failed fail to exercise its rights thereunder carry or maintain in respect of full force any insurance required hereunder, and such default failure shall continue for a period of 30 ten (10) business days after receipt by Lessee such obligations arises. but not beyond the expiration date of written notice from Lessor, Owner Participant, Policy Provider or the Indenture Trustee, demanding that such action be taken; orany required policy of insurance;
(f) Any representation or warranty made by Lessee in any Lessee Agreement or any representation or warranty made by TILC in any Operative Agreement the Lessee herein shall prove to which any such Person is a party, in each case, other than the Tax Indemnity Agreement, is untrue or have been incorrect in any material respect as of when such representation or warranty was made and shall remain materially incorrect at the date of making thereof time in question, and such untruth or incorrectness shall continue to be is not cured in all material and unremedied for a period of 30 respects within thirty (30) days after receipt of notice from Lessor, Owner Participant, Indenture Trustee or the Policy Providerto Lessee of such breach; provided that, if that the continuation of such untruth a failure for thirty (30) days or incorrectness is capable of being remedied, no longer after such untruth or incorrectness notice shall not constitute a Lease Event of Default hereunder if such failure can be cured, but cannot reasonably be cured within such thirty (30) day period, and Lessee shall commence to cure such failure within such thirty (30) day period and shall be diligently and continuously prosecuting the cure of such failure.
(A) Lessee makes any general arrangement or assignment for the benefit of creditors; (B) Lessee becomes a period “debtor” as defined in 11 U.S.C. § 101 or any successor statute thereto (unless, in the case of 120 days after receipt of notice from Lessor, Owner Participanta petition filed against Lessee, the Indenture Trustee or the Policy Provider so long as Lessee, TILC or TRMI, as the case may be, same is diligently proceeding to remedy such untruth or incorrectness and shall in fact remedy such untruth or incorrectness dismissed within such periodninety (90) days); provided that such untrue or incorrect representation or warranty shall be deemed to be remediable or remedied only after all adverse consequences thereof if any, can be and have been remedied as applicable; or
(gC) Lessee or the General Partner shall (i) 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 trusteetrustee or receiver to take possession of substantially all of the assets of Lessee where possession is not restored to Lessee within ninety (90) days; (D) the attachment, receiver, liquidator, custodian execution or other similar official judicial seizure of it or any substantial part substantially all of its property, or the assets of Lessee where such seizure is not discharged within ninety (ii90) consent to any such relief or to the appointment of or taking possession by any such official in any voluntary case or other proceeding commenced against it, or days; (iiiE) admit Lessee admits in writing its inability to pay its debts generally as they come become due; (F) Lessee files a petition or answer seeking reorganization or arrangement or other protection under the Federal bankruptcy laws or any other applicable law or statute of the United States of America or any State thereof; (G) Lessee is liquidated or dissolved, or placed under conservatorship or other protection under any applicable federal or state law; (ivH) make a general assignment for the benefit of creditorsany petition is filed by or against Lessee under Federal bankruptcy laws, or (v) take any corporate or partnership action to authorize any of the foregoing; or
(h) An involuntary case or other proceeding shall be commenced is instituted by or against Lessee seeking to adjudicate it a bankrupt or the General Partner insolvent, or seeking liquidation, reorganization reorganization, arrangement, adjustment or other relief with respect to composition of it or its debts under any law relating to bankruptcy, insolvency or other similar law now reorganization or hereafter in effectrelief of debtors, or seeking the entry of an order for relief or the appointment of a trustee, receiver, liquidatortrustee, custodian or other similar official of it for Lessee, or for any substantial part of its propertythe property of Lessee, and such involuntary case proceeding is not dismissed within ninety (90) days after institution thereof, or other proceeding Lessee shall remain undismissed and unstayed for a period take any action to authorize or effect any of 60 days; orthe actions set forth above in this subsection (g).
(ih) Lessee shall fail to observe or perform any other of the covenants or agreements to be observed or performed by commit a Lessee under any Lessee Agreement or any certificate and such failure shall continue unremedied for 30 days after notice from Lessor, Owner Participant, Policy Provider or the Indenture Trustee to Lessee, specifying the failure and demanding the same to be remedied; provided that, if such failure is capable of being remedied, and the remedy requires an action other than, or in addition to, the payment of money, no such failure (other than one relating to the payment of such money) shall constitute a Lease Event of Default hereunder for a period of 150 days after receipt of such notice so long as Lessee is diligently proceeding to remedy such failure and shall in fact remedy such failure within such period; or
(j) A Manager Default shall have occurred and be continuing under the Management Agreement, and Lessee shall have failed to exercise its rights under the Management Agreement in respect of such Manager Default for a period of 30 days after receipt by Lessee of written notice from Lessor, Owner Participant or the Indenture Trustee demanding that such action be taken; orBuilding Lease.
Appears in 1 contract
