Lease Events of Default. The occurrence and continuance of any one or more of the following events shall constitute a "Lease Event of Default": (i) any Lessee shall fail to make payment of (X) any Basic Rent (Interest/Yield) within five (5) Business Days after the same has become due and payable, or (Y) any Property Balance, Purchase Option Rent, Loan Balance, Lease Recourse Amount or Lease Balance, including, without limitation, amounts due pursuant to Section 15.1, 18.1, 18.2, or 20.1, on the date due therefor under the Master Lease, or (ii) the Company or any Subsidiary Guarantor shall have failed to make any payment due under the Multicare Guaranty after the same has become due and payable; or (b) any Lessee shall fail to make payment of any Supplemental Rent due with respect to Sections 13.7, 13.8, 13.9 and 13.10 of the Participation Agreement within five (5) Business Days after receipt of notice thereof or any Lessee shall fail to make payment of any other Supplemental Rent within five (5) Business Days after the expiration of thirty (30) days from the date of receipt of notice by the Lessees or the Company that such Supplemental Rent is due and payable; or (c) any Event of Default (as defined in the Credit Agreement) shall have occurred and be continuing; or (d) any Lessee shall fail to maintain insurance as required by Article XIII of this Master Lease and such failure shall continue for ten (10) days; or (e) any Lessee or the Company, as the case may be, shall fail to observe or perform any term, covenant or condition of such Lessee or the Company, as the case may be, under this Master Lease or the Operative Documents to which it is party other than those described in Section 16.1(a), (b), or (d) hereof, and, in each such case, such failure shall have continued for thirty (30) days after the earlier of (i) delivery to such Lessee or the Company, as applicable, of written notice thereof from the Lessor or (ii) a Responsible Officer of such Lessee or the Company, as the case may be, shall have actual knowledge of such failure; provided, however, that if such failure is capable of cure but cannot be cured by the 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 applicable Lessee or the Company is diligently pursuing, and shall continue to pursue diligently, remedy of such failure, the cure period shall be extended for an additional period of time as may be necessary to cure, not to exceed an additional ninety (90) days and not to extend beyond the Expiration Date; provided further, that failure by the applicable Lessee to fully comply with the requirements of Section 20.1 hereof shall not be subject to any cure period; or (f) any representation or warranty made by any Lessee or the Company, as the case may be, in any of the Operative Documents to which it is a party shall prove to have been inaccurate at the time made, and if such inaccuracy can be cured, it shall not have been cured within forty-five (45) days after the earlier of (i) delivery to such Lessee or the Company, as the case may be, of written notice thereof from the Lessor or (ii) a Responsible Officer of such Lessee or the Company, as the case may be, shall have actualknowledge of such inaccuracy; or (g) any Lessee or Consolidated Entity (i) shall be unable to, or shall admit in writing its inability to, pay its debts as such debts become due; or (ii) shall make an assignment for the benefit of creditors, petition or apply to any tribunal for the appointment of a custodian, receiver or trustee for it or a substantial part of its assets; or (iii) shall commence any proceeding under any bankruptcy, reorganization, arrangement, readjustment of debt, dissolution or liquidation law or statute of any jurisdiction, whether now or hereafter in effect; or (iv) shall have had any such petition or application filed or any such proceeding shall have been commenced, against it, in which an adjudication or appointment is made or order for relief is entered, or which petition, application or proceeding remains undismissed for a period of 60 days or more; or shall be the subject of any proceeding under which its assets may be subject to seizure, forfeiture or divestiture (other than a proceeding in respect of a Lien permitted under Section 8.3(b) of the Credit Agreement); or (v) by any act or omission shall indicate its consent to, approval of or acquiescence in any such petition, application or proceeding or order for relief or the appointment of a custodian, receiver or trustee for all or any substantial part of its Property; or (vi) shall suffer any such custodianship, receivership or trusteeship to continue undischarged for a period of 30 days or more; or (h) any Lien granted by any Obligor to the Lessor, the Collateral Agent or the Lease Agent under any Operative Document shall, in whole or in part, terminate, cease to be effective against, or cease to be the legal, valid, binding and enforceable obligation of, such Obligor; or (i) any Obligor shall directly or indirectly contest the validity (as opposed to the interpretation of the terms) of any Operative Document in any manner in any court of competent jurisdiction or any lien granted by any Operative Document; or (j) any Lessee shall cease to be 100% owned (directly or indirectly) Subsidiary of the Company; or (k) there shall be a breach of the STATUTORY CONDITION.
Appears in 1 contract
Samples: Master Lease, Open End Mortgage and Purchase Option (Multicare Companies Inc)
Lease Events of Default. The occurrence and continuance of any one or more of the following events (whether 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) shall constitute a "Lease Event of -------------- Default":: -------
(ia) any the Lessee shall fail to make payment of (Xi) any Basic Rent (Interest/Yieldother than a payment of Basic Rent due on the Expiration Date or Termination Date) within five (5) Business Days after the same has become due and payable, payable or (Yii) any Property BalanceBasic Rent, Purchase Option RentPrice, Loan BalanceAsset Termination Value, Lease Recourse or Residual Value Guarantee Amount or Lease Balanceother amounts due on the Expiration Date or the Termination Date, including, without limitation, amounts due pursuant to Section 15.1Sections 16.2, 18.116.3, 18.217.2(h), 20.2, 20.3 or 20.122.1, on the date due therefor under the Master Lease, or (ii) the Company or any Subsidiary Guarantor shall have failed to make any payment due under the Multicare Guaranty after the ------------- ---- ------- ---- ---- ---- same has become due and payable; or;
(b) any the Lessee shall fail to make payment of any Supplemental Rent due with respect to Sections 13.7, 13.8, 13.9 and 13.10 of the Participation Agreement within five (5) Business Days after receipt of notice thereof or any Lessee shall fail to make payment of any other than Supplemental Rent referred to in clause (a) of this Section) ------ due and payable within five (5) Business Days after the expiration of thirty (30) days from the date of receipt of notice by the Lessees or the Company that such Supplemental Rent is same has become due and payable; or;
(c) any Event of Default (as defined in the Credit Agreement) shall have occurred and be continuing; or
(d) any Lessee shall fail to maintain insurance as required by Article XIII ------- XIV of this Master Lease and such failure shall continue for ten (10) daysLease; or---
(ed) any the Lessee or the Company, as the case may be, shall fail to observe or perform any term, covenant or condition of such the Lessee or the Company, as the case may be, under this Master Lease Lease, the Participation Agreement or the any other Operative Documents Document to which it is a party other than those described in Section 16.1(a17.1(a), (b), (c), (p), or (dq) hereof, or any --------------- --- --- --- --- representation or warranty set forth in this Lease or in any other Operative Document 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, if such failure to perform or misrepresentation or breach of warranty is other than with respect to a covenant or agreement contained in each such caseSection 10.1(b) of the Participation ------------ Agreement, such failure or misrepresentation or breach of warranty shall have continued remain uncured for thirty (30) a period of 30 days after the earlier of (i) delivery the date upon which an executive officer of the Lessee has actual knowledge thereof and (ii) the date upon which the Agent or the Lessor gives notice to such the Lessee thereof;
(e) the Lessee or any of its Subsidiaries shall fail to make any payment when due on account of any Indebtedness of such Person (other than Indebtedness referred to in clauses (a) and (b) of this Section 17.1) and ----------- --- such failure shall continue beyond any grace period provided with respect thereto, if the Companyamount of such Indebtedness exceeds $5,000,000 or the effect of such failure is the cause, as applicableor permit the holder or holders thereof to cause, Indebtedness of written notice thereof from the Lessor Lessee and its Subsidiaries (other than Indebtedness referred to in clauses (a) and (b) of this Section 17.1) in an ----------- --- aggregate amount exceeding $5,000,000 to become due or (ii) a Responsible Officer Lessee or any of its Subsidiaries shall otherwise fail to observe or perform any agreement, term or condition contained in any agreement or instrument relating to any Indebtedness of such Lessee Person (other than Indebtedness referred to in clauses (a) and (b) of this Section 17.1) ----------- --- ------------ and such failure shall continue beyond any grace period provided with respect thereto, or the Company, as the case may be, any other event shall occur or condition shall exist and any grace period provided with respect thereto shall have actual knowledge of such failure; providedexpired, however, that if such failure is capable of cure but cannot be cured by the 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 applicable Lessee or the Company is diligently pursuing, and shall continue to pursue diligently, remedy effect of such failure, event or condition is to cause, or permit the cure period shall holder or holders thereof to cause, after expiration of any such grace period, Indebtedness of Lessee and its Subsidiaries (other than Indebtedness referred to in clauses (a) and (b) of this ----------- ---- Section
17.1) in an aggregate amount exceeding $5,000,000 to become due ------------- prior to its stated term (and/or to be extended for an additional period of time as may be necessary to cure, not to exceed an additional ninety (90) days and not to extend beyond the Expiration Date; provided further, that failure secured by the applicable Lessee to fully comply with the requirements of Section 20.1 hereof shall not be subject to any cure period; orcash collateral);
(f) any representation or warranty made by any Lessee or the Company, as the case may be, in any of the Operative Documents to which it is a party shall prove to have been inaccurate at the time made, and if such inaccuracy can be cured, it shall not have been cured within forty-five (45) days after the earlier of (i) delivery to such a court having jurisdiction in the premises shall enter a decree or order for relief in respect of the Lessee or any of its Subsidiaries in an involuntary case under the CompanyBankruptcy Code or under any other applicable bankruptcy, as the case may beinsolvency or similar law now or hereafter in effect, of written notice thereof from the Lessor which decree or (ii) a Responsible Officer of such Lessee order is not stayed; or the Company, as the case may be, shall have actualknowledge of such inaccuracy; or
(g) any Lessee or Consolidated Entity (i) other similar relief shall be unable to, granted under any applicable federal or shall admit in writing its inability to, pay its debts as such debts become duestate law; or (ii) an involuntary case shall make an assignment for be commenced against the benefit of creditors, petition Lessee or apply to any tribunal for the appointment of a custodian, receiver or trustee for it or a substantial part of its assets; Subsidiaries under the Bankruptcy Code or (iii) shall commence any proceeding under any other applicable bankruptcy, reorganization, arrangement, readjustment of debt, dissolution insolvency or liquidation similar law or statute of any jurisdiction, whether now or hereafter in effect; or (iv) shall have had any such petition a decree or application filed order of a court having jurisdiction in the premises for the appointment of a receiver, liquidator, sequestrator, trustee, custodian or other officer having similar powers over the Lessee or any such proceeding of its Subsidiaries, or over all or a substantial part of its property, shall have been commencedentered; or there shall have occurred the involuntary appointment of an interim receiver, trustee or other custodian of the Lessee or any of its Subsidiaries for all or a substantial part of its property; or a warrant of attachment, execution or similar process shall have been issued against itany substantial part of the property of the Lessee or any of its Subsidiaries, and any such event described in this clause (ii) shall continue for sixty (60) days ----------- unless dismissed, bonded or discharged;
(i) one or more judgments, orders, decrees or arbitration awards requiring Lessee and/or its Subsidiaries to pay an aggregate amount of $2,500,000 or more (exclusive of amounts covered by insurance issued by an insurer which an adjudication is a solvent and unaffiliated insurance company and otherwise satisfying the requirements set forth in Section 14.3(c)) shall be rendered against Lessee and/or any of its Subsidiaries in connection with any single or appointment is made related series of transactions, incidents or order circumstances and the same shall not be satisfied, vacated or stayed for relief is entereda period of thirty (30) consecutive days after the issue of levy; (ii) any judgment, writ, assessment, warrant of attachment, tax lien or execution or similar process shall be issued or levied against a substantial part of the Property of Lessee or any of its Subsidiaries and the same shall not be released, stayed, vacated or otherwise dismissed within thirty (30) days after issue or levy; or (iii) any other judgments, orders, decrees, arbitration awards, writs, assessments, warrants of attachment, tax liens or executions or similar process which, alone or in the aggregate, are reasonable likely to have a Material Adverse Effect are rendered, issued or levied;
(i) any Operative Document or any material term thereof shall cease to be, or be asserted by the Lessee or any of its Subsidiaries not to be, a legal, valid and binding obligation of the Lessee or any of its Subsidiaries enforceable in accordance with its terms;
(j) any ERISA Event which petitionconstitutes grounds for the termination of any Employee Benefit Plan by the PBGC or for the appointment of a trustee by the PBGC to administer any Employee Benefit Plan shall occur, application or proceeding remains undismissed any Employee Benefit Plan shall be terminated within the meaning of Title IV of ERISA or a trustee shall be appointed by the PBGC to administer any Employee Benefit Plant;
(k) a Change of Control shall occur;
(l) a Construction Agency Agreement Event of Default shall have occurred and be continuing;
(m) the Lessee shall have abandoned or constructively abandoned all or any material portion of the Property for a period of 60 consecutive days which results in the Property not being properly maintained in accordance with the terms of this Lease;
(n) the Lessee shall have elected to or morebe required to purchase the Property pursuant to Sections 16.2 or 16.3 hereof and such purchase shall not --------------------- have been consummated on the Termination Date pursuant to either such Section;
(o) the occurrence and continuance of any event, condition or other circumstance that materially impairs the value or condition of the Property or the Lessor's interest therein or title thereto;
(p) in the event the Lessee is not purchasing the Property upon the Expiration Date or earlier termination of this Lease, failure to comply with the return conditions set forth in Sections 19.1(b) and 22.3 hereof; or shall be the subject of any proceeding under which its assets may be subject to seizure, forfeiture or divestiture (other than a proceeding in respect of a Lien permitted under Section 8.3(b) of the Credit Agreement); or (v) by any act or omission shall indicate its consent to, approval of or acquiescence in any such petition, application or proceeding or order for relief or the appointment of a custodian, receiver or trustee for all or any substantial part of its Property; or (vi) shall suffer any such custodianship, receivership or trusteeship to continue undischarged for a period of 30 days or more; or---------------- ----
(hq) any Lien granted by any Obligor event(s) or condition(s) which is (are) reasonably likely to the Lessor, the Collateral Agent have a Material Adverse Effect shall occur and be continuing or the Lease Agent under any Operative Document shall, in whole or in part, terminate, cease to be effective against, or cease to be the legal, valid, binding and enforceable obligation of, such Obligor; or
(i) any Obligor shall directly or indirectly contest the validity (as opposed to the interpretation of the terms) of any Operative Document in any manner in any court of competent jurisdiction or any lien granted by any Operative Document; or
(j) any Lessee shall cease to be 100% owned (directly or indirectly) Subsidiary of the Company; or
(k) there shall be a breach of the STATUTORY CONDITIONexist.
Appears in 1 contract
Lease Events of Default. The occurrence and continuance of any one or more of the ----------------------- following events (whether 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) shall constitute a "Lease Event of -------------- Default":: --------
(ia) any the Lessee shall fail to make payment of (Xi) any Basic Rent (Interest/Yieldother than a payment of Basic Rent due on the Expiration Date, any Termination Date or any date on which a payment is required to be made under clause (ii)) ----------- within five (5) Business Days after the same has become due and payable or (ii) Basic Rent, Purchase Option Price, Partial Purchase Option Price, Asset Termination Value, or Residual Value Guarantee Amount or other amounts due on the Expiration Date or the Termination Date, including, without limitation, amounts due pursuant to Sections 16.2, 16.3, 17.2(h), 20.2, 20.3 or 22.1, after ------------- ---- ------- ---- ---- ---- after the same has become due and payable;
(b) the Lessee shall fail to make payment of any Supplemental Rent (other than Supplemental Rent referred to in clause (a) of this Section) due and ---------- payable within five (5) Business Days after the same has become due and payable, or (Y) any Property Balance, Purchase Option Rent, Loan Balance, Lease Recourse Amount or Lease Balance, including, without limitation, amounts due pursuant to Section 15.1, 18.1, 18.2, or 20.1, on the date due therefor under the Master Lease, or (ii) the Company or any Subsidiary Guarantor shall have failed to make any payment due under the Multicare Guaranty after the same has become due and payable; or
(b) any Lessee shall fail to make payment of any Supplemental Rent due with respect to Sections 13.7, 13.8, 13.9 and 13.10 of the Participation Agreement within five (5) Business Days after receipt of notice thereof or any Lessee shall fail to make payment of any other Supplemental Rent within five (5) Business Days after the expiration of thirty (30) days from the date of receipt of notice by the Lessees or the Company that such Supplemental Rent is due and payable; or;
(c) any Event of Default (as defined in the Credit Agreement) shall have occurred and be continuing; or
(d) any Lessee shall fail to maintain insurance as required by Article XIII XIV of this Master Lease and such failure shall continue for ten (10) daysLease; or-----------
(ed) any the Lessee or the Company, as the case may be, shall fail to observe or perform any term, covenant or condition of such the Lessee or the Company, as the case may be, under this Master Lease Lease, the Participation Agreement or the any other Operative Documents Document to which it is a party other than those described in Section 16.1(a17.1(a), (b), (c), (p), or (dq) hereof, or any representation or --------------- --- --- --- --- warranty set forth in this Lease or in any other Operative Document 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, if such failure to perform or misrepresentation or breach of warranty is other than with respect to a covenant or agreement contained in each such caseSection 10.1(b) or 10.2 of the --------------- Participation Agreement, such failure or misrepresentation or breach of warranty shall have continued remain uncured for thirty a period of 30 days after the earlier of (30i) the date upon which an executive officer of the Lessee has actual knowledge thereof and (ii) the date upon which the Agent or the Lessor gives notice to the Lessee, or such longer period as is reasonably necessary to cure such default so long as such default cannot be cured merely by payment of money and so long as the Lessee shall be diligently prosecuting such cure and such default is cured within ninety (90) days after the earlier of (i) delivery the date upon which an executive officer of the Lessee has actual knowledge thereof and (ii) the date upon which the Agent or the Lessor gives notice to such the Lessee thereof;
(e) the Lessee or any of its Subsidiaries shall fail to make any payment when due on account of any Indebtedness of such Person (other than Indebtedness referred to in clauses (a) and (b) of this Section 17.1) and such ----------- --- ------------ failure shall continue beyond any grace period provided with respect thereto, if the Companyamount of such Indebtedness exceeds $10,000,000 or the effect of such failure is to cause, as applicableor permit the holder or holders thereof to cause, Indebtedness of written notice thereof from the Lessor Lessee and its Subsidiaries (other than Indebtedness referred to in clauses (a) and (b) of this Section 17.1) in an aggregate amount exceeding ----------- --- ------------ $10,000,000 to become due or (ii) a Responsible Officer Lessee or any of its Subsidiaries shall otherwise fail to observe or perform any agreement, term or condition contained in any agreement or instrument relating to any Indebtedness of such Lessee Person (other than Indebtedness referred to in clauses (a) and (b) of this Section ----------- --- ------- 17.1) and such failure shall continue beyond any grace period provided with ----- respect thereto, or the Company, as the case may be, any other event shall occur or condition shall exist and any grace period provided with respect thereto shall have actual knowledge of such failure; providedexpired, however, that if such failure is capable of cure but cannot be cured by the 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 applicable Lessee or the Company is diligently pursuing, and shall continue to pursue diligently, remedy effect of such failure, event or condition is to cause, or permit the cure period shall holder or holders thereof to cause, after expiration of any such grace period, Indebtedness of Lessee and its Subsidiaries (other than Indebtedness referred to in clauses (a) ----------- and (b) of this Section 17.1) in an aggregate amount exceeding $10,000,000 to --- become due prior to its stated term (and/or to be extended for an additional period of time as may be necessary to cure, not to exceed an additional ninety (90) days and not to extend beyond the Expiration Date; provided further, that failure secured by the applicable Lessee to fully comply with the requirements of Section 20.1 hereof shall not be subject to any cure period; orcash collateral);
(f) any representation or warranty made by any Lessee or the Company, as the case may be, in any of the Operative Documents to which it is a party shall prove to have been inaccurate at the time made, and if such inaccuracy can be cured, it shall not have been cured within forty-five (45) days after the earlier of (i) delivery to such a court having jurisdiction in the premises shall enter a decree or order for relief in respect of the Lessee or any of its Subsidiaries in an involuntary case under the CompanyBankruptcy Code or under any other applicable bankruptcy, as the case may beinsolvency or similar law now or hereafter in effect, of written notice thereof from the Lessor which decree or (ii) a Responsible Officer of such Lessee order is not stayed; or the Company, as the case may be, shall have actualknowledge of such inaccuracy; or
(g) any Lessee or Consolidated Entity (i) other similar relief shall be unable to, granted under any applicable federal or shall admit in writing its inability to, pay its debts as such debts become duestate law; or (ii) an involuntary case shall make an assignment for be commenced against the benefit of creditors, petition Lessee or apply to any tribunal for the appointment of a custodian, receiver or trustee for it or a substantial part of its assets; Subsidiaries under the Bankruptcy Code or (iii) shall commence any proceeding under any other applicable bankruptcy, reorganization, arrangement, readjustment of debt, dissolution insolvency or liquidation similar law or statute of any jurisdiction, whether now or hereafter in effect; or (iv) shall have had any such petition a decree or application filed order of a court having jurisdiction in the premises for the appointment of a receiver, liquidator, sequestrator, trustee, custodian or other officer having similar powers over the Lessee or any such proceeding of its Subsidiaries, or over all or a substantial part of its property, shall have been commencedentered; or there shall have occurred the involuntary appointment of an interim receiver, trustee or other custodian of the Lessee or any of its Subsidiaries for all or a substantial part of its property; or a warrant of attachment, execution or similar process shall have been issued against itany substantial part of the property of the Lessee or any of its Subsidiaries, and any such event described in which this clause (ii) shall continue for sixty (60) days unless ----------- dismissed, bonded or discharged;
(i) the Lessee or any of its Subsidiaries shall (i) have an adjudication or appointment is made or order for relief is enteredentered with respect to it or commence a voluntary case under the Bankruptcy Code or under any other applicable bankruptcy, insolvency or similar law now or hereafter in effect, or shall consent to the entry of an order for relief in an involuntary case, or to the conversion of an involuntary case to a voluntary case, under any such law, or shall consent to the appointment of or taking possession by a receiver, trustee or other custodian for all or a substantial part of its property; or the Lessee or any of its Subsidiaries shall make any assignment for the benefit of creditors; (ii)
(i) one or more judgments, orders, decrees or arbitration awards requiring Lessee and/or its Subsidiaries to pay an aggregate amount of $5,000,000 or more (exclusive of amounts covered by insurance issued by an insurer which petitionis a solvent and unaffiliated insurance company and otherwise satisfying the requirements set forth in Section 14.3(c)) shall be rendered against Lessee and/or any of its Subsidiaries in connection with any single or related series of transactions, application incidents or proceeding remains undismissed circumstances and the same shall not be satisfied, vacated or stayed for a period of 60 thirty (30) consecutive days after the issue of levy; (ii) any judgment, writ, assessment, warrant of attachment, tax lien or more; execution or similar process shall be the subject of any proceeding under which its assets may be subject to seizure, forfeiture issued or divestiture (other than levied against a proceeding in respect of a Lien permitted under Section 8.3(b) substantial part of the Credit Agreement)Property of Lessee or any of its Subsidiaries and the same shall not be released, stayed, vacated or otherwise dismissed within thirty (30) days after issue or levy; or (v) by any act or omission shall indicate its consent to, approval of or acquiescence in any such petition, application or proceeding or order for relief or the appointment of a custodian, receiver or trustee for all or any substantial part of its Property; or (vi) shall suffer any such custodianship, receivership or trusteeship to continue undischarged for a period of 30 days or more; or
(hiii) any Lien granted by any Obligor to the Lessorother judgments, the Collateral Agent orders, decrees, arbitration awards, writs, assessments, warrants of attachment, tax liens or the Lease Agent under any Operative Document shallexecutions or similar process which, in whole alone or in partthe aggregate, terminateare reasonable likely to have a Material Adverse Effect are rendered, cease to be effective against, issued or cease to be the legal, valid, binding and enforceable obligation of, such Obligor; orlevied;
(i) any Obligor Operative Document or any material term thereof shall directly cease to be, or indirectly contest be asserted by the validity (as opposed Lessee or any of its Subsidiaries not to the interpretation be, a legal, valid and binding obligation of the terms) of any Operative Document in any manner in any court of competent jurisdiction Lessee or any lien granted by any Operative Document; orof its Subsidiaries enforceable in accordance with its terms;
(j) any Lessee ERISA Event which constitutes grounds for the termination of any Employee Benefit Plan by the PBGC or for the appointment of a trustee by the PBGC to administer any Employee Benefit Plan shall cease occur, or any Employee Benefit Plan shall be terminated within the meaning of Title IV of ERISA or a trustee shall be appointed by the PBGC to be 100% owned (directly or indirectly) Subsidiary of the Company; oradminister any Employee Benefit Plant;
(k) there a Change of Control shall be a breach occur;
(l) [Reserved.];
(m) the Lessee shall have abandoned or constructively abandoned all or any material portion of the STATUTORY CONDITIONProperty for a period of one hundred eighty (180) consecutive days which results in the Property not being properly maintained in accordance with the terms of this Lease;
(n) the Lessee shall have elected to or be required to purchase the Property pursuant to Sections 16.2 or 16.3 hereof and such purchase --------------------- shall not have been consummated on the Termination Date pursuant to either such Section;
(o) [Reserved];
(p) in the event the Lessee is not purchasing the Property upon the Expiration Date or earlier termination of this Lease, failure to comply with the return conditions set forth in Sections 19.1(b) and 22.3 hereof; or ---------------- ----
(q) any event(s) or condition(s) which has or have a Material Adverse Effect shall occur and be continuing or exist.
Appears in 1 contract
Samples: Master Lease (Bea Systems Inc)
Lease Events of Default. The occurrence and continuance of any one or more of the following events (whether 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) shall constitute a "Lease Event of Default" and a "Lease Event of Default" as such term is defined in the Existing Lease:
(ia) any the Lessee shall fail to make payment of (Xi) any Basic Rent (Interest/Yield) within five (5) Business Days after the same has become due and payable, payable or (Yii) any Property Balance, Purchase Option RentPrice, Loan Balance, Lease Recourse Amount Balance or Lease Balance, including, without limitation, including amounts due pursuant to Section 15.1, 18.1, 18.2, 18.3 or 20.1; provided, on however, that the date due therefor under the Master Lease, failure to make any payment described in clause (i) or (ii) shall not constitute a Lease Event of Default so long as (x) such payment is made within five (5) days of the Company or any Subsidiary Guarantor shall have failed to make any date such payment due under the Multicare Guaranty after the same has become is due and payable, (y) such failure shall not have occurred more than five (5) times during the Term, and (z) such failure shall not have occurred for more than two consecutive payments due under this Lease; or
(b) any the Lessee shall fail to make payment of any Supplemental Rent (other than Supplemental Rent referred to in clause (a) of this Section) due with respect to Sections 13.7, 13.8, 13.9 and 13.10 of the Participation Agreement payable within five (5) Business Days after receipt of notice thereof or any Lessee shall fail to make payment of any other Supplemental Rent within five (5) Business Days after the expiration of thirty (30) days from the date of receipt of notice by the Lessees or the Company that such Supplemental Rent is due and payablethereof; or
(c) any Event of Default (as defined in the Credit Agreement) shall have occurred and be continuing; or
(d) any Lessee shall fail to maintain insurance as required by Article XIII of this Master Lease and such failure or shall continue for ten (10) daysviolate the observance of its obligations under Sections 6.1 or 8.2 hereof, or under Section 10.3 of the Participation Agreement; or
(ed) any The Lessee or the Company, as the case may be, shall fail to observe or perform any term, covenant or condition of such the Lessee or the Company, as the case may be, under this Master Lease or the Operative Documents to which it is party Participation Agreement other than those described in Section 16.1(a), (b)) or (c) hereof, or shall fail to perform or observe in any respect any covenant, condition or agreement to be performed or observed by it under any other Operative Document (d) hereofexcept those described in the parenthetical of Section 16.1(f)), and, in each such case, such failure shall have continued for thirty (30) days after the earlier of (i) delivery to such the Lessee or the Company, as applicable, of written notice thereof from the Lessor or (ii) a Responsible Officer Employee of such the Lessee or the Company, as the case may be, shall have actual knowledge of such failure; provided, however, that if such failure is capable of cure but cannot be cured by the payment of money or cannot be cured by diligent efforts within such thirty (30) day 30)-day period but such diligent efforts shall be properly commenced within the cure period and the applicable Lessee or the Company is diligently pursuing, and shall continue to pursue diligently, remedy of such failure, the cure period shall be extended for an additional period of time as may be necessary to cure, cure not to exceed an additional ninety one hundred fifty (90150) days and not or to extend beyond the Expiration Date; provided further, that failure by the applicable Lessee to fully comply with the requirements of Section 20.1 hereof shall not be subject to any cure period; or
(fe) any representation or warranty made by any the Lessee or the Company, as the case may be, in any of the Operative Documents to which it is a party shall prove to have been inaccurate in any material respect at the time made, and if such inaccuracy can be cured, it shall not have been cured within forty-five (45) days days, after the earlier of (i) delivery to such the Lessee or the Company, as the case may be, of written notice thereof from the Lessor or (ii) a Responsible Officer Employee of such the Lessee or the Company, as the case may be, shall have actualknowledge knowledge of such inaccuracy; or
(f) a default by Lessee or Holding beyond any applicable grace period shall have occurred and be continuing under the Construction Agency Agreement, the Guaranty, the Guaranty Agreement, the Pledge and Security Agreement, the Existing Lease, the Swap Agreement or any "Operative Document" as such term is defined in the Existing Lease, or any of the agreements, documents or instruments executed in connection with the Mellon Revolver Facility (other than a default arising solely under Sections 6.1(o), 8.3(z), 10.1(a)(vi) and (vii) or from the Allegheny Agreements, as defined in the Existing Lease (except for a failure by Lessee to pay sums due under the Allegheny Agreements) and, during the Interim Term, Section 10.3 of the Participation Agreement under the Existing Lease (if the failure to comply with such Section shall arise from, be caused by or relate to, any act or omission of the Lessee, anything within the reasonable control of the Lessee or anything that could have been avoided through the use of best efforts by the Lessee), Sections 3.1(d) and 3.1(j) of the Guaranty Agreement under the Existing Lease, Sections 13.2 and 16.4 of the Lease under the Existing Lease, Sections 3(a)(4), 4(i)(1) and 5(i) of the Note and Security Agreement pertaining to the Mellon Revolver Facility), or the Existing Lease shall have terminated; or
(g) any the Lessee or Consolidated Entity shall (i) shall be unable to, or shall admit in writing its inability to, to pay its debts generally as such debts they become due; or , (ii) shall 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, (iii) make an a general assignment for the benefit of its creditors, petition or apply (iv) consent to any tribunal for the appointment of a receiver of itself or the whole or any substantial part of its property, (v) fail to cause the discharge of any custodian, trustee or receiver appointed for it, or trustee for it the whole or a substantial part of its assets; property within sixty (60) days after such appointment, or (iiivi) shall commence file a petition or answer seeking or consenting to reorganization under the United States bankruptcy laws or any proceeding under any bankruptcy, reorganization, arrangement, readjustment of debt, dissolution or liquidation other applicable insolvency law or statute of any jurisdiction, whether now or hereafter in effect; or (iv) shall have had any such petition or application filed the United States of America or any such proceeding shall have been commenced, against it, in which an adjudication State or appointment is made or order for relief is entered, or which petition, application or proceeding remains undismissed for a period of 60 days or more; or shall be the subject of any proceeding under which its assets may be subject to seizure, forfeiture or divestiture (other than a proceeding in respect of a Lien permitted under Section 8.3(b) of the Credit Agreement); or (v) by any act or omission shall indicate its consent to, approval of or acquiescence in any such petition, application or proceeding or order for relief or the appointment of a custodian, receiver or trustee for all or any substantial part of its Property; or (vi) shall suffer any such custodianship, receivership or trusteeship to continue undischarged for a period of 30 days or moreCommonwealth thereof; or
(h) 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 any of its property, and such order or decree shall not be vacated or set aside within ninety (90) days from the date of the entry thereof; or
(i) any member of the ERISA Group shall fail to pay when due an amount or amounts aggregating in excess of $500,000 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 $500,000; or
(j) any final, non-appealable judgments or orders for the payment of money individually or in the aggregate in excess of $2,695,150 (which amount shall be adjusted annually, on the date of the submission by the Lessee of the financial statements referred to in Section 10.1(a)(i) of the Participation Agreement, to an amount equal to 0.5% of the Tangible Net Worth of the Lessee as shown on such financial statements) shall be rendered against the Lessee, and such judgment or order shall continue unsatisfied, unstayed (pursuant to laws, rules or court orders) and unbonded for a period of thirty (30) days; or
(k) an event of default (beyond any applicable grace and cure period) as defined in any agreement, mortgage, indenture or instrument, under which there may be issued, or by which there may be secured or evidenced, any Debt of the Lessee, whether such Debt now exists or shall hereafter be created, shall occur and such Debt individually or in the aggregate shall exceed $5,393,000 (which amount shall be adjusted annually, on the date of the submission by the Lessee of the financial statements referred to in Section 10.1(a)(i) of the Participation Agreement, to an amount equal to 1.0% of the Tangible Net Worth of the Lessee as shown on such financial statements); provided, however, an Event of Default shall occur under this Section only if the event of default causing the acceleration of Debt is the result of an event of default by the Lessee that would constitute an Event of Default under this Lease, such as (by way of example) the failure to make payments when due on such Debt; or
(l) any Lien granted by any Obligor to the Lessor, the Collateral Agent or the Lease Agent under any Operative Document shall, in whole or in part, terminate, cease to be effective against, or cease to be the legal, valid, binding and enforceable obligation of, such Obligorthe Lessee as a result of any act or omission of the Lessee; or
(im) any Obligor the Lessee or Holding shall directly or indirectly contest the validity (as opposed to the interpretation of the terms) of any Operative Document in any manner in any court of competent jurisdiction or any lien Lien granted by any Operative Document; or
(j) any , or the Lessee shall repudiate, or purport to discontinue or terminate, the Guaranty or Guaranty Agreement, or the Guaranty or Guaranty Agreement shall cease to be 100% owned (directly a legal, valid and binding obligation or indirectly) Subsidiary of the Company; or
(k) there shall cease to be a breach of the STATUTORY CONDITIONin full force and effect for any reason.
Appears in 1 contract
Samples: Lease and Open End Mortgage (Fore Systems Inc /De/)
Lease Events of Default. The occurrence and continuance of If any one or more of the following events shall constitute (each a "Lease Event of Default") shall occur:
(ia) any Lessee shall fail to make payment of (Xi) any Basic Rent (Interest/Yieldexcept as set forth in clause (ii)) within five three (53) Business Days days after the same has become due and payable, payable or (Yii) any Property Balance, Purchase Option Rent, Loan Balance, Lease Recourse Amount or Lease Balance, including, without limitation, amounts due pursuant to Section 15.1, 18.1, 18.2, or 20.1Termination Value, on the date due therefor under the Master Leaseany such payment is due, or (ii) any payment of Basic Rent or Supplemental Rent due on the Company due date of any such payment of Termination Value, or any Subsidiary Guarantor shall have failed to make any payment amount due under on the Multicare Guaranty after the same has become due and payable; orExpiration Date;
(b) any Lessee shall fail to make payment of any Supplemental Rent (other than Supplemental Rent referred to in SECTION 17(A)(II)) due with respect to Sections 13.7, 13.8, 13.9 and 13.10 of the Participation Agreement payable within five three (53) Business Days days after receipt of notice thereof or any Lessee shall fail to make payment of any other Supplemental Rent within five (5) Business Days after the expiration of thirty (30) days from the date of receipt of notice by the Lessees or the Company that such Supplemental Rent payment is due and payable; ordue;
(c) any Event of Default (as defined in the Credit Agreement) shall have occurred and be continuing; or
(d) any Lessee shall fail to maintain insurance as required by Article XIII ARTICLE XIV of this Master Lease and such failure shall continue for ten (10) days; orLease;
(ed) any Lessee or the Company, as the case may be, any Guarantor shall fail to observe or perform any term, covenant or condition provision of such Lessee or the Company, as the case may be, Guarantor under this Master Lease or the any other Operative Documents Agreement to which it Lessee or Guarantor is a party other than those described set forth in Section 16.1(aSECTIONS 17.1(A), (b), or B) (dC) OR (G) hereof, and, in each such case, and such failure shall have continued remain uncured for a period of thirty (30) days after the earlier of receipt of written notice from Lessor thereof or a Responsible Officer of Lessee becomes aware of such failure;
(e) An Agency Agreement Event of Default shall have occurred and be continuing;
(i) delivery Any default, which is not waived, in the payment of any principal, interest, premium or other amount with respect to such any Indebtedness (other than obligations under the Operative Agreements) of Lessee or any Guarantor in an amount not less than $500,000 in the Companyaggregate outstanding, as applicable, of written notice thereof from the Lessor or (ii) a Responsible Officer of such Lessee or the Companyany default, as the case may be, shall have actual knowledge of such failure; provided, however, that if such failure which is capable of cure but cannot be cured by the 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 applicable Lessee or the Company is diligently pursuing, and shall continue to pursue diligently, remedy of such failure, the cure period shall be extended for an additional period of time as may be necessary to cure, not to exceed an additional ninety (90) days and not to extend beyond the Expiration Date; provided further, that failure by the applicable Lessee to fully comply with the requirements of Section 20.1 hereof shall not be subject to any cure period; or
(f) any representation or warranty made by any Lessee or the Company, as the case may bewaived, in the performance, observance or fulfillment of any of the Operative Documents term or covenant contained in any agreement or instrument under or pursuant to which it is a party shall prove any such Indebtedness referred to have been inaccurate at the time made, and if such inaccuracy can be cured, it shall not have been cured within forty-five (45) days after the earlier of in clause (i) delivery may have been issued, created, assumed, guaranteed or secured by Lessee, or (iii) any other event of default as specified in any agreement or instrument under or pursuant to which any such Lessee Indebtedness may have been issued, created, assumed, guaranteed or the Companysecured by Lessee, as the case may beand any such default or event of default specified in clauses (i), of written notice thereof from the Lessor or (ii) a Responsible Officer or (iii) shall continue for more than the period of grace, if any, therein specified, or such Lessee default or event of default shall permit the Company, as holder of any such Indebtedness (or any agent or trustee acting on behalf of one or more holders) to accelerate the case may be, shall have actualknowledge of such inaccuracymaturity thereof; or
(g) The breach of any financial covenant set forth or incorporated by reference in ARTICLE XXVIII hereof (including without limitation any covenant set forth in SECTIONS 28.4(A)-(D));
(h) The Lessee or Consolidated Entity (i) any Guarantor shall be unable to, or shall admit in writing its inability to, to pay its debts generally as such debts they become due; or (ii) shall file a petition to take advantage of any insolvency statute; make an assignment for the benefit of its creditors, petition or apply to any tribunal ; commence a proceeding for the appointment of a custodianreceiver, receiver trustee, liquidator or trustee for it conservator of itself or a of the whole or any substantial part of its assetsproperty; file a petition or answer seeking liquidation, reorganization or arrangement or similar relief under the federal bankruptcy laws or any other applicable law or statute;
(iiii) A court of competent jurisdiction shall commence enter an order, judgment or decree appointing a custodian, receiver, trustee, liquidator or conservator of the Lessee or any proceeding Guarantor or of the whole or any substantial part of the properties of the Lessee 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 the Lessee or any Guarantor seeking liquidation, reorganization or arrangement or similar relief under the federal bankruptcy laws or any bankruptcy, reorganization, arrangement, readjustment of debt, dissolution or liquidation other applicable law or statute of the United States of America or any jurisdictionstate, whether now or hereafter in effectwhich petition is not dismissed within sixty (60) days; or (iv) if, under the provisions of any other law for the relief or aid of debtors, a court of competent jurisdiction shall have had any such petition assume custody or application filed control of the Lessee or of the whole or any such substantial part of its properties, which control is not relinquished within sixty (60) days; or if there is commenced against the Lessee or any Guarantor any proceeding shall have been commencedor petition seeking liquidation, against itreorganization, in 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 an adjudication proceeding or appointment is made or order for relief is entered, or which petition, application or proceeding petition remains undismissed for a period of 60 days or moresixty (60) days; or shall be if the subject of Lessee or any proceeding under which its assets may be subject Guarantor takes any action to seizure, forfeiture or divestiture (other than a proceeding in respect of a Lien permitted under Section 8.3(b) of the Credit Agreement); or (v) by any act or omission shall indicate its consent to, to or approval of any such proceeding or acquiescence petition;
(j) The entering of any order in any proceedings against Lessee or any Guarantor decreeing the dissolution, divestiture or split-up of Lessee or any Guarantor, and such petitionorder remains in effect for more than sixty (60) days;
(k) Any representation, application warranty or proceeding statement of fact contained in any Operative Agreement or order for relief 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 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 given;
(l) One or more judgments or orders where the amount not covered by insurance (or the appointment amount as to which the insurer) is found not to be liable for) is in excess of a custodian, receiver or trustee for all $500,000 is rendered against Lessee or any substantial part of its Property; Guarantor, or (viii) shall suffer there is any attachment, injunction or execution against any of the Lessee's or any Guarantor's properties for any amount in excess of $500,000 in the aggregate; and such custodianshipjudgment, receivership attachment, injunction or trusteeship to continue undischarged execution remains unpaid, unstayed, undischarged, unbonded or undismissed for a period of 30 days or morethirty (30) days; or
(hm) Any material Environmental Violation shall have occurred and be continuing;
(n) Any Aviation Sales Credit Agreement Event of Default, or any Lien granted by any Obligor to default under the LessorSubordinated Debt, the Collateral Agent or the Lease Agent under any shall have occurred and be continuing;
(o) Any Operative Document shall, in whole or in part, terminate, Agreement shall cease to be effective against, or cease to be the legal, valid, binding in full force and enforceable obligation of, such Obligoreffect; or
(p) Any material adverse change in (i) the business, condition (financial or otherwise) assets, liabilities or operations of Aviation Sales or any Obligor shall directly of its Subsidiaries, (ii) the ability of the Lessee, the Construction Agent or indirectly contest any of their Subsidiaries to perform its respective obligations under any Operative Agreement to which it is a party, (iii) the validity (as opposed to the interpretation of the terms) or enforceability of any Operative Document 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 manner 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 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 court Lease Event of competent jurisdiction or any lien granted by any Operative Document; or
(j) any Lessee shall cease to be 100% owned (directly or indirectly) Subsidiary of the Company; or
(k) there shall be a breach of the STATUTORY CONDITIONDefault hereunder.
Appears in 1 contract
Samples: Lease Agreement (Aviation Sales Co)
Lease Events of Default. The occurrence and continuance of any one or more of the following events 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, shall constitute a "Lease Event of Default":
(ia) any Lessee shall fail to make any payment of (Xi) any Basic Rent (Interest/Yield) within five (5) Business Days after the same has become due and payable, or (Y) any Property Balance, Purchase Option Rent, Loan Balance, Lease Recourse Amount or Lease Balance, including, without limitation, amounts due pursuant to Section 15.1, 18.1, 18.2, or 20.1, on the date due therefor under the Master Lease, such failure shall continue for a period of three days or (ii) the Company amounts payable pursuant to Section 13.1(a), Article XX, or any Subsidiary Guarantor shall have failed to make any payment due under the Multicare Guaranty after the same has become due and payable; orSections 21.1(b), 22.3 or 22.4 when due;
(b) any Lessee shall fail to make payment of any Supplemental Rent due with respect to Sections 13.7, 13.8, 13.9 and 13.10 of the Participation Agreement within five (5) Business Days after receipt of notice thereof or any Lessee Guarantor shall fail to make payment of any other Supplemental Rent within amount payable hereunder or under any of the other Operative Documents and such failure shall continue for a period of five (5) Business Days days after the expiration of thirty (30) days from the date of receipt earlier of notice by to Lessee or Guarantor, as the Lessees case may be, of such failure or the Company that a Responsible Officer of Lessee or Guarantor knew or reasonably should have known of such Supplemental Rent is due and payable; orfailure;
(c) any Event of Default (as defined in the Credit Agreement) shall have occurred and be continuing; or
(d) any Lessee shall fail to maintain insurance as required by Article XIII Section 11.1;
(d) Lessee shall fail to purchase the Premises in accordance with Section 20.2 or Lessee shall fail to sell all of the Premises on the Lease Expiration Date in accordance with and satisfaction of each of the terms, covenants, conditions and agreements set forth at Articles XXI and XXII in connection with and following its exercise of the Sale Option, including each of Lessee's obligations at Sections 21.1 and 21.2;
(e) Lessee or Guarantor shall fail timely to perform or observe any covenant, condition or agreement (not included in any other clause of this Master Lease Article XVII) to be performed or observed by it hereunder or under any other Operative Document and such failure shall continue for ten a period of 30 days (10but in no event later than the Lease Expiration Date) days; orafter the earlier to occur of (i) written notice thereof to Lessee from any Lessor, Agent or any Participant or (ii) the date upon which a Responsible Officer of Lessee knew or reasonably should have known thereof;
(ef) any Lessee the occurrence of a Del Monte Event of Default;
(g) Any Operative Document or the Companysecurity 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, Guarantor, or any of their Affiliates, as the case may be, shall fail to observe or perform any term, covenant or condition of such Lessee or the Company, as the case may be, under this Master Lease or the Operative Documents to which it is party other than those described in Section 16.1(a), (b)on account of, or (d) hereofas a result of, anddirectly or indirectly, in each such case, such failure shall have continued for thirty (30) days after the earlier of (i) delivery to such Lessee or the Company, as applicable, of written notice thereof from the Lessor or (ii) a Responsible Officer of such Lessee or the Company, as the case may be, shall have actual knowledge of such failure; provided, however, that if such failure is capable of cure but cannot be cured by the 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 applicable Lessee or the Company is diligently pursuing, and shall continue to pursue diligently, remedy of such failure, the cure period shall be extended for an additional period of time as may be necessary to cure, not to exceed an additional ninety (90) days and not to extend beyond the Expiration Date; provided further, that failure by the applicable Lessee to fully comply with the requirements of Section 20.1 hereof shall not be subject to any cure period; or
(f) any representation or warranty made by any Lessee or the Company, as the case may be, in any of the Operative Documents to which it is a party shall prove to have been inaccurate at the time made, and if such inaccuracy can be cured, it shall not have been cured within forty-five (45) days after the earlier of (i) delivery to such Lessee or the Company, as the case may be, of written notice thereof from the Lessor or (ii) a Responsible Officer of such Lessee or the Company, as the case may be, shall have actualknowledge of such inaccuracy; or
(g) any Lessee or Consolidated Entity (i) shall be unable to, or shall admit in writing its inability to, pay its debts as such debts become due; or (ii) shall make an assignment for the benefit of creditors, petition or apply to any tribunal for the appointment of a custodian, receiver or trustee for it or a substantial part of its assets; or (iii) shall commence any proceeding under any bankruptcy, reorganization, arrangement, readjustment of debt, dissolution or liquidation law or statute of any jurisdiction, whether now or hereafter in effect; or (iv) shall have had any such petition or application filed or any such proceeding shall have been commenced, against it, in which an adjudication or appointment is made or order for relief is entered, or which petition, application or proceeding remains undismissed for a period of 60 days or more; or shall be the subject of any proceeding under which its assets may be subject to seizure, forfeiture or divestiture (other than a proceeding in respect of a Lien permitted under Section 8.3(b) of the Credit Agreement); or (v) by any act or omission shall indicate its consent toof Lessee, approval Guarantor or any of their Affiliates, or acquiescence Lessee, Guarantor or any of their Affiliates, directly or indirectly, contests in any such petitionmanner in any court the effectiveness, application validity, binding nature or proceeding or order for relief enforceability thereof; or the appointment of a custodian, receiver security interest and lien securing Lessee's or trustee for all or any substantial part of its Property; or (vi) shall suffer any such custodianship, receivership or trusteeship to continue undischarged for a period of 30 days or more; or
(h) any Lien granted by any Obligor to Guarantor's obligations under the Lessor, the Collateral Agent or the Lease Agent under any Operative Document shallDocuments, in whole or in part, terminate, cease ceases to be effective againsta perfected first priority security interest and lien on account of, or cease to be the legal, valid, binding and enforceable obligation as a result of, such Obligor; ordirectly or indirectly, any action or omission of Lessee, Guarantor of any of their Affiliates;
(h) A Construction Agency Agreement Event of Default shall have occurred and be continuing;
(i) An Event of Default shall occur under any Obligor shall directly or indirectly contest the validity (as opposed to the interpretation of the terms) of any Operative Document in any manner in any court of competent jurisdiction or any lien granted by any Operative Document; orMaterial Credit Agreement;
(j) any Lessee shall cease to be 100% owned The Syndication (directly as defined in the Syndication Agreement) is not fully completed on or indirectly) Subsidiary of before 90 days after the CompanyDocument Closing Date; or
(k) there shall be a breach Lessee fails to replace any Non-Funding Participant within the ninety (90) day period permitted for such replacement in Section 2.17 of the STATUTORY CONDITIONParticipation Agreement.
Appears in 1 contract
Samples: Master Lease (Del Monte Foods Co)
Lease Events of Default. The occurrence and continuance of any one or more of the following events 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, shall constitute a "Lease Event of Default":: ----------------------
(ia) any Lessee shall fail to make any payment (i) of (X) any Supplemental Rent payable to Lessor, Agent or any Participant or Basic Rent (Interest/Yield) within five (5) Business Days after the same has become when due and payable, or such failure shall continue for a period of three (Y3) any Property Balance, Purchase Option Rent, Loan Balance, Lease Recourse Amount or Lease Balance, including, without limitation, amounts due pursuant to Section 15.1, 18.1, 18.2, or 20.1, on the date due therefor under the Master Leasedays, or (ii) of amounts payable pursuant to the Company exercise of the Sale Option, or amounts payable pursuant to Section 13.1, when due, or (iii) of Supplemental Rent payable to any Person ------------ other than Lessor, Agent or a Participant and such failure under this Lease Agreement clause (iii) shall continue for a period of three (3) days after notice to Lessee from any Person of such failure; provided that Lessee shall not -------- be entitled to any three (3)-day grace or cure period under this clause (a) with respect to any payment of the Lease Balance, Residual Guaranty Amount or any Subsidiary Guarantor shall have failed to make any payment due Proceeds under the Multicare Guaranty after the same has become due and payableArticle VI; or----------
(b) any Lessee Party shall fail to make payment of any Supplemental Rent due with respect to Sections 13.7, 13.8, 13.9 and 13.10 of the Participation Agreement within five (5) Business Days after receipt of notice thereof or any Lessee shall fail to make payment of any other Supplemental Rent within five amount payable hereunder or under any of the other Operative Documents and such failure shall continue for a period of ten (5) Business Days after the expiration of thirty (3010) days from the date of receipt of notice by the Lessees or the Company that after such Supplemental Rent is amount first became due and payable; orpayable (or in the case of any payment to any Person other than Lessor, Agent or any Participant, such failure shall continue for a period of ten (10) days after notice to Lessee from any Person of such failure);
(c) any Event of Default (as defined in the Credit Agreement) shall have occurred and be continuing; or
(d) any Lessee shall (i) fail to maintain insurance as required by Article XIII Section ------- 11.1, or (ii) default in the performance or observance of this Master Lease and such failure any term, covenant, ---- condition or agreement on its part to be performed or observed under Section 5.2, 5.3, 5.4, 5.5, 5.7, 5.8, 5.11, 5.14 or 5.17 of the Participation Agreement;
(d) any representation or warranty by any Lessee Party in any Operative Document or in any certificate or document (including any Advance Request) delivered to Lessor, Agent or any Participant pursuant to any Operative Document shall continue for ten (10) days; orhave been incorrect in any material respect when made;
(e) any Lessee or the Company, as the case may be, Party shall fail in any material respect timely to perform or observe any covenant, condition or perform agreement (not included in any termother clause of this Article) to be performed or observed by it hereunder or under any other Operative Document and, covenant or condition (other than with respect to Construction Agency Events of Default) if Lessor has provided Lessee with timely notice of such Lessee or the Company, as the case may be, under this Master Lease or Default in accordance with the Operative Documents to which it is party other than those described in Section 16.1(a), (b), or (d) hereof, and, in each such caseDocuments, such failure shall have continued continue for thirty a period of ten (3010) days after the earlier of written notice is delivered by Lessor thereof;
(i) delivery to such Lessee or the Company, as applicable, of written notice thereof from the Lessor or (ii) a Responsible Officer of such Lessee or the Company, as the case may be, shall have actual knowledge of such failure; provided, however, that if such failure is capable of cure but cannot be cured by the 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 applicable Lessee or the Company is diligently pursuing, and shall continue to pursue diligently, remedy of such failure, the cure period shall be extended for an additional period of time as may be necessary to cure, not to exceed an additional ninety (90) days and not to extend beyond the Expiration Date; provided further, that failure by the applicable Lessee to fully comply with the requirements of Section 20.1 hereof shall not be subject to any cure period; or
(f) any representation or warranty made by any Lessee or the Company, as the case may be, in any of the Operative Documents Party shall generally fail to which it is a party shall prove to have been inaccurate at the time made, and if such inaccuracy can be cured, it shall not have been cured within forty-five (45) days after the earlier of (i) delivery to such Lessee or the Company, as the case may be, of written notice thereof from the Lessor or (ii) a Responsible Officer of such Lessee or the Company, as the case may be, shall have actualknowledge of such inaccuracy; or
(g) any Lessee or Consolidated Entity (i) shall be unable topay, or shall admit in writing its inability toto pay, pay its debts as such debts they become due; , or (ii) 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 appointment of a receiver, 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 an a general assignment for the benefit of creditors, petition or apply to any tribunal for shall consent to, or acquiesce in the appointment of of, a custodianreceiver, receiver trustee, custodian or trustee liquidator for it itself or a substantial part portion of its assets; property, assets or business, or (iiiii) corporate action shall commence be taken by any proceeding Lessee Party for the purpose of effectuating any of the foregoing;
(g) involuntary proceedings or an involuntary petition shall be commenced or filed against any Lessee Party under any bankruptcy, reorganization, arrangement, readjustment of debt, dissolution insolvency or liquidation similar law or statute seeking the dissolution, liquidation or reorganization of any jurisdiction, whether now or hereafter in effect; or (iv) shall have had any such petition or application filed or any such proceeding shall have been commenced, against it, in which an adjudication or appointment is made or order for relief is entered, or which petition, application or proceeding remains undismissed for a period of 60 days or more; or shall be the subject of any proceeding under which its assets may be subject to seizure, forfeiture or divestiture (other than a proceeding in respect of a Lien permitted under Section 8.3(b) of the Credit Agreement); or (v) by any act or omission shall indicate its consent to, approval of or acquiescence in any such petition, application or proceeding or order for relief Lessee Party or the appointment of a custodianreceiver, receiver trustee, custodian or trustee liquidator for all any Lessee Party or any of a substantial part of its Property; the property, assets or business of any Lessee Party 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 any Lessee Party, and such 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 thirty (vi30) shall suffer any such custodianshipdays after commencement, receivership filing or trusteeship to continue undischarged for a period of 30 days or more; orlevy, as the case may be;
(h) a judgment or judgments for the payment of money are entered by a court or courts of competent jurisdiction against any Lien granted by Lessee Party, and such judgment or judgments remain undischarged, unbonded, unstayed or unsatisfied for a period (during which execution shall be effectively stayed) of sixty (60) days; provided that the aggregate of all such judgments exceeds Five Million -------- Dollars ($5,000,000) (excluding any Obligor to the Lessor, the Collateral Agent or the Lease Agent under any Operative Document shall, in whole or in part, terminate, cease to be effective against, or cease to be the legal, valid, binding and enforceable obligation of, such Obligor; orinsured parties);
(i) Lessee or any Obligor Guarantor shall directly or indirectly contest contest, or threaten to contest, the validity (as opposed to the interpretation of the terms) of any Operative Document in any manner in any court of competent jurisdiction or any lien the Lien granted by this Lease or any Operative DocumentMortgage;
(j) a default or event of default, the effect of which is to permit the lender or lenders of any instrument, (including, without limitation, the lenders under that certain Revolving Credit Agreement, dated as of November 20, 1995 among Lessee, the banks listed therein and Agent, as agent thereunder, as amended), or a trustee or agent on behalf of such lender or lenders, to cause the indebtedness evidenced by such instrument to become due prior to its stated maturity shall occur under the provisions of any instrument evidencing indebtedness for borrowed money of the Lessee or any Affiliate thereof (or under the provisions of any agreement pursuant to which such instrument was issued) or any obligation of the Lessee or any Affiliate thereof for the payment of such indebtedness shall become or be declared to be due and payable prior to its stated maturity, or shall not be paid when due;
(k) Any one or more Pension-Related Events referred to in subsection (a)(ii), (b) or (e) of the definition of "Pension-Related Event" shall have --------------------- occurred; or any one or more other Pension-Related Events shall have occurred and Lessor and Agent shall determine in good faith (which determination shall be conclusive) that such other Pension-Related Events, individually or in the aggregate, could have a Material Adverse Effect; or
(jl) any Lessee the Guaranty shall cease to no longer be 100% owned (directly or indirectly) Subsidiary of the Company; or
(k) there shall be a breach of the STATUTORY CONDITIONin full force and effect.
Appears in 1 contract
Lease Events of Default. The occurrence and continuance of any one or more of the following events (whether 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) shall constitute a "Lease Event of DefaultLEASE EVENT OF DEFAULT":
(ia) any Lessee shall fail to make payment of (Xi) any Basic Rent within seven (Interest/Yield) within five (57) Business Days after the same has become due and payable, payable or (Yii) any Property Balance, Purchase Option RentPrice, Loan Balance, Lease Recourse Amount Balance or Lease Balance, including, without limitation, amounts due pursuant to Section SECTIONS 15.1, 18.1, 18.2, 18.3 or 20.1, on the date due therefor under the Master Lease, or (ii) the Company or any Subsidiary Guarantor shall have failed to make any payment due under the Multicare Guaranty after the same has become due and payabletherefor; or
(b) any Lessee shall fail to make payment of any Supplemental Rent (other than Supplemental Rent referred to in CLAUSE (a) of this Section) due with respect to Sections 13.7, 13.8, 13.9 and 13.10 of the Participation Agreement payable within five (5) Business Days days after receipt of notice thereof or any Lessee shall fail to make payment of any other Supplemental Rent within five (5) Business Days after the expiration of thirty (30) days from the date of receipt of notice by the Lessees or the Company that such Supplemental Rent is due and payablethereof; or
(c) any Event of Default (as defined in the Credit Agreement) shall have occurred and be continuing; or
(d) any Lessee shall fail to maintain insurance as required by Article ARTICLE XIII of this Master Lease and such failure shall continue for ten (10) daysLease; or
(ed) any Lessee or the Company, as the case may be, shall fail to observe or perform any term, covenant or condition of such Lessee or the Company, as the case may be, under this Master Lease Lease, the Participation Agreement or the any other Operative Documents Document to which it is a party other than those described in Section 16.1(aCLAUSE (a), (b), ) or (dc) hereof, of this SECTION 16.1 and, in each such case, such failure shall have continued for thirty (30) days after the earlier of (i) delivery to such Lessee or the Company, as applicable, Company of written notice thereof from the Lessor or (ii) a Responsible Officer of such Lessee or the Company, as Company charged with the case may be, duty to administer this arrangement shall have actual knowledge of such failure; providedPROVIDED, howeverHOWEVER, that if such failure is capable of cure but cannot be cured by the payment of money or cannot be cured by diligent efforts within such thirty (30) day 30)-day period but such diligent efforts shall be properly commenced within the cure period and the applicable such Lessee or the Company is diligently pursuing, and shall continue to pursue diligently, remedy of such failure, the cure period shall be extended for an additional period of time as may be necessary to cure, not to exceed an additional ninety forty-five (9045) days and not to extend beyond the Expiration Date; provided furtherPROVIDED, FURTHER, HOWEVER, that failure by the applicable any Lessee to fully comply with the requirements of Section SECTION 20.1 hereof shall not be subject to any cure period; or
(fe) any representation or warranty made by any Lessee or the Company, as the case may be, Guarantor in any of the Operative Documents to which it is a party shall prove to have been inaccurate in any material respect at the time made, and if such inaccuracy can be cured, it shall not have been cured within forty-five ; or
(45) days after the earlier of (i) delivery to such Lessee or the Company, as the case may be, of written notice thereof from the Lessor or (iif) a Responsible Officer Construction Agency Agreement Event of such Lessee Default or a default by the Company, as the case may be, Guarantor shall have actualknowledge of such inaccuracyoccurred and be continuing under the Guaranty; or
(g) any Lessee or Consolidated Entity the Guarantor shall (i) shall be unable to, or shall admit in writing its inability to, to pay its debts generally as such debts they become due; or , (ii) shall 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 Master Lease Commonwealth thereof, (iii) make an a general assignment for the benefit of its creditors, petition or apply (iv) consent to any tribunal for the appointment of a receiver of itself or the whole or any substantial part of its property, (v) fail to cause the discharge of any custodian, trustee or receiver appointed for such Lessee or trustee for it the Guarantor, as the case may be, or the whole or a substantial part of its assets; property within sixty (60) days after such appointment, or (iiivi) shall commence file a petition or answer seeking or consenting to reorganization under the United States bankruptcy laws or any proceeding under any bankruptcy, reorganization, arrangement, readjustment of debt, dissolution or liquidation other applicable insolvency law or statute of any jurisdiction, whether now or hereafter in effect; or (iv) shall have had any such petition or application filed the United States of America or any such proceeding shall have been commenced, against it, in which an adjudication State or appointment is made or order for relief is entered, or which petition, application or proceeding remains undismissed for a period of 60 days or more; or shall be the subject of any proceeding under which its assets may be subject to seizure, forfeiture or divestiture (other than a proceeding in respect of a Lien permitted under Section 8.3(b) of the Credit Agreement); or (v) by any act or omission shall indicate its consent to, approval of or acquiescence in any such petition, application or proceeding or order for relief or the appointment of a custodian, receiver or trustee for all or any substantial part of its Property; or (vi) shall suffer any such custodianship, receivership or trusteeship to continue undischarged for a period of 30 days or moreCommonwealth thereof; or
(h) 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 any Lessee or the Guarantor and not dismissed within sixty (60) days from the date of its filing (PROVIDED, that each Lessee hereby expressly authorizes the Lessor and each Participant to appear in any court conducting any such proceeding during such sixty (60) day period to preserve, protect and defend their respective rights under the Operative Documents), or a court of competent jurisdiction shall enter an order or decree appointing, without the consent of any Lessee or the Guarantor, as the case may be, a receiver of such Lessee, the Guarantor or the whole or a substantial part of any of their respective property, and such order or decree shall not be vacated or set aside within sixty (60) days from the date of the entry thereof; or
(i) any final judgments or orders for the payment of money individually or in the aggregate in excess of $25,000,000 shall be rendered against the Company, any Lessee, or any of their respective Subsidiaries and such judgment or order shall continue unsatisfied and unstayed (pursuant to laws, rules or court orders) for a period of thirty (30) days or if after the expiration of such stay, such judgment or order shall not have been paid or discharged; or
(j) a default or the happening of any event shall occur under any indenture, agreement or other instrument under which any Material Commitment is made or any Debt of the Company or any Subsidiary in an aggregate amount of $25,000,000 or more is outstanding and such default or event shall continue for a period of time sufficient to permit the acceleration of the maturity of such Debt of the Company or any Subsidiary outstanding thereunder or to permit termination of such Material Commitment; or
(k) any Operative Document to which any Lessee or the Guarantor is a party or any Lien granted by any Obligor to the Lessor, the Collateral Agent or the Lease Agent under any such Operative Document shall, in whole or in part, terminate, cease to be effective against, or cease to be the legal, legally valid, binding and enforceable obligation of, such ObligorLessee or the Guarantor, as the case may be and such occurrence creates an adverse effect upon the priority, perfection or status of Participant's interest in any Property (other than in accordance with its terms or with the consent of Lessor or rights to terminate contained in such documents); or
(il) the Company or any Obligor Lessee shall directly or indirectly contest in any manner the validity (as opposed to the interpretation of the terms) effectiveness, validity, binding nature or enforceability of any Operative Document in any manner in any court of competent jurisdiction or any lien Lien granted by under any Operative Document, or the Guarantor shall repudiate, or purport to discontinue or terminate, the Guaranty; oror Master Lease
(jm) any Lessee Change of Control shall cease to be 100% owned (directly or indirectly) Subsidiary of the Company; or
(k) there shall be a breach of the STATUTORY CONDITIONoccur.
Appears in 1 contract
Samples: Master Lease and Open End Mortgage (Cardinal Health Inc)
Lease Events of Default. The occurrence and continuance of If any one (1) or more of the following events shall constitute (each a "Lease Event of Default":) shall occur: ----------------------
(ia) any Lessee shall fail to make payment of (Xi) any Basic Rent (Interest/Yieldexcept as set forth in clause (ii)) within five (5) Business Days after the same has become due and payable, payable or (Yii) any Property Balance, Purchase Option Rent, Loan Balance, Lease Recourse Amount or Lease Balance, including, without limitation, amounts due pursuant to Section 15.1, 18.1, 18.2, or 20.1Termination Value, on the date due therefor under the Master Lease, or (ii) the Company or any Subsidiary Guarantor shall have failed to make any such payment due under the Multicare Guaranty after the same has become is due and payable; or, or any payment of Basic Rent or Supplemental Rent due on the due date of any such payment of Termination Value, or any amount due on the Expiration Date;
(b) any Lessee shall fail to make payment of any Supplemental Rent (other than Supplemental Rent referred to in Section 17.1(a)(ii)) or any other Credit Party shall fail to make any payment of any amount under any Operative Agreement which has become due with respect to Sections 13.7, 13.8, 13.9 and 13.10 of the Participation Agreement payable within five (5) Business Days after receipt of notice thereof or any Lessee shall fail to make payment of any other Supplemental Rent within five (5) Business Days after the expiration of thirty (30) days from the date of receipt of notice by the Lessees or the Company that such Supplemental Rent payment is due and payable; ordue;
(c) any Event of Default (as defined in the Credit Agreement) shall have occurred and be continuing; or
(d) any Lessee shall fail to maintain insurance as required by Article XIII XIV of this Master Lease and such failure shall continue for or to deliver any requisite annual certificate with respect thereto within ten (10) days; ordays of the date such certificate is due under the terms hereof;
(ei) any Lessee or the Company, as the case may be, shall fail to observe or perform any term, covenant covenant, obligation or condition of Lessee under this Lease (including without limitation the Incorporated Covenants (other than failure to comply with the second sentence of Section 8.19 of the Lessee Credit Agreement)) 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 any other Credit Party shall fail to observe or perform any term, covenant, obligation or condition of such Lessee or the Company, as the case may be, Credit Party under this Master Lease or the any Operative Documents to which it is party Agreement other than those described set forth in Section 16.1(a), (b), or (d17.1(b) hereof, and, in each such case, hereof and such failure shall have continued continue for thirty (30) days (or with respect to the Incorporated Covenants, the grace period, if any, applicable thereto provided, that references to -------- Incorporated Covenants in this Section 17.1(d) shall not be deemed to apply to a failure to comply with the second sentence of Section 8.19 of the Lessee Credit Agreement) after notice thereof to the earlier of (i) delivery to such Lessee or the Companysuch Credit Party, as applicable, of written notice thereof from the Lessor or (ii) a Responsible Officer of such any representation or warranty made by Lessee or any other Credit Party set forth in this Lease (including without limitation the CompanyIncorporated Representation and Warranties) 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) An Agency Agreement Event of Default shall have occurred and be continuing and shall not have been waived;
(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 Debt having an outstanding principal amount of at least $15,000,000; or any other event or condition shall occur which enables the holder of any such Debt or any Person acting on such holder's behalf to accelerate the maturity thereof;
(g) JPFDI, U.S. Foodservice, Inc. or any Restricted Subsidiary shall (i) apply for or consent to the appointment of, or the taking of possession by, a receiver, custodian, trustee or liquidator of itself or of all or a substantial part of its property, (ii) become insolvent or be generally unable to or shall generally fail or admit in writing its inability to pay its debts as such debts become due, (iii) make a general assignment for the benefit of its creditors, (iv) commence a voluntary case under the Bankruptcy Code (as now or hereafter in effect), (v) file a petition seeking to take advantage of any bankruptcy, insolvency, moratorium, reorganization or other similar law affecting the enforcement of creditors' rights generally, (vi) acquiesce in writing to, or fail to controvert in a timely or appropriate manner, any petition filed against it in an involuntary case under such Bankruptcy Code, (vii) take any action under the laws of any jurisdiction (foreign or domestic) analogous to any of the foregoing, or (viii) take any corporate action in furtherance of any of the foregoing; or
(h) A proceeding or case shall be commenced in respect of JPFDI, U.S. Foodservice, Inc. or any Restricted Subsidiary, without its application or consent, in any court of competent jurisdiction, seeking (i) the liquidation, reorganization, moratorium, dissolution, winding up, or composition or readjustment of its debts, (ii) the appointment of a trustee, receiver, custodian, liquidator or the like of it or of all or any substantial part of its assets, or (iii) similar relief in respect of it under any law providing for the relief of debtors, and such proceeding or case described in clause (i), (ii) or (iii) shall continue undismissed, or unstayed and in effect, for a period of 45 days, or an order for relief shall be entered in an involuntary case under the Bankruptcy Code (as now or hereafter in effect) against JPFDI, U.S. Foodservice, Inc. or any Restricted Subsidiary or action under the laws of any jurisdiction (foreign or domestic) analogous to any of the foregoing shall be taken with respect to JPFDI, U.S. Foodservice, Inc. or any Restricted Subsidiary and shall continue undismissed, or unstayed and in effect, for a period of 45 days;
(i) [INTENTIONALLY OMITTED]; (j) [INTENTIONALLY OMITTED]; (k) [INTENTIONALLY OMITTED];
(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 decree for the payment of money shall be rendered by a court of competent jurisdiction against JPFDI, U.S. Foodservice, Inc. or any Restricted Subsidiary which, either alone or together with other outstanding judgments or decrees against JPFDI, U.S. Foodservice, Inc. or any one or more Restricted Subsidiaries, shall aggregate more than $15,000,000, and JPFDI, U.S. Foodservice, Inc. or such Subsidiary, as the case may be, shall have actual knowledge not discharge the same or provide for its discharge in accordance with its terms within 60 days from the date of entry thereof or within such longer period (including, without limitation, any period during which JPFDI, U.S. Foodservice, Inc. or such Subsidiary shall be contesting a denial of coverage of its liability in respect of such failure; provided, however, that if such failure is capable of cure but cannot be cured judgment by the payment of money or cannot be cured by diligent efforts within such thirty (30a reputable insurance carrier) day period but such diligent efforts shall be properly commenced within the cure period and the applicable Lessee or the Company is diligently pursuing, and shall continue to pursue diligently, remedy during which execution of such failure, the cure period judgment shall be extended for an additional period of time as may be necessary to cure, not to exceed an additional ninety (90) days and not to extend beyond the Expiration Date; provided further, that failure by the applicable Lessee to fully comply with the requirements of Section 20.1 hereof shall not be subject to any cure periodhave been stayed; or
(fn) Any Credit Party or any member of the Controlled Group shall fail to pay when due any amount which it shall have become liable to pay to the PBGC or to a Pension Plan or Multiemployer Plan under Title IV of ERISA; (ii) any representation Credit Party or warranty made by any Lessee or the Company, as the case may be, in any member of the Operative Documents to Controlled Group shall withdraw from a Multiple Employer Plan during a plan year in which it is a party substantial employer (as such term is defined in Section 4001(a)(2) of ERISA), or shall prove be treated as having so withdrawn under Section 4062(e) of ERISA, or any Multiple Employer Plan shall be terminated; (iii) notice of intent to terminate any Pension Plan or Multiemployer Plan 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; (iv) the PBGC shall institute proceedings under Title IV of ERISA to terminate or to cause a trustee to be appointed to administer any Pension Plan or Multiemployer Plan; (v) any Credit Party or any member of the Controlled Group shall withdraw from any Multiemployer Plan ; (vi) any Plan shall have been inaccurate at the time made, and if such inaccuracy can be cured, it shall not have been cured within forty-five (45) days after the earlier of (i) delivery to such Lessee or the Company, as the case may be, of written notice thereof from the Lessor an Unfunded Liability; or (iivii) any prohibited transaction (as defined in Section 406 of ERISA or Section 4975 of the Code) or breach of fiduciary responsibility shall occur which may subject any Credit Party or any member of the Controlled Group to any liability under Section 406, 409, 502(i) or 502(l) of ERISA or Section 4975 of the Code, or under any agreement or other instrument pursuant to which such Credit Party or any member of the Controlled Group has agreed or is required to indemnify any Person against any such liability; and there shall result from any such event or events referred to in the foregoing subdivisions (n)(i) through (n)(vii) a Responsible Officer material risk of such Lessee or the Company, as the case may be, shall have actualknowledge incurring a liability in excess of such inaccuracy$5,000,000; or
(go) any Lessee or Consolidated Entity (i) A Change of Control shall be unable to, or shall admit in writing its inability to, pay its debts as such debts become due; or (ii) shall make an assignment for the benefit of creditors, petition or apply to any tribunal for the appointment of a custodian, receiver or trustee for it or a substantial part of its assets; or (iii) shall commence any proceeding under any bankruptcy, reorganization, arrangement, readjustment of debt, dissolution or liquidation law or statute of any jurisdiction, whether now or hereafter in effect; or (iv) shall have had any such petition or application filed or any such proceeding shall have been commenced, against it, in which an adjudication or appointment is made or order for relief is entered, or which petition, application or proceeding remains undismissed for a period of 60 days or more; or shall be the subject of any proceeding under which its assets may be subject to seizure, forfeiture or divestiture (other than a proceeding in respect of a Lien permitted under Section 8.3(b) of the Credit Agreement); or (v) by any act or omission shall indicate its consent to, approval of or acquiescence in any such petition, application or proceeding or order for relief or the appointment of a custodian, receiver or trustee for all or any substantial part of its Property; or (vi) shall suffer any such custodianship, receivership or trusteeship to continue undischarged for a period of 30 days or moreoccur; or
(hp) any Lien granted by any Obligor to the Lessor, the Collateral Agent or the Lease Agent under any Any Operative Document shall, in whole or in part, terminate, cease to be effective against, or cease to be the legal, valid, binding and enforceable obligation of, such Obligor; or
(i) any Obligor shall directly or indirectly contest the validity (as opposed to the interpretation of the terms) of any Operative Document in any manner in any court of competent jurisdiction or any lien granted by any Operative Document; or
(j) any Lessee Agreement shall cease to be 100% owned (directly or indirectly) Subsidiary of the Company; orin full force and effect;
(kq) there 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; 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 breach Lease Event of Default under Sections 17.1(g) or (h)) and this Lease shall terminate, and all rights of Lessee under this Lease shall cease. Lessee shall, to the STATUTORY CONDITIONfullest 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 (Us Foodservice/Md/)
Lease Events of Default. The occurrence and continuance of any one or more of the following events 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, shall constitute a "Lease Event Events of Default":
(ia) any Lessee shall fail to make any payment of of: (Xi) any Basic Rent (Interest/Yield) within when due and such failure shall continue for a period of five (5) Business Days after days, (ii) amounts payable pursuant to the same has become due and payableexercise of the Purchase Option, the Remarketing Option or Section 13.1(a), when due, or (Yiii) any Property Balance, Purchase Option Rent, Loan Balance, Lease Recourse Amount or Lease Balance, including, without limitation, amounts due pursuant to Section 15.1, 18.1, 18.2, or 20.1, on the date due therefor Supplemental Rent (other than Supplemental Rent payable under the Master Lease, or clause (ii)) the Company or any Subsidiary Guarantor shall have failed to make any payment due under the Multicare Guaranty after the same has become when due and payable; orsuch failure shall continue for a period of five days after receipt of written notice thereof from Administrative Agent or Lessor;
(b) any Lessee shall fail to make payment of any Supplemental Rent due with respect to Sections 13.7, 13.8, 13.9 and 13.10 of the Participation Agreement within five (5) Business Days after receipt of notice thereof or any Lessee shall fail to make payment of any other Supplemental Rent within five (5) Business Days after the expiration of thirty (30) days from the date of receipt of notice by the Lessees or the Company that such Supplemental Rent is due and payable; or
(c) any Event of Default (as defined in the Credit Agreement) shall have occurred and be continuing; or
(d) any Lessee shall fail to maintain insurance as required by Section 11.1 or shall default in the performance or observance of any other term, covenant, condition or agreement on its part to be performed or observed under Article XIII of this Master Lease XI and such failure shall continue for ten (10) days; ordays after written notice to Lessee thereof from Administrative Agent or Lessor;
(ec) any representation or warranty by Lessee in any Operative Document or in any certificate, document or financial or other statement delivered to Lessor pursuant to any Operative Document shall have been incorrect in any material respect when made, shall result in a Material Adverse Effect, and, if curable, shall continue for a period of 35 days after written notice to Lessee from any Participant or the Company, as the case may be, Administrative Agent;
(d) Lessee shall fail to perform or observe or perform any termcovenant, covenant or condition of such Lessee or the Company, as the case may be, under this Master Lease or the Operative Documents to which it is party other than those described in Section 16.1(a), (b)condition, or agreement (dnot included in any other clause of this Article XVII) hereof, and, to be performed or observed by it hereunder or in each such case, any other Operative Document and such failure shall have continued continue unremedied for thirty (30) 35 days if using due diligence after the earlier of (i) delivery to such Lessee or the Company, as applicable, of written notice thereof from the Lessor or (ii) date upon which a Responsible Officer of Lessee has actual knowledge thereof and (ii) the date upon which written notice thereof is delivered to Lessee from any Participant or Administrative Agent; except that if the failure is capable of being remedied, no such failure shall constitute a Lease Event of Default so long as Lessee is diligently proceeding to cure such failure, but in no event shall the failure continue unremedied for a period of 180 days from the notice referred to above; (e)
(i) Lessee or any Material 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 existing or future law of any jurisdiction, domestic or foreign, relating to bankruptcy, insolvency, reorganization or relief of debtors, or similar law seeking to have an order for relief entered with respect to it, or seeking to adjudicate it a bankrupt or insolvent or seeking dissolution, liquidation, reorganization, arrangement, adjustment, winding-up, composition or other relief with respect to it or its debts or the appointment of a receiver, trustee, custodian or liquidator for itself or for all 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; (ii) corporate action shall be taken by Lessee or any Material Subsidiary for the purpose of effectuating any of the foregoing; (iii) involuntary proceedings or an involuntary petition shall be commenced or filed against Lessee or any Material Subsidiary under any existing or future law of any jurisdiction, domestic or foreign, relating to bankruptcy, insolvency, reorganization or relief of debtors, or similar law or seeking the dissolution, liquidation, reorganization, arrangement, adjustment, winding-up, composition or other relief with respect to it or its debts of Lessee or the Companyappointment of a receiver, trustee, custodian or liquidator for Lessee or for 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 all or a substantial part of the property, assets or business of Lessee, and such 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, shall have actual knowledge of such failure; provided, however, that if such failure is capable of cure but cannot be cured by the 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 applicable Lessee or the Company is diligently pursuing, and shall continue to pursue diligently, remedy of such failure, the cure period shall be extended for an additional period of time as may be necessary to cure, not to exceed an additional ninety (90) days and not to extend beyond the Expiration Date; provided further, that failure by the applicable Lessee to fully comply with the requirements of Section 20.1 hereof shall not be subject to any cure period; or
(f) any representation or warranty made by any Lessee or the Company, as the case may be, in any of the Operative Documents to which it is a party shall prove to have been inaccurate at the time made, and if such inaccuracy can be cured, it shall not have been cured within forty-five (45) days after the earlier of (i) delivery to such Lessee or the Company, as the case may be, of written notice thereof from the Lessor or (ii) a Responsible Officer of such Lessee or the Company, as the case may be, shall have actualknowledge of such inaccuracy; or
(g) any Lessee or Consolidated Entity (i) shall be unable to, or shall admit in writing its inability to, pay its debts as such debts become due; or (ii) shall make an assignment for the benefit of creditors, petition or apply to any tribunal for the appointment of a custodian, receiver or trustee for it or a substantial part of its assets; or (iii) shall commence any proceeding under any bankruptcy, reorganization, arrangement, readjustment of debt, dissolution or liquidation law or statute of any jurisdiction, whether now or hereafter in effect; or (iv) shall have had any such petition or application filed either Lessee or any such proceeding Material Subsidiary shall have been commenced, against it, take any action in which an adjudication or appointment is made or order for relief is enteredfurtherance of, or which petition, application or proceeding remains undismissed for a period of 60 days or more; or shall be the subject of any proceeding under which its assets may be subject to seizure, forfeiture or divestiture (other than a proceeding in respect of a Lien permitted under Section 8.3(b) of the Credit Agreement); or (v) by any act or omission shall indicate indicating its consent to, approval of of, or acquiescence in, any of the acts set forth in any such petitionclauses (i), application or proceeding or order for relief or the appointment of a custodian, receiver or trustee for all or any substantial part of its Property; (ii) or (viiii) shall suffer any such custodianship, receivership or trusteeship to continue undischarged for a period of 30 days or more; or
(h) any Lien granted by any Obligor to the Lessor, the Collateral Agent or the Lease Agent under any Operative Document shall, in whole or in part, terminate, cease to be effective against, or cease to be the legal, valid, binding and enforceable obligation of, such Obligor; or
(i) any Obligor shall directly or indirectly contest the validity (as opposed to the interpretation of the terms) of any Operative Document in any manner in any court of competent jurisdiction or any lien granted by any Operative Document; or
(j) any Lessee shall cease to be 100% owned (directly or indirectly) Subsidiary of the Company; or
(k) there shall be a breach of the STATUTORY CONDITION.above;
Appears in 1 contract
Samples: Lease (Reebok International LTD)
Lease Events of Default. The occurrence and continuance of any one or more of the following events shall constitute a "Lease Event Events of Default":
(ia) any Lessee shall fail to make any payment of (X) any Basic Rent (Interest/Yield) within five (5) or Renewal Term Basic Rent when due, and any such failure shall continue unremedied for a period of 5 Business Days after the same has become due and payable, or (Y) any Property Balance, Purchase Option Rent, Loan Balance, Lease Recourse Amount or Lease Balance, including, without limitation, amounts due pursuant to Section 15.1, 18.1, 18.2, or 20.1, on the date due therefor under the Master Lease, or (ii) the Company or any Subsidiary Guarantor shall have failed to make any payment due under the Multicare Guaranty after the same has become due and payableDays; or
(b) any Lessee shall fail to make any payment of Stipulated Loss Value when due, and any Supplemental Rent due with respect to Sections 13.7, 13.8, 13.9 and 13.10 such failure shall continue unremedied for a period of the Participation Agreement within five (5) 5 Business Days after receipt by Lessee of written notice thereof or any Lessee shall fail to make payment of any other Supplemental Rent within five (5) Business Days after the expiration of thirty (30) days from the date of receipt of notice by the Lessees or the Company that such Supplemental Rent payment is due and payabledue; or
(c) Lessee shall fail to make any Event payment of Default Supplemental Rent (as defined other than items described in the Credit Agreementclause (a) or (b)), when due, and any such failure shall have occurred and be continuingcontinue unremedied for a period of 5 Business Days after receipt by Lessee of written notice that such payment is due; or
(di) any Lessee shall fail to maintain have in effect the minimum insurance as required by Article XIII Section 19.01(a)(i), (ii), (iii) or (v) of this Master Lease Lease; or
(ii) Lessee or Guarantor shall fail to perform or observe any other material covenant or obligation under Article XIX hereof, or Sections 5.09, 5.10, 5.11 of the Participation Agreement, and any such failure shall continue continues unremedied for ten (10) daysa period of 30 days after receipt by Lessee of written notice thereof; or
(e) any either of Lessee or Guarantor shall have failed to perform or observe any of its covenants or agreements (other than any thereof dealt with in any other clause of this Article XIII) contained in this Lease or any other Operative Document and such failure shall continue unremedied for a period of 30 days after receipt by Lessee or Guarantor, as the Companycase may be, of written notice of such failure; provided, that the foregoing shall not constitute a Lease Event of Default, until expiration of a longer period (not to exceed 90 days from the expiration of such 30-day period), if prior to the commencement of such period Lessee or Guarantor, as the case may be, shall fail to observe or perform any termadvise Lessor that such default is curable (other than by the payment of money) which notice shall set forth a proposed cure, covenant or condition of and during such longer period Lessee or the CompanyGuarantor, as the case may be, under this Master Lease or the Operative Documents to which it is party other than those described in Section 16.1(a), (b), or (d) hereof, and, in each such case, such failure shall have continued for thirty (30) days after the earlier of (i) delivery to such Lessee or the Company, as applicable, of written notice thereof from the Lessor or (ii) a Responsible Officer of such Lessee or the Company, as the case may be, shall have actual knowledge of such failure; provided, however, that if such failure is capable of cure but cannot be cured by the payment of money or cannot be cured by making diligent efforts within to effect such thirty (30) day period but such diligent efforts shall be properly commenced within the cure period and the applicable Lessee or the Company is diligently pursuing, and shall continue to pursue diligently, remedy of such failure, the cure period shall be extended for an additional period of time as may be necessary to cure, not to exceed an additional ninety (90) days and not to extend beyond the Expiration Date; provided further, that failure by the applicable Lessee to fully comply with the requirements of Section 20.1 hereof shall not be subject to any cure period; or
(f) any representation or warranty made by any Lessee or Guarantor herein or in any other Operative Document (except the Companyrepresentations and warranties set forth in any Tax Indemnity Agreement) shall prove to have been incorrect in any material respect at the time made or given and remains a misrepresentation or breach of warranty materially adverse to Lessor or any Owner Participant at the time such incorrectness is discovered; provided that the foregoing shall not constitute a Lease Event of Default, if such misrepresentation or breach of warranty is capable of being cured, remains uncured for a period of 30 days after Lessee's or Guarantor's, as the case may be, in any receipt of the Operative Documents to which it is a party shall prove to have been inaccurate at the time made, and if such inaccuracy can be cured, it shall not have been cured within forty-five (45) days after the earlier of (i) delivery to such written notice advising Lessee or the CompanyGuarantor, as the case may be, of written notice thereof from the Lessor or (ii) a Responsible Officer of such incorrectness and during which time Lessee or Guarantor, as the Companycase may be, is making diligent efforts to cure such misrepresentation or breach; or
(g) the Guarantee fails for any reason to be in full force and effect, is repudiated or rendered inoperative or unenforceable; or
(h) Lessee or Guarantor, as the case may be, shall have actualknowledge 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 such inaccuracy; or
(g) a trustee, receiver, liquidator, custodian or other similar official of it or any Lessee or Consolidated Entity (i) shall be unable tosubstantial part of its property, or shall admit consent to any such relief or to the appointment of or taking possession by any such official in writing its inability toan involuntary case or other proceeding commenced against it, pay its debts as such debts become due; or (ii) shall make an a general assignment for the benefit of creditors, petition or apply shall fail generally to pay its debts as they become due; or
(i) an involuntary case or other proceeding shall be commenced against Lessee or Guarantor, as the case may be, seeking liquidation, reorganization or other relief with respect to it or its debts under any tribunal for bankruptcy, insolvency or other similar law now or hereafter in effect or seeking the appointment of a custodiantrustee, receiver receiver, liquidator, custodian or trustee for other similar official of it or a substantial part of its assets; or (iii) shall commence any proceeding under any bankruptcy, reorganization, arrangement, readjustment of debt, dissolution or liquidation law or statute of any jurisdiction, whether now or hereafter in effect; or (iv) shall have had any such petition or application filed or any such proceeding shall have been commenced, against it, in which an adjudication or appointment is made or order for relief is entered, or which petition, application or proceeding remains undismissed for a period of 60 days or more; or shall be the subject of any proceeding under which its assets may be subject to seizure, forfeiture or divestiture (other than a proceeding in respect of a Lien permitted under Section 8.3(b) of the Credit Agreement); or (v) by any act or omission shall indicate its consent to, approval of or acquiescence in any such petition, application or proceeding or order for relief or the appointment of a custodian, receiver or trustee for all or any substantial part of its Property; property, and an order for relief shall be made in such proceeding or (vi) such involuntary case or other proceeding shall suffer any such custodianship, receivership or trusteeship to continue undischarged remain undismissed and unstayed for a period of 30 days or more; or
(h) any Lien granted by any Obligor to the Lessor, the Collateral Agent or the Lease Agent under any Operative Document shall, in whole or in part, terminate, cease to be effective against, or cease to be the legal, valid, binding and enforceable obligation of, such Obligor; or
(i) any Obligor shall directly or indirectly contest the validity (as opposed to the interpretation of the terms) of any Operative Document in any manner in any court of competent jurisdiction or any lien granted by any Operative Document90 consecutive days; or
(j) any the acceleration of senior indebtedness of Lessee shall cease to be 100% owned (directly or indirectly) Subsidiary Guarantor in an aggregate principal amount in excess of $10,000,000, now existing or hereafter incurred, including the CompanyBA Loan Agreement; or
(k) there Lessor shall be cease to have a breach of first priority lien on PPE Collateral subject to the STATUTORY CONDITIONfirst priority lien on Credit Agreement Term Loan Equipment Collateral or a second priority lien on Working Capital Collateral subject to the first priority lien pursuant to the BA Loan Agreement, or any refinancing or refunding thereof, subject in each case to Permitted Encumbrances.
Appears in 1 contract
Lease Events of Default. The occurrence and continuance of If any one (1) or more of the following events shall constitute (each a "Lease Event of Default") shall occur:
(ia) any Lessee shall fail to make payment of (Xi) any Basic Rent (Interest/Yieldexcept as set forth in clause (ii)) within five three (53) Business Days after the same has become due and payable, payable or (Yii) any Property Balance, Purchase Option Rent, Loan Balance, Lease Recourse Amount or Lease Balance, including, without limitation, amounts due pursuant to Section 15.1, 18.1, 18.2, or 20.1Termination Value, on the date due therefor under the Master Lease, or (ii) the Company or any Subsidiary Guarantor shall have failed to make any such payment due under the Multicare Guaranty after the same has become is due and payable; or, or any payment of Basic Rent or Supplemental Rent due on the due date of any such payment of Termination Value, or any amount due on the Expiration Date;
(b) any Lessee shall fail to make payment of any Supplemental Rent (other than Supplemental Rent referred to in Section 17.1(a)(ii)) or any other Credit Party shall fail to make any payment of any amount under any Operative Agreement which has become due with respect to Sections 13.7, 13.8, 13.9 and 13.10 of the Participation Agreement payable within five three (53) Business Days after receipt of notice thereof or any Lessee shall fail to make payment of any other Supplemental Rent within five (5) Business Days after the expiration of thirty (30) days from the date of receipt of notice by the Lessees or the Company that such Supplemental Rent payment is due and payable; ordue;
(c) any Event of Default (as defined in the Credit Agreement) shall have occurred and be continuing; or
(d) any Lessee shall fail to maintain insurance as required by Article XIII XIV of this Master Lease and such failure shall continue for or to deliver any requisite annual certificate with respect thereto within ten (10) days; ordays of the date such certificate is due under the terms hereof or Lessee shall fail to perform its obligations under Articles XX, XXI and XXII hereof;
(ei) any Lessee or the Company, as the case may be, shall fail to observe or perform any term, covenant covenant, obligation or condition of Lessee under this Lease (including without limitation the Incorporated Covenants) 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 any other Credit Party shall fail to observe or perform any term, covenant, obligation or condition of such Lessee or the Company, as the case may be, Credit Party under this Master Lease or the any Operative Documents to which it is party Agreement other than those described set forth in Section 16.1(a), (b), or (d17.1(b) hereof, and, in each such case, hereof and such failure shall have continued continue for thirty (30) days (or with respect to the Incorporated Covenants, the grace period, if any, applicable thereto) after notice thereof to the earlier of (i) delivery to such Lessee or the Companysuch Credit Party, as applicable, of written notice thereof from the Lessor or (ii) a Responsible Officer of such Lessee or the Company, as the case may be, shall have actual knowledge of such failure; provided, however, that if such failure is capable of cure but cannot be cured by the 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 applicable Lessee or the Company is diligently pursuing, and shall continue to pursue diligently, remedy of such failure, the cure period shall be extended for an additional period of time as may be necessary to cure, not to exceed an additional ninety (90) days and not to extend beyond the Expiration Date; provided further, that failure by the applicable Lessee to fully comply with the requirements of Section 20.1 hereof shall not be subject to any cure period; or
(f) any representation or warranty made by any Lessee or any other Credit Party set forth in this Lease (including without limitation the Company, as the case may be, 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, certificate or financial or other statement delivered in connection herewith or therewith shall be false, misleading or inaccurate in any material way when made;
(e) A Construction Agency Agreement Event of the Operative Documents to which it is a party shall prove to have been inaccurate at the time made, and if such inaccuracy can be cured, it shall not have been cured within forty-five (45) days after the earlier of (i) delivery to such Lessee or the Company, as the case may be, of written notice thereof from the Lessor or (ii) a Responsible Officer of such Lessee or the Company, as the case may be, Default shall have actualknowledge 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 $5,000,000; or any other event or condition shall occur which results in a default of any such inaccuracy; orIndebtedness 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 Lessee or Consolidated Entity (i) shall be unable toCredit Party, or shall admit in writing its inability tothe suspension of the business of any Credit Party, pay its debts as such debts become due; or (ii) shall make an assignment for the benefit filing by any Credit Party of creditors, a voluntary petition or apply to any tribunal for the appointment of a custodian, receiver or trustee for it or a substantial part of its assets; or (iii) shall commence any proceeding under any bankruptcy, an answer seeking reorganization, arrangement, readjustment of debtits debts or for any other relief under the United States Bankruptcy Code, dissolution as amended, or liquidation law under any other insolvency act or statute of any jurisdictionlaw, whether state or federal, now or hereafter in effect; or (iv) shall have had any such petition or application filed existing, or any such proceeding shall have been commenced, against it, in which an adjudication or appointment is made or order for relief is entered, or which petition, application or proceeding remains undismissed for a period of 60 days or more; or shall be the subject other action of any proceeding under which its assets may be subject to seizure, forfeiture or divestiture (other than a proceeding in respect of a Lien permitted under Section 8.3(b) of the Credit Agreement); or (v) by any act or omission shall indicate Party indicating its consent to, approval of or acquiescence in in, any such petitionpetition or proceeding; the application by any Credit Party for, application or proceeding or order for relief or the appointment by consent or acquiescence of any Credit Party of a custodianreceiver, receiver a trustee or trustee 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 pay its debts as they mature; 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, 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 the involuntary appointment of a receiver, a trustee or a custodian of any Credit Party 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 its Propertythe property of any Credit Party, and the continuance of any of such events for ninety (90) days undismissed or undischarged;
(i) The adjudication of any Credit Party as bankrupt or insolvent;
(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;
(k) [Intentionally Omitted].
(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 any Credit Party or any Subsidiary of any Credit Party 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 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 (vi) notice of intent to terminate a Pension Plan or Pension Plans having aggregate Unfunded Liabilities in excess of $5,000,000 shall suffer 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 custodianship, receivership Pension Plan or trusteeship 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 continue undischarged 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 in Control shall occur;
(p) Any Operative Agreement shall cease to be in full force and effect (A) (during the Construction Period for a period any Property then subject to the Operative Agreements) at any time due to the actions or inactions of 30 days Lessee or more(B) (after the Construction Period for any Property then subject to the Operative Agreement) at any time; or
(hq) Except as to any Lien granted Credit Party which is released in connection with the Operative Agreements, the guaranty given by any Obligor to Guarantor under the Lessor, the Collateral Agent or the Lease Agent under any Operative Document shall, in whole or in part, terminate, cease to be effective against, or cease to be the legal, valid, binding and enforceable obligation of, such Obligor; or
(i) any Obligor shall directly or indirectly contest the validity (as opposed to the interpretation of the terms) of any Operative Document in any manner in any court of competent jurisdiction Participation Agreement or any lien granted by any Operative Document; or
(j) any Lessee material provision thereof shall cease to be 100% owned 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 and/or Lessee's right of possession in any Property by giving Lessee five (directly or indirectly5) Subsidiary days notice of such termination (provided, notwithstanding the Company; or
(k) there foregoing, this Lease shall be deemed to be automatically terminated without the giving of notice upon the occurrence of a breach 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 STATUTORY CONDITIONfullest 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 OR A TRUSTEE, AS APPLICABLE, 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 (Acxiom Corp)
Lease Events of Default. The occurrence and continuance of any one or more of the ----------------------- following events (whether 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) shall constitute a "Lease Event of -------------- Default":: -------
(ia) any the Lessee shall fail to make payment of (Xi) any Basic Rent (Interest/Yield) within five (5) Business Days days after the same has become due and payable, payable or (Yii) any Property Equipment Balance, Purchase Option RentPrice, Loan Balance, Lease Recourse Amount Balance or Lease Balance, including, without limitation, amounts due pursuant to Section Sections 15.1, 18.1, ------------- ---- 18.2, 18.3 or 20.1, on the date due therefor under the Master Lease, therefor; or (ii) the Company or any Subsidiary Guarantor shall have failed to make any payment due under the Multicare Guaranty after the same has become due and payable; or---- ---- ----
(b) any the Lessee shall fail to make payment of any Supplemental Rent due with respect (other than Supplemental Rent referred to Sections 13.7, 13.8, 13.9 and 13.10 in clause (a) of the Participation Agreement this Section) ---------- payable within five (5) Business Days days after receipt of notice thereof or any Lessee shall fail to make payment of any other Supplemental Rent within five (5) Business Days after the expiration of thirty (30) days from the date of receipt of notice by the Lessees or the Company that such Supplemental Rent is due and payablethereof; or
(c) any Event of Default (as defined in the Credit Agreement) shall have occurred and be continuing; or
(d) any Lessee shall fail to maintain insurance as required by Article XIII of this Master Lease and such failure shall continue for ten (10) daysLease; oror ------------
(ed) any the Lessee or the Company, as the case may be, shall fail to observe or perform any term, covenant or condition of such the Lessee or the Company, as the case may be, under this Master Lease Lease, the Participation Agreement or the any other Operative Documents Document to which it is a party other than those described in Section 16.1(aclauses (a), (b)) or (c) of this Section 16.1, or (d) in ----------- --- --- ------------ Articles XX and XXI hereof, or any Subsidiary Guarantor shall fail to ----------- --- observe or perform any term, covenant or condition applicable to it under the Participation Agreement (exclusive of defaults under the Guaranty) and, in each such case, such failure shall have continued for thirty (30) days after the earlier of (i) delivery to such the Lessee or the Companysuch Subsidiary Guarantor, as applicable, of written notice thereof from the Lessor or (ii) a Responsible Officer of such the Lessee or the Companysuch Subsidiary Guarantor, as the case may beapplicable, shall have actual knowledge of such failure; provided, however, that if such failure is capable of cure but cannot be cured by the 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 applicable Lessee or the Company is diligently pursuing, and shall continue to pursue diligently, remedy of such failure, the cure period shall be extended for an additional period of time as may be necessary to cure, not to exceed an additional ninety (90) days and not to extend beyond the Expiration Date; provided further, that failure by the applicable Lessee to fully comply with the requirements of Section 20.1 hereof shall not be subject to any cure period; or
(fe) any representation or warranty made by the Lessee, Holdings, or any Lessee or the Company, as the case may be, Subsidiary Guarantor in any of the Operative Documents to which it is a party shall prove to have been inaccurate in any material respect at the time made, and if such inaccuracy can be cured, it shall not have been cured within forty-five ; or
(45f) days after a default by the earlier of (i) delivery to such Lessee or the Company, as the case may be, of written notice thereof from the Lessor or (ii) a Responsible Officer of such Lessee or the Company, as the case may be, any other Guarantor beyond any applicable grace period shall have actualknowledge of such inaccuracyoccurred and be continuing under the Guaranty; or
(g) any Operative Document to which the Lessee or Consolidated Entity (i) shall be unable to, any other Guarantor is a party or shall admit in writing its inability to, pay its debts as such debts become due; or (ii) shall make an assignment for the benefit of creditors, petition or apply to any tribunal for the appointment of a custodian, receiver or trustee for it or a substantial part of its assets; or (iii) shall commence any proceeding under any bankruptcy, reorganization, arrangement, readjustment of debt, dissolution or liquidation law or statute of any jurisdiction, whether now or hereafter in effect; or (iv) shall have had any such petition or application filed or any such proceeding shall have been commenced, against it, in which an adjudication or appointment is made or order for relief is entered, or which petition, application or proceeding remains undismissed for a period of 60 days or more; or shall be the subject of any proceeding under which its assets may be subject to seizure, forfeiture or divestiture (other than a proceeding in respect of a Lien permitted under Section 8.3(b) of the Credit Agreement); or (v) by any act or omission shall indicate its consent to, approval of or acquiescence in any such petition, application or proceeding or order for relief or the appointment of a custodian, receiver or trustee for all or any substantial part of its Property; or (vi) shall suffer any such custodianship, receivership or trusteeship to continue undischarged for a period of 30 days or more; or
(h) any Lien granted by any Obligor to the Lessor, the Collateral Agent or the Lease Agent under any such Operative Document shall, in whole or in part, terminate, cease to be effective against, or cease to be the legal, legally valid, binding and enforceable obligation of, the Lessee or any such Obligorother Guarantor, as the case may be; or
(h) the Lessee or any other 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 the Lessee or any other Guaranty shall repudiate, or purport to discontinue or terminate, the Guaranty; or
(i) any Obligor shall directly or indirectly contest the validity an Event of Default (as opposed to defined in the interpretation of the termsCredit Agreements) of shall have occurred and be continuing under any Operative Document in any manner in any court of competent jurisdiction or any lien granted by any Operative Document; or
(j) any Lessee shall cease to be 100% owned (directly or indirectly) Subsidiary of the Company; or
(k) there shall be a breach of the STATUTORY CONDITIONCredit Agreement.
Appears in 1 contract
Samples: Master Equipment Lease and Security Agreement (Mail Well Inc)
Lease Events of Default. The occurrence and continuance of If any one (1) or more of the following events shall constitute (each a "Lease Event of Default") shall occur:
(ia) any Lessee shall fail to make payment of (Xi) any Basic Rent (Interest/Yieldexcept as set forth in clause (ii)) within five three (53) Business Days days after the same has become due and payable, payable or (Yii) any Property Balance, Purchase Option Rent, Loan Balance, Lease Recourse Amount or Lease Balance, including, without limitation, amounts due pursuant to Section 15.1, 18.1, 18.2, or 20.1Termination Value, on the date due therefor under the Master Lease, or (ii) the Company or any Subsidiary Guarantor shall have failed to make any such payment due under the Multicare Guaranty after the same has become is due and payable; or, or any payment of Basic Rent or Supplemental Rent due on the due date of any such payment of Termination Value, or any amount due on the Expiration Date;
(b) any Lessee shall fail to make payment of any Supplemental Rent (other than Supplemental Rent referred to in Section 17.1(a)(ii)) which has become due with respect to Sections 13.7, 13.8, 13.9 and 13.10 of the Participation Agreement payable within five ten (510) Business Days days after receipt of notice thereof or any Lessee shall fail to make payment of any other Supplemental Rent within five (5) Business Days after the expiration of thirty (30) days from the date of receipt of notice by the Lessees or the Company that such Supplemental Rent payment is due and payable; ordue;
(c) any Event of Default (as defined in the Credit Agreement) shall have occurred and be continuing; or
(d) any Lessee shall fail (i) to maintain insurance as required by Article XIII XIV of this Master Lease and such failure shall continue for or (ii) to deliver any requisite annual certificate with respect thereto within ten (10) days; ordays of the date such certificate is due under the terms hereof and the failure to deliver such certificate is not remedied within ten (10) days after the earlier date as of which Lessee gains knowledge thereof or receives written notice from Lessor with respect thereto;
(ed) any Lessee or the Company, as the case may be, shall fail to observe or perform any material term, covenant or condition of such Lessee or the Company, as the case may be, under this Master Lease (including without limitation the Incorporated Covenants) or the any other Operative Documents Agreement to which it Lessee is a party other than those described set forth in Section 16.1(aSections 17.1(a), (b), ) or (dc) hereof, andor Lessee shall fail to pay, or cause to be paid, any Imposition or shall fail to observe any Legal Requirement regarding the Property and in each such case, such failure shall have continued continue for a period of thirty (30) days after the earlier date as of (i) delivery to such which Lessee gains knowledge thereof or the Company, as applicable, of receives written notice thereof from the Lessor with respect thereto, or (ii) a Responsible Officer of such Lessee or the Company, as the case may be, shall have actual knowledge of such failure; provided, however, that if such failure is capable of cure but cannot be cured by the 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 applicable Lessee or the Company is diligently pursuing, and shall continue to pursue diligently, remedy of such failure, the cure period shall be extended for an additional period of time as may be necessary to cure, not to exceed an additional ninety (90) days and not to extend beyond the Expiration Date; provided further, that failure by the applicable Lessee to fully comply with the requirements of Section 20.1 hereof shall not be subject to any cure period; or
(f) any representation or warranty made by any Lessee set forth in this Lease (including without limitation the Incorporated Representation and Warranties) or the Company, as the case may be, in any of the other Operative Documents to which it is a party shall prove to have been inaccurate at the time made, and if such inaccuracy can be cured, it shall not have been cured within forty-five (45) days after the earlier of (i) delivery to such Lessee Agreement or the Company, as the case may be, of written notice thereof from the Lessor or (ii) a Responsible Officer of such Lessee or the Company, as the case may be, shall have actualknowledge of such inaccuracy; or
(g) any Lessee or Consolidated Entity (i) shall be unable to, or shall admit in writing its inability to, pay its debts as such debts become due; or (ii) shall make an assignment for the benefit of creditors, petition or apply to any tribunal for the appointment of a custodian, receiver or trustee for it or a substantial part of its assets; or (iii) shall commence any proceeding under any bankruptcy, reorganization, arrangement, readjustment of debt, dissolution or liquidation law or statute of any jurisdiction, whether now or hereafter in effect; or (iv) shall have had any such petition or application filed or any such proceeding shall have been commenced, against it, in which an adjudication or appointment is made or order for relief is entered, or which petition, application or proceeding remains undismissed for a period of 60 days or more; or shall be the subject of any proceeding under which its assets may be subject to seizure, forfeiture or divestiture (other than a proceeding in respect of a Lien permitted under Section 8.3(b) of the Credit Agreement); or (v) by any act or omission shall indicate its consent to, approval of or acquiescence in any such petition, application or proceeding or order for relief or the appointment of a custodian, receiver or trustee for all or any substantial part of its Property; or (vi) shall suffer any such custodianship, receivership or trusteeship to continue undischarged for a period of 30 days or more; or
(h) any Lien granted by any Obligor to the Lessor, the Collateral Agent or the Lease Agent under any Operative Document shall, in whole or in part, terminate, cease to be effective against, or cease to be the legal, valid, binding and enforceable obligation of, such Obligor; or
(i) any Obligor shall directly or indirectly contest the validity (as opposed to the interpretation of the terms) of any Operative Document in any manner in any court of competent jurisdiction or any lien granted by any Operative Document; or
(j) any Lessee shall cease to be 100% owned (directly or indirectly) Subsidiary of the Company; or
(k) there shall be a breach of the STATUTORY CONDITION.document entered into in
Appears in 1 contract
Lease Events of Default. The occurrence and continuance of any one or more of the following events 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, shall constitute a "Lease Event of Default":
(ia) any Lessee shall fail to make any payment of (Xi) any Basic Rent (Interest/Yield) within five (5) Business Days after the same has become due and payable, or (Y) any Property Balance, Purchase Option Rent, Loan Balance, Lease Recourse Amount or Lease Balance, including, without limitation, amounts due pursuant to Section 15.1, 18.1, 18.2, or 20.1, on the date due therefor under the Master Lease, such failure shall continue for a period of three days or (ii) the Company amounts payable pursuant to Section 13.1(a), Article XX, or any Subsidiary Guarantor shall have failed to make any payment due under the Multicare Guaranty after the same has become due and payable; orSections 21.1(b), 22.3 or 22.4 hereof when due;
(b) any Lessee shall fail to make payment of any Supplemental Rent due with respect to Sections 13.7, 13.8, 13.9 and 13.10 of the Participation Agreement within five (5) Business Days after receipt of notice thereof or any Lessee Guarantor shall fail to make payment of any other Supplemental Rent within amount payable hereunder or under any of the other Operative Documents and such failure shall continue for a period of five (5) Business Days days after the expiration of thirty (30) days from the date of receipt earlier of notice by to Lessee or Guarantor, as the Lessees case may be, of such failure or the Company that a Responsible Officer of Lessee or Guarantor knew or reasonably should have known of such Supplemental Rent is due and payable; orfailure;
(c) any Event of Default (as defined in the Credit Agreement) shall have occurred and be continuing; or
(d) any Lessee shall fail to maintain insurance as required by Article XIII Section 11.1 above;
(d) Lessee shall fail to purchase the Premises in accordance with Section 20.2 below or Lessee shall fail to sell all of the Premises on the Lease Expiration Date in accordance with and satisfaction of each of the terms, covenants, conditions and agreements set forth at Articles XXI and XXII hereof in connection with and following its exercise of the Sale Option, including each of Lessee's obligations at Sections 21.1 and 21.2 hereof;
(e) Lessee or Guarantor shall fail timely to perform or observe any covenant, condition or agreement (not included in any other clause of this Master Lease Article XVII) to be performed or observed by it hereunder or under any other Operative Document and such failure shall continue for ten a period of 30 days (10but in no event later than the Lease Expiration Date) days; orafter the earlier to occur of (i) written notice thereof to Lessee from any Lessor, Agent or any Participant or (ii) the date upon which a Responsible Officer of Lessee knew or reasonably should have known thereof;
(ef) any Lessee the occurrence of a Del Monte Event of Default;
(g) Any Operative Document or the Companysecurity 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, Guarantor, or any of their Affiliates, as the case may be, shall fail to observe or perform any term, covenant or condition of such Lessee or the Company, as the case may be, under this Master Lease or the Operative Documents to which it is party other than those described in Section 16.1(a), (b)on account of, or (d) hereofas a result of, anddirectly or indirectly, in each such case, such failure shall have continued for thirty (30) days after the earlier of (i) delivery to such Lessee or the Company, as applicable, of written notice thereof from the Lessor or (ii) a Responsible Officer of such Lessee or the Company, as the case may be, shall have actual knowledge of such failure; provided, however, that if such failure is capable of cure but cannot be cured by the 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 applicable Lessee or the Company is diligently pursuing, and shall continue to pursue diligently, remedy of such failure, the cure period shall be extended for an additional period of time as may be necessary to cure, not to exceed an additional ninety (90) days and not to extend beyond the Expiration Date; provided further, that failure by the applicable Lessee to fully comply with the requirements of Section 20.1 hereof shall not be subject to any cure period; or
(f) any representation or warranty made by any Lessee or the Company, as the case may be, in any of the Operative Documents to which it is a party shall prove to have been inaccurate at the time made, and if such inaccuracy can be cured, it shall not have been cured within forty-five (45) days after the earlier of (i) delivery to such Lessee or the Company, as the case may be, of written notice thereof from the Lessor or (ii) a Responsible Officer of such Lessee or the Company, as the case may be, shall have actualknowledge of such inaccuracy; or
(g) any Lessee or Consolidated Entity (i) shall be unable to, or shall admit in writing its inability to, pay its debts as such debts become due; or (ii) shall make an assignment for the benefit of creditors, petition or apply to any tribunal for the appointment of a custodian, receiver or trustee for it or a substantial part of its assets; or (iii) shall commence any proceeding under any bankruptcy, reorganization, arrangement, readjustment of debt, dissolution or liquidation law or statute of any jurisdiction, whether now or hereafter in effect; or (iv) shall have had any such petition or application filed or any such proceeding shall have been commenced, against it, in which an adjudication or appointment is made or order for relief is entered, or which petition, application or proceeding remains undismissed for a period of 60 days or more; or shall be the subject of any proceeding under which its assets may be subject to seizure, forfeiture or divestiture (other than a proceeding in respect of a Lien permitted under Section 8.3(b) of the Credit Agreement); or (v) by any act or omission shall indicate its consent toof Lessee, approval Guarantor or any of their Affiliates, or acquiescence Lessee, Guarantor or any of their Affiliates, directly or indirectly, contests in any such petitionmanner in any court the effectiveness, application validity, binding nature or proceeding or order for relief enforceability thereof; or the appointment of a custodian, receiver security interest and lien securing Lessee's or trustee for all or any substantial part of its Property; or (vi) shall suffer any such custodianship, receivership or trusteeship to continue undischarged for a period of 30 days or more; or
(h) any Lien granted by any Obligor to Guarantor's obligations under the Lessor, the Collateral Agent or the Lease Agent under any Operative Document shallDocuments, in whole or in part, terminate, cease ceases to be effective againsta perfected first priority security interest and lien on account of, or cease to be the legal, valid, binding and enforceable obligation as a result of, such Obligor; ordirectly or indirectly, any action or omission of Lessee, Guarantor of any of their Affiliates;
(h) A Construction Agency Agreement Event of Default shall have occurred and be continuing;
(i) An Event of Default shall occur under any Obligor shall directly or indirectly contest the validity (as opposed to the interpretation of the terms) of any Operative Document in any manner in any court of competent jurisdiction or any lien granted by any Operative Document; orMaterial Credit Agreement;
(j) any Lessee shall cease fails to be 100% owned (directly or indirectlyprovide and maintain the Letter of Credit as described in Section 5.2(k) Subsidiary of the CompanyParticipation Agreement; or
(k) there shall be a breach Lessee fails to replace any Non-Funding Participant within the ninety (90) day period permitted to such replacement in Section 2.17 of the STATUTORY CONDITION.Participation Agreement. -24-
Appears in 1 contract
Samples: Master Lease (Del Monte Foods Co)
Lease Events of Default. The occurrence and continuance of If any one or more of the following events shall constitute (each a "Lease Event of Default") shall occur:
(ia) any Lessee shall fail to make payment of (X) any Basic Rent (Interest/Yield) within five (5) Business Days after the same has become due and payable, or (Y) any Property Balance, Purchase Option Rent, Loan Balance, Lease Recourse Amount or Lease Balance, including, without limitation, amounts due pursuant to Section 15.1, 18.1, 18.2, or 20.1, on the date due therefor under the Master Lease, payable or (ii) the Company any Maximum Residual Guarantee Amount, Purchase Option Price or any Subsidiary Guarantor shall have failed to make any payment due under the Multicare Guaranty Termination Value after the same has become due and payable; or
(b) any Lessee shall fail to make payment of any Supplemental Rent due with respect to Sections 13.7, 13.8, 13.9 and 13.10 of the Participation Agreement within five (5) Business Days after receipt of notice thereof or any Lessee shall fail to make payment of any other Supplemental Rent within five (5) Business Days after the expiration of thirty (30) days from the date of receipt of notice by the Lessees or the Company that such Supplemental Rent is due and payable; or
(c) any Event of Default (as defined in the Credit Agreement) shall have occurred and be continuing; or
(d) any Lessee shall fail to maintain insurance as required by Article XIII of this Master Lease and such failure shall continue for ten (10) daysSection 14; or
(ec) any Lessee or the Company, as the case may be, shall fail to observe or perform any term, covenant or condition of such Lessee or the Company, as the case may be, under this Master Lease Lease, the Participation Agreement or the any other Operative Documents Agreement to which it is a party (other than those described set forth in Section 16.1(a), 17.1(a) or (b), or (d) hereof, and, in each such case, ) and such failure shall have continued for thirty is not cured within twenty (3020) days Business Days after the earlier giving of (i) delivery to such Lessee or the Company, as applicable, of written notice thereof from by the Lessor or (ii) a Responsible Officer of such Lessee or the CompanyAgent or, as the case may be, shall have actual knowledge of such failure; provided, however, that if such failure is capable not reasonably susceptible of cure but cannot be cured by the payment of money or cannot be cured by diligent efforts within such thirty period, within such longer period as is reasonably necessary to effect a cure so long as Lessee continues to diligently pursue such cure but not in any event in excess of forty (3040) day period but such diligent efforts Business Days; or
(d) any representation or warranty by Lessee set forth in this Lease or in any other Operative Agreement to which it is a party 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 properly commenced within the cure period false or inaccurate in any material way; or
(e) an Agency Agreement Event of Default shall have occurred and the applicable Lessee or the Company is diligently pursuing, and shall continue to pursue diligently, remedy of such failure, the cure period shall be extended for an additional period of time as may be necessary to cure, not to exceed an additional ninety (90) days and not to extend beyond the Expiration Date; provided further, that failure by the applicable Lessee to fully comply with the requirements of Section 20.1 hereof shall not be subject to any cure periodcontinuing; or
(f) any representation or warranty made by any Lessee or the Company, as the case may be, in any of the Operative Documents to which it is a party Guarantor shall prove to have been inaccurate at the time made, and if such inaccuracy can be cured, it shall not have been cured within forty-five (45) days after the earlier of (i) delivery to such Lessee or the Company, as the case may be, of written notice thereof from the Lessor or (ii) a Responsible Officer of such Lessee or the Company, as the case may be, shall have actualknowledge of such inaccuracy; or
(g) any Lessee or Consolidated Entity (i) shall be unable to, or shall admit in writing its inability to, to pay its debts generally as such debts they become due; or , (ii) shall 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, (iii) make an a general assignment for the benefit of its creditors, petition or apply (iv) consent to any tribunal for the appointment of a receiver of itself or 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 trustee for it such Guarantor or the whole or a substantial part of its assets; property within ninety (90) days after such appointment, or (iiivi) shall commence file a petition or answer seeking or consenting to reorganization under the United States bankruptcy laws or any proceeding under any bankruptcy, reorganization, arrangement, readjustment of debt, dissolution or liquidation other applicable insolvency law or statute of any jurisdiction, whether now or hereafter in effect; or (iv) shall have had any such petition or application filed the United States of America or any such proceeding shall have been commenced, against it, in which an adjudication State or appointment is made or order for relief is entered, or which petition, application or proceeding remains undismissed for a period of 60 days or more; or shall be the subject of any proceeding under which its assets may be subject to seizure, forfeiture or divestiture (other than a proceeding in respect of a Lien permitted under Section 8.3(b) of the Credit Agreement); or (v) by any act or omission shall indicate its consent to, approval of or acquiescence in any such petition, application or proceeding or order for relief or the appointment of a custodian, receiver or trustee for all or any substantial part of its Property; or (vi) shall suffer any such custodianship, receivership or trusteeship to continue undischarged for a period of 30 days or moreCommonwealth thereof; or
(h) any Lien granted by any Obligor to a Credit Agreement Event of Default of the Lessortype specified in Section 6.1(c), 6.1(e), 6.1(g), 6.1(i), 6.1(k), 6.1(m) or 6.1(n) of the Collateral Agent or the Lease Agent under any Operative Document shall, in whole or in part, terminate, cease to Credit Agreement shall have occurred and be effective against, or cease to be the legal, valid, binding and enforceable obligation of, such Obligorcontinuing; or
(i) an event of default under the Corporate Credit Agreement or under any Obligor Replacement Corporate Credit Agreement shall directly have occurred and be continuing or indirectly contest a Triggering Event under (and as defined in) the validity (as opposed Intercreditor Agreement shall have occurred; then, in any such event, Lessor may, in addition to the interpretation other 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, to the terms) fullest extent permitted by law, pay as Supplemental Rent all costs and expenses incurred by or on behalf of Lessor, including fees and expenses of counsel, as a result of any Operative Document in any manner in any court Lease Event of competent jurisdiction or any lien granted by any Operative Document; or
(j) any Lessee shall cease to be 100% owned (directly or indirectly) Subsidiary of the Company; or
(k) there shall be a breach of the STATUTORY CONDITIONDefault hereunder.
Appears in 1 contract
Samples: Lease (Safeskin Corp)
Lease Events of Default. The occurrence and continuance of any one or more of the ----------------------- following events (whether 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) shall constitute a "Lease Event of -------------- Default":: -------
(ia) any the Lessee shall fail to make payment of (Xi) any Basic Rent (Interest/Yieldother than a payment of Basic Rent due on the Expiration Date or Termination Date) within five (5) Business Days after the same has become due and payable, payable or (Yii) any Property BalanceBasic Rent, Purchase Option RentPrice, Loan Balance, Lease Recourse Asset Termination Value or Residual Value Guarantee Amount or Lease Balanceother amounts due on the Expiration Date or the Termination Date, including, without limitation, amounts due pursuant to Section 15.1Sections 16.2, 18.116.3, 18.2------------- ---- 16.4, or 20.1, on the date due therefor under the Master Lease20.2, 20.3 or (ii) the Company or any Subsidiary Guarantor shall have failed to make any payment due under the Multicare Guaranty 22.1, after the same has become due and payable; or---- ---- ---- ---- ----
(b) any the Lessee shall fail to make payment of any Supplemental Rent due with respect to Sections 13.7, 13.8, 13.9 and 13.10 of the Participation Agreement within five (5) Business Days after receipt of notice thereof or any Lessee shall fail to make payment of any other than Supplemental Rent referred to in clause (a) of this Section) due and ---------- payable within five (5) Business Days after the expiration of thirty (30) days from the date of receipt of after written notice by the Lessees or the Company that such Supplemental Rent is due and payable; orthereof;
(c) any Event of Default (as defined in the Credit Agreement) shall have occurred and be continuing; or
(d) any Lessee shall fail to maintain insurance as required by Article XIII XIV ----------- of this Master Lease Lease, and such failure shall continue for ten is either a failure to have in force a policy of insurance substantially meeting the requirements of Article XIV, or if such policy is in effect, then any deviation of such policy from the requirements of Article XIV is not cured within thirty (1030) days; ordays after the earlier of (i) receipt of written notice thereof or (ii) the Lessee having knowledge thereof;
(ed) any the Lessee or the Company, as the case may be, shall fail to observe or perform any term, covenant or condition of such the Lessee or the Company, as the case may be, under this Master Lease Lease, the Participation Agreement or the any other Operative Documents Document to which it is a party other than those described in Section 16.1(a17.1(a), (b), or b),or (dc) hereof, andor any representation or warranty set forth --------------- --- --- in this Lease or in any other Operative Document or in any document entered into in connection herewith or therewith or in any document, certificate or financial or other statement delivered in each such caseconnection herewith or therewith shall be false or inaccurate in any Material way, and such failure or misrepresentation or breach of warranty shall have continued remain uncured for a period of thirty (30) days after the earlier of (i) delivery to such Lessee or the Company, as applicable, receipt of written notice thereof from the Lessor or (ii) a Responsible Officer of such Lessee or the Company, as the case may be, shall have actual knowledge of such failurethereof; provided, however, that if such failure to perform is -------- not capable of being cured within such 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 to cure but cannot be cured by such default, the payment of money or cannot be cured by diligent efforts within such thirty (30) day period but such diligent efforts Lessee shall be properly commenced within entitled to request an additional period (not to exceed one hundred eighty (180) days from the cure period and the applicable Lessee or the Company is diligently pursuing, and shall continue to pursue diligently, remedy date of such failuredefault) to cure such default, the which extended cure period shall be extended for an additional period of time as may be necessary to cure, not to exceed an additional ninety (90) days and not to extend beyond the Expiration Date; provided further, that failure granted by the applicable Lessee Lessor if commercially reasonable to fully comply with the requirements of Section 20.1 hereof shall not be subject to any cure period; ordo so;
(fe) any representation or warranty made by any the Lessee or the Company, as the case may be, in any of the Operative Documents to which it is a party shall prove to have been inaccurate at the time made, and if such inaccuracy can be cured, it shall not have been cured within forty-five (45) days after the earlier of (i) delivery to such Lessee or the Company, as the case may be, of written notice thereof from the Lessor or (ii) a Responsible Officer of such Lessee or the Company, as the case may be, shall have actualknowledge of such inaccuracy; or
(g) any Lessee or Consolidated Entity (i) shall be unable to, or shall admit in writing its inability to, to pay its debts generally as such debts they 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, (iii) make a general assignment for the benefit of its creditors, (iv) consent to the appointment of a receiver of itself or 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 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 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 (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 $1,000,000 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 thirty (30) days;
(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 Off-Balance Sheet Debt having an aggregate principal amount of $5,000,000 or more; or (ii) shall make an assignment for the benefit of creditorsfail to perform or observe any other condition or covenant, petition or apply any other event shall occur or condition exist, under any agreement or instrument relating to any tribunal for such Indebtedness or Off-Balance Sheet Debt, if the appointment effect of a custodianany such failure, receiver event or trustee for it condition is to cause, or to permit the holder or holders of such Indebtedness or beneficiary or beneficiaries of such Indebtedness (or a substantial part trustee or agent on behalf of such holder or holders or beneficiary or beneficiaries) or the lessor or the lenders under any such Off-Balance Sheet Debt to cause such Indebtedness or Off-Balance Sheet Debt to be declared to be due and payable prior to its assets; stated maturity, or cash collateral in respect thereof to be demanded or, in the case of Off-Balance Sheet Debt, demand that the Lessee purchase the property covered by such Off-Balance Sheet Debt;
(j) a Guarantee Event of Default shall have occurred and be continuing;
(k) if the Lessee shall not have exercised its Purchase Option pursuant to Section 20.1 hereof and the Lessee shall have validly exercised its Remarketing ------------ Option pursuant to Section 22.1 hereof, the Lessee shall have failed (A) to ------------ consummate a sale of the Property in the manner provided therein on the Expiration Date and to pay to the Agent (or such other Person as the Agent may direct) pursuant to such Section the Residual Value Guarantee Amount and the other amounts required thereby, or (iiiB) shall commence any proceeding under any bankruptcy, reorganization, arrangement, readjustment to purchase the Lessor's interest in the Property on the Expiration Date as provided in Section 20.2 hereof and to pay to ------------ the Lessor the Asset Termination Value therefor on the Expiration Date as required thereby;
(l) a Construction Agency Agreement Event of debt, dissolution or liquidation law or statute of any jurisdiction, whether now or hereafter in effect; or (iv) Default shall have had any such petition occurred and be continuing;
(m) the Lessee shall have abandoned or application filed constructively abandoned all or any such proceeding shall have been commenced, against it, in which an adjudication or appointment is made or order for relief is entered, or which petition, application or proceeding remains undismissed material portion of the Property for a period of 60 days or more; or shall be the subject of any proceeding under which its assets may be subject to seizure, forfeiture or divestiture thirty (other than a proceeding in respect of a Lien permitted under Section 8.3(b30) of the Credit Agreement); or (v) by any act or omission shall indicate its consent to, approval of or acquiescence in any such petition, application or proceeding or order for relief or the appointment of a custodian, receiver or trustee for all or any substantial part of its Property; or (vi) shall suffer any such custodianship, receivership or trusteeship to continue undischarged for a period of 30 days or moreconsecutive days; or
(hn) any Lien granted by any Obligor to an Environmental Violation shall occur that, in the reasonable 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 Collateral Agent Property shall not have been consummated on the Termination Date pursuant to Section 16.2 hereof; or the Lease Agent under any Operative Document shall, in whole or in part, terminate, cease to be effective against, or cease to be the legal, valid, binding and enforceable obligation of, such Obligor; or------------
(io) any Obligor shall directly or indirectly contest the validity (as opposed to the interpretation of the terms) of any Operative Document in any manner in any court of competent jurisdiction or any lien granted by any Operative Document; or
(j) any Lessee shall cease have elected to or be 100% owned (directly required to purchase the Property pursuant to Sections 16.3 or indirectly) Subsidiary of 16.4 hereof and such purchase shall not --------------------- have been consummated on the Company; or
(k) there shall be a breach of the STATUTORY CONDITIONTermination Date pursuant to either such Section.
Appears in 1 contract
Samples: Participation Agreement (Vitesse Semiconductor Corp)
Lease Events of Default. The occurrence and continuance of If any one (1) or more of the following events shall constitute (each a "Lease Event of Default") shall occur:
(ia) any Lessee shall fail to make payment of (Xi) any Basic Rent (Interest/Yieldexcept as set forth in clause (ii)) within five three (53) Business Days days after the same has become due and payable, payable or (Yii) any Property Balance, Purchase Option Rent, Loan Balance, Lease Recourse Amount or Lease Balance, including, without limitation, amounts due pursuant to Section 15.1, 18.1, 18.2, or 20.1Termination Value, on the date due therefor under the Master Lease, or (ii) the Company or any Subsidiary Guarantor shall have failed to make any such payment due under the Multicare Guaranty after the same has become is due and payable; or, or any payment of Basic Rent or Supplemental Rent due on the due date of any such payment of Termination Value, or any amount due on the Expiration Date;
(b) any Lessee shall fail to make payment of any Supplemental Rent (other than Supplemental Rent referred to in Section 17.1(a)(ii)) or any other Credit Party shall fail to make any payment of any amount under any Operative Agreement which has become due with respect to Sections 13.7, 13.8, 13.9 and 13.10 of the Participation Agreement payable within five (5) Business Days days after receipt of notice thereof or any Lessee shall fail to make payment of any other Supplemental Rent within five (5) Business Days after the expiration of thirty (30) days from the date of receipt of notice by the Lessees or the Company that such Supplemental Rent payment is due and payable; ordue;
(c) any Event of Default (as defined in the Credit Agreement) shall have occurred and be continuing; or
(d) any Lessee shall fail to maintain insurance as required by Article XIII XIV of this Master Lease and such failure shall continue for or to deliver any requisite annual certificate with respect thereto within ten (10) days; ordays of the date such certificate is due under the terms hereof;
(ei) any Lessee or the Company, as the case may be, shall fail to observe or perform any term, covenant covenant, obligation or condition of Lessee under this Lease (including without limitation the Incorporated Covenants) 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 any other Credit Party shall fail to observe or perform any term, covenant, obligation or condition of such Lessee or the Company, as the case may be, Credit Party under this Master Lease or the any Operative Documents to which it is party Agreement other than those described set forth in Section 16.1(a17.1(b) hereof and such failure shall continue for fifteen (15) days (or with respect to the Incorporated Covenants, the grace period, if any, applicable thereto), provided such fifteen (b)15) day period shall not apply in the case of: (A) any such failure which is not capable of being cured at all or with such fifteen (15) day period or which has been the subject of a prior failure within a six (6) month period or (B) an intentional breach by any Credit Party, or (d) hereof, and, in each such case, such failure shall have continued for thirty (30) days after the earlier of (i) delivery to such Lessee or the Company, as applicable, of written notice thereof from the Lessor or (ii) a Responsible Officer of such Lessee or the Company, as the case may be, shall have actual knowledge of such failure; provided, however, that if such failure is capable of cure but cannot be cured by the 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 applicable Lessee or the Company is diligently pursuing, and shall continue to pursue diligently, remedy of such failure, the cure period shall be extended for an additional period of time as may be necessary to cure, not to exceed an additional ninety (90) days and not to extend beyond the Expiration Date; provided further, that failure by the applicable Lessee to fully comply with the requirements of Section 20.1 hereof shall not be subject to any cure period; or
(f) any representation or warranty made by any Lessee or any other Credit Party set forth in this Lease (including without limitation the Company, as the case may be, 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, certificate or financial or other statement delivered in connection herewith or therewith shall when made or deemed made be false or misleading in any material respect;
(e) [Intentionally Reserved];
(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 Operative Documents 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 Indebtedness having an outstanding principal amount of at least $5,000,000 or enables the holder of any such Indebtedness or any Person acting on such holder's behalf to which it is a party shall prove to have been inaccurate at accelerate the time made, and if such inaccuracy can be cured, it shall not have been cured within forty-five (45) days after the earlier of (i) delivery to such Lessee or the Company, as the case may be, of written notice thereof from the Lessor or (ii) a Responsible Officer of such Lessee or the Company, as the case may be, shall have actualknowledge of such inaccuracy; ormaturity thereof;
(g) The liquidation or dissolution of any Lessee or Consolidated Entity (i) shall be unable toCredit Party, or shall admit in writing its inability tothe suspension of the business of any Credit Party, pay its debts as such debts become due; or (ii) shall make an assignment for the benefit filing by any Credit Party of creditors, a voluntary petition or apply to any tribunal for the appointment of a custodian, receiver or trustee for it or a substantial part of its assets; or (iii) shall commence any proceeding under any bankruptcy, an answer seeking reorganization, arrangementarrangement , readjustment of debtits debts or for any other relief under the United States Bankruptcy Code, dissolution as amended, or liquidation law under any other insolvency act or statute of any jurisdictionlaw, whether state or federal, now or hereafter in effect; or (iv) shall have had any such petition or application filed existing, or any such proceeding shall have been commenced, against it, in which an adjudication or appointment is made or order for relief is entered, or which petition, application or proceeding remains undismissed for a period of 60 days or more; or shall be the subject other action of any proceeding under which its assets may be subject to seizure, forfeiture or divestiture (other than a proceeding in respect of a Lien permitted under Section 8.3(b) of the Credit Agreement); or (v) by any act or omission shall indicate Party indicating its consent to, approval of or acquiescence in in, any such petitionpetition or proceeding; the application by any Credit Party for, application or proceeding or order for relief or the appointment by consent or acquiescence of any Credit Party of a custodianreceiver, receiver a trustee or trustee 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 pay 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, 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 the involuntary appointment of a receiver, a trustee or a custodian of any Credit Party 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 its Property; the property of any Credit Party, and the continuance of any of such events for forty-five (45) days undismissed or undischarged;
(vii) The adjudication of any Credit Party as bankrupt or insolvent;
(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 forty-five (45) 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;
(l) Any Lessee Credit Agreement Event of Default shall suffer have occurred and be continuing and shall not have been waived in writing;
(m) A final judgment or judgments for the payment of money shall be rendered by a court or courts against any such custodianshipCredit Party or any Subsidiary of any Credit Party in excess of $5,000,000 in any one case or in excess of $10,000,000 in the aggregate, receivership exclusive of any amounts covered by insurance, and shall remain undischarged or trusteeship to continue undischarged unvacated for a period in excess of 30 forty-five (45) days or moreexecution shall at any time not be effectively stayed, or any judgment other than for the payment of money, or injunction, attachment, garnishment or execution is rendered against any Credit Party or any of their assets;
(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 $5,000,000 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 $5,000,000 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;
(o) any Change of Control;
(p) Any Operative Agreement shall cease to be in full force and effect against any Credit Party; or
(hq) Except as to any Lien granted Credit Party which is released in connection with the Operative Agreements, the guaranty given by any Obligor to Guarantor under the Lessor, the Collateral Agent or the Lease Agent under any Operative Document shall, in whole or in part, terminate, cease to be effective against, or cease to be the legal, valid, binding and enforceable obligation of, such Obligor; or
(i) any Obligor shall directly or indirectly contest the validity (as opposed to the interpretation of the terms) of any Operative Document in any manner in any court of competent jurisdiction Participation Agreement or any lien granted by any Operative Document; or
(j) any Lessee material provision thereof shall cease to be 100% owned 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 (directly or indirectly5) Subsidiary days advance written notice of such termination (provided, notwithstanding the Company; or
(k) there foregoing, this Lease shall be deemed to be automatically terminated without the giving of notice upon the occurrence of a breach 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 STATUTORY CONDITIONfullest 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
Lease Events of Default. The occurrence and continuance of If any one or more of the following events shall constitute (each a "Lease Event of Default") shall occur:
(ia) any Lessee shall fail to make payment of (Xi) any Basic Rent (Interest/Yieldexcept as set forth in clause (ii)) within five (5) Business Days days after the same has become due and payable, payable or (Yii) any Property Balance, Purchase Option Rent, Loan Balance, Lease Recourse Amount Price or Lease Balance, including, without limitation, amounts due pursuant to Section 15.1, 18.1, 18.2, or 20.1Termination Value, on the date due therefor under the Master Leaseany such payment is due, or (ii) any payment of Basic Rent or Supplemental Rent due on the Company due date of any such payment of Purchase Option Price or Termination Value, or any Subsidiary Guarantor shall have failed to make any payment amount due under on the Multicare Guaranty after the same has become due and payable; orExpiration Date;
(b) any Lessee shall fail to make payment of any Supplemental Rent (other than Supplemental Rent referred to in Section 17.1(a)(ii)) due with respect to Sections 13.7, 13.8, 13.9 and 13.10 of the Participation Agreement payable within five ten (510) Business Days after receipt of notice thereof or any Lessee shall fail to make payment of any other Supplemental Rent within five (5) Business Days after the expiration of thirty (30) days from the date of receipt of notice by the Lessees or the Company that such Supplemental Rent is due and payable; orthereof;
(c) any Event of Default (as defined in the Credit Agreement) shall have occurred and be continuing; or
(d) any Lessee shall fail to maintain insurance as required by Article XIII XIV of this Master Lease and such failure shall continue remain uncured for ten a period of thirty (1030) days; ordays after receipt of written notice thereof;
(ed) any Lessee or the Company, as the case may be, shall fail to observe or perform any term, covenant or condition of such Lessee or the Company, as the case may be, under this Master Lease or the any other Operative Documents Agreement to which it Lessee is a party other than those described set forth in Section 16.1(aSections 17.1(a), (b), (c) or (dg) hereof, andor 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 each such caseconnection herewith or therewith shall be false or inaccurate in any material way, and if such failure or misrepresentation or breach of warranty is capable of being cured, it shall have continued remain uncured for a period of thirty (30) days after the earlier of (i) delivery to such Lessee or the Company, as applicable, receipt of written notice thereof from the Lessor or (ii) a Responsible Officer of such Lessee or the Company, as the case may be, shall have actual knowledge of such failurethereof; provided, howeverif such failure or misrepresentation or breach of warranty is capable of being cured but cannot be cured within such thirty-day period, that so long as Lessee is diligently pursuing such cure, Lessee shall have an additional period, not exceeding 60 days, within which to effect such cure;
(e) an Agency Agreement Event of Default shall have occurred and be continuing;
(f) a failure by Lessee to pay any Imposition, in whole or in part, or to observe any Legal Requirement, regarding any Property imposed by any governmental entity or agency thereunder, subject to Lessee's rights relating to permitted contests under Section 13.1 and if such failure is capable of cure being cured, it remains uncured for a period of thirty (30) days after receipt of written notice from Lessor thereof; provided, if such a failure is capable of being 20 cured but cannot be cured by the payment of money or cannot be cured by diligent efforts within such thirty-day period, so long as Lessee is diligently pursuing such cure, Lessee shall have an additional period, not exceeding 60 days, within which to effect such cure;
(g) Lessee shall fail to observe or perform any term, covenant or condition incorporated by reference herein pursuant to Article XXVIII hereof and such failure shall remain uncured for a period of thirty (30) day period but days (or such diligent efforts shall be properly commenced within the shorter or longer cure period and subsequently available under the 1995 Credit Agreement with respect to an event of default thereunder regarding the Incorporated Covenants) after receipt of written notice from Lessor thereof;
(h) Any default shall occur under the terms applicable to any Debt of Lessee or any Subsidiary of Lessee in an aggregate amount (for all Debt so affected) exceeding $5,000,000 and such default shall (a) consist of the Company is diligently pursuing, and shall continue failure to pursue diligently, remedy of pay such failure, the cure period shall be extended for an additional period of time as may be necessary to cure, not to exceed an additional ninety Debt when due (90) days and not to extend beyond the Expiration Date; provided further, that failure by the applicable Lessee to fully comply with the requirements of Section 20.1 hereof shall not be subject to any cure applicable grace period; or), whether by acceleration or otherwise, or (b) accelerate the maturity of such Debt or permit the holder or holders thereof, or any trustee or agent for such holder or holders, to cause such Debt to become due and payable prior to its expressed maturity;
(f) any representation or warranty made by any Lessee or the Company, as the case may be, in any of the Operative Documents to which it is a party shall prove to have been inaccurate at the time made, and if such inaccuracy can be cured, it shall not have been cured within forty-five (45) days after the earlier of (i) delivery to such Any default shall occur in the payment when due of any obligation of $5,000,000 or more of Lessee or any Subsidiary of Lessee with respect to any material purchase or lease of goods or services (except only to the Companyextent that the existence of any such default is being contested by Lessee or such Subsidiary in good faith and by appropriate proceedings and appropriate reserves have been made in respect of such default), as the case may be, and continuance of written such default for 30 days after notice thereof from the Lessor or Lessor;
(iij) a Responsible Officer of such Lessee or the Company, as the case may be, shall have actualknowledge of such inaccuracy; or
(g) any Lessee Material Subsidiary becomes insolvent or Consolidated Entity (i) shall be unable togenerally fails to pay, or shall admit admits in writing its inability toor refusal to pay, pay its debts as such debts they become due; or (ii) shall make an Lessee or any Material Subsidiary applies for, consents to, or acquiesces in the appointment of a trustee, receiver or other custodian for Lessee or such Material Subsidiary or any property thereof, or makes a general assignment for the benefit of creditors; or, petition in the absence of such application, consent or apply to any tribunal for the appointment of acquiescence, a custodiantrustee, receiver or trustee other custodian is appointed for it Lessee or any Material Subsidiary or for a substantial part of its assetsany property of Lessee or any Material Subsidiary and is not discharged within 60 days; or (iii) shall commence any proceeding under any bankruptcy, reorganization, debt arrangement, readjustment of debtor other case or proceeding under any bankruptcy or insolvency law, or any dissolution or liquidation law proceeding, is commenced in respect of Lessee or statute any Material Subsidiary, and if such case or proceeding is not commenced by Lessee or such Material Subsidiary, it is consented to or acquiesced in by Lessee or such Material Subsidiary, or remains for 60 days undismissed; or Lessee or 21 any Material Subsidiary takes any corporate action to authorize, or in furtherance of, any of the foregoing;
(k) (i) Institution of any jurisdictionsteps by Lessee or any other Person to terminate a Pension Plan if as a result of such termination Lessee could be required to make a contribution to such Pension Plan, whether now or hereafter could incur a liability or obligation to such Pension Plan, in effect; excess of $5,000,000, or (ivii) shall have had a contribution failure occurs with respect to any such petition or application filed Pension Plan sufficient to give rise to a Lien under Section 302(f) of ERISA;
(l) Lessee or any ERISA Affiliate shall make a complete or partial withdrawal from a Multiemployer Plan and the plan sponsor or such proceeding Multiemployer Plan shall notify such withdrawing employer that such employer has incurred a withdrawal liability in an annual amount exceeding $5,000,000, unless and only for as long as such liability shall be contested in good faith and such reserve or other appropriate provision, if any, as shall be required by GAAP shall have been commencedmade therefor;
(m) Any money judgment, writ or warrant or attachment or similar process involving in any case a final judgment in an amount in excess of $5,000,000 shall be entered or filed against itLessee or any Material Subsidiary or any of their respective assets and shall remain unsatisfied, in which an adjudication undischarged, unvacated, unbonded or appointment is made or order for relief is entered, or which petition, application or proceeding remains undismissed unstayed for a period of 60 days or more; or shall be in any event later than five days prior to the subject date of any proceeding under which its assets may be subject to seizure, forfeiture or divestiture proposed sale thereunder;
(other than a proceeding n) Any Change in respect of a Lien permitted under Section 8.3(b) of the Credit Agreement); or (v) by any act or omission Control shall indicate its consent to, approval of or acquiescence in any such petition, application or proceeding or order for relief or the appointment of a custodian, receiver or trustee for all or any substantial part of its Property; or (vi) shall suffer any such custodianship, receivership or trusteeship to continue undischarged for a period of 30 days or moreoccur; or
(ho) any Lien granted by any Obligor Any Operative Agreement to the Lessor, the Collateral Agent which Lessee or the Lease Construction Agent under any Operative Document shall, in whole or in part, terminate, cease to be effective against, or cease to be the legal, valid, binding and enforceable obligation of, such Obligor; or
(i) any Obligor shall directly or indirectly contest the validity (as opposed to the interpretation of the terms) of any Operative Document in any manner in any court of competent jurisdiction or any lien granted by any Operative Document; or
(j) any Lessee is a party shall cease to be 100% owned enforceable (directly other than in accordance with its terms) against such party or indirectly) Subsidiary of such party shall claim in writing that such is the Company; or
(k) there shall be a breach of the STATUTORY CONDITIONcase.
Appears in 1 contract
Samples: Lease Agreement (Meyer Fred Inc)
Lease Events of Default. The occurrence and continuance of any one or more of the following events (whether 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) shall constitute a "Lease Event of Default":
(ia) any the Lessee shall fail to make payment of (Xi) any Basic Rent (Interest/Yield) within five (5) Business Days days after the same has become due and payable, or (Yii) any Property Balance, Purchase Option RentPrice, Loan Balance, Lease Recourse Amount Balance or Lease Balance, including, without limitation, amounts due pursuant to Section Sections 15.1, 15.2, 18.1, 18.2, or 20.1, on the date due therefor under the Master Lease, or (ii) the Company or any Subsidiary Guarantor shall have failed to make any payment due under the Multicare Guaranty after the same has become due and payable; or;
(b) any the Lessee shall fail to make payment of any Supplemental Rent due with respect to Sections 13.7, 13.8, 13.9 and 13.10 of the Participation Agreement payable within five (5) Business Days days after receipt of notice thereof or any Lessee shall fail to make payment of any other Supplemental Rent within five (5) Business Days after the expiration of thirty (30) days from the date of receipt of notice by the Lessees or the Company that such Supplemental Rent is due and payable; orthereof;
(c) any Event of Default (as defined in the Credit Agreement) shall have occurred and be continuing; or
(d) any Lessee shall fail to maintain insurance as required by Article XIII of this Master Lease and such failure Lease;
(d) the Lessee shall continue for ten (10) days; orfail to deposit with the Collateral Agent, within the time set forth in Section 6.1 of the Participation Agreement, the Deficiency Collateral;
(e) any the Lessee shall not be in compliance with Section 10.1(f)(i), (ii) or (iii) of the Company, as Participation Agreement;
(f) the case may be, Lessee shall fail to observe or perform any term, covenant or condition of such the Lessee or the Company, as the case may be, under this Master Lease or the Operative Documents to which it is party other than those described in Section 16.1(a20.1(a), (b), or (c), (d) or (e) hereof, and, in each such case, and such failure shall have continued for thirty (30) days after the earlier of (i) delivery to such the Lessee or the Company, as applicable, of written notice thereof from the Lessor or (ii) a Responsible Officer Employee of such the Lessee or the Company, as the case may be, shall have actual knowledge of such failure; provided, however, that if such failure is capable of cure but cannot be cured by the 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 applicable Lessee or the Company is diligently pursuing, and shall continue to pursue diligently, remedy of such failure, the cure period shall be extended for an additional period of time as may be necessary to cure, not to exceed an additional ninety (90) days and not to extend beyond the Expiration Date; provided further, that failure by the applicable Lessee to fully comply with the requirements of Section 20.1 hereof shall not be subject to any cure period; or
(f) any representation or warranty made by any Lessee or the Companyprovided, as the case may behowever, in any that no Event of the Operative Documents to which it is a party Default shall prove be deemed to have been inaccurate at occurred under this subsection until one hundred twenty (120) days has elapsed so long as throughout such time, the time made, and if Lessee is diligently pursuing a cure for such inaccuracy can breach (to the extent such breach may be cured, it shall not have been cured within forty-five (45) days after the earlier of (i) delivery to such Lessee or the Company, as the case may be, of written notice thereof from the Lessor or (ii) a Responsible Officer of such Lessee or the Company, as the case may be, shall have actualknowledge of such inaccuracy; or
(g) any Lessee or Consolidated Entity (i) shall be unable to, or shall admit in writing its inability to, pay its debts as such debts become due; or (ii) shall make an assignment for the benefit of creditors, petition or apply to any tribunal for the appointment of a custodian, receiver or trustee for it or a substantial part of its assets; or (iii) shall commence any proceeding under any bankruptcy, reorganization, arrangement, readjustment of debt, dissolution or liquidation law or statute of any jurisdiction, whether now or hereafter in effect; or (iv) shall have had any such petition or application filed or any such proceeding shall have been commenced, against it, in which an adjudication or appointment is made or order for relief is entered, or which petition, application or proceeding remains undismissed for a period of 60 days or more; or shall be the subject of any proceeding under which its assets may be subject to seizure, forfeiture or divestiture (other than a proceeding in respect of a Lien permitted under Section 8.3(b) of the Credit Agreement); or (v) by any act or omission shall indicate its consent to, approval of or acquiescence in any such petition, application or proceeding or order for relief or the appointment of a custodian, receiver or trustee for all or any substantial part of its Property; or (vi) shall suffer any such custodianship, receivership or trusteeship to continue undischarged for a period of 30 days or more; or
(h) any Lien granted by any Obligor to the Lessor, the Collateral Agent or the Lease Agent under any Operative Document shall, in whole or in part, terminate, cease to be effective against, or cease to be the legal, valid, binding and enforceable obligation of, such Obligor; or
(i) any Obligor shall directly or indirectly contest the validity (as opposed to the interpretation of the terms) of any Operative Document in any manner in any court of competent jurisdiction or any lien granted by any Operative Document; or
(j) any Lessee shall cease to be 100% owned (directly or indirectly) Subsidiary of the Company; or
(k) there shall be a breach of the STATUTORY CONDITION.;
Appears in 1 contract
Lease Events of Default. The occurrence and continuance of any one or more of the following events (whether 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) shall constitute a "Lease Event of Default":
(i) any the Lessee shall fail to make payment of (X) any Basic Rent (Interest/Yield) within five (5) Business Days after upon the same has become becoming due and payable, payable and such failure shall continue unremedied for a period of three (3) days or (Yii) any Property the Lessee shall fail to make payment upon the same becoming due and payable of the Lease Balance, Purchase Option RentPrice, Loan Property Balance, Lease Property Cost or Maximum Recourse Amount or Lease Balance, any amounts payable in conjunction with the payment of any of the foregoing including, without limitation, amounts due pursuant to Section Sections 15.1, 15.2, 18.1, 18.2, 18.3 or 20.1, on the date due therefor under the 20.2 hereof; or Xxx Research Corporation Amended and Restated Master Lease, or (ii) the Company or any Subsidiary Guarantor shall have failed to make any payment due under the Multicare Guaranty after the same has become due and payable; or
(b) any the Lessee shall fail to make payment of any Supplemental Rent (other than as specified in clause (a) above) when due with respect to Sections 13.7, 13.8, 13.9 and 13.10 of the Participation Agreement payable within five (5) Business Days days after receipt of notice thereof or any Lessee shall fail to make payment of any other Supplemental Rent within five (5) Business Days after the expiration of thirty (30) days from the date of receipt of notice by the Lessees or the Company that party to whom Lessee is obligated to pay such Supplemental Rent is due and payableRent; or
(c) any Event insurance required to be maintained by the Lessee pursuant to Article XIII of Default (as defined this Master Lease shall fail to be in effect or the Lessee defaults in the Credit compliance with Sections 10.1(i), (j), (k) or (l) of the Participation Agreement) shall have occurred and be continuing; or
(d) any the Lessee shall fail to maintain insurance as required by Article XIII of this Master Lease and such failure shall continue for ten (10) days; or
(e) any Lessee or the Company, as the case may be, shall fail to observe or perform any term, covenant or condition of such Lessee or the Company, as the case may be, applicable to it under this Master Lease or the any Operative Documents Document to which it is a party (other than those described in Section 16.1(a), (b), or (dc) hereof, and, in each such case, ) and such failure shall have continued for not be remedied within thirty (30) days after the earlier of (i) delivery to such Lessee or the Company, as applicable, of written notice thereof from has been given to the Lessor or (ii) a Responsible Officer of such Lessee or the Company, as the case may be, shall have actual knowledge of such failureLessee; provided, howeverthat, in the event that if such failure is capable of cure but remedy cannot reasonably be cured by the payment of money or cannot completed within such thirty (30) day period, then Lessee shall have such additional time as shall be cured by diligent efforts reasonably necessary, so long as Lessee commences such remedy within such thirty (30) day period but and diligently thereafter prosecutes the same to completion, provided, further, in no event shall such diligent efforts shall be properly commenced within the cure period and the applicable Lessee or the Company is diligently pursuing, and shall continue to pursue diligently, remedy of such failure, the cure period shall be extended for an additional period of time as may be necessary to cure, not to exceed an additional ninety (90) days after such notice; or
(e) the Lessee shall fail to observe or perform any term, covenant or condition applicable it under Article XX of this Master Lease after giving written notice to the Lessor and not to extend beyond the Expiration Date; provided further, that failure by Administrative Agent of the applicable Lessee to fully comply with Lessee's exercise of the requirements of Section 20.1 hereof shall not be subject to any cure periodRemarketing Option; or
(f) any representation or warranty made or expressly deemed made by any the Lessee or the Company, as the case may be, in any of the Operative Documents Document to which it is a party or which is contained in any certificate, document or financial or other statement furnished at any time under or in connection with any Operative Document shall prove to have been inaccurate at incorrect, false or misleading in any material respect on or as of the time date made or expressly deemed made, and if such inaccuracy can be cured, it shall not have been cured within forty-five (45) days after the earlier of (i) delivery to such Lessee or the Company, as the case may be, of written notice thereof from the Lessor or (ii) a Responsible Officer of such Lessee or the Company, as the case may be, shall have actualknowledge of such inaccuracy; or
(g) any a "Default" or failure of the Lessee or Consolidated Entity any Subsidiary of the Lessee to pay when due Indebtedness or Off-Balance Sheet Obligations in an aggregate amount greater than $15,000,000 (or the Dollar Amount of Indebtedness or Off-Balance Sheet Obligations denominated in a currency other than Dollars); or the default by the Lessee or any Subsidiary of the Lessee in the performance of any term, provision or condition contained in any agreement under which any Indebtedness or Off-Balance Sheet Obligations in an aggregate amount greater than $15,000,000 (or the Dollar Amount of Indebtedness or Off-Balance Sheet Obligations denominated in a currency other than Dollars) was created or is governed, the effect of which is to cause, or to permit the holder or holders of any Indebtedness or Off-Balance Sheet Obligations to cause, Indebtedness or Off-Balance Sheet Obligations in an aggregate amount greater than $15,000,000 (or the Dollar Amount of Indebtedness or Off-Balance Sheet Obligations denominated in a currency other than Dollars) to become due prior to its stated maturity; or Indebtedness or Off-Balance Sheet Obligations in an aggregate amount greater than $15,000,000 (or the Dollar Amount of Indebtedness or Off-Balance Sheet Obligations Xxx Research Corporation Amended and Restated Master Lease denominated in a currency other than Dollars) shall be declared to be due and payable or required to be prepaid (other than by a regularly scheduled payment) prior to the stated maturity thereof; or
(h) the Lessee or any Material Subsidiary shall (i) shall be unable tohave an order for relief entered with respect to it under the Bankruptcy Code or any other bankruptcy, insolvency or shall admit other similar law as now or hereafter in writing its inability toeffect, pay its debts as such debts become due; or (ii) shall make an assignment for the benefit of creditors, petition (iii) fail to pay, or admit in writing its inability to pay, its debts generally as they become due, (iv) apply to any tribunal for for, seek, consent to, or acquiesce in the appointment of a receiver, custodian, receiver trustee, examiner, liquidator or trustee similar official for it or a any substantial part portion of its assets; or Property, (iiiv) shall commence institute any proceeding seeking an order for relief under the Bankruptcy Code or any other bankruptcy, insolvency or other similar law as now or hereafter in effect or seeking to adjudicate it as bankrupt or insolvent, or seeking dissolution, winding up, liquidation, reorganization, arrangement, readjustment adjustment or composition of debtit or its debts under the Bankruptcy Code or any other law relating to bankruptcy, dissolution insolvency or liquidation law reorganization or statute relief of any jurisdiction, whether now debtors or hereafter in effect; fail to file an answer or (iv) shall have had any such petition or application filed or other pleading denying the material allegations of any such proceeding shall have been commenced, filed against it, (vi) take any corporate action to authorize or effect any of the foregoing actions or (vii) fail to contest in which an adjudication good faith any appointment or appointment is made proceeding described in Section 16.1(i) below; or
(i) without the application, approval or order consent of the Lessee or any Material Subsidiary, a receiver, trustee, examiner, liquidator or similar official shall be appointed for relief is enteredthe Lessee or any Material Subsidiary or any substantial portion of the Property of any such Person, or which petition, application a proceeding described in Section 16.1(h)(v) shall be instituted against the Lessee or any Material Subsidiary and such appointment continues undischarged or such proceeding remains continues undismissed or unstayed for a period of 60 days or more; or shall be the subject of any proceeding under which its assets may be subject to seizure, forfeiture or divestiture sixty (other than a proceeding in respect of a Lien permitted under Section 8.3(b60) of the Credit Agreement); or (v) by any act or omission shall indicate its consent to, approval of or acquiescence in any such petition, application or proceeding or order for relief or the appointment of a custodian, receiver or trustee for all or any substantial part of its Property; or (vi) shall suffer any such custodianship, receivership or trusteeship to continue undischarged for a period of 30 days or moreconsecutive days; or
(hj) the Lessee or any Subsidiary of the Lessee shall fail within sixty (60) days to pay, bond or otherwise discharge any judgment or order for the payment of money in excess of $15,000,000 which is not stayed on appeal or otherwise being appropriately contested in good faith; or
(k) the Lessee or any other member of the Controlled Group shall fail to pay when due any amount or amounts which it shall have become liable to pay to the PBGC or to any Plan, or any notice of intent to terminate a Plan having aggregate Unfunded Vested Liabilities in excess of $5,000,000 shall be filed by a member of the Controlled Group and/or any Plan administrator, 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 such Plan, or a condition shall exist which would entitle the PBGC to obtain a decree adjudicating that any such Plan must be terminated; or
(l) any Operative Document to which the Lessee is a party or any Lien granted by any Obligor to the Lessor, the Collateral Agent or the Lease Agent Lessee under any Operative Document shall, in whole or in part, Xxx Research Corporation Amended and Restated Master Lease terminate, cease to be effective against, or (other than as expressly provided therein) cease to be the legal, valid, binding and enforceable obligation of the Lessee other than as permitted under, or pursuant to the terms of, such Obligor; or
(i) any Obligor shall directly or indirectly contest the validity (as opposed to the interpretation of the terms) of any Operative Document in any manner in any court of competent jurisdiction or any lien granted by connection with a transaction permitted by, any Operative Document; or
(jm) the Lessee shall directly or indirectly contest the effectiveness, validity, binding nature or enforceability of any Lessee Operative Document or any Lien granted under any Operative Document; or any Operative Document shall cease to be 100% owned (directly or indirectly) Subsidiary a legal, valid and binding obligation of the Company; or
(k) there shall Lessee or cease to be a breach of the STATUTORY CONDITIONin full force and effect.
Appears in 1 contract
Lease Events of Default. The occurrence and continuance of If any one (1) or more of the following events shall constitute (each a "Lease Event of Default") shall occur:
(ia) any Lessee shall fail to make payment of (Xi) any Basic Rent (Interest/Yieldexcept as set forth in clause (ii)) within five three (53) Business Days days after the same has become due and payable, or (Y) any Property Balance, Purchase Option Rent, Loan Balance, Lease Recourse Amount or Lease Balance, including, without limitation, amounts due pursuant to Section 15.1, 18.1, 18.2, or 20.1, on the date due therefor under the Master Lease, payable or (ii) any Termination Value on the Company or date any Subsidiary Guarantor shall have failed to make any such payment due under the Multicare Guaranty after the same has become is due and payable; or, or any payment of Basic Rent or Supplemental Rent due on the due date of any such payment of Termination Value, or (iii) any amount due on any Expiration Date;
(b) any Lessee shall fail to make payment of any Supplemental Rent (other than Supplemental Rent referred to in Section 17.1(a)(ii)) or any other Credit Party shall fail to make any payment of any amount under any Operative Agreement which has become due with respect to Sections 13.7, 13.8, 13.9 and 13.10 of the Participation Agreement payable within five three (53) Business Days days after receipt of notice thereof or any Lessee shall fail to make payment of any other Supplemental Rent within five (5) Business Days after the expiration of thirty (30) days from the date of receipt of notice by the Lessees or the Company that such Supplemental Rent payment is due and payable; ordue;
(c) any Event of Default (as defined in the Credit Agreement) shall have occurred and be continuing; or
(d) any Lessee shall fail to maintain insurance as required by Article XIII XIV of this Master Lease or (ii) Lessee shall fail to deliver any requisite ACCORD Evidence of Insurance or certified copy of any insurance policy required thereunder when due under the terms hereof and such failure to deliver shall continue unremedied for a period of ten (10) days; or
(e) any days after an officer of Lessee or the Company, as the case may be, shall fail to observe or perform any term, covenant or condition becoming aware of such Lessee or the Company, as the case may be, under this Master Lease or the Operative Documents failure to which it is party other than those described in Section 16.1(a), (b)deliver, or notice from the Agent of such failure to deliver;
(d) hereof, and, in each such case, such failure shall have continued for thirty (30) days after the earlier of (i) delivery to such Lessee or the Company, as applicable, of written notice thereof from the Lessor or (ii) a Responsible Officer of such Lessee or the Company, as the case may be, shall have actual knowledge of such failure; provided, however, that if such failure is capable of cure but cannot be cured by the 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 applicable Lessee or the Company is diligently pursuing, and shall continue to pursue diligently, remedy of such failure, the cure period shall be extended for an additional period of time as may be necessary to cure, not to exceed an additional ninety (90) days and not to extend beyond the Expiration Date; provided further, that failure by the applicable Lessee to fully comply with the requirements of Section 20.1 hereof shall not be subject to any cure period; or
(f) any Any representation or warranty made by any Lessee Credit Party set forth in this Lease or the Company, as the case may be, in any of the other Operative Documents to which it is a party shall prove to have been inaccurate at the time madeAgreement or in any document entered into in connection herewith or therewith or in any document, and if such inaccuracy can be cured, it shall not have been cured within forty-five (45) days after the earlier of (i) delivery to such Lessee certificate or the Company, as the case may be, of written notice thereof from the Lessor financial or (ii) a Responsible Officer of such Lessee other statement delivered in connection herewith or the Company, as the case may be, shall have actualknowledge of such inaccuracy; or
(g) any Lessee or Consolidated Entity (i) therewith shall be unable to, false or shall admit in writing its inability to, pay its debts as such debts become due; or (ii) shall make an assignment for the benefit of creditors, petition or apply to any tribunal for the appointment of a custodian, receiver or trustee for it or a substantial part of its assets; or (iii) shall commence any proceeding under any bankruptcy, reorganization, arrangement, readjustment of debt, dissolution or liquidation law or statute of any jurisdiction, whether now or hereafter in effect; or (iv) shall have had any such petition or application filed or any such proceeding shall have been commenced, against it, in which an adjudication or appointment is made or order for relief is entered, or which petition, application or proceeding remains undismissed for a period of 60 days or more; or shall be the subject of any proceeding under which its assets may be subject to seizure, forfeiture or divestiture (other than a proceeding in respect of a Lien permitted under Section 8.3(b) of the Credit Agreement); or (v) by any act or omission shall indicate its consent to, approval of or acquiescence inaccurate in any such petition, application or proceeding or order for relief or the appointment of a custodian, receiver or trustee for all or any substantial part of its Property; or (vi) shall suffer any such custodianship, receivership or trusteeship to continue undischarged for a period of 30 days or more; or
(h) any Lien granted by any Obligor to the Lessor, the Collateral Agent or the Lease Agent under any Operative Document shall, in whole or in part, terminate, cease to be effective against, or cease to be the legal, valid, binding and enforceable obligation of, such Obligor; or
(i) any Obligor shall directly or indirectly contest the validity (as opposed to the interpretation of the terms) of any Operative Document in any manner in any court of competent jurisdiction or any lien granted by any Operative Document; or
(j) any Lessee shall cease to be 100% owned (directly or indirectly) Subsidiary of the Company; or
(k) there shall be a breach of the STATUTORY CONDITION.material way when made;
Appears in 1 contract
Samples: Master Lease Agreement (Veritas Software Corp /De/)
Lease Events of Default. The occurrence and continuance of If any one or more of the following events shall constitute (each a "Lease Event of Default") shall occur:
(ia) any Lessee shall fail to make payment of (Xi) any Basic Rent (Interest/Yieldexcept as set forth in clause (ii)) within five (5) Business Days after the same has become due and payable, payable or (Yii) any Property Balance, Purchase Option Rent, Loan Balance, Lease Recourse Amount or Lease Balance, including, without limitation, amounts due pursuant to Section 15.1, 18.1, 18.2, or 20.1Termination Value, on the date due therefor under the Master Leaseany such payment is due, or (ii) any payment of Basic Rent or Supplemental Rent due on the Company due date of any such payment of Termination Value, or any Subsidiary Guarantor shall have failed to make any payment amount due under on the Multicare Guaranty after the same has become due and payable; orExpiration Date;
(b) any Lessee shall fail to make payment of any Supplemental Rent (other than Supplemental Rent referred to in Section 17.1(a)(ii)) due with respect to Sections 13.7, 13.8, 13.9 and 13.10 of the Participation Agreement payable within five three (53) Business Days after receipt of notice thereof or any Lessee shall fail to make payment of any other Supplemental Rent within five (5) Business Days after the expiration of thirty (30) days from the date of receipt of notice by the Lessees or the Company that such Supplemental Rent payment is due and payable; ordue;
(c) any Event of Default (as defined in the Credit Agreement) shall have occurred and be continuing; or
(d) any Lessee shall fail to maintain insurance as required by Article XIII XIV of this Master Lease and such failure shall continue for ten (10) days; orLease;
(ed) any Lessee or the Companyany Consolidated Entity, as the case may be, shall fail to observe or perform any term, covenant or condition provision (including without limitation any term, covenant or provision applying to Lessee and such Consolidated Entity under the Incorporated Covenants) of such Lessee or the Companyany Consolidated Entity, as the case may be, under this Master Lease or the any other Operative Documents Agreement to which it Lessee is a party other than those described set forth in Section 16.1(aSections 17.1(a), (b), ) or (dc) hereof, and, in each such case, and such failure shall have continued remain uncured for a period of thirty (30) days after the earlier of receipt of written notice from Lessor thereof or a Responsible Officer of Lessee becomes aware of such failure;
(e) Lessee shall default in the performance or observance of any other provision of this Lease or any other Operative Agreement to which Lessee is a party other than those set forth in Sections 17.1(a), (b), (c) or (d) hereof, and shall not cure such default within thirty days after the first to occur of (i) delivery the date the Agent, Lenders or Lessor gives written or telephonic notice of the default to such Lessee or the CompanyLessee, as applicable, of written notice thereof from the Lessor or (ii) a Responsible Officer of such the date the Lessee or the Company, as the case may be, shall have actual knowledge of such failure; provided, however, that if such failure is capable of cure but cannot be cured by the 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 applicable Lessee or the Company is diligently pursuing, and shall continue to pursue diligently, remedy of such failure, the cure period shall be extended for an additional period of time as may be necessary to cure, not to exceed an additional ninety (90) days and not to extend beyond the Expiration Date; provided further, that failure by the applicable Lessee to fully comply with the requirements of Section 20.1 hereof shall not be subject to any cure period; orotherwise has notice thereof;
(f) any representation or warranty A default shall be made by any Lessee or the Company, as the case may be, in any of the Operative Documents to which it is a party shall prove to have been inaccurate at the time made, and if such inaccuracy can be cured, it shall not have been cured within forty-five (45) days after the earlier of (i) delivery to such in the payment of any Indebtedness (other than obligations under the Operative Agreements) of the Lessee or the Company, as the case may be, of written notice thereof from the Lessor any Consolidated Entity when due or (ii) a Responsible Officer in the performance, observance or fulfillment of any term or covenant contained in any agreement or instrument under or pursuant to which any such Indebtedness may have been issued, created, assumed, guaranteed or secured by the Lessee or any Consolidated Entity, if the effect of such Lessee or default is to accelerate the Company, as the case may be, shall have actualknowledge maturity of such inaccuracy; orIndebtedness or to permit the holder thereof to cause such Indebtedness to become due prior to its stated maturity, and such default shall not be cured within 10 days after the occurrence of such default, and the amount of the Indebtedness involved exceeds $5,000,000;
(g) any Lessee The liquidation or Consolidated Entity (i) shall be unable todissolution of Lessee, or shall admit in writing its inability tothe suspension of the business of Lessee, pay its debts as such debts become due; or (ii) shall make an assignment for the benefit filing by Lessee of creditors, a voluntary petition or apply to any tribunal for the appointment of a custodian, receiver or trustee for it or a substantial part of its assets; or (iii) shall commence any proceeding under any bankruptcy, an answer seeking reorganization, arrangement, readjustment of debtits debts or for any other relief under the United States Bankruptcy Code, dissolution as amended, or liquidation law under any other insolvency act or statute of any jurisdictionlaw, whether state or federal, now or hereafter in effect; or (iv) shall have had any such petition or application filed existing, or any such proceeding shall have been commenced, against it, in which an adjudication or appointment is made or order for relief is entered, or which petition, application or proceeding remains undismissed for a period other action of 60 days or more; or shall be the subject of any proceeding under which its assets may be subject to seizure, forfeiture or divestiture (other than a proceeding in respect of a Lien permitted under Section 8.3(b) of the Credit Agreement); or (v) by any act or omission shall indicate Lessee indicating its consent to, approval of or acquiescence in in, any such petitionpetition or proceeding; the application by Lessee for, application or proceeding or order for relief or the appointment by consent or acquiescence of Lessee of a custodianreceiver, receiver a trustee or trustee 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 pay its debts as they mature; or 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, 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 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 its Property; the property of Lessee, and the continuance of any of such events for ninety (90) days undismissed or (vi) shall suffer any such custodianship, receivership or trusteeship to continue undischarged for a period of 30 days or more; or
(h) any Lien granted by any Obligor to the Lessor, the Collateral Agent or the Lease Agent under any Operative Document shall, in whole or in part, terminate, cease to be effective against, or cease to be the legal, valid, binding and enforceable obligation of, such Obligor; orundischarged;
(i) any Obligor shall directly The adjudication of Lessee as bankrupt or indirectly contest the validity (as opposed to the interpretation of the terms) of any Operative Document in any manner in any court of competent jurisdiction or any lien granted by any Operative Document; orinsolvent;
(j) The entering of any order in any proceedings against Lessee shall cease to be 100% owned decreeing the dissolution, divestiture or split-up of Lessee, and such order remains in effect for more than sixty (directly or indirectly60) Subsidiary of the Company; ordays;
(k) there Any material 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 shall be a breach false or misleading in any material respect when made or delivered;
(l) A final judgment (after all avenues of appeal and all applicable appeal periods have expired), which with other outstanding final judgments against Lessee exceeds an aggregate of $500,000 shall be rendered against Lessee, and if within thirty (30) days after entry thereof such judgment shall not have been discharged, paid or bonded or execution thereon stayed pending appeal, or if within thirty (30) days after the STATUTORY CONDITION.expiration of any such stay such judgment shall not have been discharged;
Appears in 1 contract
Samples: Lease Agreement (Healthsouth Corp)
Lease Events of Default. The occurrence and continuance of any one or more of the following events (whether 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) shall constitute a "Lease Event of Default":
(ia) any representation or warranty made or deemed made by the Lessee in or in connection with the execution and delivery of this Master Lease or the other Operative Documents or the transactions contemplated hereby or thereby (including any representation or warranty contained in any certificate, document or financial or other statement furnished at any time under or in connection with any Operative Document) shall fail prove to make have been false or misleading in any material respect when so made, deemed made or furnished;
(b) any default shall be made in the payment of (X) any Basic Rent (Interest/Yield) within five (5) Business Days after Rent, Property Cost, Aggregate Property Cost, Termination Price, Termination Base Amount or Lease Balance when Master Lease and as the same has shall become due and payable, whether at the due date thereof or at a date fixed for prepayment thereof or by acceleration thereof or otherwise;
(Y) any Property Balance, Purchase Option Rent, Loan Balance, Lease Recourse Amount or Lease Balance, including, without limitation, amounts due pursuant to Section 15.1, 18.1, 18.2, or 20.1, on the date due therefor under the Master Lease, or (iic) the Company or any Subsidiary Guarantor shall have failed to make any payment due under the Multicare Guaranty after the same has become due and payable; or
(b) any Lessee shall fail to make payment pay any Fee or Supplemental Rent (other than an amount referred to in paragraph (b) above) when due under the Operative Documents and such failure shall be continuing on the tenth (10th) Business Day following the date on which the Lessee receives written notice that such amount is due and payable;
(d) any default shall be made in the due observance or performance of any Supplemental Rent due with respect to Sections 13.7covenant, 13.8condition or agreement contained in Section 10.1(a), 13.9 and 13.10 10.1(e), 10.2(a), 10.2(b), 10.2(c) or 10.2(d) of the Participation Agreement within five (5) Business Days after receipt of notice thereof or any Lessee shall fail to make payment and, in the case of any default under Section 10.2(b) of the Participation Agreement, such default shall continue for thirty (30) days;
(e) any default shall be made in the due observance or performance of any covenant, condition or agreement contained herein or in any other Supplemental Rent within five Operative Document (5other than those specified in paragraph (b), (c) Business Days after or (d) above or paragraph (l) below) and (i) in the expiration case of any such covenant, condition or agreement contained in clauses (a) through (i) of Section 10.1 of the Participation Agreement or contained in Section 10.2 of the Participation Agreement, such default shall continue unremedied for a period of thirty (30) days after notice thereof from the date of receipt of notice by Lessor or any Investor to the Lessees or the Company that such Supplemental Rent is due Lessee and payable; or
(cii) any Event of Default (as defined in the Credit Agreement) shall have occurred and be continuing; or
(d) case of any Lessee shall fail to maintain insurance as required by Article XIII of this Master Lease and other such failure covenant, condition or agreement, such default shall continue unremedied for ten (10) days; or
(e) any Lessee or the Company, as the case may be, shall fail to observe or perform any term, covenant or condition a period of such Lessee or the Company, as the case may be, under this Master Lease or the Operative Documents to which it is party other than those described in Section 16.1(a), (b), or (d) hereof, and, in each such case, such failure shall have continued for thirty (30) days after the earlier of (i) delivery to such Lessee or the Company, as applicable, of written notice thereof from the Lessor or (ii) a Responsible Officer of such any Investor to the Lessee or the Companyor, as the case may be, shall have actual knowledge of such failure; provided, however, that if such failure is capable of cure but default cannot reasonably be cured by the payment of money or cannot be cured by diligent efforts remedied within such thirty (30) day period, the Lessee shall have failed to remedy such default prior to the period but ending on the 120th day following such diligent efforts shall be properly commenced within notice to the cure period and the applicable Lessee or the Company is shall have failed to diligently pursuing, and shall continue to pursue diligently, such remedy of during such failure, the cure period shall be extended for an additional period of time as may be necessary to cure, not to exceed an additional ninety (90) days and not to extend beyond the Expiration Date; provided further, that failure by the applicable Lessee to fully comply with the requirements of Section 20.1 hereof shall not be subject to any cure period; or;
(f) any representation the Lessee or warranty made by any Lessee or the Company, as the case may be, in any of the Operative Documents to which it is a party Subsidiary shall prove to have been inaccurate at the time made, and if such inaccuracy can be cured, it shall not have been cured within forty-five (45) days after the earlier of (i) delivery fail to pay any principal or interest, regardless of amount, due in respect of any Indebtedness in a principal amount in excess of $20,000,000, beyond the period of grace, if any, provided in the agreement or instrument under which such Lessee or the CompanyIndebtedness was created, as the case may be, of written notice thereof from the Lessor or (ii) a Responsible Officer fail to observe or perform any other term, covenant, condition or agreement contained in any agreement or instrument evidencing or governing any such Indebtedness, or any other event shall occur or condition shall exist, beyond the period of grace, if any, provided in such agreement or instrument, if the effect of any failure referred to in this clause (ii) is to cause, or to permit the holder or holders of such Lessee Indebtedness or a trustee on its or their behalf (with or without the Companygiving of notice) to cause, as the case may be, shall have actualknowledge of such inaccuracy; orIndebtedness to become due prior to its stated maturity;
(g) any Lessee an involuntary proceeding shall be commenced or Consolidated Entity an involuntary petition shall be filed in a court of competent jurisdiction seeking (i) shall be unable torelief in respect of the Lessee, or shall admit of a substantial part of the property or assets of the Lessee or any Lessee Subsidiary with assets having gross book value in writing its inability toexcess of $25,000,000, pay its debts under Title 11 of the United States Code, as such debts become due; now constituted or hereafter amended, or any other Federal or state bankruptcy, insolvency, receivership or similar law, (ii) the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for the Lessee or for a substantial part of the property or assets of the Lessee or any Lessee Subsidiary with assets having gross book value in excess of $25,000,000 or (iii) the winding up or liquidation of the Lessee; and such proceeding or petition shall continue undismissed for sixty (60) days or an order or decree approving or ordering any of the foregoing shall be entered;
(h) the Lessee or any Lessee Subsidiary with assets having a gross book value in excess of $25,000,000 shall (i) voluntarily commence any proceeding or file any petition seeking Master Lease relief under Title 11 of the United States Code, as now constituted or hereafter amended, or any other Federal or state bankruptcy, insolvency, receivership or similar law, (ii) consent to the institution of, or fail to contest in a timely and appropriate manner, any proceeding or the filing of any petition described in paragraph (g) above, (iii) apply for or consent to the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for the Lessee or for a substantial part of the property or assets of the Lessee, (iv) file an answer admitting the material allegations of a petition filed against it in any such proceeding, (v) make an a general assignment for the benefit of creditors, petition (vi) become unable, admit in writing its inability or apply fail generally to pay its debts as they become due or (vii) take any tribunal action for the appointment purpose of a custodian, receiver effecting any of the foregoing;
(i) one or trustee for it or a substantial part of its assets; or (iii) more final judgments shall commence be entered by any proceeding under any bankruptcy, reorganization, arrangement, readjustment of debt, dissolution or liquidation law or statute of any jurisdiction, whether now or hereafter in effect; or (iv) shall have had any such petition or application filed court against the Lessee or any of the Lessee Subsidiaries for the payment of money in an aggregate amount in excess of $100,000,000 and such proceeding judgment or judgments shall not have been commencedpaid, against itcovered by insurance, in which an adjudication discharged or appointment is made or order for relief is entered, or which petition, application or proceeding remains undismissed stayed for a period of 60 days sixty (60) days, or more; a warrant of attachment or execution or similar process shall have been issued or levied against property of the Lessee or any of the Subsidiaries to enforce any such judgment or judgments;
(j) an ERISA Event shall have occurred that, in the opinion of the Lessor, when taken together with all other such ERISA Events, could reasonably be expected to result in a Material Adverse Effect;
(k) a Change in Control shall occur;
(l) any insurance required to be maintained by the Lessee pursuant to Article XIII of this Master Lease shall fail to be in effect or any default shall be made in the subject due observance or performance of any proceeding under which its assets may be subject to seizurecovenant, forfeiture condition or divestiture (other than a proceeding agreement contained in respect of a Lien permitted under Article VI or Section 8.3(b) of the Credit Agreement11.1(a); or (v) by any act or omission shall indicate its consent to, approval of or acquiescence in any such petition, application or proceeding or order for relief or the appointment of a custodian, receiver or trustee for all or any substantial part of its Property; or (vi) shall suffer any such custodianship, receivership or trusteeship to continue undischarged for a period of 30 days or more; or;
(hm) any Operative Document to which the Lessee is a party or any Lien granted by any Obligor to the Lessor, the Collateral Agent or the Lease Agent Lessee under any Operative Document shall, in whole or in material part, terminate, cease to be effective against, or (other than as expressly provided therein) cease to be the legal, valid, binding and enforceable obligation of the Lessee other than as permitted under, or pursuant to the terms of, such Obligor; oror in connection with a transaction permitted by, any Operative Document;
(in) any Obligor the Lessee shall directly or indirectly contest the validity (as opposed to the interpretation of the terms) effectiveness, validity, binding nature or enforceability of any Operative Document in any manner in any court of competent jurisdiction or any lien Lien granted by under any Operative Document;
(o) any contract, permit or license in connection with any Property (including any in connection with the use, occupancy, zoning or operation of any Property) shall cease to be in full force and effect and such cessation, in the aggregate with any such cessation affecting any other Property, shall have had, or could reasonably be expected to have, a Material Adverse Effect or a material adverse effect on the Fair Market Sales Value, condition, utility, remaining useful life or residual value of any Property; or
(jp) any Lessee Casualty or Condemnation affecting any Property shall cease to have occurred and the aggregate Termination Base Amounts of all Properties then unaffected by any Casualty or Condemnation shall be 100less than 30% owned (directly or indirectly) Subsidiary of the Company; or
(k) there shall be a breach of the STATUTORY CONDITIONAggregate Original Property Cost.
Appears in 1 contract
Samples: Master Lease and Deed of Trust (Itt Industries Inc)
Lease Events of Default. The occurrence and continuance of any one or more of the following events shall constitute a "“Lease Event Events of 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 Governmental Authority):
(ia) any the Lessee shall fail to make any payment of (Xi) any Basic Base Rent (Interest/Yield) within five (5) Business Days after the same has become when due and payable, or (Y) any Property Balance, Purchase Option Rent, Loan Balance, Lease Recourse Amount or Lease Balance, including, without limitation, amounts due pursuant to Section 15.1, 18.1, 18.2, or 20.1, on the date due therefor under the Master Lease, such failure shall continue for five days or (ii) any other amount payable by the Company Lessee on the Lease Term Expiration Date, Lease Balance or any Subsidiary Guarantor the Residual Value Guaranty Amount when due (for which the Lessor will notify the Lessee if such payment is not received when due, but the Lessor will have no liability to the Lessee if it fails to deliver such notice and the Lessor’s failure to provide such notice shall have failed to make any payment due under the Multicare Guaranty after not affect whether the same has become due and payable; oris a Lease Event of Default hereunder);
(b) any the Lessee shall fail to make payment of any Supplemental Rent due with respect amount required hereunder, other than any amount described in Section 18.1(a), and such failure shall continue for a period of 10 days after notice of such failure to Sections 13.7, 13.8, 13.9 and 13.10 of the Participation Agreement within five (5) Business Days after receipt of notice thereof or any Lessee shall fail to make payment of any other Supplemental Rent within five (5) Business Days after the expiration of thirty (30) days from the date of receipt of notice by the Lessees Lessor or the Company that such Supplemental Rent is due and payable; orAdministrative Agent;
(c) an Insolvency Event with respect to the Guarantor, any Event of Default (as defined in Significant Subsidiary or the Credit Agreement) Lessee shall have occurred and be continuing; or;
(di) the Guarantor or the Lessee shall default in the due performance and observance of any Lessee of its obligations under Section 6.1(t) of the Participation Agreement, (ii) the Guarantor or any Significant Subsidiary shall fail to maintain insurance as required by Article XIII of this Master Lease and such failure shall continue for ten (10) days; or
(e) any Lessee perform, comply with or the Company, as the case may be, shall fail to observe or perform shall otherwise breach any termone or more of the terms, covenant obligations, covenants or condition agreements contained in any of such Lessee or the Company, as the case may be, under this Master Lease or the Operative Documents to which it is party other than those described in Section 16.1(aSections 6.1(k)(i), (b6.1(k)(ii), 6.1(k)(iii), 6.1(k)(v), 6.1(k)(vi), 6.1(l)(ii), 6.1(l)(iii), 6.1(l)(iv), 6.1(o), 6.1(q)(iii), or Sections 6.1(t) through (dee) hereof, and, in each such case, such failure shall have continued for thirty (30) days after the earlier of other than clauses (i) delivery to such Lessee or the Company, as applicable, of written notice thereof from the Lessor or (ii) a Responsible Officer of such Lessee or the Company, as the case may be, shall have actual knowledge of such failure; provided, however, that if such failure is capable of cure but cannot be cured by the 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 applicable Lessee or the Company is diligently pursuing, and shall continue to pursue diligently, remedy of such failure, the cure period shall be extended for an additional period of time as may be necessary to cure, not to exceed an additional ninety (90) days and not to extend beyond the Expiration Date; provided further, that failure by the applicable Lessee to fully comply with the requirements of Section 20.1 hereof shall not be subject to any cure period; or
(f6.1(cc)) any representation or warranty made by any Lessee or the Company, as the case may be, in any of the Operative Documents to which it is a party shall prove to have been inaccurate at the time made, and if such inaccuracy can be cured, it shall not have been cured within forty-five (45) days after the earlier of (i) delivery to such Lessee or the Company, as the case may be, of written notice thereof from the Lessor or (ii) a Responsible Officer of such Lessee or the Company, as the case may be, shall have actualknowledge of such inaccuracy; or
(g) any Lessee or Consolidated Entity (i) shall be unable to, or shall admit in writing its inability to, pay its debts as such debts become due; or (ii) shall make an assignment for the benefit of creditors, petition or apply to any tribunal for the appointment of a custodian, receiver or trustee for it or a substantial part of its assets; Participation Agreement or (iii) shall commence any proceeding under any bankruptcy, reorganization, arrangement, readjustment of debt, dissolution or liquidation law or statute of any jurisdiction, whether now or hereafter in effect; or (iv) shall have had any such petition or application filed the Guarantor or any such proceeding Significant Subsidiary shall have been commencedfail to perform, against it, in which an adjudication comply with or appointment is made or order for relief is entered, or which petition, application or proceeding remains undismissed for a period of 60 days or more; observe or shall be otherwise breach any one or more of the subject of any proceeding under which its assets may be subject to seizureterms, forfeiture covenants, obligations or divestiture agreements (other than a proceeding in respect of a Lien permitted under Section 8.3(b) of the Credit Agreementclause (ii); or (v) by any act or omission shall indicate its consent to, approval of or acquiescence in any such petition, application or proceeding or order for relief or the appointment of a custodian, receiver or trustee for all or any substantial part of its Property; or (vi) shall suffer any such custodianship, receivership or trusteeship to continue undischarged for a period of 30 days or more; or
(h) any Lien granted by any Obligor to the Lessor, the Collateral Agent or the Lease Agent under any Operative Document shall, in whole or in part, terminate, cease to be effective against, or cease to be the legal, valid, binding and enforceable obligation of, such Obligor; or
(i) any Obligor shall directly or indirectly contest the validity (as opposed to the interpretation of the terms) of any Operative Document in any manner in any court of competent jurisdiction or any lien granted by any Operative Document; or
(j) any Lessee shall cease to be 100% owned (directly or indirectly) Subsidiary of the Company; or
(k) there shall be a breach of the STATUTORY CONDITION.
Appears in 1 contract
Samples: Lease Agreement (Ross Stores Inc)
Lease Events of Default. The occurrence and continuance of any one or more of the following events (whether 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) shall constitute a "Lease Event of Default":
(ia) any the Lessee shall fail to make payment of (Xi) any Basic Rent (Interest/Yieldother than a payment of Basic Rent due on the Expiration Date or Termination Date) within five (5) Business Days days after the same has become due and payable, payable or (Yii) any Property BalanceBasic Rent, Purchase Option RentPrice, Loan Balance, Lease Recourse Asset Termination Value or Residual Value Guarantee Amount or Lease Balanceother amounts due on the Expiration Date or the Termination Date, including, without limitation, amounts due pursuant to Section 15.1Sections 16.2, 18.116.3, 18.217.2(h), or 20.1, on the date due therefor under the Master Lease20.2, 20.3 or (ii) the Company or any Subsidiary Guarantor shall have failed to make any payment due under the Multicare Guaranty 22.1, after the same has become due and payable; or;
(b) any the Lessee shall fail to make payment of any Supplemental Rent (other than Supplemental Rent referred to in clause (a) of this Section) due with respect to Sections 13.7, 13.8, 13.9 and 13.10 of the Participation Agreement payable within five (5) Business Days after receipt of notice thereof or any Lessee shall fail to make payment of any other Supplemental Rent within five (5) Business Days days after the expiration of thirty (30) days from the date of receipt of notice by the Lessees or the Company that such Supplemental Rent is same has become due and payable; or;
(c) any Event of Default (as defined in the Credit Agreement) shall have occurred and be continuing; or
(d) any Lessee shall fail to maintain insurance as required by Article XIII XIV of this Master Lease and such failure shall continue for ten (10) days; orLease;
(ed) any the Lessee or the Company, as the case may be, shall fail to observe or perform any term, covenant or condition of such the Lessee or the Company, as the case may be, under this Master Lease Lease, the Participation Agreement or the any other Operative Documents Agreement to which it is a party other than those described in Section 16.1(a17.1(a), (b) or (c), hereof, or (d) hereofany representation or warranty set forth in this Lease or in any other Operative Document 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, if such failure to perform or misrepresentation or breach of warranty is other than with respect to a covenant or agreement contained in each such caseSection 10.1(b) of the Participation Agreement, such failure or misrepresentation or breach of warranty shall have continued remain uncured for thirty (30) a period of 30 days after the earlier of (i) delivery to such Lessee the date upon which the President, Chief Financial Officer or the Companyproject manager for the Property, as applicableif any, of written notice the Lessee has actual knowledge thereof from and (ii) the date upon which the Agent, the Lessor or (ii) a Responsible Officer of such any Participant gives notice to the Lessee or the Company, as the case may be, shall have actual knowledge of such failurethereof; provided, however, that if such failure to perform is not capable of being cured within such 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 to cure but cannot be cured by such default, the payment of money or cannot be cured by diligent efforts within such thirty (30) day period but such diligent efforts Lessee shall be properly commenced within the cure period and the applicable Lessee or the Company is diligently pursuing, and shall continue entitled to pursue diligently, remedy of such failure, the cure period shall be extended for request an additional period of time as may be necessary to cure, (not to exceed an additional ninety one hundred eighty (90180) days and not from the date of such default) to extend beyond the Expiration Date; provided furthercure such default, that failure which extended cure period may be granted by the applicable Lessor and the Required Participants in their sole discretion;
(i) failure to pay when due Indebtedness in an aggregate principal amount of $2,000,000 or more of the Lessee or any Subsidiary or (ii) default other than a Change in Control under the Credit Agreement shall occur under one or more indentures, agreements or other instruments under which any Indebtedness of the Lessee or any Subsidiary in an aggregate principal amount of $2,000,000 or more may be issued or created and such default shall continue for a period of time sufficient to fully comply with permit the requirements holder or beneficiary of Section 20.1 hereof shall not be subject such Indebtedness or a trustee therefor to cause the acceleration of the maturity of any cure period; orsuch Indebtedness or any mandatory unscheduled prepayment, purchase or funding thereof;
(f) any representation or warranty made by any the Lessee or the Company, as the case may be, in any of the Operative Documents to which it is a party Subsidiary shall prove to have been inaccurate at the time made, and if such inaccuracy can be cured, it shall not have been cured within forty-five (45) days after the earlier of (i) delivery to such Lessee or have entered involuntarily against it an order for relief under the CompanyUnited States Bankruptcy Code, as the case may beamended, of written notice thereof from the Lessor or any analogous action is taken under any other applicable law relating to bankruptcy or insolvency not dismissed or fully bonded within 90 days, (ii) a Responsible Officer of such Lessee or the Company, as the case may be, shall have actualknowledge of such inaccuracy; or
(g) any Lessee or Consolidated Entity (i) shall be unable tofail to pay, or shall admit in writing its inability toto pay, pay its debts generally as such debts they become due; or , (iiiii) shall make an assignment for the benefit of creditors, petition (iv) apply for, seek, consent to, or apply to any tribunal for acquiesce in, the appointment of a receiver, custodian, receiver trustee, examiner, liquidator or trustee similar official for it or a substantial part of its assets; or (iii) shall commence any proceeding under any bankruptcy, reorganization, arrangement, readjustment of debt, dissolution or liquidation law or statute of any jurisdiction, whether now or hereafter in effect; or (iv) shall have had any such petition or application filed or any such proceeding shall have been commenced, against it, in which an adjudication or appointment is made or order for relief is entered, or which petition, application or proceeding remains undismissed for a period of 60 days or more; or shall be the subject of any proceeding under which its assets may be subject to seizure, forfeiture or divestiture (other than a proceeding in respect of a Lien permitted under Section 8.3(b) of the Credit Agreement); or (v) by any act or omission shall indicate its consent to, approval of or acquiescence in any such petition, application or proceeding or order for relief or the appointment of a custodian, receiver or trustee for all or any substantial part of its Property; , (v) institute any proceeding seeking to have entered against it an order for relief under the United States Bankruptcy Code, as amended, to adjudicate it insolvent, or seeking dissolution, winding up, liquidation, reorganization, arrangement, adjustment or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors or fail to file an answer or other pleading denying the material allegations of any such proceeding filed against it, (vi) take any corporate action (such as the passage by the Lessee's board of directors of a resolution) in furtherance of any matter described in parts (i)-(v) above, or (vii) fail to contest in good faith any appointment or proceeding described in Section 17.1(g) hereof;
(g) a custodian, receiver, trustee, examiner, liquidator or similar official shall suffer be appointed for the Lessee or any material Subsidiary or any substantial part of any of their Property, or a proceeding described in Section 17.1(f)(v) shall be instituted against the Lessee or any Subsidiary, and such custodianship, receivership appointment continues undischarged or trusteeship to continue undischarged such proceeding continues undismissed or unstayed for a period of 30 days or more; orninety (90) days;
(h) the Lessee or any Lien granted by Subsidiary shall fail within forty-five (45) days to pay, bond over or otherwise discharge any Obligor to judgment or order for the Lessorpayment of money in excess of $2,000,000, the Collateral Agent which is not stayed on appeal or the Lease Agent under any Operative Document shall, otherwise being appropriately contested in whole or good faith in part, terminate, cease to be effective against, or cease to be the legal, valid, binding and enforceable obligation of, such Obligor; ora manner that stays execution thereon;
(i) the Lessee or any Obligor other member of the Controlled Group shall directly fail to pay when due an amount or indirectly contest the validity (as opposed amounts which it shall have become liable to pay to the interpretation PBGC or to a Plan under Title IV of ERISA; or notice of intent to terminate a Plan or Plans having aggregate Unfunded Vested Liabilities in excess of $2,000,000 (collectively, a "Material Plan") shall be filed under Title IV of ERISA by the Lessee or any Subsidiary or any other member of the termsControlled 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 Material Plan or a proceeding shall be instituted by a fiduciary of any Material Plan against the Lessee or any other member of the Controlled Group to enforce Section 515 or 4219(c)(5) of ERISA and such proceeding shall not have been dismissed within thirty (30) days thereafter; or a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any Operative Document in any manner in any court of competent jurisdiction or any lien granted by any Operative Document; orMaterial Plan must be terminated;
(j) any Lessee a Change of Control shall cease to be 100% owned (directly or indirectly) Subsidiary of the Companyoccur; or
(k) there a Guarantee Event of Default shall have occurred and be continuing;
(l) a breach Construction Agency Agreement Event of Default shall have occurred and be continuing;
(m) the Lessee shall have abandoned or constructively abandoned all or any material portion of the STATUTORY CONDITIONProperty for a period of 30 consecutive days which results in the Property not being properly maintained in accordance with the terms of this Lease; or
(n) the Lessee shall have elected to or be required to purchase the Property pursuant to Sections 16.2 or 16.3 hereof and such purchase shall not have been consummated on the Termination Date pursuant to either such Section.
Appears in 1 contract
Samples: Master Lease (Transport Corporation of America Inc)
Lease Events of Default. The occurrence and continuance of any one or more of the following events (whether 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) shall constitute a "Lease Event of Default":
(i) any Lessee shall fail to make payment of (X) any Basic Rent (Interest/Yield) within five (5) Business Days after the same has become due and payable, or (Y) any Property Balance, Purchase Option Rent, Loan Balance, Lease Recourse Amount or Lease Balance, including, without limitation, amounts due pursuant to Section 15.1, 18.1, 18.2, or 20.1, on the date due therefor under the Master Lease, or (iia) the Company or any Subsidiary Guarantor shall have failed to make any payment due under the Multicare Guaranty after the same has become due and payableoccurrence of a Payment Default; or
(b) any Lessee shall fail to make payment of any Supplemental Rent (other than Supplemental Rent referred to in clause (a) of this Section 16.1) due with respect to Sections 13.7, 13.8, 13.9 and 13.10 of the Participation Agreement payable within five ten (510) Business Days after receipt of notice thereof or any Lessee shall fail to make payment of any other Supplemental Rent within five (5) Business Days after the expiration of thirty (30) days from the date of receipt of notice by the Lessees or the Company that such Supplemental Rent is due and payablethereof; or
(c) any Event of Default (as defined in the Credit Agreement) shall have occurred and be continuing; or
(d) any Lessee shall fail to maintain insurance as required by Article XIII of this Master Lease and such failure shall continue for ten (10) daysLease; or
(ed) any Lessee or the Company, as the case may be, shall fail to observe or perform any material term, covenant or condition of such Lessee or the Company, as the case may be, under this Master Lease or the any other Operative Documents to which it is party Document (other than those described in any other clause of this Section 16.1(a), (b), or (d16.1) hereof, and, in each such case, and such failure shall have continued for thirty (30) days after the earlier of (i) delivery to such receipt by Lessee or the Company, as applicable, of written notice thereof from the Lessor or and (ii) a Responsible Officer notification by Lessee of such Lessee or event pursuant to Section 15.3 of the Company, as the case may be, shall have actual knowledge of such failureParticipation Agreement; provided, however, that if such failure is capable of cure but cannot be cured by the payment of money or cannot be cured by diligent efforts within such thirty (30) day period 30)-day period, but such diligent efforts shall be properly commenced within the cure period and the applicable Lessee or the Company is diligently pursuing, and shall continue to pursue diligently, remedy of such failure, the cure period shall be extended for an additional period of time as may be necessary to cure, not to exceed an additional ninety (90) days and not to extend beyond the Expiration Date; provided further, that failure by or
(e) the applicable Lessee to fully comply with the requirements occurrence of Section 20.1 hereof shall not be subject to any cure periodan ADC Event of Default; or
(f) any representation a Construction Agency Event of Default shall have occurred and be continuing; or
(g) Lessee shall fail to sell the Premises in accordance with and satisfy each of the terms, covenants, conditions and agreements set forth at Article 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) Any Operative Document or warranty made by any 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 Companyany of its Affiliates, as the case may be, or Lessee or any Lessee Group Affiliate, directly or indirectly, contests in any of manner in any court the effectiveness, validity, binding nature or enforceability thereof; or the security interest and lien securing Lessee's obligations under the Operative Documents to which it is a party shall prove to have been inaccurate at the time made, and if such inaccuracy can be cured, it shall not have been cured within forty-five (45) days after the earlier of (i) delivery to such Lessee or the Company, as the case may be, of written notice thereof from the Lessor or (ii) a Responsible Officer of such Lessee or the Company, as the case may be, shall have actualknowledge of such inaccuracy; or
(g) any Lessee or Consolidated Entity (i) shall be unable to, or shall admit in writing its inability to, pay its debts as such debts become due; or (ii) shall make an assignment for the benefit of creditors, petition or apply to any tribunal for the appointment of a custodian, receiver or trustee for it or a substantial part of its assets; or (iii) shall commence any proceeding under any bankruptcy, reorganization, arrangement, readjustment of debt, dissolution or liquidation law or statute of any jurisdiction, whether now or hereafter in effect; or (iv) shall have had any such petition or application filed or any such proceeding shall have been commenced, against it, in which an adjudication or appointment is made or order for relief is entered, or which petition, application or proceeding remains undismissed for a period of 60 days or more; or shall be the subject of any proceeding under which its assets may be subject to seizure, forfeiture or divestiture (other than a proceeding in respect of a Lien permitted under Section 8.3(b) of the Credit Agreement); or (v) by any act or omission shall indicate its consent to, approval of or acquiescence in any such petition, application or proceeding or order for relief or the appointment of a custodian, receiver or trustee for all or any substantial part of its Property; or (vi) shall suffer any such custodianship, receivership or trusteeship to continue undischarged for a period of 30 days or more; or
(h) any Lien granted by any Obligor to the Lessor, the Collateral Agent or the Lease Agent under any Operative Document shallDocuments, in whole or in part, terminate, cease ceases to be effective against, or cease to be the legal, valid, binding a perfected first priority security interest and enforceable obligation of, such Obligor; or
(i) any Obligor shall directly or indirectly contest the validity (as opposed to the interpretation of the terms) of any Operative Document in any manner in any court of competent jurisdiction or any lien granted by any Operative Document; or
(j) any Lessee shall cease to be 100% owned (directly or indirectly) Subsidiary of the Company; or
(k) there shall be a breach of the STATUTORY CONDITIONlien.
Appears in 1 contract
Lease Events of Default. The occurrence and continuance of If any one (1) or more of the following events shall constitute (each a "Lease ----- Event of Default":) shall occur and be continuing: ----------------
(ia) any Lessee shall fail to make payment of (Xi) any Basic Rent (Interest/Yieldexcept as set forth in clause (ii)) within five three (53) Business Days after the same has become due and payable, payable or (Yii) any Property Balance, Purchase Option Rent, Loan Balance, Lease Recourse Amount or Lease Balance, including, without limitation, amounts due pursuant to Section 15.1, 18.1, 18.2, or 20.1Termination Value, on the date due therefor under the Master Lease, or (ii) the Company or any Subsidiary Guarantor shall have failed to make any such payment due under the Multicare Guaranty after the same has become is due and payable; or, or any payment of Basic Rent or Supplemental Rent due on the due date of any such payment of Termination Value, or any amount due on the Expiration Date;
(bi) any Lessee shall fail to make payment of any Supplemental Rent (other than Supplemental Rent referred to in Section 17.1(a)(ii)) or the Construction Agent shall fail to make any payment of any amount under any Operative Agreement which has become due with respect to Sections 13.7and payable, 13.8in either case, 13.9 and 13.10 of the Participation Agreement within five three (53) Business Days after receipt of written notice thereof that such payment is due or any Lessee (ii) the Guarantor shall fail to make any payment of any other Supplemental Rent within five (5) Business Days after the expiration of thirty (30) days from the date of receipt of notice by the Lessees or the Company that such Supplemental Rent is amount under any Operative Agreement which has become due and payable; or;
(c) any Event of Default (as defined in the Credit Agreement) shall have occurred and be continuing; or
(d) any Lessee shall fail to maintain insurance as required by Article XIII XIV of this Master Lease and such failure shall continue for ten (10) days; orLease;
(ei) The Lessee shall default in the performance of any of its obligations under Section 8.3(o) of the Participation Agreement or FSB shall default in the performance of any of its obligations under Sections 8.3A.1(h), 8.3B.1, 8.3B.2, 8.3B.3 or 8.3B.4 of the Participation Agreement or COB shall default in the performance of any of its obligations under Sections 8.3C.1(h), 8.3D.1, 8.3D.2, 8.3D.3 or 8.3D.4 of the Participation Agreement; or (ii) Lessee or the Company, as the case may be, shall fail to observe or perform any term, covenant 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 Sections 17.1(a), (b), (c) or (d)(i) 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 for thirty (30) days after the Lessee or the Companysuch Credit Party, as the case may be, under either has received written notice thereof or a Responsible Officer shall have the actual knowledge thereof; provided, that in the case of this Master -------- clause (ii), if such failure is not capable of 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 or such Credit Party has and continues to pursue diligently such remedy, then the Lessee or such Credit Party 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 ninety (90) days; ------- or (iii) any representation or warranty or statement of fact made by Lessee or any other Credit Party set forth in this Lease or the in any other Operative Documents to which it is party Agreement or in any document entered into in connection herewith or therewith or in any document, certificate or financial or other than those described statement delivered in Section 16.1(a), (b), connection herewith or (d) hereof, therewith shall be false or inaccurate in any way when made and, in each the case of any representation or warranty of any Credit Party after the Closing Date relating solely to the Property, remains false or inaccurate and the matter giving rise to such case, such failure misrepresentation or breach of warranty or misstatement of fact shall have continued continue for thirty (30) days after the earlier of (i) delivery to such Lessee actual knowledge of a Responsible Officer of a Credit Party or the Company, as applicable, of written notice thereof from Lessor to the Lessor or (ii) a Responsible Officer of such Lessee or the Company, as the case may be, shall have actual knowledge of such failureCredit Party; provided, however, that if such failure matter giving rise to such -------- misrepresentation or breach of warranty or misstatement of fact is not capable of cure but cannot be cured by the payment of money or cannot be cured by diligent efforts remedy within such thirty (30) day period but may be remedied with further diligence and if Lessee or such diligent efforts Credit Party has and continues to pursue diligently such remedy, then Lessee or such Credit Party shall be properly commenced within the cure period and the applicable Lessee or the Company is diligently pursuing, and shall continue granted additional time to pursue diligentlysuch remedy for such period as the Agent may determine in its reasonable discretion; provided, remedy of further, in no event -------- ------- shall such failure, the cure period shall be extended for an additional period of time as may be necessary to cure, not to exceed an additional ninety (90) days days;
(e) An Agency Agreement Event of Default shall have occurred and not to extend beyond the Expiration Date; provided further, that failure by the applicable Lessee to fully comply with the requirements of Section 20.1 hereof be continuing and shall not be subject to any cure period; orhave been expressly waived;
(f) Any Credit Party or any representation 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 warranty made by interest on any Lessee Indebtedness having an outstanding principal amount of at least $50,000,000; or the Company, as the case may be, in any of the Operative Documents to which it is other event or condition (other than a party shall prove to have been inaccurate at the time made, and if such inaccuracy can be cured, it shall not have been cured within forty-five (45) days after the earlier of (i) delivery to such Lessee or the Company, as the case may be, of written notice thereof from the Lessor or (ii) a Responsible Officer voluntary prepayment of such Lessee Indebtedness) shall occur which enables or permits the Company, as holder of any such Indebtedness or any Person acting on such holder's behalf to accelerate the case may be, shall have actualknowledge of such inaccuracy; ormaturity thereof;
(g) The liquidation or dissolution of any Lessee or Consolidated Entity (i) shall be unable toCredit Party, or shall admit in writing its inability tothe suspension of the business of any Credit Party, pay its debts as such debts become due; or (ii) shall make an assignment for the benefit filing by any Credit Party of creditors, a voluntary petition or apply to any tribunal for the appointment of a custodian, receiver or trustee for it or a substantial part of its assets; or (iii) shall commence any proceeding under any bankruptcy, an answer seeking reorganization, arrangement, receivership, readjustment of debtits debts, dissolution insolvency, liquidation, dissolution, winding-up or liquidation law for any other relief under the Bankruptcy Code or statute of under any jurisdictionother insolvency act or law, whether state or federal, now or hereafter in effect; or (iv) shall have had any such petition or application filed existing, or any such proceeding shall have been commenced, against it, in which an adjudication or appointment is made or order for relief is entered, or which petition, application or proceeding remains undismissed for a period of 60 days or more; or shall be the subject other action of any proceeding under which its assets may be subject to seizure, forfeiture or divestiture (other than a proceeding in respect of a Lien permitted under Section 8.3(b) of the Credit Agreement); or (v) by any act or omission shall indicate Party indicating its consent to, approval of or acquiescence in in, any such petitionpetition or proceeding; the application by any Credit Party for, application or proceeding or order for relief or the appointment by consent or acquiescence of any Credit Party, or the taking of possession by, a conservator, a custodian, receiver an examiner, a liquidator, of a receiver, a trustee or trustee a custodian of any Credit Party for all or a substantial part of its property; the making by any Credit Party of any general 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 pay 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, 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, or the taking of possession by, a conservator, a custodian, an examiner, a liquidator, a receiver, a trustee or a custodian of any Credit Party 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 its Propertythe property of any Credit Party, and the continuance of any of such events for sixty (60) days undismissed or undischarged;
(i) [Reserved];
(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) [Reserved];
(l) [Reserved];
(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 $50,000,000 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 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 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 (vi) notice of intent to terminate a Pension Plan or Pension Plans having aggregate Unfunded Liabilities in excess of $2,000,000 shall suffer 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 custodianship, receivership Pension Plan or trusteeship 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 continue undischarged for enforce Section 515 or 4219(c)(5) of ERISA; or a period condition shall exist by reason of 30 days which the PBGC would be entitled to obtain a decree adjudicating that any such Pension Plan or more; orPension Plans must be terminated;
(ho) any [Reserved];
(p) Any Operative Agreement (other than the Guaranty) or the security interest and Lien granted by any Obligor to the Lessor, the Collateral Agent or the under this Lease Agent under any Operative Document shall(except in accordance with its terms), in whole or in part, terminateterminates, cease ceases to be effective against, or cease ceases to be the legal, valid, valid and binding and enforceable obligation of any Credit Party, as the case may be, on account of, such Obligor; or
(i) any Obligor shall or as a result of, directly or indirectly contest the validity (as opposed to the interpretation indirectly, any act or omission of the terms) of Lessee or any Operative Document other Credit Party, or Lessee or any other Credit Party, directly or indirectly, contests in any manner in any court of competent jurisdiction the effectiveness, validity, binding nature or any lien granted by any enforceability thereof; or the security interest and Lien securing Lessee's obligations under the Operative DocumentAgreements, in whole or in part, ceases to be a perfected first priority security interest and Lien (subject only to Permitted Liens and Lessor Liens); or
(jq) Except as to any Lessee Credit Party which is released in connection with the Operative Agreements, the Guaranty or any material provision thereof shall cease to be 100% owned (directly in full force and effect, or indirectly) Subsidiary the Guarantor or any Person acting by or on behalf of the CompanyGuarantor shall deny or disaffirm the Guarantor's obligations under the Guaranty; or
(kr) there Any Insured Subsidiary shall cease accepting deposits or making commercial loans on the instruction of any Bank Regulatory Authority with authority to give such instruction other than pursuant to an instruction generally applicable to banks organized under the jurisdiction of organization of such Insured Subsidiary; or
(s) Any Insured Subsidiary shall cease to be an insured bank under the FDIA and all rules and regulations promulgated thereunder; or
(t) Any Insured Subsidiary shall be required (whether or not the time allowed by the appropriate Bank Regulatory Authority for the submission of such plan has been established or elapsed) to submit a breach capital restoration plan of the STATUTORY CONDITIONtype referred to in 12 U.S.C. (S)1831o(b)(2)(C), as amended, re-enacted or redesignated from time to time; or
(u) COFC shall Guarantee in writing the capital of any Insured Subsidiary as part of or in connection with any agreement or arrangement with any Bank Regulatory Authority; 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 a Lease Event of Default under Sections 17.1(g), (h) 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. FORECLOSURE ACTION UPON THE OCCURRENCE AND CONTINUANCE OF A LEASE EVENT OF DEFAULT.
Appears in 1 contract
Lease Events of Default. The occurrence and continuance of If any one or more of the following events shall constitute (each a "Lease Event of Default") shall occur:
(ia) any Lessee shall fail to make payment of (Xi) any Basic Rent (Interest/Yield) within five (5) Business Days after the same has become due and payable, or (Y) any Property Balance, Purchase Option Rent, Loan Balance, Lease Recourse Amount or Lease Balance, including, without limitation, amounts due pursuant to Section 15.1, 18.1, 18.2, or 20.1, on the date due therefor under the Master Lease, payable or (ii) the Company any Maximum Residual Guarantee Amount, Purchase Option Price or any Subsidiary Guarantor shall have failed to make any payment due under the Multicare Guaranty Termination Value after the same has become due and payable; or
(b) any Lessee shall fail to make payment of any Supplemental Rent due with respect to Sections 13.7, 13.8, 13.9 and 13.10 of the Participation Agreement payable within five (5) Business Days after receipt of notice thereof or any Lessee shall fail to make payment of any other Supplemental Rent within five (5) Business Days after the expiration of thirty (30) days from the date of receipt of notice by the Lessees or the Company that such Supplemental Rent is due and payablethereof; or
(c) Lessee shall fail to maintain insurance as required by Section 14; or
(d) Guarantors shall default in the observance or performance of any agreement contained in Sections 10 and 11 of the Guarantee; or
(e) Lessee or any Guarantor shall default in the observance or performance of any term, covenant or condition of Lessee or of such Guarantor, respectively, under this Lease, the Participation Agreement, the Guarantee or any other Operative Agreement to which it is a party (other than those set forth in Section 17.1(a), (b), (c) or (d) hereof) and such default shall continue unremedied for a period of 30 days 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 be false or inaccurate in any material respect; or
(f) a Credit Agreement Event of Default (as defined other than those set forth in Sections 6.1 (a), (b), (d), (f), (g), (h), (i) or (p) of the Credit Agreement) shall have occurred and be continuing; or
(dg) any Lessee shall fail to maintain insurance as required by Article XIII an event of this Master Lease and such failure shall continue for ten (10) days; or
(e) any Lessee default under the Corporate Credit Agreement or the Company, as the case may be, shall fail to observe or perform any term, covenant or condition of such Lessee or the Company, as the case may be, under this Master Lease or the Operative Documents to which it is party other than those described in Section 16.1(a), (b), or (d) hereof, and, in each such case, such failure Other Equipment Leases shall have continued for thirty (30) days after the earlier of (i) delivery to such Lessee or the Company, as applicable, of written notice thereof from the Lessor or (ii) a Responsible Officer of such Lessee or the Company, as the case may be, shall have actual knowledge of such failureoccurred and be continuing; provided, however, that if such failure is capable of cure but cannot be cured by the 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 applicable Lessee or the Company is diligently pursuing, and shall continue to pursue diligently, remedy of such failure, the cure period shall be extended for an additional period of time as may be necessary to cure, not to exceed an additional ninety (90) days and not to extend beyond the Expiration Date; provided further, that failure by the applicable Lessee to fully comply with the requirements of Section 20.1 hereof shall not be subject to any cure period; or
(f) any representation or warranty made by any Lessee or the Company, as the case may bethen, in any such event, Lessor may, in addition to the other 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 the Operative Documents to which it is a party shall prove to have been inaccurate at the time madesuch termination, and if such inaccuracy can be curedthis Lease shall terminate. Lessee shall, it shall not have been cured within forty-five (45) days after to the earlier fullest extent permitted by law, pay as Supplemental Rent all costs and expenses incurred by or on behalf of (i) delivery to such Lessee or the CompanyLessor, including fees and expenses of counsel, as the case may be, of written notice thereof from the Lessor or (ii) a Responsible Officer of such Lessee or the Company, as the case may be, shall have actualknowledge of such inaccuracy; or
(g) any Lessee or Consolidated Entity (i) shall be unable to, or shall admit in writing its inability to, pay its debts as such debts become due; or (ii) shall make an assignment for the benefit of creditors, petition or apply to any tribunal for the appointment of a custodian, receiver or trustee for it or a substantial part of its assets; or (iii) shall commence any proceeding under any bankruptcy, reorganization, arrangement, readjustment of debt, dissolution or liquidation law or statute result of any jurisdiction, whether now or hereafter in effect; or (iv) shall have had any such petition or application filed or any such proceeding shall have been commenced, against it, in which an adjudication or appointment is made or order for relief is entered, or which petition, application or proceeding remains undismissed for a period Lease Event of 60 days or more; or shall be the subject of any proceeding under which its assets may be subject to seizure, forfeiture or divestiture (other than a proceeding in respect of a Lien permitted under Section 8.3(b) of the Credit Agreement); or (v) by any act or omission shall indicate its consent to, approval of or acquiescence in any such petition, application or proceeding or order for relief or the appointment of a custodian, receiver or trustee for all or any substantial part of its Property; or (vi) shall suffer any such custodianship, receivership or trusteeship to continue undischarged for a period of 30 days or more; or
(h) any Lien granted by any Obligor to the Lessor, the Collateral Agent or the Lease Agent under any Operative Document shall, in whole or in part, terminate, cease to be effective against, or cease to be the legal, valid, binding and enforceable obligation of, such Obligor; or
(i) any Obligor shall directly or indirectly contest the validity (as opposed to the interpretation of the terms) of any Operative Document in any manner in any court of competent jurisdiction or any lien granted by any Operative Document; or
(j) any Lessee shall cease to be 100% owned (directly or indirectly) Subsidiary of the Company; or
(k) there shall be a breach of the STATUTORY CONDITIONDefault hereunder.
Appears in 1 contract
Samples: Lease (Hanover Compressor Co)
Lease Events of Default. The occurrence and continuance of If any one (1) or more of the following events shall constitute (each a "Lease Event of Default") shall occur:
(ia) any Lessee shall fail to make payment of (Xi) any Basic Rent (Interest/Yieldexcept as set forth in clause (ii)) within five three (53) Business Days days after the same has become due and payable, payable or (Yii) any Property Balance, Purchase Option Rent, Loan Balance, Lease Recourse Amount or Lease Balance, including, without limitation, amounts due pursuant to Section 15.1, 18.1, 18.2, or 20.1Termination Value, on the date due therefor under the Master Lease, or (ii) the Company or any Subsidiary Guarantor shall have failed to make any such payment due under the Multicare Guaranty after the same has become is due and payable; or, or any payment of Basic Rent or Supplemental Rent due on the due date of any such payment of Termination Value, or any amount due on the Expiration Date;
(b) any Lessee shall fail to make payment of any Supplemental Rent (other than Supplemental Rent referred to in Section 17.1(a)(ii)) or any other Credit Party shall fail to make any payment of any amount under any Operative Agreement which has become due with respect to Sections 13.7, 13.8, 13.9 and 13.10 of the Participation Agreement payable within five (5) Business Days days after receipt of notice thereof or any Lessee shall fail to make payment of any other Supplemental Rent within five (5) Business Days after the expiration of thirty (30) days from the date of receipt of notice by the Lessees or the Company that such Supplemental Rent payment is due and payable; ordue;
(c) any Event of Default (as defined in the Credit Agreement) shall have occurred and be continuing; or
(d) any Lessee shall fail to maintain insurance as required by Article XIII XIV of this Master Lease and such failure shall continue for ten (10) days; orLease;
(ei) any Lessee or the Company, as the case may be, shall fail to observe or perform any term, covenant covenant, obligation or condition of Lessee under this Lease (including without limitation the Incorporated Covenants) 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 any other Credit Party shall fail to observe or perform any term, covenant, obligation or condition of such Lessee or the Company, as the case may be, Credit Party under this Master Lease or the any Operative Documents to which it is party Agreement other than those described set forth in Section 16.1(a17.1(b) hereof and such failure shall continue for fifteen (15) days (or with respect to the Incorporated Covenants, the grace period, if any, applicable thereto), provided such fifteen (b)15) day period shall not apply in the case of: (A) any such failure which is not capable of being cured at all or with such fifteen (15) day period or which has been the subject of a prior failure within a six (6) month period or (B) an intentional breach by any Credit Party, or (d) hereof, and, in each such case, such failure shall have continued for thirty (30) days after the earlier of (i) delivery to such Lessee or the Company, as applicable, of written notice thereof from the Lessor or (ii) a Responsible Officer of such Lessee or the Company, as the case may be, shall have actual knowledge of such failure; provided, however, that if such failure is capable of cure but cannot be cured by the 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 applicable Lessee or the Company is diligently pursuing, and shall continue to pursue diligently, remedy of such failure, the cure period shall be extended for an additional period of time as may be necessary to cure, not to exceed an additional ninety (90) days and not to extend beyond the Expiration Date; provided further, that failure by the applicable Lessee to fully comply with the requirements of Section 20.1 hereof shall not be subject to any cure period; or
(f) any representation or warranty made by any Lessee or any other Credit Party set forth in this Lease (including without limitation the Company, as the case may be, 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, certificate or financial or other statement delivered in connection herewith or therewith shall when made or deemed made be false or misleading in any material respect;
(e) [Intentionally Reserved];
(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 Operative Documents 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 Indebtedness having an outstanding principal amount of at least $5,000,000 or enables the holder of any such Indebtedness or any Person acting on such holder's behalf to which it is a party shall prove to have been inaccurate at accelerate the time made, and if such inaccuracy can be cured, it shall not have been cured within forty-five (45) days after the earlier of (i) delivery to such Lessee or the Company, as the case may be, of written notice thereof from the Lessor or (ii) a Responsible Officer of such Lessee or the Company, as the case may be, shall have actualknowledge of such inaccuracy; ormaturity thereof;
(g) The liquidation or dissolution of any Lessee or Consolidated Entity (i) shall be unable toCredit Party, or shall admit in writing its inability tothe suspension of the business of any Credit Party, pay its debts as such debts become due; or (ii) shall make an assignment for the benefit filing by any Credit Party of creditors, a voluntary petition or apply to any tribunal for the appointment of a custodian, receiver or trustee for it or a substantial part of its assets; or (iii) shall commence any proceeding under any bankruptcy, an answer seeking reorganization, arrangement, readjustment of debtits debts or for any other relief under the United States Bankruptcy Code, dissolution as amended, or liquidation law under any other insolvency act or statute of any jurisdictionlaw, whether state or federal, now or hereafter in effect; or (iv) shall have had any such petition or application filed existing, or any such proceeding shall have been commenced, against it, in which an adjudication or appointment is made or order for relief is entered, or which petition, application or proceeding remains undismissed for a period of 60 days or more; or shall be the subject other action of any proceeding under which its assets may be subject to seizure, forfeiture or divestiture (other than a proceeding in respect of a Lien permitted under Section 8.3(b) of the Credit Agreement); or (v) by any act or omission shall indicate Party indicating its consent to, approval of or acquiescence in in, any such petitionpetition or proceeding; the application by any Credit Party for, application or proceeding or order for relief or the appointment by consent or acquiescence of any Credit Party of a custodianreceiver, receiver a trustee or trustee 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 pay 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, 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 the involuntary appointment of a receiver, a trustee or a custodian of any Credit Party 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 its Property; the property of any Credit Party, and the continuance of any of such events for forty-five (45) days undismissed or undischarged;
(vii) The adjudication of any Credit Party as bankrupt or insolvent;
(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 forty-five (45) 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;
(l) Any Lessee Credit Agreement Event of Default shall suffer have occurred and be continuing and shall not have been waived in writing;
(m) A final judgment or judgments for the payment of money shall be rendered by a court or courts against any such custodianshipCredit Party or any Subsidiary of any Credit Party in excess of $5,000,000 in any one case or in excess of $10,000,000 in the aggregate, receivership exclusive of any amounts covered by insurance, and shall remain undischarged or trusteeship to continue undischarged unvacated for a period in excess of 30 forty-five (45) days or moreexecution shall at any time not be effectively stayed, or any judgment other than for the payment of money, or injunction, attachment, garnishment or execution is rendered against any Credit Party or any of their assets;
(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 $5,000,000 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 $5,000,000 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;
(o) any Change of Control;
(p) Any Operative Agreement shall cease to be in full force and effect against any Credit Party; or
(hq) Except as to any Lien granted Credit Party which is released in connection with the Operative Agreements, the guaranty given by any Obligor to Guarantor under the Lessor, the Collateral Agent or the Lease Agent under any Operative Document shall, in whole or in part, terminate, cease to be effective against, or cease to be the legal, valid, binding and enforceable obligation of, such Obligor; or
(i) any Obligor shall directly or indirectly contest the validity (as opposed to the interpretation of the terms) of any Operative Document in any manner in any court of competent jurisdiction Participation Agreement or any lien granted by any Operative Document; or
(j) any Lessee material provision thereof shall cease to be 100% owned 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 (directly or indirectly5) Subsidiary days advance written notice of such termination (provided, notwithstanding the Company; or
(k) there foregoing, this Lease shall be deemed to be automatically terminated without the giving of notice upon the occurrence of a breach 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 STATUTORY CONDITIONfullest 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
Lease Events of Default. The occurrence and continuance of any one or more of the following events (whether 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) shall constitute a "Lease Event of Default":
(ia) any the Lessee shall fail to make payment of (Xi) any Basic Rent (Interest/Yieldother than a payment of Basic Rent due on the Expiration Date or Termination Date) within five (5) Business Days after the same has become due and payable, payable or (Yii) any Property BalanceBasic Rent, Purchase Option RentPrice, Loan Balance, Lease Recourse Asset Termination Value or Residual Value Guarantee Amount or Lease Balanceother amounts due on the Expiration Date or the Termination Date, including, without limitation, amounts due pursuant to Section 15.1Sections 16.2, 18.1, 18.2, or 20.1, on the date due therefor under the Master Lease20.2, 20.3 or (ii) the Company or any Subsidiary Guarantor shall have failed to make any payment due under the Multicare Guaranty 22.1, after the same has become due and payable; or;
(b) any Lessee shall fail to make payment of any Supplemental Rent due with respect to Sections 13.7, 13.8, 13.9 and 13.10 of the Participation Agreement within five (5) Business Days after receipt of notice thereof or any Lessee shall fail to make payment of any other than Supplemental Rent referred to in clause (a) of this Section) due and payable within five (5) Business Days after the expiration same has become due and payable;
(c) the Lessee shall fail to maintain insurance as required by Article XIV of this Lease;
(d) the Lessee shall fail to observe or perform any term, covenant or condition of the Lessee under this Lease, the Participation Agreement or any other Operative Document to which it is a party other than those described in Section 17.1(a), (b), (c) or (m) hereof, or any representation or warranty set forth in this Lease or in any other Operative Document 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
(e) the Lessee shall (i) admit in writing its inability to pay its debts generally as they 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, (iii) make a general assignment for the benefit of its creditors, (iv) consent to the appointment of a receiver of itself or the whole or any substantial part of its property, or (v) 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 shall remain undismissed or unstayed and in effect for a period of sixty (60) consecutive 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 custodian, trustee or receiver for the Lessee or the whole or a substantial part of its property, and such order or decree shall not be vacated or set aside within sixty (60) days from the date of the entry thereof;
(g) 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 $1,000,000;
(h) a final judgment for the payment of money in excess of $3,000,000 shall be entered against the Lessee or any Subsidiary and such judgment is not discharged, vacated, bonded or stayed pending appeal (pursuant to laws, rules or court orders) within a period of thirty (30) days from the date of receipt entry of notice by the Lessees or the Company that such Supplemental Rent is due and payable; orjudgment;
(ci) the Lessee or any of its Subsidiaries (i) shall default in the payment when due, whether at stated maturity or otherwise, of principal or interest in respect of Indebtedness having an aggregate principal amount in excess of $3,000,000 (including, without limitation,
(j) a Guarantee Event of Default shall have occurred and be continuing;
(k) if the Lessee shall not have exercised its Purchase Option pursuant to Section 20.1 hereof and the Lessee shall have validly exercised its Remarketing Option pursuant to Section 22.1 hereof, the Lessee shall have failed (A) to consummate a sale of the Property in the manner provided therein on the Expiration Date and to pay to the Agent (or such other Person as the Agent may direct) pursuant to such Section the Residual Value Guarantee Amount and the other amounts required thereby, or (B) to purchase the Lessor's interest in the Property on the Expiration Date as provided in Section 20.2 hereof and to pay to the Lessor the Asset Termination Value therefor on the Expiration Date as required thereby;
(l) the Lessee shall have abandoned or constructively abandoned all or any material portion of the Property for a period of 30 consecutive days;
(m) the Lessee shall have elected to or be required to purchase the Property pursuant to Section 16.2 hereof and such purchase shall not have been consummated on the Termination Date pursuant to either such Section;
(n) an Event of Default (as such term is defined in the Credit Agreement) shall have occurred and be continuing; or
(do) any the Lessee shall fail to maintain insurance as required by Article XIII of this Master Lease have delivered to the Agent, each Participant and such failure shall continue for ten (10) days; or
(e) any Lessee or the Company, as the case may be, shall fail to observe or perform any term, covenant or condition of such Lessee or the Company, as the case may be, under this Master Lease or the Operative Documents to which it is party other than those described in Section 16.1(a), (b), or (d) hereof, and, in each such case, such failure shall have continued for thirty (30) days after the earlier of (i) delivery to such Lessee or the Company, as applicable, of written notice thereof from the Lessor or (ii) a Responsible Officer of such Lessee or the Company, as the case may be, shall have actual knowledge of such failure; provided, however, that if such failure is capable of cure but cannot be cured by the 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 applicable Lessee or the Company is diligently pursuing, and shall continue to pursue diligently, remedy of such failure, the cure period shall be extended for an additional period of time as may be necessary to cure, not to exceed an additional ninety (90) days and not to extend beyond the Expiration Date; provided further, that failure by the applicable Lessee to fully comply with the requirements of Section 20.1 hereof shall not be subject to any cure period; or
(f) any representation or warranty made by any Lessee or the Company, as the case may be, in any of the Operative Documents to which it is a party shall prove to have been inaccurate at the time made, and if such inaccuracy can be cured, it shall not have been cured within forty-five (45) days after the earlier of (i) delivery to such Lessee or the Company, as the case may be, of written notice thereof from the Lessor or (ii) a Responsible Officer of such Lessee or the Company, as the case may be, shall have actualknowledge of such inaccuracy; or
(g) any Lessee or Consolidated Entity (i) shall be unable to, or shall admit in writing its inability to, pay its debts as such debts become due; or (ii) shall make an assignment for the benefit of creditors, petition or apply to any tribunal for the appointment of a custodian, receiver or trustee for it or a substantial part of its assets; or (iii) shall commence any proceeding under any bankruptcy, reorganization, arrangement, readjustment of debt, dissolution or liquidation law or statute of any jurisdiction, whether now or hereafter in effect; or (iv) shall have had any such petition or application filed or any such proceeding shall have been commenced, against it, in which an adjudication or appointment is made or order for relief is entered, or which petition, application or proceeding remains undismissed for a period of 60 days or more; or shall be the subject of any proceeding under which its assets may be subject to seizure, forfeiture or divestiture (other than a proceeding in respect of a Lien permitted under Section 8.3(b) of the Credit Agreement); or (v) by any act or omission shall indicate its consent to, approval of or acquiescence in any such petition, application or proceeding or order for relief or the appointment of a custodian, receiver or trustee for all or any substantial part of its Property; or (vi) shall suffer any such custodianship, receivership or trusteeship to continue undischarged for a period of 30 days or more; or
(h) any Lien granted by any Obligor to the Lessor, on or before the Collateral Agent or tenth Business Day after the Lease Agent under any Operative Document shalldate hereof, in whole or in part, terminate, cease to be effective against, or cease to be the legal, valid, binding and enforceable obligation of, such Obligor; or
(i) any Obligor shall directly or indirectly contest the validity (as opposed an opinion of counsel to the interpretation Lessee addressing those matters set forth in Exhibit C-3 of the terms) of any Operative Document Participation Agreement in any manner in any court of competent jurisdiction or any lien granted by any Operative Document; or
(j) any Lessee shall cease form and substance reasonably satisfactory to be 100% owned (directly or indirectly) Subsidiary of the Company; or
(k) there shall be a breach of Agent, each Participant and the STATUTORY CONDITIONLessor.
Appears in 1 contract
Samples: Master Lease (Chase Industries Inc)
Lease Events of Default. The occurrence and continuance of any one or more of the following events (whether 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) shall constitute a "Lease Event of Default":
(ia) any the Lessee shall fail to make payment of (Xi) any Basic Rent (Interest/Yield) within five (5) Business Days days after the same has become due and payable, or (Yii) any Property Balance, Purchase Option RentPrice, Loan Balance, Lease Recourse Amount Balance or Lease Balance, including, without limitation, amounts due pursuant to Section Sections 15.1, 15.2, 18.1, 18.2, or 20.1, on the date due therefor under the Master Lease, or (ii) the Company or any Subsidiary Guarantor shall have failed to make any payment due under the Multicare Guaranty after the same has become due and payable; or;
(b) any the Lessee shall fail to make payment of any Supplemental Rent due with respect to Sections 13.7, 13.8, 13.9 and 13.10 of the Participation Agreement payable within five (5) Business Days days after receipt of notice thereof or any Lessee shall fail to make payment of any other Supplemental Rent within five (5) Business Days after the expiration of thirty (30) days from the date of receipt of notice by the Lessees or the Company that such Supplemental Rent is due and payable; orthereof;
(c) any Event of Default (as defined in the Credit Agreement) shall have occurred and be continuing; or
(d) any Lessee shall fail to maintain insurance as required by Article XIII of this Master Lease and such failure Lease;
(d) the Lessee shall continue for ten (10) days; orfail to deposit with the Collateral Agent, within the time set forth in Section 6.1 of the Participation Agreement, the Deficiency Collateral;
(e) any the Lessee shall not be in compliance with Section 10.1(f)(i), (ii) or (iii) of the Company, as Participation Agreement;
(f) the case may be, Lessee shall fail to observe or perform any term, covenant or condition of such the Lessee or the Company, as the case may be, under this Master Lease or the Operative Documents to which it is party other than those described in Section 16.1(a20.1(a), (b), or (c), (d) or (e) hereof, and, in each such case, and such failure shall have continued for thirty (30) days after the earlier of (i) delivery to such the Lessee or the Company, as applicable, of written notice thereof from the Lessor or (ii) a Responsible Officer Employee of such the Lessee or the Company, as the case may be, shall have actual knowledge of such failure; provided, however, that if such failure is capable of cure but cannot be cured by the 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 applicable Lessee or the Company is diligently pursuing, and shall continue to pursue diligently, remedy of such failure, the cure period shall be extended for an additional period of time as may be necessary to cure, not to exceed an additional ninety (90) days and not to extend beyond the Expiration Date; provided further, that failure by the applicable Lessee to fully comply with the requirements of Section 20.1 hereof shall not be subject to any cure period; orprovided, however, that no Event of Default shall be deemed to have occurred under this subsection until one hundred twenty (120) days has elapsed so long as throughout such time, the Lessee is diligently Master Lease pursuing a cure for such breach (to the extent such breach may be cured);
(fg) any representation or warranty made by any the Lessee or the Company, as the case may be, in any of the Operative Documents to which it is a party shall prove to have been Materially inaccurate at the time made, and if such inaccuracy can be cured, it shall not have been cured within forty-five thirty (4530) days after the earlier of (i) delivery to such the Lessee or the Company, as the case may be, of written notice thereof from the Lessor or (ii) a Responsible Officer Employee of such the Lessee or the Company, as the case may be, shall have actualknowledge knowledge of such inaccuracy; orprovided, however, that no Event of Default shall be deemed to have occurred under this subsection until one hundred twenty (120) days has elapsed so long as throughout such time, the Lessee is diligently pursuing a cure for such breach (to the extent such breach may be cured);
(gh) any the Lessee or Consolidated Entity shall (i) shall be unable to, or shall admit in writing its inability to, to pay its debts generally as such debts they become due; or , (ii) shall 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, (iii) make an a general assignment for the benefit of its creditors, petition or apply (iv) consent to any tribunal for the appointment of a receiver of itself or 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 trustee for it the whole or a substantial part of its assets; property within sixty (60) days after such appointment, or (iiivi) shall commence file a petition or answer seeking or consenting to reorganization under the United States bankruptcy laws or any proceeding under any bankruptcy, reorganization, arrangement, readjustment of debt, dissolution or liquidation other applicable insolvency law or statute of any jurisdiction, whether now or hereafter in effect; or (iv) shall have had any such petition or application filed the United States of America or any such proceeding shall have been commenced, against it, in which an adjudication State or appointment is made or order for relief is entered, or which petition, application or proceeding remains undismissed for a period of 60 days or more; or shall be the subject of any proceeding under which its assets may be subject to seizure, forfeiture or divestiture (other than a proceeding in respect of a Lien permitted under Section 8.3(b) of the Credit Agreement); or (v) by any act or omission shall indicate its consent to, approval of or acquiescence in any such petition, application or proceeding or order for relief or the appointment of a custodian, receiver or trustee for all or any substantial part of its Property; or (vi) shall suffer any such custodianship, receivership or trusteeship to continue undischarged for a period of 30 days or more; or
(h) any Lien granted by any Obligor to the Lessor, the Collateral Agent or the Lease Agent under any Operative Document shall, in whole or in part, terminate, cease to be effective against, or cease to be the legal, valid, binding and enforceable obligation of, such Obligor; orCommonwealth thereof;
(i) insolvency proceedings or a petition under the United States bankruptcy laws or any Obligor shall directly other applicable insolvency law or indirectly contest the validity (as opposed to the interpretation statute of the termsUnited States of America or any State or Commonwealth thereof shall be filed against the Lessee and not dismissed within ninety (90) days from the date of any Operative Document in any manner in any 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 lien granted by any Operative Document; orof its property and such order or decree shall not be vacated or set aside within ninety (90) days from the date of the entry thereof;
(j) any Lessee shall cease to be 100% owned (directly or indirectly) Subsidiary member of the Company; or
(k) there ERISA Group shall be a breach fail to pay when due an amount or amounts aggregating in excess of the STATUTORY CONDITION.$5,000,000 which it shall have become liable to pay under
Appears in 1 contract
Lease Events of Default. The occurrence and continuance of any one or more of the following events (whether 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) shall constitute a "Lease Event of Default":
(ia) any the Lessee shall fail to make payment of (X) any Basic Rent upon the same becoming due and payable (Interest/Yieldprovided, Administrative Agent has delivered the notice as to Basic Rent due pursuant to Section 4.1(a) within five of the Participation Agreement) and such failure shall continue unremedied for a period of three (53) Business Days after Lessee's receipt of notice thereof from Administrative Agent or Lessor Trust; or the Lessee shall fail to make payment upon the same has become becoming due and payable, or (Y) any Property payable of the Lease Balance, Purchase Option RentPrice, Loan Balance, Lease Certificate Holder Balance, Property Balance, Property Cost, Construction Recourse Amount or Lease Balance, Maximum Recourse Amount including, without limitation, amounts due pursuant to Section Sections 15.1, 15.2, 18.1, 18.2, 18.3 or 20.1, on 20.2 hereof or Article V of the date due therefor under the Master Lease, or (ii) the Company or any Subsidiary Guarantor shall have failed to make any payment due under the Multicare Guaranty after the same has become due and payableConstruction Agency Agreement; or
(b) any the Lessee shall fail to make payment of any Supplemental Rent (other than as specified in clause (a) above) due with respect to Sections 13.7, 13.8, 13.9 and 13.10 of the Participation Agreement payable within five three (53) Business Days after receipt of notice thereof or any Lessee shall fail to make payment of any other Supplemental Rent within five (5) Business Days after the expiration of thirty (30) days from the date of receipt of notice by the Lessees or the Company that party to whom Lessee is obligated to pay such Supplemental Rent is due and payableRent; or
(c) any Event of Default (as defined in the Credit Agreement) shall have occurred and be continuing; or
(d) any Lessee shall fail to maintain insurance as required by Article XIII of this Master Lease or Guarantor shall fail to observe or perform any covenant set forth in Sections 10.1(h), (i), (j), (k) and such failure shall continue for ten (10l) daysand 10.2(b) and (c) of the Participation Agreement; or
(ed) any Lessee or the Company, as the case may be, any Guarantor shall fail to observe or perform any term, covenant or condition of such Lessee or the Company, as the case may be, applicable to it under this Master Lease or the any Operative Documents Document to which it is a party (other than those described in Section 16.1(a), (b), ) or (dc) hereof, and, in each such case, ) and such failure shall have continued for not be remedied within thirty (30) days after the earlier of (i) delivery to such Lessee or the Company, as applicable, of written notice thereof from the Lessor or (ii) a any Responsible Officer of such Lessee or the Company, as the case may be, shall have obtaining actual knowledge of such failure; providedfailure or, however, that if such failure is capable of cure but default cannot reasonably be cured by within such thirty (30) days period, Lessee or such Guarantor shall have failed to commence the payment cure of money or cannot be cured by diligent efforts such default within such thirty (30) day period but and diligently pursue such diligent efforts cure thereafter and in any event shall be properly commenced have failed to cure such default within the cure period and the applicable Lessee or the Company is diligently pursuing, and shall continue to pursue diligently, remedy of such failure, the cure period shall be extended for an additional period of time as may be necessary to cure, not to exceed an additional ninety (90) days and not after such notice; or
(e) Lessee shall fail to extend beyond the Expiration Date; provided furtherobserve or perform any term, that failure by the covenant or condition applicable Lessee to fully comply with the requirements it under Article XX of Section 20.1 hereof shall not be subject to any cure periodthis Agreement; or
(f) any representation or warranty made or deemed made by any Lessee or the Company, as the case may be, any Guarantor in any of the Operative Documents Document to which it is a party or which is contained in any certificate, document or financial or other statement furnished at any time under or in connection with any Operative Document shall prove to have been inaccurate at incorrect, false or misleading in any material respect on or as of the time made, date made or deemed made and if such inaccuracy can be cured, it misrepresentation or breach of warranty shall not have been cured within forty-five continued unremedied for thirty (4530) days after the earlier of (i) delivery to such Lessee or the Company, as the case may be, of written notice thereof from has been given to the Lessor Lessee or such Guarantor or by any Participant or, if such misrepresentation or breach cannot reasonably be remedied within such thirty (ii30) a Responsible Officer day period, Lessee or such Guarantor shall have failed to commence the cure of such Lessee or the Company, as the case may be, default within such thirty (30) days period and diligently pursue such cure thereafter and in any event shall have actualknowledge of failed to cure such inaccuracydefault within ninety (90) days after such notice; or
(g) any Lessee or Consolidated Entity (i) a Construction Agency Agreement Event of Default arising as a result of misapplication of funds by the Construction Agent or the fraudulent or illegal acts or fraudulent or illegal omissions or willful misconduct of the Construction Agent shall have occurred and be continuing, or (ii) a Construction Agency Agreement Event of Default arising under Section 5.1(a) or 5.1(c) of the Construction Agency Agreement shall have occurred and be continuing; or
(i) The Lessee, any Guarantor or any Subsidiary or a Material Subsidiary thereof defaults (whether as primary obligor or as guarantor or other surety) in any payment of principal of or interest under the Credit Agreements beyond any period of grace provided with respect thereto, or (ii) any Guarantor or any Subsidiary fails to perform or observe any other agreement, term or condition contained in the Credit Agreements, provided that the aggregate amount of all obligations in clauses (i) and (ii) above as to which such a payment default shall occur and be continuing or such a failure or other event causing or permitting acceleration shall occur and be continuing exceeds $5,000,000; provided that no such event or condition which is a result of or caused by (y) Sections 10.4(d), 10.9, 10.10, 13.3 or 13.10 of the Bank of America Credit Agreement, Section 5.01(d) of the Rabo Credit Agreement or Sections 5.4 or 6.1(f) of the Private Placement, or (z) a subjective standard or a determination that a material adverse effect has occurred, shall cause an Event of Default hereunder.
(i) Any Guarantor or the Lessee or a Material Subsidiary thereof shall commence any case, proceeding or other action (A) under any existing or future law of any jurisdiction, domestic or foreign, relating to bankruptcy, insolvency, reorganization or relief of debtors, seeking to have an order for relief entered with respect to it, or seeking to adjudicate it bankrupt or insolvent, or seeking reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition or other relief with respect to it or its debts, or (B) seeking appointment of a receiver, trustee, custodian, conservator or other similar official for it or for all or any substantial part of its assets, or any Guarantor or the Lessee shall make a general assignment for the benefit of its creditors; or (ii) there shall be commenced against any Guarantor or the Lessee, any case, proceeding or other action of a nature referred to in clause (i) above which (A) results in the entry of an order for relief or any such adjudication or appointment or (B) remains undismissed, undischarged or unbonded for a period of sixty (60) days; or (iii) there shall be commenced against any Guarantor or the Lessee any case, proceeding or other action seeking issuance of a warrant of attachment, execution, restraint or similar process against all or any substantial part of its assets which results in the entry of an order for any such relief which shall not have been vacated, discharged, or stayed or bonded pending appeal within sixty (60) days from the entry thereof; or (iv) any Guarantor or the Lessee shall take any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the acts set forth in clauses (i), (ii) or (iii) above; or (v) any Guarantor or the Lessee shall generally not, or shall be unable to, or shall admit in writing its inability to, pay its debts as such debts they become due; or (ii) shall make an assignment for the benefit of creditors, petition or apply to any tribunal for the appointment of a custodian, receiver or trustee for it or a substantial part of its assets; or (iii) shall commence any proceeding under any bankruptcy, reorganization, arrangement, readjustment of debt, dissolution or liquidation law or statute of any jurisdiction, whether now or hereafter in effect; or (iv) shall have had any such petition or application filed or any such proceeding shall have been commenced, against it, in which an adjudication or appointment is made or order for relief is entered, or which petition, application or proceeding remains undismissed for a period of 60 days or more; or shall be the subject of any proceeding under which its assets may be subject to seizure, forfeiture or divestiture (other than a proceeding in respect of a Lien permitted under Section 8.3(b) of the Credit Agreement); or (v) by any act or omission shall indicate its consent to, approval of or acquiescence in any such petition, application or proceeding or order for relief or the appointment of a custodian, receiver or trustee for all or any substantial part of its Property; or (vi) shall suffer any such custodianship, receivership or trusteeship to continue undischarged for a period of 30 days or more; or
(hj) Any Operative Document or any Lien granted by any Obligor to the Lessor, the Collateral Agent or the Lease Agent under any Operative Document shall, in whole or in material part, terminate, cease to be effective against, or (other than as expressly provided therein) cease to be the legal, valid, binding and enforceable obligation of, such Obligorof any Guarantor or the Lessee party thereto; or
(ik) any Obligor Any Guarantor or the Lessee shall directly or indirectly contest the validity (as opposed to the interpretation of the terms) effectiveness, validity, binding nature or enforceability of any Operative Document in any manner in any court of competent jurisdiction or any lien Lien granted by under any Operative Document; or
(j) or any Lessee Guarantor shall repudiate, or purport to discontinue or terminate, the Guaranty; or the Guaranty shall cease to be 100% owned (directly a legal, valid and binding obligation of any Guarantor or indirectly) Subsidiary of the Companycease to be in full force and effect; or
(k) there shall be a breach of the STATUTORY CONDITION.
Appears in 1 contract
Lease Events of Default. The occurrence and continuance of any one or more of the ----------------------- following events (whether 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) shall constitute a "Lease Event of -------------- Default":: -------
(ia) any the Lessee shall fail to make payment of (Xi) any Basic Rent (Interest/Yieldother than a payment of Basic Rent due on the Expiration Date, any Termination Date or any date on which a payment is required to be made under clause (ii)) ----------- within five (5) Business Days after the same has become due and payable or (ii) Basic Rent, Purchase Option Price, Partial Purchase Option Price, Asset Termination Value, or Residual Value Guarantee Amount or other amounts due on the Expiration Date or the Termination Date, including, without limitation, amounts due pursuant to Sections 16.2, 16.3, 17.2(h), 20.2, 20.3 or 22.1, after ------------- ---- ------- ---- ---- ---- the same has become due and payable;
(b) the Lessee shall fail to make payment of any Supplemental Rent (other than Supplemental Rent referred to in clause (a) of this Section) ---------- due and payable within five (5) Business Days after the same has become due and payable, or (Y) any Property Balance, Purchase Option Rent, Loan Balance, Lease Recourse Amount or Lease Balance, including, without limitation, amounts due pursuant to Section 15.1, 18.1, 18.2, or 20.1, on the date due therefor under the Master Lease, or (ii) the Company or any Subsidiary Guarantor shall have failed to make any payment due under the Multicare Guaranty after the same has become due and payable; or
(b) any Lessee shall fail to make payment of any Supplemental Rent due with respect to Sections 13.7, 13.8, 13.9 and 13.10 of the Participation Agreement within five (5) Business Days after receipt of notice thereof or any Lessee shall fail to make payment of any other Supplemental Rent within five (5) Business Days after the expiration of thirty (30) days from the date of receipt of notice by the Lessees or the Company that such Supplemental Rent is due and payable; or;
(c) any Event of Default (as defined in the Credit Agreement) shall have occurred and be continuing; or
(d) any Lessee shall fail to maintain insurance as required by Article XIII XIV of this Master Lease and such failure shall continue for ten (10) daysLease; or-----------
(ed) any the Lessee or the Company, as the case may be, shall fail to observe or perform any term, covenant or condition of such the Lessee or the Company, as the case may be, under this Master Lease Lease, the Participation Agreement or the any other Operative Documents Document to which it is a party other than those described in Section 16.1(a17.1(a), (b), (c), (p), or (dq) hereof, or any --------------- --- --- --- --- representation or warranty set forth in this Lease or in any other Operative Document 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, if such failure to perform or misrepresentation or breach of warranty is other than with respect to a covenant or agreement contained in each such caseSection ------- 10.1(b) or 10.2 of the Participation Agreement, such failure or ------- misrepresentation or breach of warranty shall have continued remain uncured for thirty a period of 30 days after the earlier of (30i) the date upon which an executive officer of the Lessee has actual knowledge thereof and (ii) the date upon which the Agent or the Lessor gives notice to the Lessee, or such longer period as is reasonably necessary to cure such default so long as such default cannot be cured merely by payment of money and so long as the Lessee shall be diligently prosecuting such cure and such default is cured within ninety (90) days after the earlier of (i) delivery the date upon which an executive officer of the Lessee has actual knowledge thereof and (ii) the date upon which the Agent or the Lessor gives notice to such the Lessee thereof;
(e) the Lessee or any of its Subsidiaries shall fail to make any payment when due on account of any Indebtedness of such Person (other than Indebtedness referred to in clauses (a) and (b) of this Section 17.1) and such ----------- --- ------------ failure shall continue beyond any grace period provided with respect thereto, if the Companyamount of such Indebtedness exceeds $10,000,000 or the effect of such failure is to cause, as applicableor permit the holder or holders thereof to cause, Indebtedness of written notice thereof from the Lessor Lessee and its Subsidiaries (other than Indebtedness referred to in clauses (a) and (b) of this Section 17.1) in an aggregate amount exceeding ----------- --- ------------ $10,000,000 to become due or (ii) a Responsible Officer Lessee or any of its Subsidiaries shall otherwise fail to observe or perform any agreement, term or condition contained in any agreement or instrument relating to any Indebtedness of such Lessee Person (other than Indebtedness referred to in clauses (a) and (b) of this Section ----------- --- ------- 17.1) and such failure shall continue beyond any grace period provided with ---- respect thereto, or the Company, as the case may be, any other event shall occur or condition shall exist and any grace period provided with respect thereto shall have actual knowledge of such failure; providedexpired, however, that if such failure is capable of cure but cannot be cured by the 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 applicable Lessee or the Company is diligently pursuing, and shall continue to pursue diligently, remedy effect of such failure, event or condition is to cause, or permit the cure period shall holder or holders thereof to cause, after expiration of any such grace period, Indebtedness of Lessee and its Subsidiaries (other than Indebtedness referred to in clauses (a) ----------- and (b) of this Section 17.1) in an aggregate amount exceeding $10,000,000 to --- become due prior to its stated term (and/or to be extended for an additional period of time as may be necessary to cure, not to exceed an additional ninety (90) days and not to extend beyond the Expiration Date; provided further, that failure secured by the applicable Lessee to fully comply with the requirements of Section 20.1 hereof shall not be subject to any cure period; orcash collateral);
(f) any representation or warranty made by any Lessee or the Company, as the case may be, in any of the Operative Documents to which it is a party shall prove to have been inaccurate at the time made, and if such inaccuracy can be cured, it shall not have been cured within forty-five (45) days after the earlier of (i) delivery to such a court having jurisdiction in the premises shall enter a decree or order for relief in respect of the Lessee or any of its Subsidiaries in an involuntary case under the CompanyBankruptcy Code or under any other applicable bankruptcy, as the case may beinsolvency or similar law now or hereafter in effect, of written notice thereof from the Lessor which decree or (ii) a Responsible Officer of such Lessee order is not stayed; or the Company, as the case may be, shall have actualknowledge of such inaccuracy; or
(g) any Lessee or Consolidated Entity (i) other similar relief shall be unable to, granted under any applicable federal or shall admit in writing its inability to, pay its debts as such debts become duestate law; or (ii) an involuntary case shall make an assignment for be commenced against the benefit of creditors, petition Lessee or apply to any tribunal for the appointment of a custodian, receiver or trustee for it or a substantial part of its assets; Subsidiaries under the Bankruptcy Code or (iii) shall commence any proceeding under any other applicable bankruptcy, reorganization, arrangement, readjustment of debt, dissolution insolvency or liquidation similar law or statute of any jurisdiction, whether now or hereafter in effect; or (iv) shall have had any such petition a decree or application filed order of a court having jurisdiction in the premises for the appointment of a receiver, liquidator, sequestrator, trustee, custodian or other officer having similar powers over the Lessee or any such proceeding of its Subsidiaries, or over all or a substantial part of its property, shall have been commencedentered; or there shall have occurred the involuntary appointment of an interim receiver, trustee or other custodian of the Lessee or any of its Subsidiaries for all or a substantial part of its property; or a warrant of attachment, execution or similar process shall have been issued against itany substantial part of the property of the Lessee or any of its Subsidiaries, and any such event described in this clause (ii) shall continue for sixty (60) days ----------- unless dismissed, bonded or discharged;
(i) one or more judgments, orders, decrees or arbitration awards requiring Lessee and/or its Subsidiaries to pay an aggregate amount of $5,000,000 or more (exclusive of amounts covered by insurance issued by an insurer which an adjudication is a solvent and unaffiliated insurance company and otherwise satisfying the requirements set forth in Section 14.3(c)) shall be rendered against Lessee and/or any of its Subsidiaries in connection with any single or appointment is made related series of transactions, incidents or order for relief is enteredcircumstances and the same shall not be satisfied, vacated or which petition, application or proceeding remains undismissed stayed for a period of 60 thirty (30) consecutive days after the issue of levy; (ii) any judgment, writ, assessment, warrant of attachment, tax lien or more; execution or similar process shall be the subject of any proceeding under which its assets may be subject to seizure, forfeiture issued or divestiture (other than levied against a proceeding in respect of a Lien permitted under Section 8.3(b) substantial part of the Credit Agreement)Property of Lessee or any of its Subsidiaries and the same shall not be released, stayed, vacated or otherwise dismissed within thirty (30) days after issue or levy; or (v) by any act or omission shall indicate its consent to, approval of or acquiescence in any such petition, application or proceeding or order for relief or the appointment of a custodian, receiver or trustee for all or any substantial part of its Property; or (vi) shall suffer any such custodianship, receivership or trusteeship to continue undischarged for a period of 30 days or more; or
(hiii) any Lien granted by any Obligor to the Lessorother judgments, the Collateral Agent orders, decrees, arbitration awards, writs, assessments, warrants of attachment, tax liens or the Lease Agent under any Operative Document shallexecutions or similar process which, in whole alone or in partthe aggregate, terminateare reasonable likely to have a Material Adverse Effect are rendered, cease to be effective against, issued or cease to be the legal, valid, binding and enforceable obligation of, such Obligor; orlevied;
(i) any Obligor Operative Document or any material term thereof shall directly cease to be, or indirectly contest be asserted by the validity (as opposed Lessee or any of its Subsidiaries not to the interpretation be, a legal, valid and binding obligation of the terms) of any Operative Document in any manner in any court of competent jurisdiction Lessee or any lien granted by any Operative Document; orof its Subsidiaries enforceable in accordance with its terms;
(j) any Lessee ERISA Event which constitutes grounds for the termination of any Employee Benefit Plan by the PBGC or for the appointment of a trustee by the PBGC to administer any Employee Benefit Plan shall cease occur, or any Employee Benefit Plan shall be terminated within the meaning of Title IV of ERISA or a trustee shall be appointed by the PBGC to be 100% owned (directly or indirectly) Subsidiary of the Company; oradminister any Employee Benefit Plant;
(k) there a Change of Control shall be a breach occur;
(l) [Reserved.];
(m) the Lessee shall have abandoned or constructively abandoned all or any material portion of the STATUTORY CONDITIONProperty for a period of one hundred eighty (180) consecutive days which results in the Property not being properly maintained in accordance with the terms of this Lease;
(n) the Lessee shall have elected to or be required to purchase the Property pursuant to Sections 16.2 or 16.3 hereof and such purchase shall --------------------- not have been consummated on the Termination Date pursuant to either such Section;
(o) [Reserved];
(p) in the event the Lessee is not purchasing the Property upon the Expiration Date or earlier termination of this Lease, failure to comply with the return conditions set forth in Sections 19.1(b) and 22.3 hereof; or ---------------- ----
(q) any event(s) or condition(s) which has or have a Material Adverse Effect shall occur and be continuing or exist.
Appears in 1 contract
Samples: Master Lease (Bea Systems Inc)
Lease Events of Default. The occurrence and continuance of any one or more of the following events (whether 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) shall constitute a "Lease Event of Default":
(ia) any the Lessee shall fail to make any payment of (Xi) any Basic Rent within three (Interest/Yield) within five (53) Business Days after the same has become shall be due and payable, payable or (Yii) any Property Loan Balance, Lease Balance, Purchase Option RentPrice, Loan Balance, Lease or Recourse Amount or Lease BalanceAmount, including, without limitation, amounts due pursuant to Section Sections 15.1, 18.1, 18.2, 18.3 or 20.1, on the date due therefor under the Master Lease, or (ii) the Company or any Subsidiary Guarantor shall have failed to make any payment due under the Multicare Guaranty after the same has become due and payabledue; or
(b) any the Lessee shall fail to make payment of any Supplemental Rent (other than Supplemental Rent referred to in clause (a) of this Section 16.1) due with respect to Sections 13.7, 13.8, 13.9 and 13.10 of the Participation Agreement payable within five (5) Business Days after receipt of notice thereof or any Lessee shall fail to make payment of any other Supplemental Rent within five (5) Business Days after the expiration of thirty (30) days from the date of receipt of notice by the Lessees or the Company that such Supplemental Rent is due and payablethereof; or
(c) the Lessee shall fail to maintain the insurance required under Article XIII hereof or shall fail to observe or perform any Event term, covenant on condition to be performed by it under Section 10.2 of Default (as defined in the Credit Agreement) shall have occurred and be continuingParticipation Agreement or Section 20.1 of this Master Lease; or
(d) any The Lessee shall fail to maintain insurance as required by Article XIII of this Master Lease and such failure shall continue for ten (10) days; or
(e) any Lessee or the Company, as the case may be, shall fail to observe or perform any term, covenant or condition of such the Lessee or the Company, as the case may be, under this Master Lease or the Operative Documents to which it is party Participation Agreement (other than those described in Section 16.1(aclause (a), (b), ) or (dc) hereof, and, in each such case, of this Section 16.1) and such failure shall have continued for thirty (30) days after the earlier of (i) delivery to such the Lessee or the Company, as applicable, of written notice thereof from the Lessor or (ii) a Responsible Officer of such the Lessee or the Company, as the case may be, shall have having actual knowledge of such failure; provided, however, that if such failure is capable of cure but the default by its nature cannot be cured by the payment of money or cannot be cured by diligent efforts within such thirty (30) day period period, but such diligent efforts is curable, then the Lessee shall be properly commenced within the cure period and the applicable Lessee or the Company is diligently pursuing, and shall continue to pursue diligently, remedy of such failure, the cure period shall be extended for an additional period of time as may be necessary to cure, not to exceed have an additional ninety (90) days and not in which to extend beyond the Expiration Date; provided further, that failure by the applicable Lessee diligently proceed to fully comply with the requirements of Section 20.1 hereof shall not be subject to any cure periodsuch default; or
(fe) any representation or warranty made by any the Lessee or the Company, as the case may be, in any of the Operative Documents to which it is a party shall prove to have been inaccurate in any material respect at the time made, and if such inaccuracy can be cured, it shall not have been cured within forty-five ; or
(45) days after the earlier of (i) delivery to such Lessee or the Company, as the case may be, of written notice thereof from the Lessor or (iif) a Responsible Officer Construction Agency Agreement Event of such Lessee or the Company, as the case may be, Default shall have actualknowledge of such inaccuracyoccurred and be continuing; or
(g) any the Lessee or Consolidated Entity shall (i) shall be unable to, or shall admit in writing its inability to, to pay its debts generally as such debts they become due; or , (ii) shall 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, (iii) make an a general assignment for the benefit of its creditors, petition or apply (iv) consent to any tribunal for the appointment of a receiver of itself or 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 trustee for it the whole or a substantial part of its assets; property within sixty (60) days after such Master Lease appointment, or (iiivi) shall commence file a petition or answer seeking or consenting to reorganization under the United States bankruptcy laws or any proceeding under any bankruptcy, reorganization, arrangement, readjustment of debt, dissolution or liquidation other applicable insolvency law or statute of any jurisdiction, whether now or hereafter in effect; or (iv) shall have had any such petition or application filed the United States of America or any such proceeding shall have been commenced, against it, in which an adjudication State or appointment is made or order for relief is entered, or which petition, application or proceeding remains undismissed for a period of 60 days or more; or shall be the subject of any proceeding under which its assets may be subject to seizure, forfeiture or divestiture (other than a proceeding in respect of a Lien permitted under Section 8.3(b) of the Credit Agreement); or (v) by any act or omission shall indicate its consent to, approval of or acquiescence in any such petition, application or proceeding or order for relief or the appointment of a custodian, receiver or trustee for all or any substantial part of its Property; or (vi) shall suffer any such custodianship, receivership or trusteeship to continue undischarged for a period of 30 days or moreCommonwealth thereof; or
(h) insolvency proceedings or a petition under the United States bankruptcy laws or any Lien granted by other applicable insolvency law or statute of the United States of America or any Obligor State or Commonwealth thereof shall be filed against the Lessee and not dismissed within sixty (60) days from the date of its filing (provided, that the Lessee, hereby expressly authorizes the Lessor and each Lender to appear in any court conducting any such proceeding during such sixty (60) day period to preserve, protect and defend their respective rights under the Lessor, the Collateral Agent or the Lease Agent under any Operative Document shall, in whole or in part, terminate, cease to be effective againstDocuments), or cease to be the legal, valid, binding and enforceable obligation of, such Obligor; or
(i) any Obligor shall directly or indirectly contest the validity (as opposed to the interpretation of the terms) of any Operative Document in any manner in any 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 lien granted by any Operative Documentof its property, and such order or decree shall not be vacated or set aside within sixty (60) days from the date of the entry thereof; or
(j) any Lessee shall cease to be 100% owned (directly or indirectly) Subsidiary of the Company; or
(k) there shall be a breach of the STATUTORY CONDITION.
Appears in 1 contract
Samples: Master Lease and Open End Mortgages (Electronics for Imaging Inc)
Lease Events of Default. The occurrence and continuance of If any one or more of the following events shall constitute (each a "Lease Event of Default") shall occur:
(ia) any Lessee shall fail to make payment of (Xi) any Basic Rent (Interest/Yieldexcept as set forth in clause (ii)) within five (5) Business Days after the same has become due and payable, payable or (Yii) any Property Balance, Purchase Option Rent, Loan Balance, Lease Recourse Amount or Lease Balance, including, without limitation, amounts due pursuant to Section 15.1, 18.1, 18.2, or 20.1Termination Value, on the date due therefor under the Master Leaseany such payment is due, or (ii) any payment of Basic Rent or Supplemental Rent due on the Company due date of any such payment of Termination Value, or any Subsidiary Guarantor shall have failed to make any payment amount due under on the Multicare Guaranty after the same has become due and payable; orExpiration Date;
(b) any Lessee shall fail to make payment of any Supplemental Rent (other than Supplemental Rent referred to in Section 17(a)(ii)) due with respect to Sections 13.7, 13.8, 13.9 and 13.10 of the Participation Agreement payable within five three (53) Business Days days after receipt of notice thereof or any Lessee shall fail to make payment of any other Supplemental Rent within five (5) Business Days after the expiration of thirty (30) days from the date of receipt of notice by the Lessees or the Company that such Supplemental Rent payment is due and payable; ordue;
(c) any Event of Default (as defined in the Credit Agreement) shall have occurred and be continuing; or
(d) any Lessee shall fail to maintain insurance as required by Article XIII XIV of this Master Lease and such failure shall continue for ten (10) days; orLease;
(ed) any Lessee or the Company, as the case may be, shall fail to observe or perform any term, covenant or condition provision (including without limitation the Incorporated Covenants) of such Lessee or the Company, as the case may be, under this Master Lease or the any other Operative Documents Agreement to which it Lessee is a party other than those described set forth in Section 16.1(aSections 17.1(a), (b), ) (c) or (dg) hereof, and, in each such case, and such failure shall have continued remain uncured for a period of thirty (30) days after the earlier of receipt of written notice from Lessor thereof or a Responsible Officer of Lessee becomes aware of such failure;
(e) Lessee shall default in the performance or observance of any other provision of this Lease or any other Operative Agreement to which Lessee is a party other than those set forth in Sections 17.1(a), (b), (c) or (d) hereof, and shall not cure such default within thirty days after the first to occur of (i) delivery the date the Agent, Lenders or Lessor gives written or telephonic notice of the default to such Lessee or the CompanyLessee, as applicable, of written notice thereof from the Lessor or (ii) a Responsible Officer of such the date the Lessee or the Company, as the case may be, shall have actual knowledge of such failure; provided, however, that if such failure is capable of cure but cannot be cured by the 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 applicable Lessee or the Company is diligently pursuing, and shall continue to pursue diligently, remedy of such failure, the cure period shall be extended for an additional period of time as may be necessary to cure, not to exceed an additional ninety (90) days and not to extend beyond the Expiration Date; provided further, that failure by the applicable Lessee to fully comply with the requirements of Section 20.1 hereof shall not be subject to any cure period; orotherwise has notice thereof;
(f) any representation or warranty A default shall be made by any Lessee or the Company, as the case may be, in any of the Operative Documents to which it is a party shall prove to have been inaccurate at the time made, and if such inaccuracy can be cured, it shall not have been cured within forty-five (45) days after the earlier of (i) delivery to such in the payment of any Indebtedness (other than obligations under the Operative Agreements) of the Lessee or the Company, as the case may be, of written notice thereof from the Lessor any Consolidated Entity when due or (ii) a Responsible Officer in the performance, observance or fulfillment of any term or covenant contained in any agreement or instrument under or pursuant to which any such Indebtedness may have been issued, created, assumed, guaranteed or secured by the Lessee or any Consolidated Entity, if the effect of such Lessee or default is to accelerate the Company, as the case may be, shall have actualknowledge maturity of such inaccuracy; orIndebtedness or to permit the holder thereof to cause such Indebtedness to become due prior to its stated maturity, and such default shall not be cured within 10 days after the occurrence of such default, and the amount of the Indebtedness involved exceeds $5,000,000;
(g) any Lessee The liquidation or Consolidated Entity (i) shall be unable todissolution of Lessee, or shall admit in writing its inability tothe suspension of the business of Lessee, pay its debts as such debts become due; or (ii) shall make an assignment for the benefit filing by Lessee of creditors, a voluntary petition or apply to any tribunal for the appointment of a custodian, receiver or trustee for it or a substantial part of its assets; or (iii) shall commence any proceeding under any bankruptcy, an answer seeking reorganization, arrangement, readjustment of debtits debts or for any other relief under the United States Bankruptcy Code, dissolution as amended, or liquidation law under any other insolvency act or statute of any jurisdictionlaw, whether state or federal, now or hereafter in effect; or (iv) shall have had any such petition or application filed existing, or any such proceeding shall have been commenced, against it, in which an adjudication or appointment is made or order for relief is entered, or which petition, application or proceeding remains undismissed for a period other action of 60 days or more; or shall be the subject of any proceeding under which its assets may be subject to seizure, forfeiture or divestiture (other than a proceeding in respect of a Lien permitted under Section 8.3(b) of the Credit Agreement); or (v) by any act or omission shall indicate Lessee indicating its consent to, approval of or acquiescence in in, any such petitionpetition or proceeding; the application by Lessee for, application or proceeding or order for relief or the appointment by consent or acquiescence of Lessee of a custodianreceiver, receiver a trustee or trustee 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 pay its debts as they mature; or 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, 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 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 its Property; the property of Lessee, and the continuance of any of such events for ninety (90) days undismissed or (vi) shall suffer any such custodianship, receivership or trusteeship to continue undischarged for a period of 30 days or more; or
(h) any Lien granted by any Obligor to the Lessor, the Collateral Agent or the Lease Agent under any Operative Document shall, in whole or in part, terminate, cease to be effective against, or cease to be the legal, valid, binding and enforceable obligation of, such Obligor; orundischarged;
(i) any Obligor shall directly The adjudication of Lessee as bankrupt or indirectly contest the validity (as opposed to the interpretation of the terms) of any Operative Document in any manner in any court of competent jurisdiction or any lien granted by any Operative Document; orinsolvent;
(j) The entering of any order in any proceedings against Lessee shall cease to be 100% owned decreeing the dissolution, divestiture or split-up of Lessee, and such order remains in effect for more than sixty (directly or indirectly60) Subsidiary of the Company; ordays;
(k) there Any material 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 shall be a breach false or misleading in any material respect when made or delivered;
(l) A final judgment (after all avenues of appeal and all applicable appeal periods have expired), which with other outstanding final judgments against Lessee exceeds an aggregate of $500,000 shall be rendered against Lessee, and if within thirty (30) days after entry thereof such judgment shall not have been discharged, paid or bonded or execution thereon stayed pending appeal, or if within thirty (30) days after the STATUTORY CONDITION.expiration of any such stay such judgment shall not have been discharged;
(m) Any "Event of Default" (as defined in the Existing HEALTHSOUTH Credit Agreement, as such agreement may be amended, supplemented or restated from time to time) (hereinafter referred to as "Existing HEALTHSOUTH Corporation Credit Agreement Event of Default") shall have occurred and be continuing beyond any applicable notice, grace or cure period (if any) included within the definition of such Existing HEALTHSOUTH Corporation Credit Agreement Event of Default;
Appears in 1 contract
Samples: Lease Agreement (Healthsouth Corp)
Lease Events of Default. The occurrence and continuance of any one or more of the following events (whether 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) shall constitute a "Lease Event of DefaultLEASE EVENT OF DEFAULT":
(ia) any the Lessee shall fail to make payment of (Xi) any Basic Rent (Interest/Yieldother than a payment of Basic Rent due on the Expiration Date or Termination Date) within five (5) Business Days after the same has become due and payable, payable or (Yii) any Property BalanceBasic Rent, Purchase Option RentPrice, Loan BalanceAsset Termination Value, Lease Recourse or Residual Value Guarantee Amount or Lease Balanceother amounts due on the Expiration Date or the Termination Date, including, without limitation, amounts due pursuant to Section 15.1SECTIONS 16.2, 18.116.3, 18.217.2(h), 20.2, 20.3 or 20.122.1, on the date due therefor under the Master Lease, or (ii) the Company or any Subsidiary Guarantor shall have failed to make any payment due under the Multicare Guaranty after the same has become due and payable; or;
(b) any the Lessee shall fail to make payment of any Supplemental Rent due with respect to Sections 13.7, 13.8, 13.9 and 13.10 of the Participation Agreement within five (5) Business Days after receipt of notice thereof or any Lessee shall fail to make payment of any other than Supplemental Rent referred to in CLAUSE (a) of this Section) due and payable within five (5) Business Days after the expiration same has become due and payable by Lessee (subject to the provisions of thirty (30) days from SECTION 13.1), and to the date of receipt of notice by the Lessees or the Company extent that such any Supplemental Rent is due and payable; orrepresents reimbursements to, or Lessee would not know of its obligation to pay absent notice from, the Lessor, the Agent or any Participants, then such five (5) Business Day period shall not commence until the Lessee has received such notice;
(c) any Event of Default (as defined in the Credit Agreement) shall have occurred and be continuing; or
(d) any Lessee shall fail to maintain insurance as required by Article XIII ARTICLE XIV of this Master Lease and such failure shall continue for ten (10) days; orLease;
(ed) any the Guarantor, the Construction Agent, the Lessee or the Company, as the case may be, Lessee's General Partner shall fail in any material respect to observe or perform any term, covenant or condition of such Lessee or the Company, as the case may be, Person under this Master Lease Lease, the Participation Agreement or the any other Operative Documents Document to which it is a party (other than those described in Section 16.1(aSECTION 17.1(a), (b), (c) or (do) hereofhereof and other than as may constitute a Guarantee Event of Default or a Construction Agency Agreement Event of Default), or any representation or warranty of any such Person set forth in this Lease or in any other Operative Document 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, in each such case, if such failure to perform or misrepresentation or breach of warranty is other than with respect to a covenant, agreement, representation or warranty contained in (i) as to the Guarantor, Section 10.1(b) and Section 10.2 of the Participation Agreement or as otherwise constitutes a Guarantee Event of Default, (ii) as to the Lessee and the Lessee's General Partner, Section 10.5 of the Participation Agreement, as applied to Section 10.1(b) of the Participation Agreement, and (iii) as to the Construction Agent, Section 10.5 of the Participation Agreement, as applied to Section 10.1(b) of the Participation Agreement, or such other failure to perform or misrepresentation or breach as otherwise constitutes a Construction Agency Agreement Event of Default, with respect to which there shall have continued be no cure period; such failure or misrepresentation or breach of warranty shall remain uncured for a period of thirty (30) days after the earlier of (ix) delivery to such Lessee the date upon which an executive officer of the Lessee, the Guarantor, the Lessee's General Partner or the Company, as applicable, of written notice Construction Agent has actual knowledge thereof from and (y) the date upon which the Agent or the Lessor gives notice to the Lessee, the Guarantor or (ii) a Responsible Officer the Construction Agent thereof, PROVIDED, HOWEVER, no Lease Event of Default shall be deemed to have occurred if such failure, misrepresentation or breach is of such Lessee or the Company, as the case may be, shall have actual knowledge of such failure; provided, however, a nature that if such failure it (A) can be cured and (B) is capable not reasonably susceptible of cure within such thirty (30) day period, but cannot be cured by the payment of money or cannot be cured by diligent efforts within such thirty (30) day period but the Lessee commences to cure the same and thereafter diligently prosecutes such diligent efforts shall be properly commenced cure to completion within the cure period and the applicable Lessee or the Company is diligently pursuing, and shall continue to pursue diligently, remedy of such failure, the cure period shall be extended for an additional a reasonable period of time as may be necessary to curein light of the attendant circumstances; PROVIDED FURTHER, not to exceed an additional ninety (90) days and not to extend beyond the Expiration Date; provided furtherHOWEVER, that failure by the applicable Lessee to fully comply with the requirements of Section 20.1 hereof shall not any such cure must be subject to any cure period; or
completed within one hundred twenty (f) any representation or warranty made by any Lessee or the Company, as the case may be, in any of the Operative Documents to which it is a party shall prove to have been inaccurate at the time made, and if such inaccuracy can be cured, it shall not have been cured within forty-five (45120) days after the earlier of date the Lessee, the Guarantor, the Lessee's General Partner or the Construction Agent has such knowledge or the Agent or the Lessor gives such notice;
(e) [Intentionally deleted.]
(i) delivery to such Lessee a court having jurisdiction in the premises shall enter a decree or order for relief in respect of the Lessee, the Guarantor, the Lessee's General Partner or the CompanyConstruction Agent in an involuntary case under the Bankruptcy Code or under any other applicable bankruptcy, as the case may be, of written notice thereof from the Lessor insolvency or similar law now or hereafter in effect; or any other similar relief shall be granted under any applicable federal or state law; or (ii) a Responsible Officer of such Lessee an involuntary case shall be commenced against the Lessee, the Guarantor, the Lessee's General Partner or the CompanyConstruction Agent under the Bankruptcy Code or under any other applicable bankruptcy, as insolvency or similar law now or hereafter in effect; or a decree or order of a court having jurisdiction in the case may bepremises for the appointment of a receiver, liquidator, sequestrator, trustee, custodian or other officer having similar powers over the Lessee, the Guarantor, the Lessee's General Partner or the Construction Agent or over all or a substantial part of its property, shall have actualknowledge been entered; or there shall have occurred the involuntary appointment of an interim receiver, trustee or other custodian of the Lessee, the Guarantor, the Lessee's General Partner or the Construction Agent for all or a substantial part of its property; or a warrant of attachment, execution or similar process shall have been issued against any substantial part of the property of the Lessee, the Guarantor, the Lessee's General Partner or the Construction Agent and any such inaccuracy; orevent described in this CLAUSE (II) shall continue for sixty (60) days unless dismissed, bonded or discharged;
(g) any Lessee or Consolidated Entity (i) the Lessee, the Guarantor, the Lessee's General Partner or the Construction Agent shall (i) have an order for relief entered with respect to it or commence a voluntary case under the Bankruptcy Code or under any other applicable bankruptcy, insolvency or similar law now or hereafter in effect, or shall consent to the entry of an order for relief in an involuntary case, or to the conversion of an involuntary case to a voluntary case, under any such law, or shall consent to the appointment of or taking possession by a receiver, trustee or other custodian for all or a substantial part of its property; or the Lessee, the Guarantor, the Lessee's General Partner or the Construction Agent shall make any assignment for the benefit of creditors; (ii) be unable tounable, or shall fail generally, or shall admit in writing its inability toinability, to pay its debts as such debts become due; or (ii) shall make an assignment for the benefit of creditors, petition or apply to any tribunal for the appointment of a custodian, receiver or trustee for it or a substantial part of its assets; or (iii) shall commence any proceeding under any bankruptcy, reorganization, arrangement, readjustment of debt, dissolution be dissolved or liquidation law liquidated in full or statute of any jurisdiction, whether now or hereafter in effectpart; or (iv) shall have had any become insolvent (as such petition or application filed or any such proceeding shall have been commenced, against it, in which an adjudication or appointment is made or order for relief is entered, or which petition, application or proceeding remains undismissed for a period of 60 days or more; or shall be the subject of any proceeding under which its assets term may be subject to seizure, forfeiture defined or divestiture (other than a proceeding in respect of a Lien permitted interpreted under Section 8.3(b) of the Credit Agreementany applicable statute); or (v) the Board of Directors of the Guarantor, the Lessee's General Partner or the Construction Agent (or any committee thereof) shall adopt any resolution or otherwise authorize any action to approve any of the actions referred to herein or in SECTION 17.1(f);
(h) (i) one or more judgments, orders, decrees or arbitration awards requiring Lessee, the Guarantor or the Construction Agent to pay an aggregate amount of $5,000,000 or more (exclusive of amounts covered by insurance issued by an insurer a solvent and unaffiliated insurance company and otherwise satisfying the requirements set forth in SECTION 14.3(c)) shall be rendered against Lessee, the Guarantor or the Construction Agent in connection with any act single or omission related series of transactions incidents or circumstances and the same shall indicate not be satisfied, vacated or stayed for a period of thirty (30) consecutive days after the issue of levy; (ii) any judgment, writ, assessment, warrant of attachment, tax lien or execution or similar process shall be issued or levied against a substantial part of the property of Lessee, the Guarantor or the Construction Agent and the same shall not be released, stayed, vacated or otherwise dismissed within the applicable appeals period after issue or levy; or (iii) any other judgments, orders, decrees, arbitration awards, writs, assessments, warrants of attachment, tax liens or executions or similar process which, alone or in the aggregate, are reasonable likely to have a Material Adverse Effect are rendered, issued or levied;
(i) any Operative Document or any material term thereof shall cease to be, or be asserted by the Lessee not to be, a legal, valid and binding obligation of the Lessee enforceable in accordance with its consent to, approval terms;
(j) any ERISA Event which constitutes grounds for the termination of any Employee Benefit Plan by the PBGC or acquiescence in any such petition, application or proceeding or order for relief or the appointment of a custodiantrustee by the PBGC to administer any Employee Benefit Plan shall occur, receiver or any Employee Benefit Plan shall be terminated within the meaning of Title IV of ERISA or a trustee for shall be appointed by the PBGC to administer any Employee Benefit Plan;
(k) a Change of Control shall occur;
(l) a Construction Agency Agreement Event of Default shall have occurred and be continuing;
(m) the Lessee shall have abandoned or constructively abandoned all or any substantial part material portion of its Property; or (vi) shall suffer any such custodianship, receivership or trusteeship to continue undischarged the Property for a period of 30 consecutive days which results in the Property not being properly maintained in accordance with the terms of this Lease;
(n) the Lessee shall have elected to or morebe required to purchase the Property pursuant to SECTIONS 16.2 or 16.3 hereof and such purchase shall not have been consummated on the Termination Date pursuant to either such Section (other than as a direct result of the breach by the Lessor, the Agent, the Tranche B Participants or the Tranche C Participants of any of their express obligations contained in the Operative Documents, unless such breach is a result of any act or omission of the Lessee, the Construction Agent, the Lessee's General Partner, the Guarantor or the Tranche T Participant);
(o) in the event the Lessee is not purchasing the Property upon the Expiration Date or earlier termination of this Lease, failure to comply with the return conditions set forth in SECTIONS 19.1(b) and 22.3 hereof;
(p) any event(s) or condition(s) which have a Material Adverse Effect shall occur and be continuing or exist; or
(hq) any Lien granted by any Obligor to the Lessor, the Collateral Agent or the Lease Agent under any Operative Document shall, in whole or in part, terminate, cease to A Guarantee Event of Default shall have occurred and be effective against, or cease to be the legal, valid, binding and enforceable obligation of, such Obligor; or
(i) any Obligor shall directly or indirectly contest the validity (as opposed to the interpretation of the terms) of any Operative Document in any manner in any court of competent jurisdiction or any lien granted by any Operative Document; or
(j) any Lessee shall cease to be 100% owned (directly or indirectly) Subsidiary of the Company; or
(k) there shall be a breach of the STATUTORY CONDITIONcontinuing.
Appears in 1 contract
Lease Events of Default. The occurrence and continuance of any one or more of the following events 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, shall constitute a "Lease Event of Default":
(ia) any Lessee shall fail to make any payment of (Xi) any Basic Base Rent (Interest/Yield) within five (5) Business Days after the same has become when due and payable, or (Y) any Property Balance, Purchase Option Rent, Loan Balance, Lease Recourse Amount or Lease Balance, including, without limitation, amounts due pursuant to Section 15.1, 18.1, 18.2, or 20.1, on the date due therefor under the Master Lease, or (ii) the Company or any Subsidiary Guarantor shall have failed to make any payment due under the Multicare Guaranty after the same has become due and payable; or
(b) any Lessee shall fail to make payment of any Supplemental Rent due with respect to Sections 13.7, 13.8, 13.9 and 13.10 of the Participation Agreement within five (5) Business Days after receipt of notice thereof or any Lessee shall fail to make payment of any other Supplemental Rent within five (5) Business Days after the expiration of thirty (30) days from the date of receipt of notice by the Lessees or the Company that such Supplemental Rent is due and payable; or
(c) any Event of Default (as defined in the Credit Agreement) shall have occurred and be continuing; or
(d) any Lessee shall fail to maintain insurance as required by Article XIII of this Master Lease and such failure shall continue for ten (10) days, (ii) any Supplemental Rent when due and such failure shall continue for ten (10) days after written demand therefor, or (iii) amounts payable pursuant to the exercise of the Sale Option when due, or (iv) amounts payable pursuant to Article XIV, Article XIX, Section 20.1(b) or Section 21.3 when due; or
(b) [intentionally omitted];
(c) Lessee or Guarantor shall default in the performance or observance of any term, covenant, condition or agreement on its part to be performed or observed under Sections 11.1 or 12.1 hereof or Sections 5.11, 5.13, or 5.14 of the Participation Agreement; or
(d) Subject to Lessee's rights under Section 21.4, Lessee shall fail to offer the Leased Property for sale in accordance with and satisfy each of the terms, 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 21.1 and 21.2;
(e) any representation or warranty by Lessee or the CompanyGuarantor in any Operative Document or in any certificate or document delivered to Lessor, or any Participant pursuant to any Operative Document shall have been incorrect in any material respect when made, deemed made or reaffirmed, as the case may be, ;
(i) Guarantor shall fail to observe or perform any term, covenant or condition of such Lessee Guarantor (not included in any other clause of this Article XVI) under (x) either Guarantee or the Company(y) with respect to any other Operative Document, as the case may be, under this Master Lease or the Operative Documents to which it is party other than those described in Section 16.1(a), within ten (b)10) days after written notice thereof, or (dii) hereofa Loan Event of Default shall have occurred;
(g) Lessee shall fail in any material respect to timely perform or observe any covenant, and, condition or agreement (not included in each such case, any other clause of this Article XVI) to be performed or observed by Lessee hereunder or under any other Operative Document and such failure shall have continued continue for thirty a period of 30 days (30but in no event later than the Lease Expiration Date) days after the earlier to occur of (i) delivery to such Lessee or the Company, as applicable, of written notice thereof from the Lessor Lessor, Agent or any Participant or (ii) a Responsible Officer of such Lessee or the Companyhas knowledge thereof, as the case may be, shall have actual knowledge of such failure; provided, however, that if such in the case of a failure is capable of cure but cannot be cured by the 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 applicable Lessee or the Company is diligently pursuing, and shall continue to pursue diligently, remedy of such failure, the cure period shall be extended for an additional period of time as may be necessary to cure, not to exceed an additional ninety (90) days and not to extend beyond the Expiration Date; provided further, that failure by the applicable Lessee to fully comply with the requirements of Section 20.1 hereof shall not be subject to any cure period; or
9.1(a), (b), (d), (e), or (f) any representation or warranty made by any Lessee or the CompanySection 9.2 of this Lease, as the case may be, in any of the Operative Documents to which it is a party shall prove to have been inaccurate at the time made, and if such inaccuracy failure cannot in Lessor's reasonably exercised judgment be cured in 30 days but can in Lessor's reasonably exercised judgment be curedcured in 90 days, it shall not Lessee may have been cured an additional 60 days in which to cure such failure provided that Lessee begins to cure such failure within forty-five (45) 30 days after the earlier of following notice or knowledge thereof as provided above and thereafter continues diligent efforts to cure such failure;
(i) delivery Lessee, Guarantor or any Material Subsidiary shall generally fail to such Lessee or the Company, as the case may be, of written notice thereof from the Lessor or (ii) a Responsible Officer of such Lessee or the Company, as the case may be, shall have actualknowledge of such inaccuracy; or
(g) any Lessee or Consolidated Entity (i) shall be unable topay, or shall admit in writing its general inability toto pay, pay its debts as such debts they become due; , or (ii) shall make an assignment for the benefit of creditors, petition or apply to any tribunal for the appointment of a custodian, receiver or trustee for it or a substantial part of its assets; or (iii) shall voluntarily commence any case or proceeding or file any petition under any bankruptcy, reorganization, arrangement, readjustment of debt, dissolution insolvency or liquidation similar law or statute of any jurisdictionseeking dissolution, whether now liquidation or hereafter in effect; or (iv) shall have had any such petition or application filed or any such proceeding shall have been commenced, against it, in which an adjudication or appointment is made or order for relief is entered, or which petition, application or proceeding remains undismissed for a period of 60 days or more; or shall be the subject of any proceeding under which its assets may be subject to seizure, forfeiture or divestiture (other than a proceeding in respect of a Lien permitted under Section 8.3(b) of the Credit Agreement); or (v) by any act or omission shall indicate its consent to, approval of or acquiescence in any such petition, application or proceeding or order for relief reorganization or the appointment of a custodianreceiver, receiver trustee, custodian or trustee liquidator for all itself or any a substantial part portion of its Property; property, assets or (vi) shall suffer any such custodianship, receivership business or trusteeship to continue undischarged for effect a period of 30 days plan or more; or
(h) any Lien granted by any Obligor to the Lessor, the Collateral Agent or the Lease Agent under any Operative Document shall, in whole or in part, terminate, cease to be effective againstother arrangement with its creditors, or cease to be shall file any answer admitting the legal, valid, binding and enforceable obligation of, such Obligor; or
(i) any Obligor shall directly or indirectly contest the validity (as opposed to the interpretation jurisdiction of the terms) court and the material allegations of any Operative Document involuntary petition filed against it in any manner in any court of competent jurisdiction or any lien granted by any Operative Document; bankruptcy, insolvency or
(j) any Lessee shall cease to be 100% owned (directly or indirectly) Subsidiary of the Company; or
(k) there shall be a breach of the STATUTORY CONDITION.
Appears in 1 contract
Samples: Master Lease (Cisco Systems Inc)
Lease Events of Default. The occurrence and continuance of any one or more of the following events (whether 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) shall constitute a "Lease Event of Default":
(ia) any the Lessee shall fail to make payment of (X) any Basic Rent upon the same becoming due and payable (Interest/Yieldprovided, Administrative Agent has delivered the notice as to Basic Rent due pursuant to Section 4.1(a) within five of the Participation Agreement) and such failure shall continue unremedied for a period of three (53) Business Days after Lessee's receipt of notice thereof from Administrative Agent or Lessor Trust; or the Lessee shall fail to make payment upon the same has become becoming due and payable, or (Y) any Property payable of the Lease Balance, Purchase Option RentPrice, Loan Balance, Lease Certificate Holder Balance, Property Balance, Property Cost, Construction Recourse Amount or Lease Balance, Maximum Recourse Amount including, without limitation, amounts due pursuant to Section Sections 15.1, 15.2, 18.1, 18.2, 18.3 or 20.1, on 20.2 hereof or Article V of the date due therefor under the Master Lease, or (ii) the Company or any Subsidiary Guarantor shall have failed to make any payment due under the Multicare Guaranty after the same has become due and payableConstruction Agency Agreement; or
(b) any the Lessee shall fail to make payment of any Supplemental Rent (other than as specified in clause (a) above) due with respect to Sections 13.7, 13.8, 13.9 and 13.10 of the Participation Agreement payable within five three (53) Business Days after receipt of notice thereof or any Lessee shall fail to make payment of any other Supplemental Rent within five (5) Business Days after the expiration of thirty (30) days from the date of receipt of notice by the Lessees or the Company that party to whom Lessee is obligated to pay such Supplemental Rent is due and payableRent; or
(c) any Event of Default (as defined in the Credit Agreement) shall have occurred and be continuing; or
(d) any Lessee shall fail to maintain insurance as required by Article XIII of this Master Lease or the Guarantor shall fail to observe or perform any covenant set forth in Sections 10.1(h), (i), (j), (k) and such failure shall continue for ten (10l) daysand 10.2(b) and (c) of the Participation Agreement; or
(ed) any Lessee or the Company, as the case may be, Guarantor shall fail to observe or perform any term, covenant or condition of such Lessee or the Company, as the case may be, applicable to it under this Master Lease or the any Operative Documents Document to which it is a party (other than those described in Section 16.1(a), (b), ) or (dc) hereof, and, in each such case, ) and such failure shall have continued for not be remedied within thirty (30) days after the earlier of (i) delivery to such Lessee or the Company, as applicable, of written notice thereof from the Lessor or (ii) a any Responsible Officer of such Lessee or the Company, as the case may be, shall have obtaining actual knowledge of such failure; providedfailure or, however, that if such failure is capable of cure but default cannot reasonably be cured by within such thirty (30) days period, Lessee or the payment Guarantor shall have failed to commence the cure of money or cannot be cured by diligent efforts such default within such thirty (30) day period but and diligently pursue such diligent efforts cure thereafter and in any event shall be properly commenced have failed to cure such default within the cure period and the applicable Lessee or the Company is diligently pursuing, and shall continue to pursue diligently, remedy of such failure, the cure period shall be extended for an additional period of time as may be necessary to cure, not to exceed an additional ninety (90) days and not after such notice; or
(e) Lessee shall fail to extend beyond the Expiration Date; provided furtherobserve or perform any term, that failure by the covenant or condition applicable Lessee to fully comply with the requirements it under Article XX of Section 20.1 hereof shall not be subject to any cure periodthis Agreement; or
(f) any representation or warranty made or deemed made by any Lessee or the Company, as the case may be, Guarantor in any of the Operative Documents Document to which it is a party or which is contained in any certificate, document or financial or other statement furnished at any time under or in connection with any Operative Document shall prove to have been inaccurate at incorrect, false or misleading in any material respect on or as of the time made, date made or deemed made and if such inaccuracy can be cured, it misrepresentation or breach of warranty shall not have been cured within forty-five continued unremedied for thirty (4530) days after written notice thereof has been given to the earlier of (i) delivery to such Lessee or the CompanyGuarantor or by any Participant or, as the case may beif such misrepresentation or breach cannot reasonably be remedied within such thirty (30) day period, of written notice thereof from the Lessor or (ii) a Responsible Officer of such Lessee or the Company, as the case may be, Guarantor shall have actualknowledge failed to commence the cure of such inaccuracydefault within such thirty (30) days period and diligently pursue such cure thereafter and in any event shall have failed to cure such default within ninety (90) days after such notice; or
(g) any Lessee or Consolidated Entity (i) a Construction Agency Agreement Event of Default arising as a result of misapplication of funds by the Construction Agent or the fraudulent or illegal acts or fraudulent or illegal omissions or willful misconduct of the Construction Agent shall have occurred and be continuing, or (ii) a Construction Agency Agreement Event of Default arising under Section 5.1(a) or 5.1(c) of the Construction Agency Agreement shall have occurred and be continuing; or
(i) the Lessee, the Guarantor or any Subsidiary thereof defaults (whether as primary obligor or as guarantor or other surety) in any payment of principal of or interest under the Credit Agreements beyond any period of grace provided with respect thereto, or (ii) the Guarantor or any Subsidiary fails to perform or observe any other agreement, term or condition contained in the Credit Agreements, provided that the aggregate amount of all obligations in clauses (i) and (ii) above as to which such a payment default shall occur and be continuing or such a failure or other event causing or permitting acceleration shall occur and be continuing exceeds $5,000,000; provided that no such event or condition which is a result of or caused by (y) Sections 10.4(d), 10.9, 10.10, 13.3 or 13.10 of the Bank of America Credit Agreement, Section 5.01(d) of the Rabo Credit Agreement, Sections 5.4 or 6.1(f) of the 1998 Private Placement or Sections 9.3 or 11(f) of the 2000 Private Placement, or (z) a subjective standard or a determination that a material adverse effect has occurred, shall cause an Event of Default hereunder; or
(i) the Guarantor or the Lessee or a Material Subsidiary thereof shall commence any case, proceeding or other action (A) under any existing or future law of any jurisdiction, domestic or foreign, relating to bankruptcy, insolvency, reorganization or relief of debtors, seeking to have an order for relief entered with respect to it, or seeking to adjudicate it bankrupt or insolvent, or seeking reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition or other relief with respect to it or its debts, or (B) seeking appointment of a receiver, trustee, custodian, conservator or other similar official for it or for all or any substantial part of its assets, or the Guarantor or the Lessee shall make a general assignment for the benefit of its creditors; or (ii) there shall be commenced against the Guarantor or the Lessee, any case, proceeding or other action of a nature referred to in clause (i) above which (A) results in the entry of an order for relief or any such adjudication or appointment or (B) remains undismissed, undischarged or unbonded for a period of sixty (60) days; or (iii) there shall be commenced against the Guarantor or the Lessee any case, proceeding or other action seeking issuance of a warrant of attachment, execution, restraint or similar process against all or any substantial part of its assets which results in the entry of an order for any such relief which shall not have been vacated, discharged, or stayed or bonded pending appeal within sixty (60) days from the entry thereof; or (iv) the Guarantor or the Lessee shall take any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the acts set forth in clauses (i), (ii) or (iii) above; or (v) the Guarantor or the Lessee shall generally not, or shall be unable to, or shall admit in writing its inability to, pay its debts as such debts they become due; or (ii) shall make an assignment for the benefit of creditors, petition or apply to any tribunal for the appointment of a custodian, receiver or trustee for it or a substantial part of its assets; or (iii) shall commence any proceeding under any bankruptcy, reorganization, arrangement, readjustment of debt, dissolution or liquidation law or statute of any jurisdiction, whether now or hereafter in effect; or (iv) shall have had any such petition or application filed or any such proceeding shall have been commenced, against it, in which an adjudication or appointment is made or order for relief is entered, or which petition, application or proceeding remains undismissed for a period of 60 days or more; or shall be the subject of any proceeding under which its assets may be subject to seizure, forfeiture or divestiture (other than a proceeding in respect of a Lien permitted under Section 8.3(b) of the Credit Agreement); or (v) by any act or omission shall indicate its consent to, approval of or acquiescence in any such petition, application or proceeding or order for relief or the appointment of a custodian, receiver or trustee for all or any substantial part of its Property; or (vi) shall suffer any such custodianship, receivership or trusteeship to continue undischarged for a period of 30 days or more; or
(hj) any Operative Document or any Lien granted by any Obligor to the Lessor, the Collateral Agent or the Lease Agent under any Operative Document shall, in whole or in material part, terminate, cease to be effective against, or (other than as expressly provided therein) cease to be the legal, valid, binding and enforceable obligation of, such Obligorof the Guarantor or the Lessee party thereto; or
(ik) any Obligor the Guarantor or the Lessee shall directly or indirectly contest the validity (as opposed to the interpretation of the terms) effectiveness, validity, binding nature or enforceability of any Operative Document or any Lien granted under any Operative Document; or the Guarantor shall repudiate, or purport to discontinue or terminate, the Guaranty; or the Guaranty shall cease to be a legal, valid and binding obligation of the Guarantor or cease to be in full force and effect; or
(l) any ground lease comprising all or part of a Property is amended, supplemental, modified or changed in any material manner in without the prior written consent of Administrative Agent and Agent Certificate Holder or a default occurs under any such ground lease or any such ground lease is terminated without the prior written consent of Administrative Agent and Agent Certificate Holder; or
(m) a final judgment of a court of competent jurisdiction in an amount in excess of $5,000,000 is rendered against Lessee, the Guarantor or any lien granted by Subsidiary and, within sixty (60) days after entry thereof, such judgment is not discharged or execution thereof stayed pending appeal, or within sixty (60) days after the expiration of any Operative Document; or
(j) any Lessee shall cease to be 100% owned (directly or indirectly) Subsidiary of the Company; or
(k) there shall be a breach of the STATUTORY CONDITIONsuch stay, such judgment is not discharged.
Appears in 1 contract
Lease Events of Default. The occurrence and continuance of any one or more of ----------------------- the following events (whether 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) shall constitute a "Lease Event of -------------- Default":: -------
(ia) any the Lessee shall fail to make payment of (Xi) any Basic Rent (Interest/Yield) within five (5) Business Days after the same has become when due and payable, or (Yii) any Property Balance, Purchase Option Rent, Loan Balance, Lease Recourse Amount Supplemental Rent due and payable or Lease Balance, including, without limitation, any amounts due pursuant to Section 15.1, 18.1, 18.2, or 20.1, on the date due therefor under the Master Lease, or Article XXVII hereof within five (ii5) the Company or any Subsidiary Guarantor shall have failed to make any payment due under the Multicare Guaranty days after the same has become due and payablereceipt of written ------------- notice thereof; or
(b) any the Lessee shall fail to make payment of any Supplemental Rent due with respect to Sections 13.7, 13.8, 13.9 and 13.10 of the Participation Agreement within five (5) Business Days after receipt of notice thereof or any Lessee shall fail to make payment of any other Supplemental Rent within five (5) Business Days after the expiration of thirty (30) days from the date of receipt of notice by the Lessees or the Company that such Supplemental Rent is due and payable; or
(c) any Event of Default (as defined in the Credit Agreement) shall have occurred and be continuing; or
(d) any Lessee shall fail to maintain insurance as required by Article XIII of this Master Lease and such failure shall continue for ten (10) days; or
(e) any Lessee or the Company, as the case may be, shall fail to observe or perform any term, covenant or condition of such Lessee or the Company, as the case may be, under this Master Lease or the Operative Documents to which it is party other than those described in Section 16.1(a), (b), or (d) hereof, and, in each such case, and such failure shall have continued unremedied for thirty (30) days after the earlier of (i) delivery to such Lessee or the Company, as applicable, of written notice thereof from the Lessor or (ii) a Responsible Officer of such Lessee or the Company, as the case may be, shall have actual knowledge of such failurenotice; provided, however, that if such failure is capable of cure but cannot be cured by the 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 applicable Lessee or the Company is diligently pursuing, and shall continue to pursue diligently, remedy of such failure, the cure period shall be extended for an additional period of time as may be necessary from thirty (30) days to cure, not to exceed an additional ninety (90) days if such term, covenant or condition is, without material prejudice to the Lessor, curable or remediable and not the Lessee is at all times during such extended period diligently taking action reasonably satisfactory to extend beyond the Expiration DateLessor to so cure or remedy default; provided provided, further, that that, for purposes of clarification, the failure by the applicable -------- ------- Lessee to fully comply with the requirements clauses (a), (c), (d), (e), (f), (g) or (h) of this Section 20.1 hereof 16.1 shall not be subject to any cure period; orperiod except as expressly set forth in such clauses (a), (c), (d), (e), (f), (g) or (h);
(fc) any representation or warranty made or deemed made by any the Lessee or the Company, as the case may be, in any of the Operative Documents to which it is a party herein shall prove to have been inaccurate at incorrect or false in any material respect on or as of the time date made or deemed made, unless the fact or condition which made such representation of warranty incorrect or false is, without material prejudice to the Lessor, curable or remediable and if the Lessee is at all times diligently taking action reasonably satisfactory to the Lessor to so cure or remedy such inaccuracy can be curedfact or condition in order to make such representation and/or warranty true and correct in all material respects, it in which event the Lessee shall not have been cured within forty-five one- hundred and twenty (45120) days after the earlier of (i) delivery to such Lessee or the Company, as the case may be, of written notice thereof from the Lessor or (ii) date a Responsible Officer gains knowledge, by receipt of notice or otherwise, that such representation or warranty was incorrect or false to cure or remedy such default;
(d) any judgments or orders for the payment of money, in any case not covered by insurance, individually or in the aggregate in excess of $10,000,000 shall be rendered against the Lessee and such judgment or order shall continue unsatisfied and unstayed (pursuant to laws, rules or court orders) for a period of thirty (30) days;
(e) a default shall occur in the payment when due (subject to any applicable grace period), whether by acceleration or otherwise, of any Indebtedness of the Lessee having a principal amount, individually or in the aggregate, in excess of $10,000,000, or a default shall occur in the performance or observance of any obligation or condition with respect to such Indebtedness if the effect of such Lessee default is to accelerate the maturity of any such Indebtedness or such default shall continue unremedied for any applicable period of time sufficient to permit the Company, as the case may be, shall have actualknowledge holder or holders of such inaccuracy; orIndebtedness, or any trustee or agent for such holders, to cause such Indebtedness to become due and payable prior to its expressed maturity;
(f) the Lessee shall fail to maintain the insurance required under Article XIII hereof, including compliance with the requirements of Section 13.4 ------------ ------------ if the Lessee elects to self-insure with respect to earthquake insurance;
(g) any the Lessee or Consolidated Entity shall (i) shall be unable to, or shall admit in writing its inability to, to pay its debts generally as such debts they become due; or , (ii) shall 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 or other applicable jurisdiction, (iii) make an a general assignment for the benefit of its creditors, petition or apply (iv) consent to any tribunal for the appointment of a receiver of itself or 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 trustee for it the whole or a substantial part of its assets; property within sixty (60) days after such appointment, or (iiivi) shall commence file a petition or answer seeking or consenting to reorganization under the United States bankruptcy laws or any proceeding under any bankruptcy, reorganization, arrangement, readjustment of debt, dissolution or liquidation other applicable insolvency law or statute of any jurisdiction, whether now or hereafter in effect; or (iv) shall have had any such petition or application filed the United States of America or any such proceeding shall have been commenced, against it, in which an adjudication State or appointment is made Commonwealth thereof or order for relief is entered, or which petition, application or proceeding remains undismissed for a period of 60 days or more; or shall be the subject of any proceeding under which its assets may be subject to seizure, forfeiture or divestiture (other than a proceeding in respect of a Lien permitted under Section 8.3(b) of the Credit Agreement); or (v) by any act or omission shall indicate its consent to, approval of or acquiescence in any such petition, application or proceeding or order for relief or the appointment of a custodian, receiver or trustee for all or any substantial part of its Property; or (vi) shall suffer any such custodianship, receivership or trusteeship to continue undischarged for a period of 30 days or moreapplicable jurisdiction; or
(h) insolvency proceedings or a petition under the United States bankruptcy laws or any Lien granted by other applicable insolvency law or statute of the United States of America or any Obligor State or Commonwealth thereof or other applicable jurisdiction shall be filed against the Lessee and not dismissed within sixty (60) days from the date of its filing (provided, that the Lessee hereby -------- expressly authorizes the Lessor to the Lessorappear in any court conducting any such proceeding during such sixty (60) day period to preserve, the Collateral Agent or the Lease Agent protect and defend their respective rights under any Operative Document shall, in whole or in part, terminate, cease to be effective againstthis Lease), or cease to be the legal, valid, binding and enforceable obligation of, such Obligor; or
(i) any Obligor shall directly or indirectly contest the validity (as opposed to the interpretation of the terms) of any Operative Document in any manner in any a court of competent jurisdiction shall enter an order or any lien granted by any Operative Document; or
(j) any Lessee shall cease to be 100% owned (directly or indirectly) Subsidiary decree appointing, without the consent of the Company; or
(k) there shall be Lessee, a breach receiver of the STATUTORY CONDITIONLessee, or the whole or a substantial part of any of its property, and such order or decree shall not be vacated or set aside within sixty (60) days from the date of the entry thereof.
Appears in 1 contract
Samples: Lease Agreement (Palm Inc)
Lease Events of Default. The occurrence and continuance of If any one or more of the following events shall constitute (each a "“Lease Event of Default"”) shall occur:
(ia) any Lessee shall fail to make payment of (Xi) any Basic Rent (Interest/Yieldexcept as set forth in clause (ii)) within five (5) Business Days after the same has become due and payable, payable or (Yii) any Property Balance, Purchase Option Rent, Loan Balance, Lease Recourse Amount or Lease Balance, including, without limitation, amounts due pursuant to Section 15.1, 18.1, 18.2, or 20.1Termination Value, on the date due therefor under the Master Leaseany such payment is due, or (ii) any payment of Basic Rent or Supplemental Rent due on the Company due date of any such payment of Termination Value, or any Subsidiary Guarantor shall have failed to make any payment amount due under on the Multicare Guaranty after the same has become due and payable; orExpiration Date;
(b) any Lessee shall fail to make payment of any Supplemental Rent (other than Supplemental Rent referred to in Section 17.1(a)(ii)) due with respect to Sections 13.7, 13.8, 13.9 and 13.10 of the Participation Agreement payable within five three (53) Business Days after receipt of notice thereof or any Lessee shall fail to make payment of any other Supplemental Rent within five (5) Business Days after the expiration of thirty (30) days from the date of receipt of notice by the Lessees or the Company that such Supplemental Rent payment is due and payable; ordue;
(c) any Event of Default (as defined in the Credit Agreement) shall have occurred and be continuing; or
(d) any Lessee shall fail to maintain insurance as required by Article XIII XIV of this Master Lease and such failure shall continue for ten (10) days; orLease;
(ed) any Lessee or the Companyany Consolidated Entity, as the case may be, shall fail to observe or perform any term, covenant or condition provision (including without limitation any term, covenant or provision applying to Lessee and such Consolidated Entity under the Incorporated Covenants) of such Lessee or the Companyany Consolidated Entity, as the case may be, under this Master Lease or the any other Operative Documents Agreement to which it Lessee is a party other than those described set forth in Section 16.1(aSections 17.1(a), (b), ) or (dc) hereof, and, in each such case, and such failure shall have continued remain uncured for a period of thirty (30) days after the earlier of receipt of written notice from Lessor thereof or a Responsible Officer of Lessee becomes aware of such failure;
(e) Lessee shall default in the performance or observance of any other provision of this Lease or any other Operative Agreement to which Lessee is a party other than those set forth in Sections 17.1(a), (b), (c) or (d) hereof, and shall not cure such default within thirty days after the first to occur of (i) delivery the date the Agent, Lenders or Lessor gives written or telephonic notice of the default to such Lessee or the CompanyLessee, as applicable, of written notice thereof from the Lessor or (ii) a Responsible Officer of such the date the Lessee or the Company, as the case may be, shall have actual knowledge of such failure; provided, however, that if such failure is capable of cure but cannot be cured by the 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 applicable Lessee or the Company is diligently pursuing, and shall continue to pursue diligently, remedy of such failure, the cure period shall be extended for an additional period of time as may be necessary to cure, not to exceed an additional ninety (90) days and not to extend beyond the Expiration Date; provided further, that failure by the applicable Lessee to fully comply with the requirements of Section 20.1 hereof shall not be subject to any cure period; orotherwise has notice thereof;
(f) any representation or warranty A default shall be made by any Lessee or the Company, as the case may be, in any of the Operative Documents to which it is a party shall prove to have been inaccurate at the time made, and if such inaccuracy can be cured, it shall not have been cured within forty-five (45) days after the earlier of (i) delivery to such in the payment of any Indebtedness (other than obligations under the Operative Agreements) of the Lessee or the Company, as the case may be, of written notice thereof from the Lessor any Consolidated Entity when due or (ii) a Responsible Officer in the performance, observance or fulfillment of any term or covenant contained in any agreement or instrument under or pursuant to which any such Indebtedness may have been issued, created, assumed, guaranteed or secured by the Lessee or any Consolidated Entity, if the effect of such Lessee or default is to accelerate the Company, as the case may be, shall have actualknowledge maturity of such inaccuracy; orIndebtedness or to permit the holder thereof to cause such Indebtedness to become due prior to its stated maturity, and such default shall not be cured within 10 days after the occurrence of such default, and the amount of the Indebtedness involved exceeds $5,000,000;
(g) any Lessee The liquidation or Consolidated Entity (i) shall be unable todissolution of Lessee, or shall admit in writing its inability tothe suspension of the business of Lessee, pay its debts as such debts become due; or (ii) shall make an assignment for the benefit filing by Lessee of creditors, a voluntary petition or apply to any tribunal for the appointment of a custodian, receiver or trustee for it or a substantial part of its assets; or (iii) shall commence any proceeding under any bankruptcy, an answer seeking reorganization, arrangement, readjustment of debtits debts or for any other relief under the United States Bankruptcy Code, dissolution as amended, or liquidation law under any other insolvency act or statute of any jurisdictionlaw, whether state or federal, now or hereafter in effect; or (iv) shall have had any such petition or application filed existing, or any such proceeding shall have been commenced, against it, in which an adjudication or appointment is made or order for relief is entered, or which petition, application or proceeding remains undismissed for a period other action of 60 days or more; or shall be the subject of any proceeding under which its assets may be subject to seizure, forfeiture or divestiture (other than a proceeding in respect of a Lien permitted under Section 8.3(b) of the Credit Agreement); or (v) by any act or omission shall indicate Lessee indicating its consent to, approval of or acquiescence in in, any such petitionpetition or proceeding; the application by Lessee for, application or proceeding or order for relief or the appointment by consent or acquiescence of Lessee of a custodianreceiver, receiver a trustee or trustee 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 pay its debts as they mature; or 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, 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 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 its Property; the property of Lessee, and the continuance of any of such events for ninety (90) days undismissed or (vi) shall suffer any such custodianship, receivership or trusteeship to continue undischarged for a period of 30 days or more; or
(h) any Lien granted by any Obligor to the Lessor, the Collateral Agent or the Lease Agent under any Operative Document shall, in whole or in part, terminate, cease to be effective against, or cease to be the legal, valid, binding and enforceable obligation of, such Obligor; orundischarged;
(i) any Obligor shall directly The adjudication of Lessee as bankrupt or indirectly contest the validity (as opposed to the interpretation of the terms) of any Operative Document in any manner in any court of competent jurisdiction or any lien granted by any Operative Document; orinsolvent;
(j) The entering of any order in any proceedings against Lessee shall cease to be 100% owned decreeing the dissolution, divestiture or split-up of Lessee, and such order remains in effect for more than sixty (directly or indirectly60) Subsidiary of the Company; ordays;
(k) there Any material 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 shall be a breach false or misleading in any material respect when made or delivered;
(1) A final judgment (after all avenues of appeal and all applicable appeal periods have expired), which with other outstanding final judgments against Lessee exceeds an aggregate of $500,000 shall be rendered against Lessee, and if within thirty (30) days after entry thereof such judgment shall not have been discharged, paid or bonded or execution thereon stayed pending appeal, or if within thirty (30) days after the STATUTORY CONDITION.expiration of any such stay such judgment shall not have been discharged;
Appears in 1 contract
Samples: Lease Agreement (Healthsouth Corp)
Lease Events of Default. The occurrence and continuance of any one or more of the following events (whether 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) shall constitute a "Lease Event of Default":
(ia) any the Lessee shall fail to make payment of (X) any Basic Rent (Interest/Yield) within upon the same becoming due and payable and such failure shall continue unremedied for a period of five (5) Business Days after Lessee's receipt of notice thereof from Administrative Agent or Agent Lessor; or the Lessee shall fail to make payment upon the same has become becoming due and payable, or (Y) any Property payable of the Lease Balance, Purchase Option RentPrice, Loan Balance, Lease Recourse Amount Balance or Lease Lessor Balance, including, without limitation, amounts due pursuant to Section Sections 15.1, 15.2, 18.1, 18.2, 18.3 or 20.1, on the date due therefor under the Master Lease, or (ii) the Company or any Subsidiary Guarantor shall have failed to make any payment due under the Multicare Guaranty after the same has become due and payable20.2 hereof; or
(b) any the Lessee shall fail to make payment of any Supplemental Rent (other than as specified in clause (a) above) due with respect to Sections 13.7, 13.8, 13.9 and 13.10 of the Participation Agreement payable within five (5) Business Days after receipt of notice thereof or any Lessee shall fail to make payment of any other Supplemental Rent within five (5) Business Days after the expiration of thirty (30) days from the date of receipt of notice by the Lessees Administrative Agent or the Company that such Supplemental Rent is due and payableAgent Lessor; or
(c) any Event of Default (as defined in the Credit Agreement) shall have occurred and be continuing; or
(d) any Lessee shall fail to maintain in effect insurance as required by Article XIII of this Master Lease and such failure Lease; or
(d) the Lessee or the Guarantor shall continue for ten (10) daysfail to observe or perform in any material respect any term, covenant or condition applicable to it under Article XX of this Agreement; or
(e) any the Lessee or the Company, as the case may be, Guarantor shall fail to observe or perform in any material respect any term, covenant or condition of such Lessee or the Company, as the case may be, applicable to it under this Master Lease or the any Operative Documents Document to which it is party (other than those described in Section 16.1(a), (b), (c) or (d) hereof, ) and, in each such case, such failure shall have continued unremedied for thirty (30) days after written notice thereof has been given to the earlier of (i) delivery to such Lessee or the Company, as applicable, of written notice thereof from the Lessor or (ii) a Responsible Officer of such Lessee or the Company, as the case may be, shall have actual knowledge of such failure; provided, however, that if such failure is capable of cure but cannot be cured Guarantor by the payment of money Administrative Agent 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 applicable Lessee or the Company is diligently pursuing, and shall continue to pursue diligently, remedy of such failure, the cure period shall be extended for an additional period of time as may be necessary to cure, not to exceed an additional ninety (90) days and not to extend beyond the Expiration Date; provided further, that failure by the applicable Lessee to fully comply with the requirements of Section 20.1 hereof shall not be subject to any cure periodAgent Lessor; or
(f) any representation or warranty made or deemed made by any the Lessee or the Company, as the case may be, Guarantor in any of the Operative Documents Document to which it is a party or which is contained in any certificate, document or financial or other statement furnished at any time under or in connection with any Operative Document shall prove to have been inaccurate at incorrect, false or misleading in any material respect on or as of the time date made or deemed made, and if such inaccuracy can be cured, it shall not have been cured within forty-five (45) days after the earlier of (i) delivery to such Lessee or the Company, as the case may be, of written notice thereof from the Lessor or (ii) a Responsible Officer of such Lessee or the Company, as the case may be, shall have actualknowledge of such inaccuracy; or
(g) Default shall be made in the payment of the principal of or interest on any Lessee Indebtedness of the Guarantor or Consolidated Entity any Restricted Subsidiary (other than Indebtedness under the Operative Documents) in either case aggregating more than $20,000,000, as and when the same shall become due and payable by the lapse of time, by declaration, by call for redemption, by acceleration or otherwise, and such default shall continue beyond any period of grace or notice, if any, allowed with respect thereto; or
(h) Any event specified in any note, agreement, indenture or other document evidencing or relating to Indebtedness of the Guarantor or any Restricted Subsidiary shall occur if the effect of such event is to cause, or (with the giving of any notice) to permit the holder or holders of such Indebtedness (or a trustee or agent on behalf of such holder or holders) to cause, $50,000,000 or more of such Indebtedness to become due, or to be prepaid in full (whether by redemption, purchase, offer to purchase or otherwise), prior to its stated maturity and any applicable period of grace or notice has lapsed with respect to such default; provided that no such event shall constitute an Event of Default hereunder if and so long as the Guarantor or the indebted Restricted Subsidiary (as applicable) shall be contesting in good faith whether such event has occurred and the Guarantor and its Restricted Subsidiaries make no payments or concessions (whether in the form of collateral, increased interest or fees, more rapid amortization, more restrictive terms or otherwise) in consideration of a resolution of such contest; or
(i) Final judgment or judgments for the payment of money aggregating in excess of $10,000,000 is or are outstanding against the Guarantor or any Restricted Subsidiary or against any Company Property of either and any one of such judgments has remained unpaid, unvacated, unbonded or unstayed by appeal or otherwise for a period of ninety (90) days from the date of its entry; or
(j) Any Person or two 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, as amended or any successor regulation) of more than 50% of the voting stock of the Guarantor; or during any period of thirteen (13) consecutive calendar months (or, if shorter, the maximum period which would incorporate only one regularly scheduled annual meeting of the Guarantor), a majority of the Board of Directors of the Guarantor shall no longer be unable tocomposed of individuals (i) who were members of said Board on the first day of such period, (ii) whose election or nomination to said Board was approved by individuals referred to in clause (i) above constituting at the time of such election or nomination at least a majority of said Board or (iii) whose election or nomination to said Board was approved by individuals referred to in clauses (i) and (ii) above constituting at the time of such election or nomination at least a majority of said Board; or
(k) A custodian, receiver, liquidator or trustee of the Guarantor or any Restricted Subsidiary, or shall admit of any of the Company Property of either, is appointed or takes possession and such appointment or possession remains uncontested or in effect for more than sixty (60) days; or the Guarantor or any Restricted Subsidiary generally fails to pay its debts as they become due or admits in writing its inability to, to pay its debts as such debts become duethey mature; or the Guarantor or any Restricted Subsidiary is adjudicated bankrupt or insolvent; or any of the material property of either is sequestered by court order and the order remains in effect for more than sixty (ii60) shall make an assignment for the benefit of creditors, petition or apply to any tribunal for the appointment of a custodian, receiver or trustee for it days; or a substantial part of its assets; petition is filed against the Guarantor or (iii) shall commence any proceeding Restricted Subsidiary under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation law or statute of any jurisdiction, whether now or hereafter subsequently in effect, and is not stayed or dismissed within sixty (60) days after filing; or
(l) The Guarantor or any Restricted Subsidiary makes an assignment for the benefit of creditors or files a petition in voluntary bankruptcy or seeking relief under any provision of any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation law of any jurisdiction, whether now or subsequently in effect; or (iv) shall have had consents to the filing of any petition against it under any such petition or application filed or any such proceeding shall have been commenced, against it, in which an adjudication or appointment is made or order for relief is entered, or which petition, application or proceeding remains undismissed for a period of 60 days or morelaw; or shall be the subject of any proceeding under which its assets may be subject consents to seizure, forfeiture or divestiture (other than a proceeding in respect of a Lien permitted under Section 8.3(b) of the Credit Agreement); or (v) by any act or omission shall indicate its consent to, approval of or acquiescence in any such petition, application or proceeding or order for relief or the appointment of or taking possession by a custodian, receiver receiver, trustee or trustee for all liquidator of the Guarantor, any Restricted Subsidiary, or any substantial part of its Property; or (vi) shall suffer any such custodianship, receivership or trusteeship to continue undischarged for a period of 30 days or more; or
(h) any Lien granted by any Obligor to the Lessor, the Collateral Agent or the Lease Agent under any Operative Document shall, in whole or in part, terminate, cease to be effective against, or cease to be the legal, valid, binding and enforceable obligation of, such Obligor; or
(i) any Obligor shall directly or indirectly contest the validity (as opposed to the interpretation of the terms) property of any Operative Document in any manner in any court of competent jurisdiction or any lien granted by any Operative Document; or
(j) any Lessee shall cease to be 100% owned (directly or indirectly) Subsidiary of the Company; or
(k) there shall be a breach of the STATUTORY CONDITIONeither.
Appears in 1 contract
Samples: Master Lease, Deed of Trust and Security Agreement (Alumax Inc)
Lease Events of Default. The occurrence and continuance of any one or more of the following events shall constitute a "Lease Event of Default":
(ia) any Lessee shall fail to make any payment of Base Rent, when due and payable and such failure continues for ten (X) any Basic Rent (Interest/Yield) within five (510) Business Days after receipt by the same has become 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 payable, or (Y) any Property Balance, Purchase Option Rent, Loan Balance, Lease Recourse Amount or Lease Balance, including, without limitation, amounts due pursuant to Section 15.1, 18.1, 18.2, or 20.1, on the date due therefor under the Master Leaseunpaid, or (ii) Taxes prior to the Company or any Subsidiary Guarantor shall have failed to make any payment due under date on which such Taxes become delinquent, unless Lessee is contesting the Multicare Guaranty after the same has become due and payable; or
(b) any Lessee shall fail to make payment of any Supplemental Rent due such Taxes in accordance with respect to Sections 13.7the terms of this Lease, 13.8, 13.9 and 13.10 of the Participation Agreement within five (5) Business Days after receipt of notice thereof or any Lessee in which event such non-payment shall fail to make payment of any other Supplemental Rent within five (5) Business Days after the expiration of thirty (30) days from the date of receipt of notice by the Lessees or the Company that such Supplemental Rent is due and payable; ornot 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 cure of such failure after Lessee's receipt of written notice of such failure from Lessor; provided however, that, to the extent Guarantor's or Lessee's failure relates to the timely performance or observation of a covenant or agreement relating to the Property, such failure shall not be a Lease Event of Default (as defined in the Credit Agreement) shall have occurred and be continuing; orunless such failure to timely perform or observe such covenant or agreement is material;
(d) any (i) except to the extent Lessee is permitted to self-insure pursuant to Section 9.l(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 full force any insurance as required by Article XIII of this Master Lease hereunder and such failure shall continue for ten twenty-four (1024) dayshours including at least one (1) Business Day after notice of such failure to Lessee from Lessor; or
(e) any Lessee or the Company, as the case may be, shall fail to observe or perform any term, covenant or condition of such Lessee or the Company, as the case may be, under this Master Lease or the Operative Documents to which it is party other than those described in Section 16.1(a), (b), or (d) hereof, and, in each such case, such failure shall have continued for thirty (30) days after the earlier of (i) delivery to such Lessee or the Company, as applicable, of written notice thereof from the Lessor or (ii) a Responsible Officer of such Lessee or the Company, as the case may be, shall have actual knowledge of such failure; provided, however, that if such failure is capable of cure but cannot be cured by the 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 applicable Lessee or the Company is diligently pursuing, and shall continue to pursue diligently, remedy of such failure, the cure period shall be extended for an additional period of time as may be necessary to cure, not to exceed an additional ninety (90) days and not to extend beyond the Expiration Date; provided further, that failure by the applicable Lessee to fully comply with the requirements of Section 20.1 hereof shall not be subject to any cure period; or
(f) any representation or warranty made by any Lessee or the Company, as the case may be, in any of the Operative Documents to which it is a party shall prove to have been inaccurate at the time made, and if such inaccuracy can be cured, it shall not have been cured within forty-five (45) days after the earlier of (i) delivery to such Lessee or the Company, as the case may be, of written notice thereof from the Lessor or (ii) a Responsible Officer of such Lessee or the Company, as the case may be, shall have actualknowledge of such inaccuracy; or
(g) any Lessee or Consolidated Entity (i) shall be unable to, or shall admit in writing its inability to, pay its debts as such debts become due; or (ii) shall make an assignment for the benefit of creditors, petition or apply to any tribunal for the appointment of a custodian, receiver or trustee for it or a substantial part of its assets; or (iii) shall commence any proceeding under any bankruptcy, reorganization, arrangement, readjustment of debt, dissolution or liquidation law or statute of any jurisdiction, whether now or hereafter in effect; or (iv) shall have had any such petition or application filed or any such proceeding shall have been commenced, against it, in which an adjudication or appointment is made or order for relief is entered, or which petition, application or proceeding remains undismissed for a period of 60 days or more; or shall be the subject of any proceeding under which its assets may be subject to seizure, forfeiture or divestiture (other than a proceeding in respect of a Lien permitted under Section 8.3(b) of the Credit Agreement); or (v) by any act or omission shall indicate its consent to, approval of or acquiescence in any such petition, application or proceeding or order for relief or the appointment of a custodian, receiver or trustee for all or any substantial part of its Property; or (vi) shall suffer any such custodianship, receivership or trusteeship to continue undischarged for a period of 30 days or more; or
(h) any Lien granted by any Obligor to the Lessor, the Collateral Agent or the Lease Agent under any Operative Document shall, in whole or in part, terminate, cease to be effective against, or cease to be the legal, valid, binding and enforceable obligation of, such Obligor; or
(i) any Obligor shall directly or indirectly contest the validity (as opposed to the interpretation of the terms) of any Operative Document in any manner in any court of competent jurisdiction or any lien granted by any Operative Document; or
(j) any Lessee shall cease to be 100% owned (directly or indirectly) Subsidiary of the Company; or
(k) there shall be a breach of the STATUTORY CONDITION.
Appears in 1 contract
Samples: Lease Agreement (Griffin Capital Essential Asset REIT II, Inc.)
Lease Events of Default. The occurrence and continuance of If any one (1) or more of the following events shall constitute (each a "Lease Event of Default") shall occur:
(ia) any Lessee shall fail to make payment of (Xi) any Basic Rent (Interest/Yieldexcept as set forth in clause (ii)) within five three (53) Business Days after the same has become due and payable, payable or (Yii) any Property Balance, Purchase Option Rent, Loan Balance, Lease Recourse Amount or Lease Balance, including, without limitation, amounts due pursuant to Section 15.1, 18.1, 18.2, or 20.1Termination Value, on the date due therefor under the Master Lease, or (ii) the Company or any Subsidiary Guarantor shall have failed to make any such payment due under the Multicare Guaranty after the same has become is due and payable; or, or any payment of Basic Rent or Supplemental Rent due on the due date of any such payment of Termination Value, or any amount due on the Expiration Date;
(b) any Lessee shall fail to make payment of any Supplemental Rent (other than Supplemental Rent referred to in Section 17.1(a)(ii)) which has become due with respect to Sections 13.7, 13.8, 13.9 and 13.10 of the Participation Agreement payable within five three (53) Business Days after receipt of notice thereof or any Lessee shall fail to make payment of any other Supplemental Rent within five (5) Business Days after the expiration of thirty (30) days from the date of receipt of notice by the Lessees or the Company that such Supplemental Rent payment is due and payable; ordue;
(c) any Event of Default (as defined in the Credit Agreement) shall have occurred and be continuing; or
(d) any Lessee shall fail to maintain insurance as required by Article XIII XIV of this Master Lease and such failure shall continue for or to deliver any requisite annual certificate with respect thereto within ten (10) days; ordays of the date such certificate is due under the terms hereof;
(ei) any Lessee or the Company, as the case may be, shall fail to observe or perform any term, covenant covenant, obligation or condition of such Lessee or the Company, as the case may be, under this Master Lease or the any other Operative Documents Agreement to which it Lessee is a party other than those described set forth in Section 16.1(aSections 17.1(a), (b), ) or (dc) hereof, and, in each such case, and such failure shall have continued continue for thirty fifteen (3015) days after the earlier of (i) delivery to such Lessee or the Company, as applicable, of written notice thereof from to the Lessor Lessee, provided if any such failure other than those set forth in Sections 17.1(a), (b) or (iic) a Responsible Officer of such Lessee or the Company, as the case may be, shall have actual knowledge of such failure; provided, however, that if such failure hereof is not capable of cure but cannot be cured by the payment of money or cannot be cured by diligent efforts remedy within such thirty fifteen (3015) day period but can be remedied with further diligence and if the Lessee has and continues to pursue diligently such diligent efforts remedy, then the Lessee shall be properly commenced within the cure period and the applicable Lessee or the Company is diligently pursuing, and shall continue granted additional time to pursue diligently, such remedy of such failure, the cure period shall be extended for but in no event more than an additional period of time as may be necessary to cure, not to exceed an additional ninety fifteen (9015) days and not to extend beyond the Expiration Date; provided further, that failure by the applicable Lessee to fully comply with the requirements of Section 20.1 hereof shall not be subject to any cure period; or
or (fii) 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) An Agency Agreement Event of Default shall have occurred and be continuing;
(f) Lessee or the Company, as the case may be, in any of its Subsidiaries shall default (beyond applicable periods of grace and/or notice and cure) in the Operative Documents payment when due of any principal of or interest on any Indebtedness having an outstanding principal amount of at least $10,000,000; 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 which it is a party shall prove to have been inaccurate at accelerate the time made, and if such inaccuracy can be cured, it shall not have been cured within forty-five (45) days after the earlier of (i) delivery to such Lessee or the Company, as the case may be, of written notice thereof from the Lessor or (ii) a Responsible Officer of such Lessee or the Company, as the case may be, shall have actualknowledge of such inaccuracy; ormaturity thereof;
(g) any Lessee The liquidation or Consolidated Entity (i) shall be unable todissolution of Lessee, or shall admit in writing its inability tothe suspension of the business of Lessee, pay its debts as such debts become due; or (ii) shall make an assignment for the benefit filing by Lessee of creditors, a voluntary petition or apply to any tribunal for the appointment of a custodian, receiver or trustee for it or a substantial part of its assets; or (iii) shall commence any proceeding under any bankruptcy, an answer seeking reorganization, arrangement, readjustment of debtits debts or for any other relief under the United States Bankruptcy Code, dissolution as amended, or liquidation law under any other insolvency act or statute of any jurisdictionlaw, whether state or federal, now or hereafter in effect; or (iv) shall have had any such petition or application filed existing, or any such proceeding shall have been commenced, against it, in which an adjudication or appointment is made or order for relief is entered, or which petition, application or proceeding remains undismissed for a period other action of 60 days or more; or shall be the subject of any proceeding under which its assets may be subject to seizure, forfeiture or divestiture (other than a proceeding in respect of a Lien permitted under Section 8.3(b) of the Credit Agreement); or (v) by any act or omission shall indicate Lessee indicating its consent to, approval of or acquiescence in in, any such petitionpetition or proceeding; the application by Lessee for, application or proceeding or order for relief or the appointment by consent or acquiescence of Lessee of a custodianreceiver, receiver a trustee or trustee 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 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;
(h) The filing of an involuntary petition against Lessee in bankruptcy or 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 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 its Property; the property of Lessee, and the continuance of any of such events for ninety (90) days undismissed or (vi) shall suffer any such custodianship, receivership or trusteeship to continue undischarged for a period of 30 days or more; or
(h) any Lien granted by any Obligor to the Lessor, the Collateral Agent or the Lease Agent under any Operative Document shall, in whole or in part, terminate, cease to be effective against, or cease to be the legal, valid, binding and enforceable obligation of, such Obligor; orundischarged;
(i) any Obligor shall directly The adjudication of Lessee as bankrupt or indirectly contest the validity (as opposed to the interpretation of the terms) of any Operative Document in any manner in any court of competent jurisdiction or any lien granted by any Operative Document; orinsolvent;
(j) The entering of any order in any proceedings against Lessee shall cease to be 100% owned or any Subsidiary decreeing the dissolution, divestiture or split-up of Lessee or any Subsidiary, and such order remains in effect for more than sixty (directly or indirectly60) Subsidiary of the Company; ordays;
(k) there 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) [INTENTIONALLY RESERVED];
(m) A final judgment or judgments for the payment of money shall be rendered by a breach court or courts against Lessee or any of its Subsidiaries or any of their assets in excess of $2,000,000 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 thirty (30) days from the date of entry thereof, or (ii) Lessee or such Subsidiary shall not, within said period of thirty (30) days, or such longer period during which execution of the STATUTORY CONDITION.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
Appears in 1 contract
Lease Events of Default. The occurrence and continuance of any one or more of the following events (whether 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 Xxx Research Corporation Amended and Restated Master Lease of any court or any order, rule or regulation of any administrative or governmental body) shall constitute a "Lease Event of Default":
(i) any the Lessee shall fail to make payment of (X) any Basic Rent (Interest/Yield) within five (5) Business Days after upon the same has become becoming due and payable, payable and such failure shall continue unremedied for a period of three (3) days or (Yii) any Property the Lessee shall fail to make payment upon the same becoming due and payable of the Lease Balance, Purchase Option RentPrice, Loan Property Balance, Lease Property Cost or Maximum Recourse Amount or Lease Balance, any amounts payable in conjunction with the payment of any of the foregoing including, without limitation, amounts due pursuant to Section Sections 15.1, 15.2, 18.1, 18.2, 18.3 or 20.1, on the date due therefor under the Master Lease, or (ii) the Company or any Subsidiary Guarantor shall have failed to make any payment due under the Multicare Guaranty after the same has become due and payable20.2 hereof; or
(b) any the Lessee shall fail to make payment of any Supplemental Rent (other than as specified in clause (a) above) when due with respect to Sections 13.7, 13.8, 13.9 and 13.10 of the Participation Agreement payable within five (5) Business Days days after receipt of notice thereof or any Lessee shall fail to make payment of any other Supplemental Rent within five (5) Business Days after the expiration of thirty (30) days from the date of receipt of notice by party to whom the Lessees or the Company that Lessee is obligated to pay such Supplemental Rent is due and payableRent; or
(c) any Event insurance required to be maintained by the Lessee pursuant to Article XIII of Default (as defined this Master Lease shall fail to be in effect or the Lessee defaults in the Credit compliance with Sections 10.1(i), (j), (k) or (l) of the Participation Agreement) shall have occurred and be continuing; or
(d) any the Lessee shall fail to maintain insurance as required by Article XIII of this Master Lease and such failure shall continue for ten (10) days; or
(e) any Lessee or the Company, as the case may be, shall fail to observe or perform any term, covenant or condition of such Lessee or the Company, as the case may be, applicable to it under this Master Lease or the any Operative Documents Document to which it is a party (other than those described in Section 16.1(a), (b), or (dc) hereof, and, in each such case, ) and such failure shall have continued for not be remedied within thirty (30) days after the earlier of (i) delivery to such Lessee or the Company, as applicable, of written notice thereof from has been given to the Lessor or (ii) a Responsible Officer of such Lessee or the Company, as the case may be, shall have actual knowledge of such failureLessee; provided, howeverthat, in the event that if such failure is capable of cure but remedy cannot reasonably be cured by the payment of money or cannot completed within such thirty (30) day period, then Lessee shall have such additional time as shall be cured by diligent efforts reasonably necessary, so long as Lessee commences such remedy within such thirty (30) day period but and diligently thereafter prosecutes the same to completion, provided, further, in no event shall such diligent efforts shall be properly commenced within the cure period and the applicable Lessee or the Company is diligently pursuing, and shall continue to pursue diligently, remedy of such failure, the cure period shall be extended for an additional period of time as may be necessary to cure, not to exceed an additional ninety (90) days after such notice; or
(e) the Lessee shall fail to observe or perform any term, covenant or condition applicable to it under Article XX of this Master Lease after giving written notice to the Lessor and not to extend beyond the Expiration Date; provided further, that failure by Administrative Agent of the applicable Lessee to fully comply with Lessee's exercise of the requirements of Section 20.1 hereof shall not be subject to any cure periodRemarketing Option; or
(f) any representation or warranty made or expressly deemed made by any the Lessee or the Company, as the case may be, in any of the Operative Documents Document to which it is a party or which is contained in any certificate, document or financial or other statement furnished at any time under or in connection with any Operative Document shall prove to have been inaccurate at incorrect, false or misleading in any material respect on or as of the time date made or expressly deemed made, and if such inaccuracy can be cured, it shall not have been cured within forty-five (45) days after the earlier of (i) delivery to such Lessee or the Company, as the case may be, of written notice thereof from the Lessor or (ii) a Responsible Officer of such Lessee or the Company, as the case may be, shall have actualknowledge of such inaccuracy; or
(g) any a "Default" or failure of the Lessee or Consolidated Entity any Subsidiary of the Lessee to pay when due Indebtedness or Off-Balance Sheet Obligations in an aggregate amount greater than $15,000,000 (or the Dollar Amount of Indebtedness or Off-Balance Sheet Obligations denominated in a currency other than Dollars); or the default by the Lessee or Xxx Research Corporation Amended and Restated Master Lease any Subsidiary of the Lessee in the performance of any term, provision or condition contained in any agreement under which any Indebtedness or Off-Balance Sheet Obligations in an aggregate amount greater than $15,000,000 (or the Dollar Amount of Indebtedness or Off-Balance Sheet Obligations denominated in a currency other than Dollars) was created or is governed, the effect of which is to cause, or to permit the holder or holders of any Indebtedness or Off-Balance Sheet Obligations to cause, Indebtedness or Off-Balance Sheet Obligations in an aggregate amount greater than $15,000,000 (or the Dollar Amount of Indebtedness or Off-Balance Sheet Obligations denominated in a currency other than Dollars) to become due prior to its stated maturity; or Indebtedness or Off-Balance Sheet Obligations in an aggregate amount greater than $15,000,000 (or the Dollar Amount of Indebtedness or Off-Balance Sheet Obligations denominated in a currency other than Dollars) shall be declared to be due and payable or required to be prepaid (other than by a regularly scheduled payment) prior to the stated maturity thereof; or
(h) the Lessee or any Material Subsidiary shall (i) shall be unable tohave an order for relief entered with respect to it under the Bankruptcy Code or any other bankruptcy, insolvency or shall admit other similar law as now or hereafter in writing its inability toeffect, pay its debts as such debts become due; or (ii) shall make an assignment for the benefit of creditors, petition (iii) fail to pay, or admit in writing its inability to pay, its debts generally as they become due, (iv) apply to any tribunal for for, seek, consent to, or acquiesce in the appointment of a receiver, custodian, receiver trustee, examiner, liquidator or trustee similar official for it or a any substantial part portion of its assets; or Property, (iiiv) shall commence institute any proceeding seeking an order for relief under the Bankruptcy Code or any other bankruptcy, insolvency or other similar law as now or hereafter in effect or seeking to adjudicate it as bankrupt or insolvent, or seeking dissolution, winding up, liquidation, reorganization, arrangement, readjustment adjustment or composition of debtit or its debts under the Bankruptcy Code or any other law relating to bankruptcy, dissolution insolvency or liquidation law reorganization or statute relief of any jurisdiction, whether now debtors or hereafter in effect; fail to file an answer or (iv) shall have had any such petition or application filed or other pleading denying the material allegations of any such proceeding shall have been commenced, filed against it, (vi) take any corporate action to authorize or effect any of the foregoing actions or (vii) fail to contest in which an adjudication good faith any appointment or appointment is made proceeding described in Section 16.1(i) below; or
(i) without the application, approval or order consent of the Lessee or any Material Subsidiary, a receiver, trustee, examiner, liquidator or similar official shall be appointed for relief is enteredthe Lessee or any Material Subsidiary or any substantial portion of the Property of any such Person, or which petition, application a proceeding described in Section 16.1(h)(v) shall be instituted against the Lessee or any Material Subsidiary and such appointment continues undischarged or such proceeding remains continues undismissed or unstayed for a period of 60 days or more; or shall be the subject of any proceeding under which its assets may be subject to seizure, forfeiture or divestiture sixty (other than a proceeding in respect of a Lien permitted under Section 8.3(b60) of the Credit Agreement); or (v) by any act or omission shall indicate its consent to, approval of or acquiescence in any such petition, application or proceeding or order for relief or the appointment of a custodian, receiver or trustee for all or any substantial part of its Property; or (vi) shall suffer any such custodianship, receivership or trusteeship to continue undischarged for a period of 30 days or moreconsecutive days; or
(hj) the Lessee or any Subsidiary of the Lessee shall fail within sixty (60) days to pay, bond or otherwise discharge any judgment or order for the payment of money in excess of $15,000,000 which is not stayed on appeal or otherwise being appropriately contested in good faith; or Xxx Research Corporation Amended and Restated Master Lease
(k) the Lessee or any other member of the Controlled Group shall fail to pay when due any amount or amounts which it shall have become liable to pay to the PBGC or to any Plan, or any notice of intent to terminate a Plan having aggregate Unfunded Vested Liabilities in excess of $5,000,000 shall be filed by a member of the Controlled Group and/or any Plan administrator, 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 such Plan, or a condition shall exist which would entitle the PBGC to obtain a decree adjudicating that any such Plan must be terminated; or
(l) any Operative Document to which the Lessee is a party or any Lien granted by any Obligor to the Lessor, the Collateral Agent or the Lease Agent Lessee under any Operative Document shall, in whole or in part, terminate, cease to be effective against, or (other than as expressly provided therein) cease to be the legal, valid, binding and enforceable obligation of the Lessee other than as permitted under, or pursuant to the terms of, such Obligor; or
(i) any Obligor shall directly or indirectly contest the validity (as opposed to the interpretation of the terms) of any Operative Document in any manner in any court of competent jurisdiction or any lien granted by connection with a transaction permitted by, any Operative Document; or
(jm) the Lessee shall directly or indirectly contest the effectiveness, validity, binding nature or enforceability of any Lessee Operative Document or any Lien granted under any Operative Document; or any Operative Document shall cease to be 100% owned (directly or indirectly) Subsidiary a legal, valid and binding obligation of the Company; or
(k) there shall Lessee or cease to be a breach of the STATUTORY CONDITIONin full force and effect.
Appears in 1 contract
Lease Events of Default. The occurrence and continuance of If any one (1) or more of the following events shall constitute (each a "Lease Event of Default") shall occur:
(ia) any Any Lessee shall fail to make payment of (Xi) any Basic Rent regarding any Property with respect to which such Lessee has executed a Lease Supplement (Interest/Yieldexcept as set forth in clause (ii)) within five three (53) Business Days after the same has become due and payable, payable or (Yii) any Property Balance, Purchase Option Rent, Loan Balance, Lease Recourse Amount or Lease Balance, including, without limitation, amounts due pursuant to Section 15.1, 18.1, 18.2, or 20.1Termination Value payable by such Lessee, on the date due therefor under the Master Lease, or (ii) the Company or any Subsidiary Guarantor shall have failed to make any such payment due under the Multicare Guaranty after the same has become is due and payable; or, or any payment of Basic Rent or Supplemental Rent payable by such Lessee due on the due date of any such payment of Termination Value, or any amount payable by such Lessee due on the Expiration Date;
(b) any Any Lessee shall fail to make payment of any Supplemental Rent payable by such Lessee (other than Supplemental Rent referred to in Section 17.1(a)(ii)) or any other Credit Party shall fail to make any payment payable by such Credit Party of any amount under any Operative Agreement which has become due with respect to Sections 13.7, 13.8, 13.9 and 13.10 of the Participation Agreement payable within five three (53) Business Days after receipt of notice thereof or any Lessee shall fail to make payment of any other Supplemental Rent within five (5) Business Days after the expiration of thirty (30) days from the date of receipt of notice by the Lessees or the Company that such Supplemental Rent payment is due and payable; ordue;
(c) any Event of Default (as defined in the Credit Agreement) shall have occurred and be continuing; or[Reserved];
(di) Any Credit Party shall fail to perform, comply with or observe any term, covenant or agreement applicable to it contained in Sections 5.4(a), 5.7(a) or 5.9 of the Lessee Credit Agreement or in Article VI of the Lessee Credit Agreement (each of which is incorporated herein by reference pursuant to Section 28.1), or (ii) any Lessee shall fail to maintain insurance as required by Article XIII of this Master Lease and such failure shall continue for ten (10) days; or
(e) any Lessee or the Company, as the case may be, shall fail to observe or perform any term, covenant covenant, obligation or condition of such Lessee or the Company, as the case may be, under this Master Lease (including without limitation the Incorporated Covenants) or the any other Operative Documents Agreement to which it such Lessee is a party other than those described set forth in Section 16.1(aSections 17.1(a), (b), (c) or (dd)(i) hereof, andor 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 each Section 17.1(b) or (d)(i) hereof and in the event such casebreach or failure to comply is capable of cure, such failure shall have continued for is not cured within thirty (30) days after (or with respect to the earlier Incorporated Covenants, the grace period, if any, applicable thereto) of (i) delivery to such Lessee or the Companyits occurrence, as applicable, of written notice thereof from the Lessor or (ii) a Responsible Officer of such Lessee or the Company, as the case may be, shall have actual knowledge of such failure; provided, however, that if such failure is capable of cure but cannot be cured by the 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 applicable Lessee or the Company is diligently pursuing, and shall continue to pursue diligently, remedy of such failure, the cure period shall be extended for an additional period of time as may be necessary to cure, not to exceed an additional ninety (90) days and not to extend beyond the Expiration Date; provided further, that failure by the applicable Lessee to fully comply with the requirements of Section 20.1 hereof shall not be subject to any cure period; or
(fiii) any representation or warranty made or deemed made by any Lessee or any other Credit Party set forth in this Lease (including without limitation the Company, as the case may be, 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, certificate or financial or other statement delivered in connection herewith or therewith shall be incorrect, false or misleading in any respect on or as of the Operative Documents date made or deemed made;
(e) An Agency Agreement Event of Default shall have occurred and be continuing;
(f) DTS or any of its Subsidiaries shall (i) default in any payment of principal of or interest on any Indebtedness (other than Indebtedness arising under the ELLF Facility) in a principal amount outstanding of at least $500,000 in the aggregate for DTS and any of its Subsidiaries beyond the period of grace (not to exceed 30 days), if any, provided in the instrument or agreement under which it such Indebtedness was created; or (ii) default in the observance or performance of any other agreement or condition relating to any Indebtedness in a principal amount outstanding of at least $500,000 in the aggregate for DTS and its Subsidiaries 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 beneficiary or beneficiaries of such Indebtedness (or a party trustee or agent on behalf of such holder or holders or beneficiary or beneficiaries) to cause, with the giving of notice if required, such Indebtedness to become due prior to its stated maturity;
(i) DTS or any of its Subsidiaries shall prove commence any case, proceeding or other action (A) under any existing or future law of any jurisdiction, domestic or foreign, relating to bankruptcy, insolvency, reorganization or relief of debtors, seeking to have been inaccurate at an order for relief entered with respect to it, or seeking to adjudicate it a bankrupt or insolvent, or seeking reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition or other relief with respect to it or its debts, or (B) seeking appointment of a receiver, trustee, custodian, conservator or other similar official for it or for all or any substantial part of its assets, or DTS or any Subsidiary shall make a general assignment for the time madebenefit of its creditors; or (ii) there shall be commenced against DTS or any Subsidiary any case, and if proceeding or other action of a nature referred to in clause (i) above which (A) results in the entry of an order for relief or any such inaccuracy can adjudication or appointment or (B) remains undismissed, undischarged or unbonded for a period of 60 days; or (iii) there shall be curedcommenced against DTS or any Subsidiary any case, it proceeding or other action seeking issuance of a warrant of attachment, execution, distraint or similar process against all or any substantial part of its assets which results in the entry of an order for any such relief which shall not have been cured vacated, discharged, or stayed or bonded pending appeal within forty-five (45) 60 days after the earlier of (i) delivery to such Lessee or the Company, as the case may be, of written notice thereof from the Lessor or (ii) a Responsible Officer of such Lessee or the Company, as the case may be, shall have actualknowledge of such inaccuracyentry thereof; or
(giv) DTS or any Lessee Subsidiary shall take any action in furtherance of, or Consolidated Entity indicating its consent to, approval of, or acquiescence in, any of the acts set forth in clause (i), (ii), or (iii) above; or (v) DTS or any Subsidiary shall generally not, or shall be unable to, or shall admit in writing its inability to, pay its debts as such debts they become due; or ;
(iih) shall make an assignment for the benefit of creditors, petition or apply to any tribunal for the appointment of a custodian, receiver or trustee for it or a substantial part of its assets; or [Reserved];
(iiii) shall commence any proceeding under any bankruptcy, reorganization, arrangement, readjustment of debt, dissolution or liquidation law or statute [Reserved];
(j) The entering of any jurisdiction, whether now or hereafter order in effect; or (iv) shall have had any such petition or application filed 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 proceeding shall have been commencedorder remains in effect for more than sixty (60) days;
(k) Any report, against itcertificate, 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 which an adjudication or appointment is any respect when made or order for relief is entered, or which petition, application or proceeding remains undismissed for a period delivered;
(l) Any Lessee Credit Agreement Event of 60 days or more; or shall be the subject of any proceeding under which its assets may be subject to seizure, forfeiture or divestiture Default (other than a proceeding in respect Lessee Credit Agreement Event of a Lien permitted Default under Section 8.3(b7.1(i) of the Lessee Credit Agreement or under Section 7.1(c) of the Lessee Credit Agreement to the extent such Lessee Credit Agreement Event of Default under Section 7.1(c) arises as a result of a breach of the covenants set forth in Section 5.4(a) of the Lessee Credit Agreement or Section 6.4 of the Lessee Credit Agreement) shall have occurred and be continuing and shall not have been waived;
(m) One or more judgments or decrees shall be entered against DTS or any of its Subsidiaries involving in the aggregate a liability (to the extent not paid when due or covered by insurance) of $2,000,000 or more and all such judgments or decrees shall not have been paid and satisfied, vacated, discharged, stayed or bonded pending appeal within 30 days from the entry thereof;
(i) Any Person shall engage in any "prohibited transaction" (as defined in Section 406 of ERISA or Section 4975 of the Code) involving any Plan, (ii) any "accumulated funding deficiency" (as defined in Section 302 of ERISA); , whether or not waived, shall exist with respect to any Plan or any Lien in favor of the PBGC or a Plan (other than a Permitted Lien) shall arise on the assets of DTS, any of its Subsidiaries or any Commonly Controlled Entity, (iii) a Reportable Event shall occur with respect to, or proceedings shall commence to have a trustee appointed, or a trustee shall be appointed, to administer or to terminate, any Single Employer Plan, which Reportable Event or commencement of proceedings or appointment of a trustee is, in the reasonable opinion of the Majority Secured Parties, likely to result in the termination of such Plan for purposes of Title IV of ERISA, (iv) any Single Employer Plan shall terminate for purposes of Title IV of ERISA, (v) by DTS, any act of its Subsidiaries or omission shall indicate its consent any Commonly Controlled Entity shall, or in the reasonable opinion of the Majority Secured Parties is likely to, approval of or acquiescence incur any liability in any such petitionconnection with a withdrawal from, application or proceeding or order for relief or the appointment of a custodianInsolvency or Reorganization of, receiver or trustee for all or any substantial part of its Property; Multiemployer Plan or (vi) any other similar event or condition shall suffer occur or exist with respect to a Plan; and in each case in clauses (i) through (vi) above, such event or condition, together with all other such events or conditions, if any, could have a Material Adverse Effect;
(o) A Change of Control shall occur and (y) a majority of the Board of Directors of DTS has duly authorized and approved such Change of Control or (z) prior to such Change of Control, a Poison Pill was not enacted to prevent the same;
(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 Participation Agreement or any provision thereof shall cease to be in full force and effect, or any Guarantor or any Person acting by or on behalf of such custodianshipGuarantor shall deny or disaffirm such Guarantor's obligations under such guaranty, receivership or trusteeship any Guarantor shall default in the due performance or observance of any term, covenant or agreement on its part to continue undischarged for a period of 30 days be performed or moreobserved pursuant to any guaranty; or
(hr) A reasonable basis shall exist for the assertion against DTS or any Lien granted of its Subsidiaries, or any predecessor in interest of DTS or any of its Subsidiaries, of (or there shall have been asserted against DTS or any of its Subsidiaries) an Environmental Claim that, in the judgment of the Majority Secured Parties, is reasonably likely to be determined adversely to DTS or any of its Subsidiaries, and the amount thereof (either individually or in the aggregate) is reasonably likely to have a Material Adverse Effect (insofar as such amount is payable by DTS or any Obligor of its Subsidiaries but after deducting any portion thereof that is reasonably expected to be paid by other creditworthy Persons jointly and severally liable therefor); then, in any such event, Lessor may, in addition to the Lessorother rights and remedies provided for in this Article XVII and in Section 18.1, terminate this Lease by giving each Lessee five (5) days notice of such termination (provided, notwithstanding the Collateral Agent or foregoing, this Lease shall be deemed to be automatically terminated without the giving of notice upon the occurrence of a Lease Agent Event of Default under any Operative Document Sections 17.1(g)), and this Lease shall terminate, and all rights of each Lessee under this Lease shall cease. Each Lessee shall, in whole or in part, terminate, cease to be effective against, or cease to be the legal, valid, binding and enforceable obligation of, such Obligor; or
(i) any Obligor shall directly or indirectly contest the validity (as opposed to the interpretation fullest extent permitted by law, pay as Supplemental Rent all costs and expenses incurred by or on behalf of the terms) Lessor or any other Financing Party, including without limitation reasonable fees and expenses of counsel, as a result of any Operative Document in any manner in any court Lease Event of competent jurisdiction or any lien granted by any Operative Document; or
(j) any Lessee shall cease to be 100% owned (directly or indirectly) Subsidiary of the Company; or
(k) there shall be a breach of the STATUTORY CONDITIONDefault hereunder.
Appears in 1 contract
Lease Events of Default. The occurrence and continuance of any one or more of the following events shall ----------------------- constitute a "Lease Event 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 Governmental Authority):
(i) Lessee shall fail to pay when due (A) any Basic Rent (Principal) or (B) any Supplemental Rent (Senior Debt) which is to be used by Lessor to pay any principal amount due on any of the Notes, or (ii) Lessee shall fail to pay when due any Basic Rent (Equity);
(i) Lessee shall fail to pay (A) any Basic Rent (interest) or (B) any Supplemental Rent (Senior Debt) which is attributable to Fees on the date such amount is due and payable, and such Default shall continue for five (5) days, or (ii) Lessee shall fail to pay any Supplemental Rent (Equity) or Additional Rent on the date such amount is due and payable, and such Default shall continue for five (5) days;
(c) Lessee shall fail to make any payment of amounts (Xother than those described in clauses (a) or (b) above) payable hereunder or under any Basic other Transaction Document as Supplemental Rent (Interest/Yield) within five (5) Business Days after when the same has shall become due and payable, or (Y) payable and any Property Balance, Purchase Option Rent, Loan Balance, Lease Recourse Amount or Lease Balance, including, without limitation, amounts due pursuant to Section 15.1, 18.1, 18.2, or 20.1, on the date due therefor under the Master Lease, or (ii) the Company or any Subsidiary Guarantor such default shall have failed to make any payment due under the Multicare Guaranty after the same has become due and payable; or
(b) any Lessee shall fail to make payment of any Supplemental Rent due with respect to Sections 13.7, 13.8, 13.9 and 13.10 of the Participation Agreement within five (5) Business Days after receipt of notice thereof or any Lessee shall fail to make payment of any other Supplemental Rent within five (5) Business Days after the expiration continue for a period of thirty (30) days from the date after written notice of receipt of notice nonpayment thereof has been received by the Lessees or the Company that such Supplemental Rent is due and payable; or
(c) any Event of Default (as defined in the Credit Agreement) shall have occurred and be continuingLessee; or
(d) any Lessee shall fail to maintain insurance as required perform or observe in any respect any covenant, condition or agreement to be performed or observed by it under Article XIII VI and Section 10.02 hereof, or Sections 8.3, 8.8, 8.10, 8.11, 8.20, 8.24, 8.26 or 8.27 of this Master Lease the Amended and such failure Restated Participation Agreement or Lessee Parent shall continue for ten (10) daysfail to perform or observe in any respect any covenant, condition or agreement to be observed or performed under Sections 9.2, 9.3, 9.5 or 9.6 of the Amended and Restated Participation Agreement; or
(e) Lessee shall fail to perform or observe any of its covenants contained in Section 8.9 of the Amended and Restated Participation Agreement or Section 5.08 hereof and such failure shall continue uncured for 45 or more days, or Lessee shall not have posted a bond in amount and form satisfactory to Lessor and the Majority Banks insuring Lessor and the Bank Parties against any loss by virtue of Lessee's default under this subsection; or
(f) Lessee or the CompanyLessee Parent shall fail to perform or observe any of its covenants contained in any other provision of this Lease or any other Transaction Document (other than those covered by another paragraph of this Section 13.01) and such failure shall continue uncured for thirty (30) or more days after notice thereof to Lessee by Lessor or Agent, provided that -------- if (i) such failure cannot be cured within such 30-day period, (ii) Lessee or Lessee Parent, as the case may be, shall fail is proceeding with diligence and in good faith to observe or perform any termcure such failure, covenant or condition (iii) the existence of such failure does not materially impair the Liens on the Collateral pursuant to the Security Documents and (iv) Lessor, and so long as the Loan Documents are in effect, Agent, shall have received a certificate of an authorized representative of Lessee or the CompanyLessee Parent, as the case may be, under this Master Lease or to the Operative Documents to which it is party other than those described in Section 16.1(aeffect of subclauses (i), (b), or ii) and (diii) hereof, and, in each such case, such failure shall have continued for thirty (30) days after the earlier of (i) delivery to such above and stating what action Lessee or the Company, as applicable, of written notice thereof from the Lessor or (ii) a Responsible Officer of such Lessee or the Company, as the case may be, shall have actual knowledge of such failure; provided, however, that if such failure Parent is capable of taking to cure but cannot be cured by the 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 applicable Lessee or the Company is diligently pursuing, and shall continue to pursue diligently, remedy of such failure, the cure period time within which such failure may be cured shall be extended for an additional period of time as may be necessary to curesuch period, not to exceed an additional ninety one hundred thirty -five (90135) days and not days, as shall be necessary for Lessee or Lessee Parent diligently to extend beyond the Expiration Date; provided further, that failure by the applicable Lessee to fully comply with the requirements of Section 20.1 hereof shall not be subject to any cure periodsuch failure; or
(fg) any representation or warranty made by any Lessee or the Company, as the case may be, Lessee Parent herein or in any other Transaction Document, or any representation, warranty or statement in any certificate, financial statement or other document furnished by or on behalf of the Operative Documents Lessee or Lessee Parent to which it is a party Lessor or any Bank Party or any agent or advisor of Lessor or any Bank Party in connection herewith or therewith, shall prove to have been inaccurate at false or misleading in any material respect as of the time made, and if such inaccuracy can be curedconfirmed or furnished which in the opinion of Lessor, it shall not have been cured within forty-five (45) days after the earlier of (i) delivery to such Lessee or the Company, so long as the case may beLoan Documents shall be in effect, of written notice thereof from the Lessor or (ii) Majority Banks, could have a Responsible Officer of such Lessee or the Company, as the case may be, shall have actualknowledge of such inaccuracyMaterial Adverse Effect; or
(gh) any a judgment or judgments for the payment of money in excess of $250,000 (other than a judgment which is fully covered by insurance) shall be rendered against Lessee or Consolidated Entity the Project, and the same shall remain in effect and unstayed for a period of 30 or more consecutive days; or
(i) Lessee shall be unable tofail to make any payment in respect of any obligation in an amount exceeding $250,000 for the payment of borrowed money when due or within any applicable grace period; or
(j) Lessee or Lessee Parent shall (i) apply for or consent to the appointment of, or shall the taking of possession by, a receiver, custodian, trustee or liquidator of itself or of all or a substantial part of its property, (ii) admit in writing its inability toinability, or be generally unable, to pay its debts as such debts become due; or , (iiiii) shall make an a general assignment for the benefit of its creditors, (iv) commence a voluntary case under the Federal Bankruptcy Code, (v) file a petition or apply seeking to take advantage of any tribunal for the appointment of a custodianother law relating to bankruptcy, receiver or trustee for it or a substantial part of its assets; or (iii) shall commence any proceeding under any bankruptcyinsolvency, reorganization, arrangementwinding up, or composition or readjustment of debtdebts, dissolution or liquidation law or statute of any jurisdiction, whether now or hereafter in effect; or (iv) shall have had any such petition or application filed or any such proceeding shall have been commenced, against it, in which an adjudication or appointment is made or order for relief is entered, or which petition, application or proceeding remains undismissed for a period of 60 days or more; or shall be the subject of any proceeding under which its assets may be subject to seizure, forfeiture or divestiture (other than a proceeding in respect of a Lien permitted under Section 8.3(b) of the Credit Agreement); or (v) by any act or omission shall indicate its consent to, approval of or acquiescence in any such petition, application or proceeding or order for relief or the appointment of a custodian, receiver or trustee for all or any substantial part of its Property; or (vi) shall suffer any such custodianship, receivership or trusteeship fail to continue undischarged for controvert in a period of 30 days or more; or
(h) any Lien granted by any Obligor to the Lessor, the Collateral Agent or the Lease Agent under any Operative Document shall, in whole or in part, terminate, cease to be effective againsttimely and appropriate manner, or cease to be acquiesce in writing to, any petition filed against such Person in an involuntary case under the legalFederal Bankruptcy Code, valid, binding and enforceable obligation of, such Obligor; or
or (ivii) take any Obligor shall directly corporate or indirectly contest other action for the validity (as opposed to the interpretation purpose of effecting any of the terms) of any Operative Document in any manner in any court of competent jurisdiction or any lien granted by any Operative Document; or
(j) any Lessee shall cease to be 100% owned (directly or indirectly) Subsidiary of the Companyforegoing; or
(k) there a proceeding or case shall be commenced without the application or consent of Lessee or Lessee Parent, in any court of competent jurisdiction, seeking (i) its liquidation, reorganization, dissolution, winding-up, or the composition or readjustment of debts, (ii) the appointment of a breach trustee, receiver, custodian, liquidator or the like of such Person under any law relating to bankruptcy, insolvency, reorganization, winding-up, or composition or adjustment of debts, or a warrant of attachment, execution or similar process shall be issued against property of Lessee or Lessee Parent having a value of (or original cost, if higher) in excess of $250,000 and such proceeding, case, warrant or process shall continue undismissed, or any order, judgment or decree approving or ordering any of the STATUTORY CONDITION.foregoing shall be entered and continue unstayed and in effect for a period of 30 or more days, or any order for relief against Lessee or Lessee Parent shall be entered in an involuntary case under the Federal Bankruptcy Code; or
(1) the Lessee Security Agreement or the Buzzard Stock Pledge Agreement shall cease, for any reason, to be in full force and effect or Lessee, Lessee Parent or any Affiliate of either of them shall so assert in writing, or the Lessee Security Agreement shall cease to be effective to grant a perfected Lien to Lessor on the Lessee Collateral described therein with the priority purported to be created thereby; or
Appears in 1 contract
Lease Events of Default. The occurrence and continuance of If any one (1) or more of the following events shall constitute events, subject to the penultimate paragraph of this Section 17.1, (each a "Lease Event of Default") shall occur and be continuing:
(ia) any Lessee shall fail to make payment of (Xi) any Basic Rent (Interest/Yieldexcept as set forth in clause (ii)) within five three (53) Business Days days after the same has become due and payable, or (Y) any Property Balance, Purchase Option Rent, Loan Balance, Lease Recourse Amount or Lease Balance, including, without limitation, amounts due pursuant to Section 15.1, 18.1, 18.2, or 20.1, on the date due therefor under the Master Lease, payable or (ii) any Termination Value on the Company or date any Subsidiary Guarantor shall have failed to make any such payment due under the Multicare Guaranty after the same has become is due and payable; or, any payment of Basic Rent or Supplemental Rent due on the due date of any such payment of Termination Value or any amount due on the Expiration Date;
(b) any Lessee shall fail to make payment of any Supplemental Rent due with respect (other than Supplemental Rent referred to Sections 13.7, 13.8, 13.9 and 13.10 of the Participation Agreement in Section 17.1(a)(ii)) within five three (53) Business Days days after receipt of written notice thereof or any Lessee shall fail to make payment of any other Supplemental Rent within five (5) Business Days after the expiration of thirty (30) days from the date of receipt of notice by the Lessees or the Company that such Supplemental Rent payment is due and payable; or;
(c) any Event of Default (as defined in the Credit Agreement) shall have occurred and be continuing; or
(d) any Lessee shall fail to maintain insurance as required by Article XIII XIV of this Master Lease and such failure shall continue for or to deliver any requisite annual certificate with respect thereto within ten (10) days; ordays of the date such certificate is due under the terms hereof;
(ei) any Lessee shall fail to observe or perform pursuant to Sections 5.4 or 8A.9 of the Company, as the case may be, Participation Agreement or (ii) Lessee shall fail to observe or perform any term, covenant covenant, obligation or condition of such Lessee or the Company, as the case may be, under this Master Lease or the any other Operative Documents Agreement to which it Lessee is a party other than those described set forth in Section 16.1(aSections 17.1(a), (b), (c) or (dd)(i) hereof, and, in each such case, and such failure shall have continued continue for thirty (30) days after the earlier of (i) delivery to such Lessee or the Company, as applicable, of either has received written notice thereof from the Lessor or (ii) a Responsible Officer of such Lessee or the Company, as the case may be, shall have actual knowledge of such failurethereof; provided, howeverthat in the case of this clause (ii), that if such failure is not capable of cure but cannot be cured remedy by the payment of money or cannot be cured by diligent efforts otherwise within such thirty (30) day period but may be remedied with further diligence and if Lessee has and continues to pursue diligently such diligent efforts remedy, then Lessee shall be properly commenced within the cure period and the applicable Lessee or the Company is diligently pursuing, and shall continue granted additional time to pursue diligentlysuch remedy for such period as the Agent may determine in its reasonable discretion; provided, remedy of further, in no event shall such failure, the cure period shall be extended for an additional period of time as may be necessary to cure, not to exceed an additional ninety (90) days and not to extend beyond the Expiration Date; provided further, that failure by the applicable Lessee to fully comply with the requirements of Section 20.1 hereof shall not be subject to any cure period; or
or (fiii) any representation or warranty or statement of fact 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, provided, however, with respect to this Section 17.1(d)(ii) and (iii) to the extent Agent exercises discretion in making the determination that an Event of Default has occurred, Agent shall exercise such discretion in a commercially reasonable manner;
(e) [Reserved];
(f) The Lessee or the Company, as the case may be, in any Subsidiary of the Operative Documents to which it is a party Lessee shall prove to have been inaccurate at the time made, and if such inaccuracy can be cured, it shall not have been cured within forty-five (45) days after the earlier of (i) delivery fail to make any payment, whether of principal, premium or interest, in an aggregate amount equal to or greater than $5,000,000 in respect of any Indebtedness (other than any Indebtedness pursuant to the Operative Agreements) of, or guaranteed by, the Lessee or any Subsidiary when due (whether 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 Lessee or the Company, as the case may be, of written notice thereof from the Lessor or (ii) a Responsible Officer of such Lessee or the Company, as the case may be, shall have actualknowledge of such inaccuracy; or
(g) any Lessee or Consolidated Entity (i) shall be unable to, or shall admit in writing its inability to, pay its debts as such debts become dueindebtedness; or (ii) any other default under any agreement or instrument relating to any Indebtedness of the Lessee or any of its Subsidiaries, or any other event (including a default in payment of a lesser amount than that specified above if such default would cause or permit acceleration as described in this clause) shall make occur and shall continue after the applicable grace period, if any, specified in such agreement or instrument, if the effect of such default or event (A) is to permit the acceleration of the maturity of any such indebtedness in an assignment for aggregate principal amount equal to or greater than $20,000,000 or (B) results in the benefit acceleration of creditorsthe maturity of any such indebtedness in an aggregate principal amount equal to or greater than $20,000,000;
(g) The liquidation or dissolution of Lessee, or the suspension of the business of Lessee, or the filing by Lessee of a voluntary petition or apply to any tribunal for the appointment of a custodian, receiver or trustee for it or a substantial part of its assets; or (iii) shall commence any proceeding under any bankruptcy, an answer seeking reorganization, arrangement, receivership, readjustment of debtits debts, dissolution insolvency, liquidation, dissolution, winding-up or liquidation law for any other relief under the Bankruptcy Code, or statute of under any jurisdictionother insolvency act or law, whether state or federal, now or hereafter in effect; or (iv) shall have had any such petition or application filed existing, or any such proceeding shall have been commenced, against it, in which an adjudication or appointment is made or order for relief is entered, or which petition, application or proceeding remains undismissed for a period of 60 days or more; or shall be the subject of any proceeding under which its assets may be subject to seizure, forfeiture or divestiture (other than a proceeding in respect of a Lien permitted under Section 8.3(b) action of the Credit Agreement); or (v) by any act or omission shall indicate Lessee indicating its consent to, approval of or acquiescence in in, any such petitionpetition or proceeding; the application by the Lessee for, application or proceeding or order for relief or the appointment by, consent or acquiescence of the Lessee of a custodianreceiver, receiver a conservator, a trustee or trustee a custodian of the Lessee for all or a substantial part of its property; the making by the Lessee of any general assignment for the benefit of creditors; the inability of the Lessee or the admission by the Lessee in writing of its inability to pay its debts as they mature or the Lessee is generally not paying its debts and other financial obligations as they become due and payable; or the Lessee taking any corporate action to authorize any of the foregoing;
(h) The filing of an involuntary petition against the 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 the 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 its Property; the property of the Lessee, and the continuance of any of such events for sixty (60) days undismissed or (vi) shall suffer any such custodianship, receivership or trusteeship to continue undischarged for a period of 30 days or more; or
(h) any Lien granted by any Obligor to the Lessor, the Collateral Agent or the Lease Agent under any Operative Document shall, in whole or in part, terminate, cease to be effective against, or cease to be the legal, valid, binding and enforceable obligation of, such Obligor; orundischarged;
(i) any Obligor shall directly or indirectly contest the validity (as opposed to the interpretation of the terms) of any Operative Document in any manner in any court of competent jurisdiction or any lien granted by any Operative Document; or[Reserved];
(j) The entering of any order in any proceedings against the Lessee shall cease to be 100% owned (directly or indirectly) any Subsidiary of the CompanyLessee 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; orprovided to the extent such does not have a Material Adverse Effect (determined in a commercially reasonable manner), Subsidiaries of Lessee may be dissolved, provided, however, with respect to this Section 17.1(j) to the extent Agent exercises discretion in making the determination that an Event of Default has occurred, Agent shall exercise such discretion in a commercially reasonable manner
(k) there Any Environmental Violation shall have occurred relating to any Property and either (i) Lessee shall, not within thirty (30) days after Lessee has actual knowledge of such Environmental Violation, either deliver to Lessor a Termination Notice with respect to such Property pursuant to Section 16.1, if applicable, or, at Lessee's sole cost and expense, promptly during such thirty (30) day period deliver to Lessor notice of intention to remediate or (ii) such Environmental Violation is reasonably expected to exceed $500,000 in remediation costs;
(l) [Reserved];
(m) A final judgment or judgments for the payment of money shall be rendered by a breach court or courts against the Lessee or any Subsidiary of the STATUTORY CONDITION.Lessee in excess of $20,000,000 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) 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 final 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 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 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) 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 cease for any reason to constitute a majority of the board of directors of Lessee (excluding for such calculation, directors who die or retire (for reasons other than any sale, transfer of assets or merger involving Lessee) during any
Appears in 1 contract
Lease Events of Default. The occurrence and continuance of any one or more of the following events shall constitute a "Lease Event of Default":
(ia) any Lessee shall fail to make any payment of (X) any Basic Rent (Interest/Yield) within five (5) Business Days after the same has become due and payable, or (Y) any Property Balance, Purchase Option Interim Rent, Loan Balance, Lease Recourse Amount Base Rent or Lease Balance, including, without limitation, amounts due pursuant to Section 15.1, 18.1, 18.2, Renewal Rent or 20.1, on Termination Value within three (3) days of the date due therefor under the Master Lease, or (ii) the Company or any Subsidiary Guarantor shall have failed to make any payment due under the Multicare Guaranty after the same has become due and payable; orwhen due;
(b) any Lessee shall fail to make any payment of any Supplemental Rent when due with respect to Sections 13.7, 13.8, 13.9 and 13.10 of the Participation Agreement within such failure shall continue for five (5) Business Days after receipt of notice thereof or any days;
(c) Lessee shall fail to make any payment of required under any other Supplemental Rent within five Operative Document, other than any amount described in clause (5a) Business Days or clause (b) of this Article XVI, and such failure shall continue for a period often (10) days after notice of such failure to Lessee from Lessor or other Person to whom Lessee is required to make such payment;
(d) Lessee shall fail to timely perform or observe any covenant or agreement (other than any covenant or agreement whereby the expiration breach thereof constitutes a Lease Event of Default under any other provision of this Section 16.01) to be performed or observed by it hereunder or under any other Operative Document to which it is a party and such failure shall continue for a period of thirty (30) days after written notice thereof from Lessor, the date of receipt of notice by the Lessees Agent or the Company Head Lessor; provided that such Supplemental Rent is due and payable; or
(c) any Event of Default (as defined in the Credit Agreement) shall have occurred and be continuing; or
(d) any Lessee shall fail to maintain insurance as required by Article XIII of this Master Lease and such failure shall continue for ten (10) days; or
(e) any Lessee or the Company, as the case may be, shall fail to observe or perform any term, covenant or condition continuation of such Lessee or the Company, as the case may be, under this Master Lease or the Operative Documents to which it is party other than those described in Section 16.1(a), (b), or (d) hereof, and, in each such case, such a failure shall have continued for thirty (30) days after the earlier such notice shall not constitute a Lease Event of Default up to an additional thirty (i30) delivery to such Lessee or the Company, days so long as applicable, of written notice thereof from the Lessor or (ii) a Responsible Officer of such Lessee or the Company, as the case may be, shall have actual knowledge of such failure; provided, however, that if such failure is capable of cure but cannot reasonably be cured by the payment of money or cannot be cured by diligent efforts within such thirty (30) day period but such diligent efforts period, and Lessee shall be properly commenced within diligently and continuously prosecuting the cure period and the applicable Lessee or the Company is diligently pursuing, of such failure and shall continue have advised the Lessor in writing of the steps it is taking and will take to pursue diligently, remedy of such failure, Lease Default. The parties hereto acknowledge that the foregoing cure period shall be extended for an additional period of time as may be necessary to cure, not to exceed an additional ninety (90) days and not to extend beyond the Expiration Date; provided further, that failure by the applicable Lessee to fully comply with the requirements of Section 20.1 hereof shall not be subject construed to limit the period set forth in Section 8.05 afforded to Lessee thereunder to take any cure period; or
(f) any representation or warranty made by any Lessee or the Company, as the case may be, in any of the Operative Documents to which it is a party shall prove to have been inaccurate at the time made, required Remedial Action and if such inaccuracy can be cured, it shall not have been cured within forty-five (45) days after the earlier of (i) delivery to such Lessee or the Company, as the case may be, of written notice thereof from the Lessor or (ii) a Responsible Officer of such Lessee or the Company, as the case may be, shall have actualknowledge of such inaccuracy; or
(g) any Lessee or Consolidated Entity (i) shall be unable to, or shall admit in writing its inability to, pay its debts as such debts become due; or (ii) shall make an assignment for the benefit of creditors, petition or apply to any tribunal for the appointment of a custodian, receiver or trustee for it or a substantial part of its assets; or (iii) shall commence any proceeding under any bankruptcy, reorganization, arrangement, readjustment of debt, dissolution or liquidation law or statute of any jurisdiction, whether now or hereafter in effect; or (iv) shall have had any such petition or application filed or any such proceeding shall have been commenced, against it, in which an adjudication or appointment is made or order for relief is entered, or which petition, application or proceeding remains undismissed for a period of 60 days or more; or shall be the subject of any proceeding under which its assets may be subject to seizure, forfeiture or divestiture (other than a proceeding in respect of a Lien permitted under Section 8.3(b) of the Credit Agreement); or (v) by any act or omission shall indicate its consent to, approval of or acquiescence in any such petition, application or proceeding or order for relief or the appointment of a custodian, receiver or trustee for all or any substantial part of its Property; or (vi) shall suffer any such custodianship, receivership or trusteeship to continue undischarged for a period of 30 days or more; or
(h) any Lien granted by any Obligor to the Lessor, the Collateral Agent or the Lease Agent under any Operative Document shall, in whole or in part, terminate, cease to be effective against, or cease to be the legal, valid, binding and enforceable obligation of, such Obligor; or
(i) any Obligor shall directly or indirectly contest the validity (as opposed to the interpretation of the terms) of any Operative Document in any manner in any court of competent jurisdiction or any lien granted by any Operative Document; or
(j) any Lessee shall cease to be 100% owned (directly or indirectly) Subsidiary of the Company; or
(k) there shall be a breach of the STATUTORY CONDITION.obtain Final Governmental Approval;
Appears in 1 contract
Lease Events of Default. The occurrence and continuance of If any one or more of the following events shall constitute (each a "Lease Event of Default") shall occur and be continuing:
(ia) any Lessee shall fail to make payment of (Xi) any Basic Rent (Interest/Yieldexcept as set forth in clause (ii)) within five three (53) Business Days days after receipt of written notice that the same has become due and payable, payable or (Yii) any Property Balance, Purchase Option Rent, Loan Balance, Lease Recourse Amount Termination Value or Lease Balance, including, without limitation, amounts due pursuant to Section 15.1, 18.1, 18.2, or 20.1Maximum Amount, on the date due therefor under the Master Lease, or (ii) the Company or any Subsidiary Guarantor shall have failed to make any such payment due under the Multicare Guaranty after the same has become is due and payable; or, or any payment of Basic Rent or Supplemental Rent due on the due date of any such payment of Termination Value or Maximum Amount, or any amount due on the Expiration Date;
(b) any Lessee shall fail to make payment of any Supplemental Rent due with respect (other than Supplemental Rent referred to Sections 13.7, 13.8, 13.9 and 13.10 of the Participation Agreement within five (5in Section 17.1(a)(ii)) Business Days after receipt of notice thereof or any Lessee other Credit Party shall fail to make any payment of any other Supplemental Rent amount under any Operative Agreement which has become due and payable within five three (5) Business Days after the expiration of thirty (303) days from the date of after receipt of written notice by the Lessees or the Company that such Supplemental Rent payment is due and payable; ordue;
(c) any Event of Default (as defined in the Credit Agreement) shall have occurred and be continuing; or
(d) any Lessee shall fail to maintain insurance as required by Article XIII XIV of this Master Lease and such failure shall continue for or to deliver any requisite annual certificate with respect thereto within ten (10) days; ordays of the date such certificate is due under the terms hereof;
(ei) any Lessee or the Company, as the case may be, shall fail to observe or perform any term, covenant covenant, obligation or condition of Lessee under this Lease (including without limitation the Incorporated Covenants) 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 any other Credit Party shall fail to observe or perform any term, covenant, obligation or condition of such Lessee or the Company, as the case may be, Credit Party under this Master Lease or the any Operative Documents to which it is party Agreement other than those described set forth in Section 16.1(a), (b), or (d17.1(b) hereof, and, in each such case, hereof and such failure shall have continued continue for thirty fifteen (3015) days (or with respect to the Incorporated Covenants, the grace period, if any, applicable thereto) after the earlier of (i) delivery to such Lessee or the Company, as applicable, of written notice thereof from the Lessor or (ii) a Responsible Officer of such Lessee or the Company, as the case may be, shall have actual knowledge of such failure; provided, however, that if such failure is capable of cure but cannot be cured by the 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 applicable Lessee or the Company is diligently pursuing, and shall continue to pursue diligently, remedy of such failure, the cure period shall be extended for an additional period of time as may be necessary to cure, not to exceed an additional ninety (90) days and not to extend beyond the Expiration Date; provided further, that failure by the applicable Lessee to fully comply with the requirements of Section 20.1 hereof shall not be subject to any cure period; or
(f) any representation or warranty made by any Lessee or the Company, as the case may be, in any of the Operative Documents to which it is a party shall prove to have been inaccurate at the time made, and if such inaccuracy can be cured, it shall not have been cured within forty-five (45) days after the earlier of (i) delivery to such Lessee or the Company, as the case may be, of written notice thereof from the Lessor or (ii) a Responsible Officer of such Lessee or the Company, as the case may be, shall have actualknowledge of such inaccuracy; or
(g) any Lessee or Consolidated Entity (i) shall be unable to, or shall admit in writing its inability to, pay its debts as such debts become due; or (ii) shall make an assignment for the benefit of creditors, petition or apply to any tribunal for the appointment of a custodian, receiver or trustee for it or a substantial part of its assets; or (iii) shall commence any proceeding under any bankruptcy, reorganization, arrangement, readjustment of debt, dissolution or liquidation law or statute of any jurisdiction, whether now or hereafter in effect; or (iv) shall have had any such petition or application filed or any such proceeding shall have been commenced, against it, in which an adjudication or appointment is made or order for relief is entered, or which petition, application or proceeding remains undismissed for a period of 60 days or more; or shall be the subject of any proceeding under which its assets may be subject to seizure, forfeiture or divestiture (other than a proceeding in respect of a Lien permitted under Section 8.3(b) of the Credit Agreement); or (v) by any act or omission shall indicate its consent to, approval of or acquiescence in any such petition, application or proceeding or order for relief or the appointment of a custodian, receiver or trustee for all or any substantial part of its Property; or (vi) shall suffer any such custodianship, receivership or trusteeship to continue undischarged for a period of 30 days or more; or
(h) any Lien granted by any Obligor to the Lessor, the Collateral Agent or the Lease Agent under any Operative Document shall, in whole or in part, terminate, cease to be effective against, or cease to be the legal, valid, binding and enforceable obligation of, such Obligor; or
(i) any Obligor shall directly or indirectly contest the validity (as opposed to the interpretation of the terms) of any Operative Document in any manner in any court of competent jurisdiction or any lien granted by any Operative Document; or
(j) any Lessee shall cease to be 100% owned (directly or indirectly) Subsidiary of the Company; or
(k) there shall be a breach of the STATUTORY CONDITION.Lessee
Appears in 1 contract
Lease Events of Default. The occurrence and continuance of If any one (1) or more of the following events shall constitute (each a "Lease Event of Default") shall occur:
(ia) any Lessee shall fail to make payment of (Xi) any Basic Rent (Interest/Yieldexcept as set forth in clause (ii)) within five three (53) Business Days after the same has become due and payable, payable or (Yii) any Property Balance, Purchase Option Rent, Loan Balance, Lease Recourse Amount or Lease Balance, including, without limitation, amounts due pursuant to Section 15.1, 18.1, 18.2, or 20.1Termination Value, on the date due therefor under the Master Lease, or (ii) the Company or any Subsidiary Guarantor shall have failed to make any such payment due under the Multicare Guaranty after the same has become is due and payable; or, or any payment of Basic Rent or Supplemental Rent due on the due date of any such payment of Termination Value, or any amount due on the Expiration Date;
(b) any Lessee shall fail to make payment of any Supplemental Rent (other than Supplemental Rent referred to in Section 17.1(a)(ii)) which has become due with respect to Sections 13.7, 13.8, 13.9 and 13.10 of the Participation Agreement payable within five three (53) Business Days after receipt of notice thereof or any Lessee shall fail to make payment of any other Supplemental Rent within five (5) Business Days after the expiration of thirty (30) days from the date of receipt of notice by the Lessees or the Company that such Supplemental Rent payment is due and payable; ordue;
(c) any Event of Default (as defined in the Credit Agreement) shall have occurred and be continuing; or
(d) any Lessee shall fail to maintain insurance as required by Article XIII XIV of this Master Lease and such failure shall continue for or to deliver any requisite annual certificate with respect thereto within ten (10) days; ordays of the date such certificate is due under the terms hereof;
(ei) any Lessee or the Company, as the case may be, shall fail to observe or perform any term, covenant covenant, obligation or condition of such Lessee or the Company, as the case may be, under this Master Lease or the any other Operative Documents Agreement to which it Lessee is a party other than those described set forth in Section 16.1(aSections 17.1(a), (b), ) or (dc) hereof, and, in each such case, and such failure shall have continued continue for thirty fifteen (3015) days after the earlier of (i) delivery to such Lessee or the Company, as applicable, of written notice thereof from to the Lessor Lessee, provided if any such failure other than those set forth in Sections 17.1(a), (b) or (iic) a Responsible Officer of such Lessee or the Company, as the case may be, shall have actual knowledge of such failure; provided, however, that if such failure hereof is not capable of cure but cannot be cured by the payment of money or cannot be cured by diligent efforts remedy within such thirty fifteen (3015) day period but can be remedied with further diligence and if the Lessee has and continues to pursue diligently such diligent efforts remedy, then the Lessee shall be properly commenced within the cure period and the applicable Lessee or the Company is diligently pursuing, and shall continue granted additional time to pursue diligently, such remedy of such failure, the cure period shall be extended for but in no event more than an additional period of time as may be necessary to cure, not to exceed an additional ninety fifteen (9015) days and not to extend beyond the Expiration Date; provided further, that failure by the applicable Lessee to fully comply with the requirements of Section 20.1 hereof shall not be subject to any cure period; or
or (fii) 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) An Agency Agreement Event of Default shall have occurred and be continuing;
(f) Lessee or the Company, as the case may be, in any of its Subsidiaries shall default (beyond applicable periods of grace and/or notice and cure) in the Operative Documents payment when due of any principal of or interest on any Indebtedness having an outstanding principal amount of at least $10,000,000.00; 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 which it is a party shall prove to have been inaccurate at accelerate the time made, and if such inaccuracy can be cured, it shall not have been cured within forty-five (45) days after the earlier of (i) delivery to such Lessee or the Company, as the case may be, of written notice thereof from the Lessor or (ii) a Responsible Officer of such Lessee or the Company, as the case may be, shall have actualknowledge of such inaccuracy; ormaturity thereof;
(g) any Lessee The liquidation or Consolidated Entity (i) shall be unable todissolution of Lessee, or shall admit in writing its inability tothe suspension of the business of Lessee, pay its debts as such debts become due; or (ii) shall make an assignment for the benefit filing by Lessee of creditors, a voluntary petition or apply to any tribunal for the appointment of a custodian, receiver or trustee for it or a substantial part of its assets; or (iii) shall commence any proceeding under any bankruptcy, an answer seeking reorganization, arrangement, readjustment of debtits debts or for any other relief under the United States Bankruptcy Code, dissolution as amended, or liquidation law under any other insolvency act or statute of any jurisdictionlaw, whether state or federal, now or hereafter in effect; or (iv) shall have had any such petition or application filed existing, or any such proceeding shall have been commenced, against it, in which an adjudication or appointment is made or order for relief is entered, or which petition, application or proceeding remains undismissed for a period other action of 60 days or more; or shall be the subject of any proceeding under which its assets may be subject to seizure, forfeiture or divestiture (other than a proceeding in respect of a Lien permitted under Section 8.3(b) of the Credit Agreement); or (v) by any act or omission shall indicate Lessee indicating its consent to, approval of or acquiescence in in, any such petitionpetition or proceeding; the application by Lessee for, application or proceeding or order for relief or the appointment by consent or acquiescence of Lessee of a custodianreceiver, receiver a trustee or trustee 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 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;
(h) The filing of an involuntary petition against Lessee in bankruptcy or 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 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 continuance of any of such events for ninety (90) days undismissed or undischarged;
(i) The adjudication of Lessee as bankrupt or insolvent;
(j) The entering of any order in any proceedings against Lessee or any Subsidiary decreeing the dissolution, divestiture or split-up of Lessee or any 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) [INTENTIONALLY RESERVED];
(m) A final judgment or judgments for the payment of money shall be rendered by a court or courts against Lessee or any of its PropertySubsidiaries or any of their assets in excess of $2,000,000.00 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) Lessee or 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) Lessee or any member of the Controlled Group shall fail to pay when due an amount or amounts aggregating in excess of $2,000,000.00 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 $2,000,000.00 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 thirty percent (30%) or more of the outstanding common stock of Lessee (excluding any such instances of beneficial ownership arising as a direct result of the solicitation of revocable proxies by or on behalf of the board of directors of Lessee) provided, however, it is agreed that TRW, Inc. shall be permitted to have "beneficial ownership" of up to forty-one percent (41%) of the outstanding common stock of Lessee; or (viii) shall suffer without limiting the generality of the foregoing, during any such custodianship, receivership or trusteeship to continue undischarged for a period of 30 days 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, provided, that the relationships among the respective shareholders of Lessee on the Initial Closing Date shall not be deemed to constitute all or moreany combination of them as a "group" for purposes of clause (o)(i); or
(hp) any Lien granted by any Obligor to the Lessor, the Collateral Agent or the Lease Agent under any Any Operative Document shall, in whole or in part, terminate, cease to be effective against, or cease to be the legal, valid, binding and enforceable obligation of, such Obligor; or
(i) any Obligor shall directly or indirectly contest the validity (as opposed to the interpretation of the terms) of any Operative Document in any manner in any court of competent jurisdiction or any lien granted by any Operative Document; or
(j) any Lessee Agreement shall cease to be 100% owned in full force and effect; 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 (directly or indirectly5) Subsidiary days notice of such termination (provided, notwithstanding the Company; or
(k) there foregoing, this Lease shall be deemed to be automatically terminated without the giving of notice upon the occurrence of a breach 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 STATUTORY CONDITIONfullest 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 LEA XXXXXXXX XXXXXXX XX HER SUCCESSORS OR ASSIGNEE, AS TRUSTEE FOR THE BENEFIT OF 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 occurrence and continuance of any one or more of the following events (whether 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) shall constitute a "“Lease Event of Default"”:
(a) (i) any Lessee shall fail to make payment of (X) any Basic Rent shall not be paid within two (Interest/Yield) within five (52) Business Days after the same has become due and payable, or date when due; (Yii) any Property Balance, Purchase Option Rent, Loan Balance, Lease Recourse Amount or Lease Balance, including, without limitation, amounts amount due pursuant to Section 15.1, 18.1, 18.2, or 20.1, 18.2 hereof shall not be paid on the date due therefor under the Master Lease, due; or (iii) any payment of Supplemental Rent (other than Supplemental Rent described in the preceding clause (ii)) the Company or any Subsidiary Guarantor other payment payable by Lessees hereunder or under any other Operative Document (including any amount payable pursuant to Article IX to the extent not included in the preceding clause (ii)) shall have failed to make any payment due under the Multicare Guaranty not be paid within ten (10) Business Days after the same has become due and payabledate when due; or
(b) any Lessee shall fail to make payment representation or warranty of any Supplemental Rent due with Lease Obligor contained in any Operative Document to which such Person is a party or in any document furnished to any Creditor in connection therewith shall be incorrect or incomplete in any material respect to Sections 13.7when made, 13.8deemed made or reaffirmed, 13.9 and 13.10 of as the Participation Agreement within five (5) Business Days after receipt of notice thereof or any Lessee shall fail to make payment of any other Supplemental Rent within five (5) Business Days after the expiration of thirty (30) days from the date of receipt of notice by the Lessees or the Company that such Supplemental Rent is due and payablecase may be; or
(c) any Event of Default (as defined a default shall occur in the Credit Agreementperformance or observance of any term, covenant, condition or agreement to be performed or observed on the part of any applicable Lease Obligor under Section 6.1, 13.1, 13.2, Article XVIII, XIX or XXI hereof, or Section 6.1(p)(x) shall have occurred and be continuingof the Participation Agreement in any respect that is materially adverse to the interests of the Creditors, or Section 6.1 of the Participation Agreement (other than Sections 6.1(a) through 6.1(n), 6.1(p), 6.1(w), 6.1(y), or 6.1(bb)); or
(d) a default shall occur in the performance or observance of any Lessee shall fail term, covenant, condition or agreement to maintain insurance as required by Article XIII be performed or observed on the part of this Master any applicable Lease Obligor under Section 8.1, Section 9.1, Section 10.1 hereof or Section 6.1(q) of the Participation Agreement and such failure default shall continue unremedied for a period of ten (10) daysBusiness Days after the earlier of the date on which any Senior Officer of any Lease Obligor shall have Actual Knowledge of such default and the date on which Agent Lessee (on behalf of Lessees) and Mandalay (on behalf of Guarantors) receives written notice thereof from Trustee, Collateral Agent or any Lender; or
(e) any Lessee Lease Obligor shall default in the performance or the Company, as the case may be, shall fail to observe or perform observance of any other term, covenant covenant, condition or condition of such Lessee agreement on its part to be performed or the Company, as the case may be, observed hereunder or under this Master Lease or the any Operative Documents Document to which it such Person is a party (and not constituting an Event of Default under any other than those described in clause of this Section 16.1(a16.1), (b), or (d) hereof, and, in each and such case, such failure default shall have continued continue unremedied for a period of thirty (30) days after the earlier of the date on which any Senior Officer of any Lease Obligor shall have Actual Knowledge of such default and the date on which Agent Lessee (ion behalf of Lessees) delivery to such Lessee or the Company, as applicable, and Mandalay (on behalf of Guarantors) receives written notice thereof from the Lessor or (ii) a Responsible Officer of such Lessee or the Company, as the case may be, shall have actual knowledge of such failure; provided, however, that if such failure is capable of cure but cannot be cured by the 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 applicable Lessee or the Company is diligently pursuing, and shall continue to pursue diligently, remedy of such failure, the cure period shall be extended for an additional period of time as may be necessary to cure, not to exceed an additional ninety (90) days and not to extend beyond the Expiration Date; provided further, that failure by the applicable Lessee to fully comply with the requirements of Section 20.1 hereof shall not be subject to any cure periodCreditor; or
(f) the insurance required by Article XIII of this Lease is not maintained and in place for any representation or warranty made by any Lessee or the Company, as the case may be, in any of the Operative Documents to which it is a party shall prove to have been inaccurate at the time made, and if such inaccuracy can be cured, it shall not have been cured within forty-five (45) days after the earlier of (i) delivery to such Lessee or the Company, as the case may be, of written notice thereof from the Lessor or (ii) a Responsible Officer of such Lessee or the Company, as the case may be, shall have actualknowledge of such inaccuracyreason; or
(g) there shall occur a Change in Control; or
(h) Mandalay or any Lessee or Consolidated Entity of its Significant Subsidiaries (i) shall be unable tofails to pay the principal, or shall admit any principal installment, of any present or future Indebtedness of $25,000,000 or more, or any guaranty of present or future Indebtedness of $25,000,000 or more, on its part to be paid, when due (or within any stated grace period), whether at the stated maturity, upon acceleration, by reason of required prepayment or otherwise or (ii) fails to perform or observe any other term, covenant or agreement on its part to be performed or observed, or suffers any event to occur, in connection with any present or future Indebtedness of $25,000,000 or more, or of any guaranty of present or future Indebtedness of $25,000,000 or more, if as a result of such failure or sufferance any holder or holders thereof (or an agent or trustee on its or their behalf) has the right to declare such indebtedness due before the date on which it otherwise would become due; or
(i) Any event occurs which gives the holder or holders of any Subordinated Debt (or an agent or trustee on its or their behalf) the right to declare such indebtedness due before the date on which it otherwise would become due, or the right to require the issuer thereof to redeem or purchase, or offer to redeem or purchase, all or any portion of any Subordinated Debt; or
(j) Any Operative Document, at any time after its execution and delivery and for any reason other than the agreement of the Lenders or satisfaction in full of all the Obligations ceases to be in full force and effect or is declared by a court of competent jurisdiction to be null and void, invalid or unenforceable in any respect which, in any such event in the reasonable opinion of the Requisite Lenders, is materially adverse to the interests of the Lenders; or any Lease Obligor denies in writing that it has any or further liability or obligation under any Operative Document, or purports in writing to revoke, terminate or rescind same; or
(k) A final judgment against any Lease Obligor or any of Mandalay’s Significant Subsidiaries is entered for the payment of money in excess of $5,000,000 and, absent procurement of a stay of execution, such judgment remains unsatisfied for thirty calendar days after the date of entry of judgment, or in any event later than five days prior to the date of any proposed sale thereunder; or any writ or warrant of attachment or execution or similar process is issued or levied against all or any material part of the property of any such Person and is not released, vacated or fully bonded within thirty calendar days after its issue or levy; or
(l) Any Lease Obligor or any of Mandalay’s Significant Subsidiaries institutes or consents to the institution of any proceeding under a Debtor Relief Law relating to it or to all or any part of its property, or is unable or admits in writing its inability to, to pay its debts as such debts become due; they mature, or (ii) shall make makes an assignment for the benefit of creditors, petition ; or apply applies for or consents to any tribunal for the appointment of a any receiver, trustee, custodian, receiver conservator, liquidator, rehabilitator or trustee similar officer for it or a substantial part of its assets; or (iii) shall commence any proceeding under any bankruptcy, reorganization, arrangement, readjustment of debt, dissolution or liquidation law or statute of any jurisdiction, whether now or hereafter in effect; or (iv) shall have had any such petition or application filed or any such proceeding shall have been commenced, against it, in which an adjudication or appointment is made or order for relief is entered, or which petition, application or proceeding remains undismissed for a period of 60 days or more; or shall be the subject of any proceeding under which its assets may be subject to seizure, forfeiture or divestiture (other than a proceeding in respect of a Lien permitted under Section 8.3(b) of the Credit Agreement); or (v) by any act or omission shall indicate its consent to, approval of or acquiescence in any such petition, application or proceeding or order for relief or the appointment of a custodian, receiver or trustee for all or any substantial part of its Propertyproperty; or (vi) shall suffer any receiver, trustee, custodian, conservator, liquidator, rehabilitator or similar officer is appointed without the application or consent of that Person and the appointment continues undischarged or unstayed for 60 calendar days; or any proceeding under a Debtor Relief Law relating to any such custodianship, receivership Person or trusteeship to continue undischarged all or any part of its property is instituted without the consent of that Person and continues undismissed or unstayed for a period of 30 days or more60 calendar days; or
(hm) Any Pension Plan maintained by Mandalay or any Lien granted by any Obligor of its Restricted Subsidiaries is determined to have a material “accumulated funding deficiency” as that term is defined in Section 302 of ERISA and the Lessor, the Collateral Agent or the Lease Agent under any Operative Document shall, in whole or in part, terminate, cease to be effective against, or cease to be the legal, valid, binding and enforceable obligation of, such Obligorresult is a Material Adverse Effect; or
(in) The occurrence of a License Revocation with respect to a license issued by any Obligor shall directly or indirectly contest the validity (as opposed to the interpretation Governmental Agency of the terms) State of any Operative Document in any manner in any court of competent jurisdiction or any lien granted by any Operative DocumentNevada that continues for five calendar days; or
(jo) any Any Lessee shall cease have sold substantially all of its interest in any Facility without also purchasing or causing a third party to be 100% owned (directly or indirectly) Subsidiary of purchase the CompanyEquipment for the Purchase Amount; or
(kp) there Any Lessee shall violate its covenant set forth in Section 11.1(a) and Lessor shall lose title to its interest in the Equipment if any such Lien is not removed within thirty (30) days after the attachment thereof or such loss of title is not remedied within thirty (30) days after such loss occurs; or
(q) The occurrence of an Event of Default (as such term is or may hereafter be a breach of the STATUTORY CONDITIONspecifically defined therein) under any Mandalay Loan Agreement or Replacement Loan Agreement.
Appears in 1 contract
Samples: Master Lease (Mandalay Resort Group)
Lease Events of Default. The occurrence and continuance of If any one (1) or more of the following events shall constitute (each a "Lease Event of Default") shall occur:
(ia) any Lessee shall fail to make payment of (Xi) any Basic Rent (Interest/Yieldexcept as set forth in clause (ii)) within five three (53) Business Days days after the same has become due and payable, payable or (Yii) any Property Balance, Purchase Option Rent, Loan Balance, Lease Recourse Amount or Lease Balance, including, without limitation, amounts due pursuant to Section 15.1, 18.1, 18.2, or 20.1Termination Value, on the date due therefor under the Master Lease, or (ii) the Company or any Subsidiary Guarantor shall have failed to make any such payment due under the Multicare Guaranty after the same has become is due and payable; or, or any payment of Basic Rent or Supplemental Rent due on the due date of any such payment of Termination Value, or any amount due on the Expiration Date;
(b) any Lessee shall fail to make payment of any Supplemental Rent (other than Supplemental Rent referred to in Section 17.1(a)(ii)) or any other Credit Party shall fail to make any payment of any amount under any Operative Agreement which has become due with respect to Sections 13.7, 13.8, 13.9 and 13.10 of the Participation Agreement payable within five three (53) Business Days days after receipt of notice thereof that such payment is due;
(c) Lessee shall fail (i) to maintain insurance as required by Article XIV of this Lease or (ii) to deliver any requisite annual certificate with respect thereto within ten (10) days after the date such certificate is due under the terms hereof, but only after notice of such delinquent certificate has been provided by Lessor or the Agent to Lessee;
(i) Lessee shall fail to make observe or perform any term, covenant, obligation or condition of Lessee under this Lease (including without limitation the Incorporated Covenants) or any other Material 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 Material Operative Agreement other than those set forth in Section 17.1(b) hereof and such failure shall continue for fifteen (15) days (or with respect to the Incorporated Covenants, the grace period, if any, applicable thereto under the Lessee Credit Agreement) after notice thereof to the Lessee or such Credit Party, or (ii) any representation or warranty made by Lessee or any other Credit Party 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, 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 $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 any Credit Party, or the 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; 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, 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 the involuntary appointment of a receiver, a trustee or a custodian of any Credit Party 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 any Credit Party, and the continuance of any of such events for ninety (90) days undismissed or undischarged;
(i) The adjudication of any Credit Party as bankrupt or insolvent;
(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) 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 any other Supplemental Rent Credit Party or any Subsidiary of any Credit Party or any of their assets 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 five (5) Business Days after the expiration of thirty (30) days from the date of receipt of notice by the Lessees or the Company that such Supplemental Rent is due and payable; or
(c) any Event of Default (as defined in the Credit Agreement) shall have occurred and be continuing; or
(d) any Lessee shall fail to maintain insurance as required by Article XIII of this Master Lease and such failure shall continue for ten (10) days; or
(e) any Lessee or the Company, as the case may be, shall fail to observe or perform any term, covenant or condition of such Lessee or the Company, as the case may be, under this Master Lease or the Operative Documents to which it is party other than those described in Section 16.1(a), (b)entry thereof, or (dii) hereofany Credit Party or such Subsidiary shall not, and, in each such case, such failure shall have continued for within said period of thirty (30) days after the earlier of (i) delivery to days, or such Lessee or the Company, as applicable, of written notice thereof from the Lessor or (ii) a Responsible Officer of such Lessee or the Company, as the case may be, shall have actual knowledge of such failure; provided, however, that if such failure is capable of cure but cannot be cured by the payment of money or cannot be cured by diligent efforts within such thirty (30) day longer period but such diligent efforts shall be properly commenced within the cure period and the applicable Lessee or the Company is diligently pursuing, and shall continue to pursue diligently, remedy of such failure, the cure period shall be extended for an additional period of time as may be necessary to cure, not to exceed an additional ninety (90) days and not to extend beyond the Expiration Date; provided further, that failure by the applicable Lessee to fully comply with the requirements of Section 20.1 hereof shall not be subject to any cure period; or
(f) any representation or warranty made by any Lessee or the Company, as the case may be, in any during which execution of the Operative Documents to which it is a party shall prove to have been inaccurate at the time made, and if such inaccuracy can be cured, it shall not have been cured within forty-five (45) days after the earlier of (i) delivery to such Lessee or the Company, as the case may be, of written notice thereof from the Lessor or (ii) a Responsible Officer of such Lessee or the Company, as the case may be, shall have actualknowledge of such inaccuracy; or
(g) any Lessee or Consolidated Entity (i) shall be unable to, or shall admit in writing its inability to, pay its debts as such debts become due; or (ii) shall make an assignment for the benefit of creditors, petition or apply to any tribunal for the appointment of a custodian, receiver or trustee for it or a substantial part of its assets; or (iii) shall commence any proceeding under any bankruptcy, reorganization, arrangement, readjustment of debt, dissolution or liquidation law or statute of any jurisdiction, whether now or hereafter in effect; or (iv) shall have had any such petition or application filed or any such proceeding same shall have been commencedstayed, against it, in which an adjudication or appointment is made or order for relief is entered, or which petition, application or proceeding remains undismissed for a period of 60 days or more; or shall be appeal therefrom and cause the subject of any proceeding under which its assets may be subject to seizure, forfeiture or divestiture (other than a proceeding in respect of a Lien permitted under Section 8.3(b) of the Credit Agreement); or (v) by any act or omission shall indicate its consent to, approval of or acquiescence in any such petition, application or proceeding or order for relief or the appointment of a custodian, receiver or trustee for all or any substantial part of its Property; or (vi) shall suffer any such custodianship, receivership or trusteeship to continue undischarged for a period of 30 days or more; or
(h) any Lien granted by any Obligor to the Lessor, the Collateral Agent or the Lease Agent under any Operative Document shall, in whole or in part, terminate, cease execution thereof to be effective against, or cease to be the legal, valid, binding and enforceable obligation of, stayed during such Obligor; or
(i) any Obligor shall directly or indirectly contest the validity (as opposed to the interpretation of the terms) of any Operative Document in any manner in any court of competent jurisdiction or any lien granted by any Operative Document; or
(j) any Lessee shall cease to be 100% owned (directly or indirectly) Subsidiary of the Company; or
(k) there shall be a breach of the STATUTORY CONDITION.appeal,
Appears in 1 contract
Lease Events of Default. The occurrence and continuance of If any one (1) or more of the following events shall constitute (each a "Lease Event of Default") shall occur:
(ia) any Lessee shall fail to make payment of (Xi) any Basic Rent (Interest/Yieldexcept as set forth in clause (ii)) within five fifteen (515) Business Days days after the same has become due and payable, payable or (Yii) any Property Balance, Purchase Option Rent, Loan Balance, Lease Recourse Amount or Lease Balance, including, without limitation, amounts due pursuant to Section 15.1, 18.1, 18.2, or 20.1Termination Value, on the date due therefor under the Master Lease, or (ii) the Company or any Subsidiary Guarantor shall have failed to make any such payment due under the Multicare Guaranty after the same has become is due and payable; or, or any payment of Basic Rent or Supplemental Rent due on the due date of any such payment of Termination Value, or any amount due on the Expiration Date;
(b) any Lessee shall fail to make payment of any Supplemental Rent (other than Supplemental Rent referred to in Section 17.1(a)(ii)) or any other Credit Party shall fail to make any payment of any amount under any Operative Agreement which has become due with respect to Sections 13.7, 13.8, 13.9 and 13.10 of the Participation Agreement payable within five fifteen (515) Business Days days after receipt of notice thereof or any Lessee shall fail to make payment of any other Supplemental Rent within five (5) Business Days after the expiration of thirty (30) days from the date of receipt of notice by the Lessees or the Company that such Supplemental Rent payment is due and payable; ordue;
(c) any Event of Default (as defined in the Credit Agreement) shall have occurred and be continuing; or[Reserved];
(di) any Lessee shall fail to maintain insurance as required by Article XIII of this Master Lease and such failure shall continue for ten (10) days; or
(e) any Lessee or the Company, as the case may be, shall fail to observe or perform any term, covenant covenant, obligation or condition of Lessee under this Lease (including without limitation the Incorporated Covenants) 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 any other Credit Party shall fail to observe or perform any term, covenant, obligation or condition of such Lessee or the Company, as the case may be, Credit Party under this Master Lease or the any Operative Documents to which it is party Agreement other than those described set forth in Section 16.1(a), (b), or (d17.1(b) hereof, and, in each such case, hereof and such failure shall have continued continue for thirty (30) days (or with respect to the Incorporated Covenants, the grace period, if any, applicable thereto) after notice thereof to the earlier of (i) delivery to such Lessee or the Companysuch Credit Party, as applicable, of written notice thereof from the Lessor or (ii) a Responsible Officer of such Lessee or the Company, as the case may be, shall have actual knowledge of such failure; provided, however, that if such failure is capable of cure but cannot be cured by the 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 applicable Lessee or the Company is diligently pursuing, and shall continue to pursue diligently, remedy of such failure, the cure period shall be extended for an additional period of time as may be necessary to cure, not to exceed an additional ninety (90) days and not to extend beyond the Expiration Date; provided further, that failure by the applicable Lessee to fully comply with the requirements of Section 20.1 hereof shall not be subject to any cure period; or
(f) any representation or warranty made by any Lessee or any other Credit Party set forth in this Lease (including without limitation the Company, as the case may be, 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, 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 the Operative Documents to which it is a party shall prove to have been inaccurate at the time made, and if such inaccuracy can be cured, it shall not have been cured within forty-five (45) days after the earlier of (i) delivery to such Lessee or the Company, as the case may be, of written notice thereof from the Lessor or (ii) a Responsible Officer of such Lessee or the Company, as the case may be, Default shall have actualknowledge 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 $500,000; or any other event or condition shall occur which results in a default of any such inaccuracy; orIndebtedness or enables the holder of any such Indebtedness or any Person acting on such holder's behalf to accelerate the maturity thereof;
(g) any Lessee or Consolidated Entity Any Credit Party (iother than Dollar Tree Management, Inc.) shall cease to be unable tosolvent, or shall admit in writing its inability to, pay its debts as such debts become due; or (ii) shall make an assignment for the benefit of creditors, or 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 to any tribunal for the appointment of a trustee or other custodian, liquidator or receiver of any Credit Party or trustee for it or a of any substantial part of its assets; the assets of any Credit Party or (iii) shall commence any case or other proceeding relating to any Credit Party under any bankruptcy, reorganization, arrangement, insolvency, readjustment or debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, or shall take any action to authorize or in furtherance of any of the foregoing, or if such petition or application shall be filed or any such case or other proceeding shall be commenced against any Credit Party and such Credit Party shall indicate its approval thereof, consent thereto or acquiescence therein;
(h) The filing of any case or other proceeding against any Credit Party under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law or statute of any jurisdiction, whether now or hereafter in effecteffect and such case or proceeding is not discharged or dismissed within sixty (60) days of its commencement; a decree or (iv) shall have had order is entered appointing any such trustee, custodian, liquidator or receiver or adjudicating any Credit Party bankrupt or insolvent, or approving a petition or application filed or in any such proceeding shall have been commencedcase or other proceeding, against it, in which an adjudication or appointment is made a decree or order for relief is entered, or which petition, application or proceeding remains undismissed for a period of 60 days or more; or shall be the subject of any proceeding under which its assets may be subject to seizure, forfeiture or divestiture (other than a proceeding entered in respect of any Credit Party, an involuntary case under federal bankruptcy laws as now or hereafter constituted;
(i) [Reserved]
(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) Any Lessee Credit Agreement Event of Default shall have occurred and be continuing and shall not have been waived;
(m) There shall remain in force, undischarged, unsatisfied and unstayed, for more than thirty (30) days, whether or not consecutive, any uninsured final judgment against any Credit Party that, with other outstanding uninsured final judgments, undischarged, against the Credit Parties exceeds $2,000,000 in the aggregate;
(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 $500,000 which it shall have become liable to pay to the PBGC or to a Lien permitted 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 $500,000 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 o 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 8.3(b515 or 4219(c)(5) of the Credit Agreement)ERISA; or (v) a condition shall exist by any act or omission shall indicate its consent to, approval reason of or acquiescence in which the PBGC would be entitled to obtain a decree adjudicating that any such petition, application Pension Plan or proceeding or order for relief or the appointment of a custodian, receiver or trustee for all or any substantial part of its Property; or Pension Plans must be terminated;
(vio) [Reserved];
(p) Any Operative Agreement shall suffer any such custodianship, receivership or trusteeship cease to continue undischarged for a period of 30 days or morebe in full force and effect; or
(hq) Except as to any Lien granted Credit Party which is released in connection with the Operative Agreements, the guaranty given by any Obligor to Guarantor under the Lessor, the Collateral Agent or the Lease Agent under any Operative Document shall, in whole or in part, terminate, cease to be effective against, or cease to be the legal, valid, binding and enforceable obligation of, such Obligor; or
(i) any Obligor shall directly or indirectly contest the validity (as opposed to the interpretation of the terms) of any Operative Document in any manner in any court of competent jurisdiction Participation Agreement or any lien granted by any Operative Document; or
(j) any Lessee material provision thereof shall cease to be 100% owned 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 (directly or indirectly5) Subsidiary days notice of such termination (provided, notwithstanding the Company; or
(k) there foregoing, this Lease shall be deemed to be automatically terminated without the giving of notice upon the occurrence of a breach Lease Event of Default under Sections 17.1(g) or (h)), and this Lease shall terminate, and all rights of Lessee under this Lease shall cease. Lessee shall, to the STATUTORY CONDITIONfullest 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
