Tenant Events of Default. Any one or more of the following shall constitute a “Tenant Event of Default”: (a) Tenant shall fail to pay any installment of Rent when due and such failure is not cured within six (6) days after written notice from Landlord (which notice for purposes of this provision may be in the form of an email and shall be deemed effective as of transmittal (without requirement that receipt thereof be acknowledged), provided that (without vitiating the effectiveness of such email notice) a separate notice is separately delivered on the same day or, if such day is not a Business Day, on the following Business Day, which separate notice shall be delivered in accordance with Article XXXV (it being understood that the delivery of such separate notice shall not vitiate the effectiveness of such email notice)) of Tenant’s failure to pay such installment of Rent when due (and such notice of failure from Landlord may be given any time after such installment of Rent is one (1) day late); (b) Tenant shall fail to pay any Additional Charge (excluding, for the avoidance of doubt the Minimum Cap Ex Amount) within seven (7) days after written notice from Landlord of Tenant’s failure to pay such Additional Charge when due (and such notice of failure from Landlord may be given any time after such payment of any Additional Charge is one (1) day late); (c) Tenant or, unless the Guarantor EOD Conditions exist, Guarantor shall: (i) file a petition in bankruptcy or a petition to take advantage of any insolvency law or statute under Federal law, specifically including Xxxxx 00, Xxxxxx Xxxxxx Code, §§ 101-1532, or analogous state law; (ii) make an assignment for the benefit of its creditors; or (iii) consent to the appointment of a receiver of itself or of the whole or substantially all of its property; (i) Tenant shall be adjudicated as bankrupt or a court of competent jurisdiction shall enter an order or decree appointing, without the consent of Tenant, a receiver of Tenant or of all or substantially all of Tenant’s property, or approving a petition filed against Tenant seeking reorganization or arrangement of Tenant under Federal law, specifically including Title 00, Xxxxxx Xxxxxx Xxxx, §§ 000-0000, or analogous state law, and such judgment, order or decree shall not be vacated or set aside or stayed within sixty (60) days from the date of the entry thereof; (ii) Unless the Guarantor EOD Conditions exist, Guarantor shall be adjudicated as bankrupt or a court of competent jurisdiction shall enter an order or decree appointing, without the consent of Guarantor, a receiver of Guarantor or of all or substantially all of Guarantor’s property, or approving a petition filed against Guarantor seeking reorganization or arrangement of Guarantor under Federal law, specifically including Title 00, Xxxxxx Xxxxxx Xxxx, §§ 000-0000, or analogous state law, and such judgment, order or decree shall not be vacated or set aside or stayed within sixty (60) days from the date of the entry thereof; or; (e) entry of an order or decree liquidating or dissolving Tenant, Manager or, unless the Guarantor EOD Conditions exist, Guarantor, provided that the same shall not constitute a Tenant Event of Default if (i) such order or decree shall be vacated, set aside or stayed within ninety (90) days from the date of the entry thereof, or (ii) with respect to Manager only, (x) Manager is not an Affiliate of Tenant, or (y) another wholly-owned subsidiary of CEC assumes the MLSA and the other Lease/MLSA Related Agreements to which Manager is a party; (f) Tenant shall fail to cause the Facility to be Operated (as defined in the MLSA) in a Non-Discriminatory (as defined in the MLSA) manner, in accordance with the Operating Standard (as defined in the MLSA) and subject to Manager’s Standard of Care (as defined in the MLSA) (in each case as and to the extent required under the MLSA, including as provided in Section 2.1.1, Section 2.1.2, Section 2.1.3, Section 2.1.4, Section 2.3.1, and Section 2.3.2 of the MLSA, but subject to Section 5.9.1 of the MLSA), which failure would reasonably be expected to have a material and adverse effect on Landlord or on the Facility, and which failure is not cured within thirty (30) days following notice thereof from Landlord to Tenant; provided that, if: (i) such failure is not susceptible of cure within such thirty (30) day period; and (ii) such failure would not expose Landlord to an imminent and material risk of criminal liability or of material damage to its business reputation, such thirty (30) day cure period shall be extended for such time as is necessary (but in no event longer than ninety (90) days) to cure such failure so long as Tenant commences to cure such failure or other breach within such thirty (30) day period and thereafter proceeds with reasonable diligence to complete such cure); (g) the estate or interest of Tenant in the Leased Property or any part thereof shall be levied upon or attached in any proceeding relating to more than Twenty-Five Million and No/100 Dollars ($25,000,000.00), and the same shall not be vacated, discharged or stayed pending appeal (or paid or bonded or otherwise similarly secured payment) within the later of ninety (90) days after commencement thereof or thirty (30) days after receipt by Tenant of notice thereof from Landlord; provided, however, that such notice shall be in lieu of and not in addition to any notice required under applicable law; (h) if Tenant or, unless the Guarantor EOD Conditions exist, Guarantor shall fail to pay, bond, escrow or otherwise similarly secure payment of one or more final judgments aggregating in excess of the amount of Seventy-Five Million and No/100 Dollars ($75,000,000.00), which judgments are not discharged or effectively waived or stayed for a period of forty-five (45) consecutive days; (i) unless the Guarantor EOD Conditions exist, a Lease Guarantor Event of Default shall occur under the MLSA; (j) except as a result of a Permitted Operation Interruption, Tenant fails to cause the Facility to be Continuously Operated during the Term; (k) any applicable Gaming License or other license material to the Facility’s operation for its Primary Intended Use is at any time terminated or revoked or suspended or placed under a trusteeship (and in each case such termination, revocation, suspension or trusteeship causes cessation of Gaming activity at the Facility) for more than thirty (30) days and such termination, revocation, suspension or trusteeship is not stayed pending appeal and would reasonably be expected to have a material adverse effect on Tenant or on the Facility; (l) if a Licensing Event with respect to Tenant under clause (a) of the definition of Licensing Event shall occur and is not resolved in accordance with Section 41.13 within the later of (i) thirty (30) days or (ii) such additional time period as may be permitted by the applicable Gaming Authorities; (m) Tenant fails to comply with any Additional Fee Mortgagee Requirements (and in the case of any representation or warranty made by Tenant under Section 8.2 and Exhibit L having been false or misleading as of the date the representation or warranty was made, such false or misleading representation or warranty has had or is reasonably expected to result in a Material Adverse Effect (as defined in Exhibit L)), which default is not cured within the shortest applicable cure period set forth in the Fee Mortgage Documents (i.e., such default is not cured prior to the same constituting an “Event of Default” under any Fee Mortgage Document), if the effect of such default is to cause, or to permit the holder or holders of the applicable Fee Mortgage (or a trustee or agent on behalf of such holder or holders) to cause, such Fee Mortgage to become or be declared due and payable (or redeemable) prior to its stated maturity (without regard to any standstill or forbearance period that might be provided to Landlord with respect to the same); provided, however, that, if any such standstill or forbearance period shall be provided to Landlord with respect to the same, so long as Tenant is reasonably cooperating with Landlord in connection with a potential refinancing of the defaulted Fee Mortgage(s) by providing information with respect to the Leased Property, Tenant or its Affiliates (excluding (i) any material non-public information, unless the same shall only be provided to potential financing sources in accordance with and subject to Section 41.22 hereof, and (ii) any information subject to bona fide confidentiality restrictions) requested by Landlord in order to satisfy the market standards to which such potential refinancing lenders customarily adhere or which may be reasonably required by prospective investors and/or rating agencies, such default shall not constitute a Tenant Event of Default hereunder for the first half of the shortest applicable standstill or forbearance period so provided to Landlord, as determined by Landlord in its sole but good faith discretion; (n) a transfer of Tenant’s interest in this Lease (including pursuant to a Change in Control) shall have occurred without the consent of Landlord to the extent such consent is required under Article XXII or Tenant is otherwise in default of the provisions set forth in Section 22.1 below; (o) if Tenant shall fail to observe or perform any other term, covenant or condition of this Lease and such failure is not cured within thirty (30) days after written notice thereof from Landlord, provided, however, if such failure cannot reasonably be cured within such thirty (30) day period and Tenant shall have commenced to cure such failure within such thirty (30) day period and thereafter diligently proceeds to cure the same, such thirty (30) day period shall be extended for such time as is reasonably necessary for Tenant in the exercise of due diligence to cure such failure, provided that, with respect to any failure to perform (i) that is still continuing on or after the first day of the sixth (6th) Lease Year such cure period shall not extend beyond the later of such first day of the sixth (6th) Lease Year or one-hundred and eighty (180) days in the aggregate, and (ii) that is first arising on or after the first day of the sixth (6th) Lease Year, such cure period shall not exceed one-hundred and eighty (180) days in the aggregate, provided, further however, that no Tenant Event of Default under this clause (o) or under clause (p) below shall be deemed to exist under this Lease during any time the curing thereof is prevented by an Unavoidable Delay, provided that upon the cessation of the Unavoidable Delay, Tenant remedies the default within the time periods otherwise required hereunder; (p) the occurrence of a Tenant Event of Default pursuant to Section 10.5(a)(x); (q) unless the Guarantor EOD Conditions exist, if Guarantor shall, in any judicial or quasi-judicial case, action or proceeding, contest (or collude with or otherwise affirmatively assist any other Person, or solicit or cause to be solicited any other Person to contest) the validity or enforceability of Guarantor’s obligations under the MLSA (or any Qualified Replacement Guarantor’s obligations under a Replacement Guaranty); and (r) if Tenant shall fail to comply with any of the provisions, terms or conditions of the Octavius Ground Lease (or any renewals thereof) as required under Section 7.3 hereof, which failure is not cured within the applicable time period set forth in the applicable Ground Lease and the effect of such failure is to permit the applicable Ground Lessor to terminate such Ground Lease or to result in the Ground Lease being terminated pursuant to the terms thereof. Notwithstanding anything contained herein to the contrary, (x) Landlord shall deliver all notices required pursuant to Section 16.1 concurrently to Tenant and Guarantor and (y) a default by Tenant under any Permitted Leasehold Mortgage shall not in and of itself be a Tenant Event of Default hereunder (it being understood that if the circumstances that cause such default independently comprise a default hereunder that continues beyond all applicable notice and cure periods hereunder then such circumstances would cause a Tenant Default hereunder). Notwithstanding the foregoing, (i) Tenant shall not be in breach of this Lease solely as a result of the exercise by the party (other than Tenant, CEC, CEOC or any of their respective Affiliates) to any of the Permitted Exception Documents of such party’s rights thereunder so long as Tenant undertakes commercially reasonable efforts to cause such party to comply or otherwise minimize such breach, and (ii) in the event that Tenant is required, under the express terms of any Permitted Exception Document(s), to take or refrain from taking any action, and taking or refraining from taking such action would result in a default under this Lease, then Tenant shall advise Landlord of the same, and Tenant and Landlord shall reasonably cooperate in order to address the same in a mutually acceptable manner, and so as to minimize any harm or liability to Landlord and to Tenant. For the avoidance of doubt, in no event shall a Permitted Exception Document excuse Tenant from its obligation to pay Rent or Additional Charges.
Appears in 2 contracts
Samples: Lease (CAESARS ENTERTAINMENT Corp), Lease (Vici Properties Inc.)
Tenant Events of Default. Any one or more Each of the following events shall be an Event of Default hereunder by Tenant and shall constitute a “Tenant Event breach of Default”this Lease:
(a) If Tenant shall fail to pay (i) pay, when due, any installment of Minimum Rent when due hereunder and such failure in each such event shall continue for a period of seven (7) Business Days after such amounts become due.
(b) If Tenant shall fail to (i) pay, when due, any Additional Charge due hereunder; or (ii) make any required contribution to the Reserve pursuant to Section 5.2 of this Lease, and such failure in each such event shall continue for a period of five (5) Business Days after receipt of written Notice thereof from Landlord.
(c) If any assignment, transfer or sublease of or concerning any of the Leased Property, specifically excluding the P&E, shall be made or deemed to be made that is not cured within six in violation of the provisions of this Lease.
(6d) If any lien or encumbrance of the Leased Property or if any assignment, transfer, sublease, lien or encumbrance of the P&E shall be made or deemed to be made that is in violation of the provisions of this Lease and such violation or failure shall continue for a period of ninety (90) days after written notice thereof from Landlord Landlord.
(which notice for purposes e) If Tenant shall cease the actual and continuous operation of the Business contemplated by this provision may Lease to be in conducted by Tenant upon the form of an email and shall be deemed effective as of transmittal (without requirement that receipt thereof be acknowledged), provided that (without vitiating the effectiveness of such email notice) a separate notice is separately delivered on the same day or, if such day is not a Business Day, on the following Business Day, which separate notice shall be delivered in accordance with Article XXXV (it being understood that the delivery of such separate notice shall not vitiate the effectiveness of such email notice)) of Tenant’s failure to pay such installment of Rent when due Leased Property (and such notice cessation is not the result of failure from casualty, Condemnation or a Permitted Renovation and accompanying restoration or is not otherwise permitted by Landlord may or is not the result of Applicable Laws or during an Emergency or other Force Majeure Event); or if Tenant shall vacate, desert or abandon the Leased Property; or if the Leased Property shall become empty and unoccupied; or if any of the Leased Property or Leased Improvements are used or are permitted to be given used for any purpose, or for the conduct of any activity, other than the Permitted Use.
(f) If, at any time after such installment during the Term of Rent is one (1) day late);
(b) this Lease, Tenant shall fail file in any court, pursuant to pay any Additional Charge (excluding, for statute of either the avoidance of doubt the Minimum Cap Ex Amount) within seven (7) days after written notice from Landlord of Tenant’s failure to pay such Additional Charge when due (and such notice of failure from Landlord may be given any time after such payment United States or of any Additional Charge is one (1) day late);
(c) Tenant orState, unless the Guarantor EOD Conditions exist, Guarantor shall:
(i) file a petition in bankruptcy or a petition to take advantage of any insolvency law or statute under Federal law, specifically including Xxxxx 00, Xxxxxx Xxxxxx Code, §§ 101-1532insolvency, or analogous state law;
(ii) for reorganization or arrangement, or for the appointment of a receiver or trustee of all or any portion of Tenant’s property, including, without limitation, the leasehold interest in the Leased Property, or if Tenant shall make an assignment for the benefit of its creditors or petitions for or enters into an arrangement with its creditors; or.
(iiig) consent If, at any time during the Term of this Lease, there shall be filed against Tenant in any court pursuant to any statute of the United States or of any State, a petition in bankruptcy or insolvency, or for reorganization, or for the appointment of a receiver of itself or of the whole or substantially all of its property;
(i) Tenant shall be adjudicated as bankrupt or a court of competent jurisdiction shall enter an order or decree appointing, without the consent of Tenant, a receiver of Tenant or trustee of all or substantially all a portion of Tenant’s property, or approving a petition filed including, without limitation, the leasehold interest in the Leased Property, and any such proceeding against Tenant seeking reorganization shall not be dismissed within ninety (90) days following the commencement thereof.
(h) If Tenant’s leasehold interest in the Leased Property or arrangement any property therein (including, without limitation, any material portion of Tenant Tenant’s Personal Property) shall be seized under Federal lawany levy, specifically including Title 00execution, Xxxxxx Xxxxxx Xxxx, §§ 000-0000, attachment or analogous state law, and such judgment, order or decree other process of court where the same shall not be vacated or stayed on appeal or otherwise within ninety (90) days thereafter, or if Tenant’s leasehold interest in the Leased Property is sold by judicial sale and such sale is not vacated, set aside or stayed on appeal or otherwise within ninety (90) days thereafter.
(i) If any of the Permits material to the operation of the Business or the use of the Land for its Permitted Use are at any time suspended and the suspension is not stayed pending appeal within sixty (60) days from of the date of the entry thereof;notice of the suspension of any Permits material to the operation of the Business or the use of the Land for its Permitted Use, or voluntarily terminated without the prior written consent of Landlord, which consent may be withheld in Landlord’s sole opinion and discretion.
(iij) Unless If any governmental agency or regulatory authority places a ban on admissions to the Guarantor EOD Conditions exist, Guarantor shall be adjudicated as bankrupt or a court of competent jurisdiction shall enter an order or decree appointing, without the consent of Guarantor, a receiver of Guarantor or of all or substantially all of Guarantor’s property, or approving a petition filed against Guarantor seeking reorganization or arrangement of Guarantor under Federal law, specifically including Title 00, Xxxxxx Xxxxxx Xxxx, §§ 000-0000, or analogous state law, Facility and such judgment, order or decree shall ban is not be vacated or set aside or stayed within sixty (60) days from the date of the entry thereof; or;
(e) entry of an order or decree liquidating or dissolving Tenant, Manager or, unless the Guarantor EOD Conditions exist, Guarantor, provided that the same shall not constitute a Tenant Event of Default if (i) such order or decree shall be vacated, set aside or stayed lifted and admissions again permitted within ninety (90) days from the date of the entry thereof, or (ii) with respect to Manager only, (x) Manager is not an Affiliate of Tenant, or (y) another wholly-owned subsidiary of CEC assumes the MLSA and the other Lease/MLSA Related Agreements to which Manager is a party;
(f) Tenant shall fail to cause the Facility to be Operated (as defined in the MLSA) in a Non-Discriminatory (as defined in the MLSA) manner, in accordance with the Operating Standard (as defined in the MLSA) and subject to Manager’s Standard of Care (as defined in the MLSA) (in each case as and to the extent required under the MLSA, including as provided in Section 2.1.1, Section 2.1.2, Section 2.1.3, Section 2.1.4, Section 2.3.1, and Section 2.3.2 of the MLSA, but subject to Section 5.9.1 of the MLSA), which failure would reasonably be expected to have a material and adverse effect on Landlord or on the Facility, and which failure is not cured within thirty (30) days following notice thereof from Landlord to Tenant; provided that, if: (i) such failure is not susceptible of cure within such thirty (30) day period; and (ii) such failure would not expose Landlord to an imminent and material risk of criminal liability or of material damage to its business reputation, such thirty (30) day cure period shall be extended for such time as is necessary (but in no event longer than ninety (90) calendar days) to cure such failure so long as Tenant commences to cure such failure or other breach within such thirty (30) day period and thereafter proceeds with reasonable diligence to complete such cure);
(g) the estate or interest of Tenant in the Leased Property or any part thereof shall be levied upon or attached in any proceeding relating to more than Twenty-Five Million and No/100 Dollars ($25,000,000.00), and the same shall not be vacated, discharged or stayed pending appeal (or paid or bonded or otherwise similarly secured payment) within the later of ninety (90) days after commencement thereof or thirty (30) days after receipt by Tenant of notice thereof from Landlord; provided, however, that such notice shall be in lieu of and not in addition to any notice required under applicable law;
(h) if Tenant or, unless the Guarantor EOD Conditions exist, Guarantor shall fail to pay, bond, escrow or otherwise similarly secure payment of one or more final judgments aggregating in excess of the amount of Seventy-Five Million and No/100 Dollars ($75,000,000.00), which judgments are not discharged or effectively waived or stayed for a period of forty-five (45) consecutive days;
(i) unless the Guarantor EOD Conditions exist, a Lease Guarantor Event of Default shall occur under the MLSA;
(j) except as a result of a Permitted Operation Interruption, Tenant fails to cause the Facility to be Continuously Operated during the Term;.
(k) If Tenant fails to give notice to Landlord not later than ten (10) Business Days after Tenant’s receipt of any applicable Gaming License fine notice from any Government Agency relating to a violation of Applicable Law at the Land or other license material relating to the Facility’s operation for its Primary Intended Use is at any time terminated or revoked or suspended or placed under Business, which violation, if not cured, could cause a trusteeship (and in each case such termination, revocation, suspension or trusteeship causes cessation of Gaming activity at operations of the Facility) for more than thirty (30) days and such termination, revocation, suspension Business or trusteeship is not stayed pending appeal and would reasonably be expected to have a material adverse effect on Tenant or on the Facility;substantial portion thereof.
(l) if a Licensing Event with respect If Tenant fails during the Term of this Lease to Tenant under clause (a) cure or xxxxx any violation of Applicable Law occurring during the Term that is claimed by any Governmental Agency of any law, order, ordinance, rule, regulation or Applicable Laws pertaining to the operation of the definition Business or the use of Licensing Event shall occur the Land for its Permitted Use, and is not resolved in accordance with Section 41.13 within the later of (i) thirty (30) days the time permitted by such authority for such cure or abatement, or (ii) such additional time period as may be permitted by the applicable Gaming Authorities;
(m) Tenant fails to comply with any Additional Fee Mortgagee Requirements (and in the case of any representation or warranty made by Tenant under Section 8.2 and Exhibit L having been false or misleading as of the date the representation or warranty was made, such false or misleading representation or warranty has had or is reasonably expected to result in a Material Adverse Effect (as defined in Exhibit L)), which default is not cured within the shortest applicable cure period set forth in the Fee Mortgage Documents (i.e., such default is not cured prior to the same constituting an “Event of Default” under any Fee Mortgage Document), if the effect of such default is to cause, or to permit the holder or holders of the applicable Fee Mortgage (or a trustee or agent on behalf of such holder or holders) to cause, such Fee Mortgage to become or be declared due and payable (or redeemable) prior to its stated maturity (without regard to any standstill or forbearance period that might be provided to Landlord with respect to the same); provided, however, that, if any such standstill or forbearance period shall be provided to Landlord with respect to the same, so long as Tenant is reasonably cooperating with Landlord in connection with a potential refinancing of the defaulted Fee Mortgage(s) by providing information with respect to the Leased Property, Tenant or its Affiliates (excluding (i) any material non-public information, unless the same shall only be provided to potential financing sources in accordance with and subject to Section 41.22 hereof, and (ii) any information subject to bona fide confidentiality restrictions) requested by Landlord in order to satisfy the market standards to which such potential refinancing lenders customarily adhere or which may be reasonably required by prospective investors and/or rating agencies, such default shall not constitute a Tenant Event of Default hereunder for the first half of the shortest applicable standstill or forbearance period so provided to Landlord, as determined by Landlord in its sole but good faith discretion;
(n) a transfer of Tenant’s interest in this Lease (including pursuant to a Change in Control) shall have occurred without the consent of Landlord to the extent such consent is required under Article XXII or Tenant is otherwise in default of the provisions set forth in Section 22.1 below;
(o) if Tenant shall fail to observe or perform any other term, covenant or condition of this Lease and such failure is not cured within thirty (30) days after written notice thereof from Landlord.
(m) If Tenant violates or fails to comply with or perform any other term, provision, covenant, agreement or condition to be performed or observed by Tenant under this Lease which is not otherwise identified in this Section 12.1, and such violation or failure shall continue for a period of thirty (30) days after receipt of written notice thereof from Landlord; provided, however, if such violation or failure cannot reasonably be cured is incapable of cure by Tenant within such thirty (30) day period days after Tenant’s diligent and Tenant shall have commenced to cure such failure within such thirty (30) day period and thereafter diligently proceeds continuous efforts to cure the same, such it shall not constitute an Event of Default provided Tenant commences the cure within thirty (30) day days and diligently thereafter completes the cure of same within a commercially reasonable period shall be extended for of time after such time as is reasonably necessary for written notice.
(n) If Tenant in encumbers the exercise of due diligence to cure such failure, provided that, with respect to any failure to perform (i) that is still continuing on Leased Property or after the first day of the sixth (6th) Lease Year such cure period shall not extend beyond the later of such first day of the sixth (6th) Lease Year or one-hundred and eighty (180) days in the aggregate, and (ii) that is first arising on or after the first day of the sixth (6th) Lease Year, such cure period shall not exceed one-hundred and eighty (180) days in the aggregate, provided, further however, that no Tenant Event of Default its interests under this clause Lease with leasehold financing in violation hereof.
(o) or under clause (p) below If there shall be deemed to exist a default by any Guarantor under this Lease during the Guaranty and such default is not cured within any time the curing thereof is prevented by an Unavoidable Delay, provided that upon the cessation of the Unavoidable Delay, Tenant remedies the default within the time periods otherwise required hereunder;applicable cure period.
(p) the occurrence of a Tenant Event of Default pursuant to Section 10.5(a)(x);
(q) unless the Guarantor EOD Conditions exist, if Guarantor shall, in any judicial or quasi-judicial case, action or proceeding, contest (or collude with or otherwise affirmatively assist any other Person, or solicit or cause to If there shall be solicited any other Person to contest) the validity or enforceability of Guarantor’s obligations under the MLSA (or any Qualified Replacement Guarantor’s obligations under a Replacement Guaranty); and
(r) if Tenant shall fail to comply with any of the provisions, terms or conditions of the Octavius Ground Lease (or any renewals thereof) as required under Section 7.3 hereof, which failure is not cured within the applicable time period set forth in the applicable Ground Lease and the effect of such failure is to permit the applicable Ground Lessor to terminate such Ground Lease or to result in the Ground Lease being terminated pursuant to the terms thereof. Notwithstanding anything contained herein to the contrary, (x) Landlord shall deliver all notices required pursuant to Section 16.1 concurrently to Tenant and Guarantor and (y) a default by Tenant under any Permitted Leasehold Mortgage shall not in Affiliated Lease and of itself be a Tenant Event of Default hereunder (it being understood that if the circumstances that cause such default independently comprise a default hereunder that continues beyond all is not cured within any applicable notice and cure periods hereunder then such circumstances would cause a Tenant Default hereunder). Notwithstanding the foregoing, (i) Tenant shall not be in breach of this Lease solely as a result of the exercise by the party (other than Tenant, CEC, CEOC or any of their respective Affiliates) to any of the Permitted Exception Documents of such party’s rights thereunder so long as Tenant undertakes commercially reasonable efforts to cause such party to comply or otherwise minimize such breach, and (ii) in the event that Tenant is required, under the express terms of any Permitted Exception Document(s), to take or refrain from taking any action, and taking or refraining from taking such action would result in a default under this Lease, then Tenant shall advise Landlord of the same, and Tenant and Landlord shall reasonably cooperate in order to address the same in a mutually acceptable manner, and so as to minimize any harm or liability to Landlord and to Tenant. For the avoidance of doubt, in no event shall a Permitted Exception Document excuse Tenant from its obligation to pay Rent or Additional Charges.period
Appears in 2 contracts
Samples: Lease Agreement (CNL Healthcare Trust, Inc.), Lease Agreement (CNL Healthcare Trust, Inc.)
Tenant Events of Default. Any one or more of the following shall constitute a “Tenant Event of Default”:
(a) Tenant shall fail to pay any installment of Rent when due and such failure is not cured within six ten (610) days after written notice from Landlord (which notice for purposes of this provision may be in the form of an email and shall be deemed effective as of transmittal (without requirement that receipt thereof be acknowledged), provided that (without vitiating the effectiveness of such email notice) a separate notice is separately delivered on the same day or, if such day is not a Business Day, on the following Business Day, which separate notice shall be delivered in accordance with Article XXXV (it being understood that the delivery of such separate notice shall not vitiate the effectiveness of such email notice)) of Tenant’s failure to pay such installment of Rent when due (and such notice of failure from Landlord may be given any time after such installment of Rent is more than one (1) day late);
(b) Tenant shall fail to pay any Additional Charge (excluding, for the avoidance of doubt the Minimum Cap Ex Amount) within seven ten (710) days after written notice from Landlord of Tenant’s failure to pay such Additional Charge when due (and such notice of failure from Landlord may be given any time after such payment of any Additional Charge is more than one (1) day late);
(c) Tenant or, unless the Guarantor EOD Conditions exist, Guarantor shall:
(i) file a petition in bankruptcy or a petition to take advantage of any insolvency law or statute under Federal law, specifically including Xxxxx 00, Xxxxxx Xxxxxx Code, §§ 101-1532, or analogous state law;
(ii) make an assignment for the benefit of its creditors; or
(iii) consent to the appointment of a receiver of itself or of the whole or substantially all of its property;
(i) Tenant shall be adjudicated as bankrupt or a court of competent jurisdiction shall enter an order or decree appointing, without the consent of Tenant, a receiver of Tenant or of all or substantially all of Tenant’s property, or approving a petition filed against Tenant seeking reorganization or arrangement of Tenant under Federal law, specifically including Title 00, Xxxxxx Xxxxxx Xxxx, §§ 000-0000, or analogous state law, and such judgment, order or decree shall not be vacated or set aside or stayed within sixty (60) days from the date of the entry thereof;
(ii) Unless the Guarantor EOD Conditions exist, Guarantor shall be adjudicated as bankrupt or a court of competent jurisdiction shall enter an order or decree appointing, without the consent of Guarantor, a receiver of Guarantor or of all or substantially all of Guarantor’s property, or approving a petition filed against Guarantor seeking reorganization or arrangement of Guarantor under Federal law, specifically including Title 00, Xxxxxx Xxxxxx Xxxx, §§ 000-0000, or analogous state law, and such judgment, order or decree shall not be vacated or set aside or stayed within sixty (60) days from the date of the entry thereof; or;
(e) entry of an order or decree liquidating or dissolving Tenant, Manager or, unless the Guarantor EOD Conditions exist, Guarantor, provided that the same shall not constitute a Tenant Event of Default if (i) such order or decree shall be vacated, set aside or stayed within ninety (90) days from the date of the entry thereof, or (ii) with respect to Manager only, (x) Manager is not an Affiliate of Tenant, or (y) another wholly-owned subsidiary of CEC assumes the MLSA and the other Lease/MLSA Related Agreements to which Manager is a party;
(f) Tenant shall fail to cause the Facility to be Operated (as defined in the MLSA) in a Non-Discriminatory (as defined in the MLSA) manner, in accordance with the Operating Standard (as defined in the MLSA) and subject to Manager’s Standard of Care (as defined in the MLSA) (in each case as and to the extent required under the MLSA, including as provided in Section 2.1.1, Section 2.1.2, Section 2.1.3, Section 2.1.4, Section 2.3.1, and Section 2.3.2 of the MLSA, but subject to Section 5.9.1 of the MLSA), which failure would reasonably be expected to have a material and adverse effect on Landlord (taken as a whole with “Landlord” as defined under the Non-CPLV Lease) or on the FacilityFacility (taken as a whole with the Non-CPLV Facilities), and which failure is not cured within thirty (30) days following notice thereof from Landlord to Tenant; provided that, if: (i) such failure is not susceptible of cure within such thirty (30) day period; and (ii) such failure would not expose Landlord to an imminent and material risk of criminal liability or of material damage to its business reputation, such thirty (30) day cure period shall be extended for such time as is necessary (but in no event longer than ninety (90) days) to cure such failure so long as Tenant commences to cure such failure or other breach within such thirty (30) day period and thereafter proceeds with reasonable diligence to complete such cure);
(g) the estate or interest of Tenant in the Leased Property or any part thereof shall be levied upon or attached in any proceeding relating to more than Twenty-Five Million and No/100 Dollars ($25,000,000.00), and the same shall not be vacated, discharged or stayed pending appeal (or paid or bonded or otherwise similarly secured payment) within the later of ninety (90) days after commencement thereof or thirty (30) days after receipt by Tenant of notice thereof from Landlord; provided, however, that such notice shall be in lieu of and not in addition to any notice required under applicable law;
(h) if Tenant or, unless the Guarantor EOD Conditions exist, Guarantor shall fail to pay, bond, escrow or otherwise similarly secure payment of one or more final judgments aggregating in excess of the amount of Seventy-Five Million and No/100 Dollars ($75,000,000.00), which judgments are not discharged or effectively waived or stayed for a period of forty-five (45) consecutive days;
(i) unless the Guarantor EOD Conditions exist, a Lease Guarantor Event of Default shall occur under the MLSA;
(j) except as a result of a Permitted Operation Interruption, Tenant fails to cause the Facility to be Continuously Operated during the Termintentionally omitted;
(k) any applicable Gaming License or other license material to the Facility’s operation for its Primary Intended Use is at any time terminated or revoked or suspended or placed under a trusteeship (and in each case such termination, revocation, suspension or trusteeship causes cessation of Gaming activity at the Facility) for more than thirty (30) days and such termination, revocation, suspension or trusteeship is not stayed pending appeal and would reasonably be expected to have a material adverse effect on Tenant or on the Facilityintentionally omitted;
(l) if a Licensing Event with respect to Tenant under clause (a) of the definition of Licensing Event shall occur and is not resolved in accordance with Section 41.13 within the later of (i) thirty (30) days or (ii) such additional time period as may be permitted by the applicable Gaming Authorities;
(m) Tenant fails to comply with any Additional Fee Mortgagee Requirements (and in the case of any representation or warranty made by Tenant under Section 8.2 and Exhibit L having been false or misleading as of the date the representation or warranty was made, such false or misleading representation or warranty has had or is reasonably expected to result in a Material Adverse Effect (as defined in Exhibit L))Requirements, which default is not cured within the shortest applicable cure period set forth in the Fee Mortgage Documents (i.e., such default is not cured prior to the same constituting an “Event of Default” under any Fee Mortgage Document)Documents, if the effect of such default is to cause, or to permit the holder or holders of the applicable Fee Mortgage (or a trustee or agent on behalf of such holder or holders) to cause, such Fee Mortgage to become or be declared due and payable (or redeemable) prior to its stated maturity (without regard to any standstill or forbearance period that might be provided to Landlord with respect to the samematurity); provided, however, that, if any such standstill or forbearance period shall be provided to Landlord with respect to the same, so long as Tenant is reasonably cooperating with Landlord in connection with a potential refinancing of the defaulted Fee Mortgage(s) by providing information with respect to the Leased Property, Tenant or its Affiliates (excluding (i) any material non-public information, unless the same shall only be provided to potential financing sources in accordance with and subject to Section 41.22 hereof, and (ii) any information subject to bona fide confidentiality restrictions) requested by Landlord in order to satisfy the market standards to which such potential refinancing lenders customarily adhere or which may be reasonably required by prospective investors and/or rating agencies, such default shall not constitute a Tenant Event of Default hereunder for the first half of the shortest applicable standstill or forbearance period so provided to Landlord, as determined by Landlord in its sole but good faith discretion;
(n) a transfer of Tenant’s interest in this Lease (including pursuant to a Change in Control) shall have occurred without the consent of Landlord to the extent such consent is required under Article XXII or Tenant is otherwise in default of the provisions set forth in Section 22.1 below;
(o) if Tenant shall fail to observe or perform any other term, covenant or condition of this Lease and such failure is not cured within thirty (30) days after written notice thereof from Landlord, provided, however, if such failure cannot reasonably be cured within such thirty (30) day period and Tenant shall have commenced to cure such failure within such thirty (30) day period and thereafter diligently proceeds to cure the same, such thirty (30) day period shall be extended for such time as is reasonably necessary for Tenant in the exercise of due diligence to cure such failure, provided that, with respect to any failure to perform (i) that is still continuing on or after the first day of the sixth (6th) Lease Year such cure period shall not extend beyond the later of such first day of the sixth (6th) Lease Year or one-hundred and eighty (180) days in the aggregate, and (ii) that is first arising on or after the first day of the sixth (6th) Lease Year, such cure period shall not exceed one-hundred and eighty (180) days in the aggregate, provided, further however, that no Tenant Event of Default under this clause (o) or under clause (pq) below shall be deemed to exist under this Lease during any time the curing thereof is prevented by an Unavoidable Delay, provided that upon the cessation of the Unavoidable Delay, Tenant remedies the default within the time periods otherwise required hereunder;
(p) A “Tenant Event of Default” (as defined in the applicable Other Lease) shall occur under any Other Lease.
(q) the occurrence of a Tenant Event of Default pursuant to Section 10.5(a)(x);
(qr) unless the Guarantor EOD Conditions exist, if Guarantor shall, in any judicial or quasi-judicial case, action or proceeding, contest (or collude with or otherwise affirmatively assist any other Person, or solicit or cause to be solicited any other Person to contest) the validity or enforceability of Guarantor’s obligations under the MLSA MLSA, (or any Qualified Replacement Guarantor’s obligations under a Replacement Guaranty); and
(rs) if Tenant shall fail to comply with any of the provisions, terms or conditions of the Octavius any Ground Lease in effect as of the Commencement Date (or any renewals thereof) with respect to any of the Continuous Operation Facilities as required under Section 7.3 hereof, which failure is not cured within the applicable time period set forth in the applicable Ground Lease and the effect of such failure is to permit the applicable Ground Lessor to terminate such Ground Lease or to result in the Ground Lease being terminated pursuant to the terms thereof. Notwithstanding anything contained herein to the contrary, (xi) Landlord shall deliver all notices required pursuant to Section 16.1 concurrently to Tenant and Guarantor and (yii) a default by Tenant under any Permitted Leasehold Mortgage shall not in and of itself be a Tenant Event of Default hereunder (it being understood that if the circumstances that cause such default independently comprise a default hereunder that continues beyond all applicable notice and cure periods hereunder then such circumstances would cause a Tenant Default hereunder). Notwithstanding the foregoing, (i) Tenant shall not be in breach of this Lease solely as a result of the exercise by the party (other than Tenant, CEC, CEOC or any of their respective Affiliates) to any of the Permitted Exception Documents of such party’s rights thereunder so long as Tenant undertakes commercially reasonable efforts to cause such party to comply or otherwise minimize such breach, and (ii) in the event that Tenant is required, under the express terms of any Permitted Exception Document(s), to take or refrain from taking any action, and taking or refraining from taking such action would result in a default under this Lease, then Tenant shall advise Landlord of the same, and Tenant and Landlord shall reasonably cooperate in order to address the same in a mutually acceptable manner, and so as to minimize any harm or liability to Landlord and to Tenant. For the avoidance of doubt, in no event shall a Permitted Exception Document excuse Tenant from its obligation to pay Rent or Additional Charges.
Appears in 1 contract
Tenant Events of Default. Any one or more of the following shall constitute a “Tenant Event of Default”:
(a) Tenant shall fail to pay any installment of Rent when due and such failure is not cured within six (6) days after written notice from Landlord (which notice for purposes of this provision may be in the form of an email and shall be deemed effective as of transmittal (without requirement that receipt thereof be acknowledged), provided that (without vitiating the effectiveness of such email notice) a separate notice is separately delivered on the same day or, if such day is not a Business Day, on the following Business Day, which separate notice shall be delivered in accordance with Article XXXV (it being understood that the delivery of such separate notice shall not vitiate the effectiveness of such email notice)) of Tenant’s failure to pay such installment of Rent when due (and such notice of failure from Landlord may be given any time after such installment of Rent is one (1) day late);
(b) Tenant shall fail to pay any Additional Charge (excluding, for the avoidance of doubt the Minimum Cap Ex Amount) within seven (7) days after written notice from Landlord of Tenant’s failure to pay such Additional Charge when due (and such notice of failure from Landlord may be given any time after such payment of any Additional Charge is one (1) day late);
(c) Tenant or, unless the Guarantor EOD Conditions exist, or Guarantor shall:
(i) file a petition in bankruptcy or a petition to take advantage of any insolvency law or statute under Federal law, specifically including Xxxxx 00, Xxxxxx Xxxxxx Code, §§ 101-1532, or analogous state law;
(ii) make an assignment for the benefit of its creditors; or
(iii) consent to the appointment of a receiver of itself or of the whole or substantially all of its property;
(i) Tenant shall be adjudicated as bankrupt or a court of competent jurisdiction shall enter an order or decree appointing, without the consent of Tenant, a receiver of Tenant or of all or substantially all of Tenant’s property, or approving a petition filed against Tenant seeking reorganization or arrangement of Tenant under Federal law, specifically including Title 00, Xxxxxx Xxxxxx Xxxx, §§ 000-0000, or analogous state law, and such judgment, order or decree shall not be vacated or set aside or stayed within sixty (60) days from the date of the entry thereof;; or
(ii) Unless the Guarantor EOD Conditions exist, Guarantor shall be adjudicated as bankrupt or a court of competent jurisdiction shall enter an order or decree appointing, without the consent of Guarantor, a receiver of Guarantor or of all or substantially all of Guarantor’s property, or approving a petition filed against Guarantor seeking reorganization or arrangement of Guarantor under Federal law, specifically including Title 00, Xxxxxx Xxxxxx Xxxx, §§ 000-0000, or analogous state law, and such judgment, order or decree shall not be vacated or set aside or stayed within sixty (60) days from the date of the entry thereof; or;
(e) entry of an order or decree liquidating or dissolving Tenant, Manager or, unless the Guarantor EOD Conditions exist, Tenant or Guarantor, provided that the same shall not constitute a Tenant Event of Default if (i) such order or decree shall be vacated, set aside or stayed within ninety (90) days from the date of the entry thereof, or (ii) with respect to Manager only, (x) Manager is not an Affiliate of Tenant, or (y) another wholly-owned subsidiary of CEC assumes the MLSA and the other Lease/MLSA Related Agreements to which Manager is a party;
(f) Tenant shall fail to cause the Facility to be Operated (as defined in the MLSA) in a Non-Discriminatory (as defined in the MLSA) mannercomply with Section 7.5, in accordance with the Operating Standard (as defined in the MLSA) and subject to Manager’s Standard of Care (as defined in the MLSA) (in each case as and to the extent required under the MLSA, including as provided in Section 2.1.1, Section 2.1.2, Section 2.1.3, Section 2.1.4, Section 2.3.1, and Section 2.3.2 of the MLSA, but subject to Section 5.9.1 of the MLSA), which failure would reasonably be expected to have a material and adverse effect on Landlord or on the Facility, and which failure is not cured within thirty (30) days following notice thereof from Landlord to Tenant; provided that, if: (i) such failure is not susceptible of cure within such thirty (30) day period; and (ii) such failure would not expose Landlord to an imminent and material risk of criminal liability or of material damage to its business reputation, such thirty (30) day cure period shall be extended for such time as is necessary (but in no event longer than ninety (90) days) to cure such failure so long as Tenant commences to cure such failure or other breach within such thirty (30) day period and thereafter proceeds with reasonable diligence to complete such cure);
(g) the estate or interest of Tenant in the Leased Property or any part thereof shall be levied upon or attached in any proceeding relating to more than Twenty-Five Million and No/100 Dollars ($25,000,000.00), and the same shall not be vacated, discharged or stayed pending appeal (or paid or bonded or otherwise similarly secured payment) within the later of ninety (90) days after commencement thereof or thirty (30) days after receipt by Tenant of notice thereof from Landlord; provided, however, that such notice shall be in lieu of and not in addition to any notice required under applicable law;
(h) if Tenant or, unless the Guarantor EOD Conditions exist, or Guarantor shall fail to pay, bond, escrow or otherwise similarly secure payment of one or more final judgments aggregating in excess of the amount of Seventy-Five Million and No/100 Dollars ($75,000,000.00), which judgments are not discharged or effectively waived or stayed for a period of forty-five (45) consecutive days;
(i) unless Guarantor (A) shall fail to satisfy any of the Guarantor EOD Conditions existObligations (as defined in the Guaranty) of a monetary nature or (B) shall otherwise fail to satisfy any other Obligations or shall otherwise fail to perform or comply with any other term, a Lease Guarantor Event of Default shall occur covenant or condition under the MLSAGuaranty, and, in any case under this clause (B), such failure is not cured within ten (10) days following notice of such failure from Landlord to Guarantor;
(j) except as a result of a Permitted Operation Interruption, Tenant fails to cause the any Facility to be Continuously Operated during the Term;
(k) any applicable Gaming License or other license material to the any Facility’s operation for its Primary Intended Use is at any time terminated or revoked or suspended or placed under a trusteeship (and in each case such termination, revocation, suspension or trusteeship causes cessation of Gaming activity at the such Facility) for more than thirty (30) days and such termination, revocation, suspension or trusteeship is not stayed pending appeal and would reasonably be expected to have a material adverse effect on the applicable Tenant or on the such Facility;
(l) if a Licensing Event with respect to Tenant under clause (a) of the definition of Licensing Event shall occur and is not resolved in accordance with Section 41.13 within the later of (i) thirty (30) days or (ii) such additional time period as may be permitted by the applicable Gaming Authorities;
(m) Tenant fails to comply with any Additional Fee Mortgagee Requirements (and in the case of any representation or warranty made by Tenant under Section 8.2 and Exhibit L having been false or misleading as of the date the representation or warranty was made, such false or misleading representation or warranty has had or is reasonably expected to result in a Material Adverse Effect (as defined in Exhibit L))Requirements, which default is not cured within the shortest applicable cure period set forth in the Fee Mortgage Documents (i.e., such default is not cured prior to the same constituting an “Event of Default” under any Fee Mortgage Document), if the effect of such default is to cause, or to permit the holder or holders of the applicable Fee Mortgage (or a trustee or agent on behalf of such holder or holders) to cause, such Fee Mortgage to become or be declared due and payable (or redeemable) prior to its stated maturity (without regard to any standstill or forbearance period that might be provided to Landlord with respect to the same); provided, however, that, if any such standstill or forbearance period shall be provided to Landlord with respect to the same, so long as Tenant is reasonably cooperating with Landlord in connection with a potential refinancing of the defaulted Fee Mortgage(s) by providing information with respect to the Leased Property, Tenant or its Affiliates (excluding (i) any material non-public information, unless the same shall only be provided to potential financing sources in accordance with and subject to Section 41.22 hereof, and (ii) any information subject to bona fide confidentiality restrictions) requested by Landlord in order to satisfy the market standards to which such potential refinancing lenders customarily adhere or which may be reasonably required by prospective investors and/or rating agencies, such default shall not constitute a Tenant Event of Default hereunder for the first half of the shortest applicable standstill or forbearance period so provided to Landlord, as determined by Landlord in its sole but good faith discretion;
(n) a transfer of Tenant’s interest in this Lease (including pursuant to a Change in of Control) shall have occurred without the consent of Landlord to the extent such consent is required under Article XXII or Tenant is otherwise in default of the provisions set forth in Section 22.1 below;
(o) if Tenant shall fail to observe or perform any other term, covenant or condition of this Lease and such failure is not cured within thirty (30) days after written notice thereof from Landlord, provided, however, if such failure cannot reasonably be cured within such thirty (30) day period and Tenant shall have commenced to cure such failure within such thirty (30) day period and thereafter diligently proceeds to cure the same, such thirty (30) day period shall be extended for such time as is reasonably necessary for Tenant in the exercise of due diligence to cure such failure, provided that, with respect to any failure to perform (i) that is still continuing on or after the first day of the sixth (6th) Lease Year such cure period shall not extend beyond the later of such first day of the sixth (6th) Lease Year or one-one hundred and eighty (180) days in the aggregate, and (ii) that is first arising on or after the first day of the sixth (6th) Lease Year, such cure period shall not exceed one-one hundred and eighty (180) days in the aggregate, provided, further however, that no Tenant Event of Default under this clause (o) or under clause (p) below shall be deemed to exist under this Lease during any time the curing thereof is prevented by an Unavoidable Delay, provided that upon the cessation of the Unavoidable Delay, Tenant remedies the default within the time periods otherwise required hereunder;
(p) the occurrence of a Tenant Event of Default pursuant to Section 10.5(a)(x);; and
(q) unless the Guarantor EOD Conditions exist, if Guarantor shall, in any judicial or quasi-judicial case, action or proceeding, contest (or collude with or otherwise affirmatively assist any other Person, or solicit or cause to be solicited any other Person to contest) the validity or enforceability of Guarantor’s obligations under the MLSA Guaranty (or any Qualified Replacement Guarantor’s obligations under a Replacement Guaranty); and
(r) if Tenant shall fail to comply with any of the provisions, terms or conditions of the Octavius Ground Lease (or any renewals thereof) as required under Section 7.3 hereof, which failure is not cured within the applicable time period set forth in the applicable Ground Lease and the effect of such failure is to permit the applicable Ground Lessor to terminate such Ground Lease or to result in the Ground Lease being terminated pursuant to the terms thereof. Notwithstanding anything contained herein to the contrary, (x) Landlord shall deliver all notices required pursuant to Section 16.1 concurrently to Tenant and Guarantor and (y) a default by Tenant under any Permitted Leasehold Mortgage shall not in and of itself be a Tenant Event of Default hereunder (it being understood that if the circumstances that cause such default independently comprise a default hereunder that continues beyond all applicable notice and cure periods hereunder then such circumstances would cause a Tenant Event of Default hereunder). Notwithstanding the foregoing, (i) Tenant shall not be in breach of this Lease solely as a result of the exercise by the party (other than Tenant, CECERI, CEOC or any of their respective Affiliates) to any of the Permitted Exception Documents of such party’s rights thereunder so long as Tenant undertakes commercially reasonable efforts to cause such party to comply or otherwise minimize such breach, and (ii) in the event that Tenant is required, under the express terms of any Permitted Exception Document(s), to take or refrain from taking any action, and taking or refraining from taking such action would result in a default under this Lease, then Tenant shall advise Landlord of the same, and Tenant and Landlord shall reasonably cooperate in order to address the same in a mutually acceptable manner, and so as to minimize any harm or liability to Landlord and to Tenant. For the avoidance of doubt, in no event shall a Permitted Exception Document excuse Tenant from its obligation to pay Rent or Additional Charges.
Appears in 1 contract
Samples: Lease (Caesars Entertainment, Inc.)
Tenant Events of Default. Any one or more of the following shall constitute a “Tenant Event of Default”:
(a) Tenant shall fail to pay any installment of Rent when due and such failure is not cured within six (6) days after written notice from Landlord (which notice for purposes of this provision may be in the form of an email and shall be deemed effective as of transmittal (without requirement that receipt thereof be acknowledged), provided that (without vitiating the effectiveness of such email notice) a separate notice is separately delivered on the same day or, if such day is not a Business Day, on the following Business Day, which separate notice shall be delivered in accordance with Article XXXV (it being understood that the delivery of such separate notice shall not vitiate the effectiveness of such email notice)) of Tenant’s failure to pay such installment of Rent when due (and such notice of failure from Landlord may be given any time after such installment of Rent is one (1) day late);
(b) Tenant shall fail to pay any Additional Charge (excluding, for the avoidance of doubt the Minimum Cap Ex Amount) within seven (7) days after written notice from Landlord of Tenant’s failure to pay such Additional Charge when due (and such notice of failure from Landlord may be given any time after such payment of any Additional Charge is one (1) day late);
(c) Tenant or, unless the Guarantor EOD Conditions exist, Guarantor shall:
(i) file a petition in bankruptcy or a petition to take advantage of any insolvency law or statute under Federal law, specifically including Xxxxx Title 00, Xxxxxx Xxxxxx CodeXxxx, §§ 101000-15320000, or analogous state law;
(ii) make an assignment for the benefit of its creditors; or
(iii) consent to the appointment of a receiver of itself or of the whole or substantially all of its property;
(i) Tenant shall be adjudicated as bankrupt or a court of competent jurisdiction shall enter an order or decree appointing, without the consent of Tenant, a receiver of Tenant or of all or substantially all of Tenant’s property, or approving a petition filed against Tenant seeking reorganization or arrangement of Tenant under Federal law, specifically including Title 00, Xxxxxx Xxxxxx Xxxx, §§ 000-0000, or analogous state law, and such judgment, order or decree shall not be vacated or set aside or stayed within sixty (60) days from the date of the entry thereof;
(iii) Unless the Guarantor EOD Conditions exist, Guarantor shall be adjudicated as bankrupt or a court of competent jurisdiction shall enter an order or decree appointing, without the consent of Guarantor, a receiver of Guarantor or of all or substantially all of Guarantor’s property, or approving a petition filed against Guarantor seeking reorganization or arrangement of Guarantor under Federal law, specifically including Title 00, Xxxxxx Xxxxxx Xxxx, §§ 000-0000, or analogous state law, and such judgment, order or decree shall not be vacated or set aside or stayed within sixty (60) days from the date of the entry thereof; or;
(e) entry of an order or decree liquidating or dissolving Tenant, Manager or, unless the Guarantor EOD Conditions exist, Guarantor, provided that the same shall not constitute a Tenant Event of Default if (i) such order or decree shall be vacated, set aside or stayed within ninety (90) days from the date of the entry thereof, or (ii) with respect to Manager only, (x) Manager is not an Affiliate of Tenant, or (y) another wholly-owned subsidiary of CEC assumes the MLSA and the other Lease/MLSA Related Agreements to which Manager is a party;
(f) Tenant shall fail to cause the Facility to be Operated (as defined in the MLSA) in a Non-Discriminatory (as defined in the MLSA) manner, in accordance with the Operating Standard (as defined in the MLSA) and subject to Manager’s Standard of Care (as defined in the MLSA) (in each case as and to the extent required under the MLSA, including as provided in Section 2.1.1, Section 2.1.2, Section 2.1.3, Section 2.1.4, Section 2.3.1, and Section 2.3.2 of the MLSA, but subject to Section 5.9.1 of the MLSA), which failure would reasonably be expected to have a material and adverse effect on Landlord or on the Facility, and which failure is not cured within thirty (30) days following notice thereof from Landlord to Tenant; provided that, if: (i) such failure is not susceptible of cure within such thirty (30) day period; and (ii) such failure would not expose Landlord to an imminent and material risk of criminal liability or of material damage to its business reputation, such thirty (30) day cure period shall be extended for such time as is necessary (but in no event longer than ninety (90) days) to cure such failure so long as Tenant commences to cure such failure or other breach within such thirty (30) day period and thereafter proceeds with reasonable diligence to complete such cure);
(g) the estate or interest of Tenant in the Leased Property or any part thereof shall be levied upon or attached in any proceeding relating to more than Twenty-Five Million and No/100 Dollars ($25,000,000.00), and the same shall not be vacated, discharged or stayed pending appeal (or paid or bonded or otherwise similarly secured payment) within the later of ninety (90) days after commencement thereof or thirty (30) days after receipt by Tenant of notice thereof from Landlord; provided, however, that such notice shall be in lieu of and not in addition to any notice required under applicable law;
(h) if Tenant or, unless the Guarantor EOD Conditions exist, Guarantor shall fail to pay, bond, escrow or otherwise similarly secure payment of one or more final judgments aggregating in excess of the amount of Seventy-Five Million and No/100 Dollars ($75,000,000.00), which judgments are not discharged or effectively waived or stayed for a period of forty-five (45) consecutive days;
(i) unless the Guarantor EOD Conditions exist, a Lease Guarantor Event of Default shall occur under the MLSA;
(j) except as a result of a Permitted Operation Interruption, Tenant fails to cause the Facility to be Continuously Operated during the Term;
(k) any applicable Gaming License or other license material to the Facility’s operation for its Primary Intended Use is at any time terminated or revoked or suspended or placed under a trusteeship (and in each case such termination, revocation, suspension or trusteeship causes cessation of Gaming activity at the Facility) for more than thirty (30) days and such termination, revocation, suspension or trusteeship is not stayed pending appeal and would reasonably be expected to have a material adverse effect on Tenant or on the Facility;
(l) if a Licensing Event with respect to Tenant under clause (a) of the definition of Licensing Event shall occur and is not resolved in accordance with Section 41.13 within the later of (i) thirty (30) days or (ii) such additional time period as may be permitted by the applicable Gaming Authorities;
(m) Tenant fails to comply with any Additional Fee Mortgagee Requirements (and in the case of any representation or warranty made by Tenant under Section 8.2 and Exhibit L having been false or misleading as of the date the representation or warranty was made, such false or misleading representation or warranty has had or is reasonably expected to result in a Material Adverse Effect (as defined in Exhibit L)), which default is not cured within the shortest applicable cure period set forth in the Fee Mortgage Documents (i.e., such default is not cured prior to the same constituting an “Event of Default” under any Fee Mortgage Document), if the effect of such default is to cause, or to permit the holder or holders of the applicable Fee Mortgage (or a trustee or agent on behalf of such holder or holders) to cause, such Fee Mortgage to become or be declared due and payable (or redeemable) prior to its stated maturity (without regard to any standstill or forbearance period that might be provided to Landlord with respect to the same); provided, however, that, if any such standstill or forbearance period shall be provided to Landlord with respect to the same, so long as Tenant is reasonably cooperating with Landlord in connection with a potential refinancing of the defaulted Fee Mortgage(s) by providing information with respect to the Leased Property, Tenant or its Affiliates (excluding (i) any material non-public information, unless the same shall only be provided to potential financing sources in accordance with and subject to Section 41.22 hereof, and (ii) any information subject to bona fide confidentiality restrictions) requested by Landlord in order to satisfy the market standards to which such potential refinancing lenders customarily adhere or which may be reasonably required by prospective investors and/or rating agencies, such default shall not constitute a Tenant Event of Default hereunder for the first half of the shortest applicable standstill or forbearance period so provided to Landlord, as determined by Landlord in its sole but good faith discretion;
(n) a transfer of Tenant’s interest in this Lease (including pursuant to a Change in Control) shall have occurred without the consent of Landlord to the extent such consent is required under Article XXII or Tenant is otherwise in default of the provisions set forth in Section 22.1 below;
(o) if Tenant shall fail to observe or perform any other term, covenant or condition of this Lease and such failure is not cured within thirty (30) days after written notice thereof from Landlord, provided, however, if such failure cannot reasonably be cured within such thirty (30) day period and Tenant shall have commenced to cure such failure within such thirty (30) day period and thereafter diligently proceeds to cure the same, such thirty (30) day period shall be extended for such time as is reasonably necessary for Tenant in the exercise of due diligence to cure such failure, provided that, with respect to any failure to perform (i) that is still continuing on or after the first day of the sixth (6th) Lease Year such cure period shall not extend beyond the later of such first day of the sixth (6th) Lease Year or one-hundred and eighty (180) days in the aggregate, and (ii) that is first arising on or after the first day of the sixth (6th) Lease Year, such cure period shall not exceed one-hundred and eighty (180) days in the aggregate, provided, further however, that no Tenant Event of Default under this clause (o) or under clause (p) below shall be deemed to exist under this Lease during any time the curing thereof is prevented by an Unavoidable Delay, provided that upon the cessation of the Unavoidable Delay, Tenant remedies the default within the time periods otherwise required hereunder;
(p) the occurrence of a Tenant Event of Default pursuant to Section 10.5(a)(x);; and
(q) unless the Guarantor EOD Conditions exist, if Guarantor shall, in any judicial or quasi-judicial case, action or proceeding, contest (or collude with or otherwise affirmatively assist any other Person, or solicit or cause to be solicited any other Person to contest) the validity or enforceability of Guarantor’s obligations under the MLSA (or any Qualified Replacement Guarantor’s obligations under a Replacement Guaranty); and
(r) if Tenant shall fail to comply with any of the provisions, terms or conditions of the Octavius Ground Lease (or any renewals thereof) as required under Section 7.3 hereof, which failure is not cured within the applicable time period set forth in the applicable Ground Lease and the effect of such failure is to permit the applicable Ground Lessor to terminate such Ground Lease or to result in the Ground Lease being terminated pursuant to the terms thereof. Notwithstanding anything contained herein to the contrary, (x) Landlord shall deliver all notices required pursuant to Section 16.1 concurrently to Tenant and Guarantor and (y) a default by Tenant under any Permitted Leasehold Mortgage shall not in and of itself be a Tenant Event of Default hereunder (it being understood that if the circumstances that cause such default independently comprise a default hereunder that continues beyond all applicable notice and cure periods hereunder then such circumstances would cause a Tenant Default hereunder). Notwithstanding the foregoing, (i) Tenant shall not be in breach of this Lease solely as a result of the exercise by the party (other than Tenant, CEC, CEOC or any of their respective Affiliates) to any of the Permitted Exception Documents of such party’s rights thereunder so long as Tenant undertakes commercially reasonable efforts to cause such party to comply or otherwise minimize such breach, and (ii) in the event that Tenant is required, under the express terms of any Permitted Exception Document(s), to take or refrain from taking any action, and taking or refraining from taking such action would result in a default under this Lease, then Tenant shall advise Landlord of the same, and Tenant and Landlord shall reasonably cooperate in order to address the same in a mutually acceptable manner, and so as to minimize any harm or liability to Landlord and to Tenant. For the avoidance of doubt, in no event shall a Permitted Exception Document excuse Tenant from its obligation to pay Rent or Additional Charges.
Appears in 1 contract
Tenant Events of Default. Any one or more of the following shall constitute a “Tenant Event of Default”:
(a) Tenant shall fail to pay any installment of Rent when due and such failure is not cured within six ten (610) days after written notice from Landlord (which notice for purposes of this provision may be in the form of an email and shall be deemed effective as of transmittal (without requirement that receipt thereof be acknowledged), provided that (without vitiating the effectiveness of such email notice) a separate notice is separately delivered on the same day or, if such day is not a Business Day, on the following Business Day, which separate notice shall be delivered in accordance with Article XXXV (it being understood that the delivery of such separate notice shall not vitiate the effectiveness of such email notice)) of Tenant’s failure to pay such installment of Rent when due (and such notice of failure from Landlord may be given any time after such installment of Rent is one (1) day late);
(b) Tenant shall fail to pay any Additional Charge (excluding, for the avoidance of doubt the Minimum Cap Ex Amount) within seven ten (710) days after written notice from Landlord of Tenant’s failure to pay such Additional Charge when due (and such notice of failure from Landlord may be given any time after such payment of any Additional Charge is one (1) day late);
(c) Tenant or, unless the Guarantor EOD Conditions exist, Guarantor shall:
(i) file a petition in bankruptcy or a petition to take advantage of any insolvency law or statute under Federal law, specifically including Xxxxx 00, Xxxxxx Xxxxxx Code, §§ 101-1532, or analogous state law;
(ii) make an assignment for the benefit of its creditors; or
(iii) consent to the appointment of a receiver of itself or of the whole or substantially all of its property;
(i) Tenant shall be adjudicated as bankrupt or a court of competent jurisdiction shall enter an order or decree appointing, without the consent of Tenant, a receiver of Tenant or of all or substantially all of Tenant’s property, or approving a petition filed against Tenant seeking reorganization or arrangement of Tenant under Federal law, specifically including Title 00, Xxxxxx Xxxxxx Xxxx, §§ 000-0000, or analogous state law, and such judgment, order or decree shall not be vacated or set aside or stayed within sixty (60) days from the date of the entry thereof;
(ii) Unless the Guarantor EOD Conditions exist, Guarantor shall be adjudicated as bankrupt or a court of competent jurisdiction shall enter an order or decree appointing, without the consent of Guarantor, a receiver of Guarantor or of all or substantially all of Guarantor’s property, or approving a petition filed against Guarantor seeking reorganization or arrangement of Guarantor under Federal law, specifically including Title 00, Xxxxxx Xxxxxx Xxxx, §§ 000-0000, or analogous state law, and such judgment, order or decree shall not be vacated or set aside or stayed within sixty (60) days from the date of the entry thereof; or;
(e) entry of an order or decree liquidating or dissolving Tenant, Manager or, unless the Guarantor EOD Conditions exist, Guarantor, provided that the same shall not constitute a Tenant Event of Default if (i) such order or decree shall be vacated, set aside or stayed within ninety (90) days from the date of the entry thereof, or (ii) with respect to Manager only, (x) Manager is not an Affiliate of Tenant, or (y) another wholly-owned subsidiary of CEC assumes the MLSA and the other Lease/MLSA Related Agreements to which Manager is a party;
(f) Tenant shall fail to cause the Facility to be Operated (as defined in the MLSA) in a Non-Discriminatory (as defined in the MLSA) manner, in accordance with the Operating Standard (as defined in the MLSA) and subject to Manager’s Standard of Care (as defined in the MLSA) (in each case as and to the extent required under the MLSA, including as provided in Section 2.1.1, Section 2.1.2, Section 2.1.3, Section 2.1.4, Section 2.3.1, and Section 2.3.2 of the MLSA, but subject to Section 5.9.1 of the MLSA), which failure would reasonably be expected to have a material and adverse effect on Landlord (taken as a whole with “Landlord” as defined under the Non-CPLV Lease) or on the FacilityFacility (taken as a whole with the Non-CPLV Facilities), and which failure is not cured within thirty (30) days following notice thereof from Landlord to Tenant; provided that, if: (i) such failure is not susceptible of cure within such thirty (30) day period; and (ii) such failure would not expose Landlord to an imminent and material risk of criminal liability or of material damage to its business reputation, such thirty (30) day cure period shall be extended for such time as is necessary (but in no event longer than ninety (90) days) to cure such failure so long as Tenant commences to cure such failure or other breach within such thirty (30) day period and thereafter proceeds with reasonable diligence to complete such cure);
(g) the estate or interest of Tenant in the Leased Property or any part thereof shall be levied upon or attached in any proceeding relating to more than Twenty-Five Million and No/100 Dollars ($25,000,000.00), and the same shall not be vacated, discharged or stayed pending appeal (or paid or bonded or otherwise similarly secured payment) within the later of ninety (90) days after commencement thereof or thirty (30) days after receipt by Tenant of notice thereof from Landlord; provided, however, that such notice shall be in lieu of and not in addition to any notice required under applicable law;
(h) if Tenant or, unless the Guarantor EOD Conditions exist, Guarantor shall fail to pay, bond, escrow or otherwise similarly secure payment of one or more final judgments aggregating in excess of the amount of Seventy-Five Million and No/100 Dollars ($75,000,000.00), which judgments are not discharged or effectively waived or stayed for a period of forty-five (45) consecutive days;
(i) unless the Guarantor EOD Conditions exist, a Lease Guarantor Event of Default shall occur under the MLSA;
(j) except as a result of a Permitted Operation Interruption, Tenant fails to cause the Facility to be Continuously Operated during the Termintentionally omitted;
(k) any applicable Gaming License or other license material to the Facility’s operation for its Primary Intended Use is at any time terminated or revoked or suspended or placed under a trusteeship (and in each case such termination, revocation, suspension or trusteeship causes cessation of Gaming activity at the Facility) for more than thirty (30) days and such termination, revocation, suspension or trusteeship is not stayed pending appeal and would reasonably be expected to have a material adverse effect on Tenant or on the Facilityintentionally omitted;
(l) if a Licensing Event with respect to Tenant under clause (a) of the definition of Licensing Event shall occur and is not resolved in accordance with Section 41.13 within the later of (i) thirty (30) days or (ii) such additional time period as may be permitted by the applicable Gaming Authorities;
(m) Tenant fails to comply with any Additional Fee Mortgagee Requirements (and in the case of any representation or warranty made by Tenant under Section 8.2 and Exhibit L having been false or misleading as of the date the representation or warranty was made, such false or misleading representation or warranty has had or is reasonably expected to result in a Material Adverse Effect (as defined in Exhibit L))Requirements, which default is not cured within the shortest applicable cure period set forth in the Fee Mortgage Documents (i.e., such default is not cured prior to the same constituting an “Event of Default” under any Fee Mortgage Document)Documents, if the effect of such default is to cause, or to permit the holder or holders of the applicable Fee Mortgage (or a trustee or agent on behalf of such holder or holders) to cause, such Fee Mortgage to become or be declared due and payable (or redeemable) prior to its stated maturity (without regard to any standstill or forbearance period that might be provided to Landlord with respect to the same); provided, however, that, if any such standstill or forbearance period shall be provided to Landlord with respect to the same, so long as Tenant is reasonably cooperating with Landlord in connection with a potential refinancing of the defaulted Fee Mortgage(s) by providing information with respect to the Leased Property, Tenant or its Affiliates (excluding (i) any material non-public information, unless the same shall only be provided to potential financing sources in accordance with and subject to Section 41.22 hereof, and (ii) any information subject to bona fide confidentiality restrictions) requested by Landlord in order to satisfy the market standards to which such potential refinancing lenders customarily adhere or which may be reasonably required by prospective investors and/or rating agencies, such default shall not constitute a Tenant Event of Default hereunder for the first half of the shortest applicable standstill or forbearance period so provided to Landlord, as determined by Landlord in its sole but good faith discretionmaturity;
(n) a transfer of Tenant’s interest in this Lease (including pursuant to a Change in Control) shall have occurred without the consent of Landlord to the extent such consent is required under Article XXII or Tenant is otherwise in default of the provisions set forth in Section 22.1 below;
(o) if Tenant shall fail to observe or perform any other term, covenant or condition of this Lease and such failure is not cured within thirty (30) days after written notice thereof from Landlord, provided, however, if such failure cannot reasonably be cured within such thirty (30) day period and Tenant shall have commenced to cure such failure within such thirty (30) day period and thereafter diligently proceeds to cure the same, such thirty (30) day period shall be extended for such time as is reasonably necessary for Tenant in the exercise of due diligence to cure such failure, provided that, with respect to any failure to perform (i) that is still continuing on or after the first day of the sixth (6th) Lease Year such cure period shall not extend beyond the later of such first day of the sixth (6th) Lease Year or one-hundred and eighty (180) days in the aggregate, and (ii) that is first arising on or after the first day of the sixth (6th) Lease Year, such cure period shall not exceed one-hundred and eighty (180) days in the aggregate, provided, further however, that no Tenant Event of Default under this clause (o) or under clause (pq) below shall be deemed to exist under this Lease during any time the curing thereof is prevented by an Unavoidable Delay, provided that upon the cessation of the Unavoidable Delay, Tenant remedies the default within the time periods otherwise required hereunder;
(p) (i) A “Tenant Event of Default” (as defined in the Non-CPLV Lease) shall occur the Non-CPLV Lease, or (ii) so long as the Existing Fee Financing has not been replaced with replacement financing, a “Tenant Event of Default” (as defined in the CPLV Lease) shall occur under the CPLV Lease;
(q) the occurrence of a Tenant Event of Default pursuant to Section 10.5(a)(x);
(qr) unless the Guarantor EOD Conditions exist, if Guarantor shall, in any judicial or quasi-judicial case, action or proceeding, contest (or collude with or otherwise affirmatively assist any other Person, or solicit or cause to be solicited any other Person to contest) the validity or enforceability of Guarantor’s obligations under the MLSA MLSA, (or any Qualified Replacement Guarantor’s obligations under a Replacement Guaranty); and
(rs) if Tenant shall fail to comply with any of the provisions, terms or conditions of the Octavius any Ground Lease in effect as of the Commencement Date (or any renewals thereof) with respect to any of the Continuous Operation Facilities as required under Section 7.3 hereof, which failure is not cured within the applicable time period set forth in the applicable Ground Lease and the effect of such failure is to permit the applicable Ground Lessor to terminate such Ground Lease or to result in the Ground Lease being terminated pursuant to the terms thereof. Notwithstanding anything contained herein to the contrary, (x) Landlord shall deliver all notices required pursuant to Section 16.1 concurrently to Tenant and Guarantor and (y) a default by Tenant under any Permitted Leasehold Mortgage shall not in and of itself be a Tenant Event of Default hereunder (it being understood that if the circumstances that cause such default independently comprise a default hereunder that continues beyond all applicable notice and cure periods hereunder then such circumstances would cause a Tenant Default hereunder). Notwithstanding the foregoing, (i) Tenant shall not be in breach of this Lease solely as a result of the exercise by the party (other than Tenant, CEC, CEOC or any of their respective Affiliates) to any of the Permitted Exception Documents of such party’s rights thereunder so long as Tenant undertakes commercially reasonable efforts to cause such party to comply or otherwise minimize such breach, and (ii) in the event that Tenant is required, under the express terms of any Permitted Exception Document(s), to take or refrain from taking any action, and taking or refraining from taking such action would result in a default under this Lease, then Tenant shall advise Landlord of the same, and Tenant and Landlord shall reasonably cooperate in order to address the same in a mutually acceptable manner, and so as to minimize any harm or liability to Landlord and to Tenant. For the avoidance of doubt, in no event shall a Permitted Exception Document excuse Tenant from its obligation to pay Rent or Additional Charges.
Appears in 1 contract
Tenant Events of Default. Any one or more of the following shall constitute a “Tenant Event of Default”:
(a) Tenant shall fail to pay any installment of Rent when due and such failure is not cured within six (6) days after written notice from Landlord (which notice for purposes of this provision may be in the form of an email and shall be deemed effective as of transmittal (without requirement that receipt thereof be acknowledged), provided that (without vitiating the effectiveness of such email notice) a separate notice is separately delivered on the same day or, if such day is not a Business Day, on the following Business Day, which separate notice shall be delivered in accordance with Article XXXV (it being understood that the delivery of such separate notice shall not vitiate the effectiveness of such email notice)) of Tenant’s failure to pay such installment of Rent when due (and such notice of failure from Landlord may be given any time after such installment of Rent is one (1) day late);
(b) Tenant shall fail to pay any Additional Charge (excluding, for the avoidance of doubt the Minimum Cap Ex Amount) within seven (7) days after written notice from Landlord of Tenant’s failure to pay such Additional Charge when due (and such notice of failure from Landlord may be given any time after such payment of any Additional Charge is one (1) day late);
(c) Tenant or, unless the Guarantor EOD Conditions exist, Guarantor shall:
(i) file a petition in bankruptcy or a petition to take advantage of any insolvency law or statute under Federal law, specifically including Xxxxx 00, Xxxxxx Xxxxxx Code, §§ 101-1532, or analogous state law;
(ii) make an assignment for the benefit of its creditors; or
(iii) consent to the appointment of a receiver of itself or of the whole or substantially all of its property;
(i) Tenant shall be adjudicated as bankrupt or a court of competent jurisdiction shall enter an order or decree appointing, without the consent of Tenant, a receiver of Tenant or of all or substantially all of Tenant’s property, or approving a petition filed against Tenant seeking reorganization or arrangement of Tenant under Federal law, specifically including Title 00, Xxxxxx Xxxxxx Xxxx, §§ 000-0000, or analogous state law, and such judgment, order or decree shall not be vacated or set aside or stayed within sixty (60) days from the date of the entry thereof;
(ii) Unless the Guarantor EOD Conditions exist, Guarantor shall be adjudicated as bankrupt or a court of competent jurisdiction shall enter an order or decree appointing, without the consent of Guarantor, a receiver of Guarantor or of all or substantially all of Guarantor’s property, or approving a petition filed against Guarantor seeking reorganization or arrangement of Guarantor under Federal law, specifically including Title 00, Xxxxxx Xxxxxx Xxxx, §§ 000-0000, or analogous state law, and such judgment, order or decree shall not be vacated or set aside or stayed within sixty (60) days from the date of the entry thereof; or;
(e) entry of an order or decree liquidating or dissolving Tenant, Manager or, unless the Guarantor EOD Conditions exist, Guarantor, provided that the same shall not constitute a Tenant Event of Default if (i) such order or decree shall be vacated, set aside or stayed within ninety (90) days from the date of the entry thereof, or (ii) with respect to Manager only, (x) Manager is not an Affiliate of Tenant, or (y) another wholly-owned subsidiary of CEC assumes the MLSA and the other Lease/MLSA Related Agreements to which Manager is a party;
(f) Tenant shall fail to cause the Facility to be Operated (as defined in the MLSA) in a Non-Discriminatory (as defined in the MLSA) manner, in accordance with the Operating Standard (as defined in the MLSA) and subject to Manager’s Standard of Care (as defined in the MLSA) (in each case as and to the extent required under the MLSA, including as provided in Section 2.1.1, Section 2.1.2, Section 2.1.3, Section 2.1.4, Section 2.3.1, and Section 2.3.2 of the MLSA, but subject to Section 5.9.1 of the MLSA), which failure would reasonably be expected to have a material and adverse effect on Landlord or on the Facility, and which failure is not cured within thirty (30) days following notice thereof from Landlord to Tenant; provided that, if: (i) such failure is not susceptible of cure within such thirty (30) day period; and (ii) such failure would not expose Landlord to an imminent and material risk of criminal liability or of material damage to its business reputation, such thirty (30) day cure period shall be extended for such time as is necessary (but in no event longer than ninety (90) days) to cure such failure so long as Tenant commences to cure such failure or other breach within such thirty (30) day period and thereafter proceeds with reasonable diligence to complete such cure);
(g) the estate or interest of Tenant in the Leased Property or any part thereof shall be levied upon or attached in any proceeding relating to more than Twenty-Five Million and No/100 Dollars ($25,000,000.00), and the same shall not be vacated, discharged or stayed pending appeal (or paid or bonded or otherwise similarly secured payment) within the later of ninety (90) days after commencement thereof or thirty (30) days after receipt by Tenant of notice thereof from Landlord; provided, however, that such notice shall be in lieu of and not in addition to any notice required under applicable law;
(h) if Tenant or, unless the Guarantor EOD Conditions exist, Guarantor shall fail to pay, bond, escrow or otherwise similarly secure payment of one or more final judgments aggregating in excess of the amount of Seventy-Five Million and No/100 Dollars ($75,000,000.00), which judgments are not discharged or effectively waived or stayed for a period of forty-five (45) consecutive days;
(i) unless the Guarantor EOD Conditions exist, a Lease Guarantor Event of Default shall occur under the MLSA;
(j) except as a result of a Permitted Operation Interruption, Tenant fails to cause the Facility to be Continuously Operated during the Term;
(k) any applicable Gaming License or other license material to the Facility’s operation for its Primary Intended Use is at any time terminated or revoked or suspended or placed under a trusteeship (and in each case such termination, revocation, suspension or trusteeship causes cessation of Gaming activity at the Facility) for more than thirty (30) days and such termination, revocation, suspension or trusteeship is not stayed pending appeal and would reasonably be expected to have a material adverse effect on Tenant or on the Facility;
(l) if a Licensing Event with respect to Tenant under clause (a) of the definition of Licensing Event shall occur and is not resolved in accordance with Section 41.13 within the later of (i) thirty (30) days or (ii) such additional time period as may be permitted by the applicable Gaming Authorities;
(m) Tenant fails to comply with any Additional Fee Mortgagee Requirements (and in the case of any representation or warranty made by Tenant under Section 8.2 and Exhibit L having been false or misleading as of the date the representation or warranty was made, such false or misleading representation or warranty has had or is reasonably expected to result in a Material Adverse Effect (as defined in Exhibit L)), which default is not cured within the shortest applicable cure period set forth in the Fee Mortgage Documents (i.e., such default is not cured prior to the same constituting an “Event of Default” under any Fee Mortgage Document), if the effect of such default is to cause, or to permit the holder or holders of the applicable Fee Mortgage (or a trustee or agent on behalf of such holder or holders) to cause, such Fee Mortgage to become or be declared due and payable (or redeemable) prior to its stated maturity (without regard to any standstill or forbearance period that might be provided to Landlord with respect to the same); provided, however, that, if any such standstill or forbearance period shall be provided to Landlord with respect to the same, so long as Tenant is reasonably cooperating with Landlord in connection with a potential refinancing of the defaulted Fee Mortgage(s) by providing information with respect to the Leased Property, Tenant or its Affiliates (excluding (i) any material non-public information, unless the same shall only be provided to potential financing sources in accordance with and subject to Section 41.22 hereof, and (ii) any information subject to bona fide confidentiality restrictions) requested by Landlord in order to satisfy the market standards to which such potential refinancing lenders customarily adhere or which may be reasonably required by prospective investors and/or rating agencies, such default shall not constitute a Tenant Event of Default hereunder for the first half of the shortest applicable standstill or forbearance period so provided to Landlord, as determined by Landlord in its sole but good faith discretion;
(n) a transfer of Tenant’s interest in this Lease (including pursuant to a Change in Control) shall have occurred without the consent of Landlord to the extent such consent is required under Article XXII or Tenant is otherwise in default of the provisions set forth in Section 22.1 below;
(o) if Tenant shall fail to observe or perform any other term, covenant or condition of this Lease and such failure is not cured within thirty (30) days after written notice thereof from Landlord, provided, however, if such failure cannot reasonably be cured within such thirty (30) day period and Tenant shall have commenced to cure such failure within such thirty (30) day period and thereafter diligently proceeds to cure the same, such thirty (30) day period shall be extended for such time as is reasonably necessary for Tenant in the exercise of due diligence to cure such failure, provided that, with respect to any failure to perform (i) that is still continuing on or after the first day of the sixth (6th) Lease Year such cure period shall not extend beyond the later of such first day of the sixth (6th) Lease Year or one-hundred and eighty (180) days in the aggregate, and (ii) that is first arising on or after the first day of the sixth (6th) Lease Year, such cure period shall not exceed one-hundred and eighty (180) days in the aggregate, provided, further however, that no Tenant Event of Default under this clause (o) or under clause (p) below shall be deemed to exist under this Lease during any time the curing thereof is prevented by an Unavoidable Delay, provided that upon the cessation of the Unavoidable Delay, Tenant remedies the default within the time periods otherwise required hereunder;
(p) the occurrence of a Tenant Event of Default pursuant to Section 10.5(a)(x);; and
(q) unless the Guarantor EOD Conditions exist, if Guarantor shall, in any judicial or quasi-judicial case, action or proceeding, contest (or collude with or otherwise affirmatively assist any other Person, or solicit or cause to be solicited any other Person to contest) the validity or enforceability of Guarantor’s obligations under the MLSA (or any Qualified Replacement Guarantor’s obligations under a Replacement Guaranty); and
(r) if Tenant shall fail to comply with any of the provisions, terms or conditions of the Octavius Ground Lease (or any renewals thereof) as required under Section 7.3 hereof, which failure is not cured within the applicable time period set forth in the applicable Ground Lease and the effect of such failure is to permit the applicable Ground Lessor to terminate such Ground Lease or to result in the Ground Lease being terminated pursuant to the terms thereof. Notwithstanding anything contained herein to the contrary, (x) Landlord shall deliver all notices required pursuant to Section 16.1 concurrently to Tenant and Guarantor and (y) a default by Tenant under any Permitted Leasehold Mortgage shall not in and of itself be a Tenant Event of Default hereunder (it being understood that if the circumstances that cause such default independently comprise a default hereunder that continues beyond all applicable notice and cure periods hereunder then such circumstances would cause a Tenant Default hereunder). Notwithstanding the foregoing, (i) Tenant shall not be in breach of this Lease solely as a result of the exercise by the party (other than Tenant, CEC, CEOC or any of their respective Affiliates) to any of the Permitted Exception Documents of such party’s rights thereunder so long as Tenant undertakes commercially reasonable efforts to cause such party to comply or otherwise minimize such breach, and (ii) in the event that Tenant is required, under the express terms of any Permitted Exception Document(s), to take or refrain from taking any action, and taking or refraining from taking such action would result in a default under this Lease, then Tenant shall advise Landlord of the same, and Tenant and Landlord shall reasonably cooperate in order to address the same in a mutually acceptable manner, and so as to minimize any harm or liability to Landlord and to Tenant. For the avoidance of doubt, in no event shall a Permitted Exception Document excuse Tenant from its obligation to pay Rent or Additional Charges.
Appears in 1 contract
Tenant Events of Default. Any one or more of the following shall constitute a “Tenant Event of Default”:
(a) Tenant shall fail to pay any installment of Rent when due and such failure is not cured within six ten (610) days after written notice from Landlord (which notice for purposes of this provision may be in the form of an email and shall be deemed effective as of transmittal (without requirement that receipt thereof be acknowledged), provided that (without vitiating the effectiveness of such email notice) a separate notice is separately delivered on the same day or, if such day is not a Business Day, on the following Business Day, which separate notice shall be delivered in accordance with Article XXXV (it being understood that the delivery of such separate notice shall not vitiate the effectiveness of such email notice)) of Tenant’s failure to pay such installment of Rent when due (and such notice of failure from Landlord may be given any time after such installment of Rent is one (1) day late);
(b) Tenant shall fail to pay any Additional Charge (excluding, for the avoidance of doubt the Minimum Cap Ex Amount) within seven ten (710) days after written notice from Landlord of Tenant’s failure to pay such Additional Charge when due (and such notice of failure from Landlord may be given any time after such payment of any Additional Charge is one (1) day late);
(c) Tenant or, unless the Guarantor EOD Conditions exist, or Guarantor shall:
(i) file a petition in bankruptcy or a petition to take advantage of any insolvency law or statute under Federal law, specifically including Xxxxx 00, Xxxxxx Xxxxxx Code, §§ 101-1532, or analogous state law;
(ii) make an assignment for the benefit of its creditors; or
(iii) consent to the appointment of a receiver of itself or of the whole or substantially all of its property;
(i) Tenant shall be adjudicated as bankrupt or a court of competent jurisdiction shall enter an order or decree appointing, without the consent of Tenant, a receiver of Tenant or of all or substantially all of Tenant’s property, or approving a petition filed against Tenant seeking reorganization or arrangement of Tenant under Federal law, specifically including Title 00, Xxxxxx Xxxxxx Xxxx, §§ 000-0000, or analogous state law, and such judgment, order or decree shall not be vacated or set aside or stayed within sixty (60) days from the date of the entry thereof;
(iiv) Unless the Guarantor EOD Conditions exist, Guarantor shall be adjudicated as bankrupt or a court of competent jurisdiction shall enter an order or decree appointing, without the consent of Guarantor, a receiver of Guarantor or of all or substantially all of Guarantor’s property, or approving a petition filed against Guarantor seeking reorganization or arrangement of Guarantor under Federal law, specifically including Title 00, Xxxxxx Xxxxxx Xxxx, §§ 000-0000, or analogous state law, and such judgment, order or decree shall not be vacated or set aside or stayed within sixty ninety (6090) days from the date of the entry thereof; or;
(ed) entry of an order or decree liquidating or dissolving Tenant, Manager or, unless the Guarantor EOD Conditions exist, Tenant or Guarantor, provided that the same shall not constitute a Tenant Event of Default if (i) such order or decree shall be vacated, set aside or stayed within ninety (90) days from the date of the entry thereof, or (ii) with respect to Manager only, (x) Manager is not an Affiliate of Tenant, or (y) another wholly-owned subsidiary of CEC assumes the MLSA and the other Lease/MLSA Related Agreements to which Manager is a party,;
(f) Tenant shall fail to cause the Facility to be Operated (as defined in the MLSA) in a Non-Discriminatory (as defined in the MLSA) manner, in accordance with the Operating Standard (as defined in the MLSA) and subject to Manager’s Standard of Care (as defined in the MLSA) (in each case as and to the extent required under the MLSA, including as provided in Section 2.1.1, Section 2.1.2, Section 2.1.3, Section 2.1.4, Section 2.3.1, and Section 2.3.2 of the MLSA, but subject to Section 5.9.1 of the MLSA), which failure would reasonably be expected to have a material and adverse effect on Landlord or on the Facility, and which failure is not cured within thirty (30) days following notice thereof from Landlord to Tenant; provided that, if: (i) such failure is not susceptible of cure within such thirty (30) day period; and (ii) such failure would not expose Landlord to an imminent and material risk of criminal liability or of material damage to its business reputation, such thirty (30) day cure period shall be extended for such time as is necessary (but in no event longer than ninety (90) days) to cure such failure so long as Tenant commences to cure such failure or other breach within such thirty (30) day period and thereafter proceeds with reasonable diligence to complete such cure);
(ge) the estate or interest of Tenant in the Leased Property or any part thereof shall be levied upon or attached in any proceeding relating to more than Twenty-Five Million and No/100 Dollars ($25,000,000.00), and the same shall not be vacated, discharged or stayed pending appeal (or paid or bonded or otherwise similarly secured payment) within the later of ninety (90) days after commencement thereof or thirty (30) days after receipt by Tenant of notice thereof from Landlord; provided, however, that such notice shall be in lieu of and not in addition to any notice required under applicable law;
(hf) if Tenant or, unless the Guarantor EOD Conditions exist, or Guarantor shall fail to pay, bond, escrow or otherwise similarly secure payment of one or more final judgments aggregating in excess of the amount of Seventy-Five Million and No/100 Dollars ($75,000,000.00), which judgments are not discharged or effectively waived or stayed for a period of forty-five (45) consecutive days;
(ig) unless if Guarantor shall fail to pay any of the Guarantor EOD Conditions exist, a Lease Guarantor Event of Default shall occur under Obligations (as defined in the MLSAGuaranty) as and when provided in the Guaranty after giving effect to grace or cure periods therein if any;
(j) except as a result of a Permitted Operation Interruption, Tenant fails to cause the Facility to be Continuously Operated during the Term;
(kh) any applicable Gaming License or other license material to the Facility’s operation for its Primary Intended Use is at any time terminated or revoked or suspended or placed under a trusteeship (and in each case such termination, revocation, suspension or trusteeship causes cessation of Gaming activity at the Facility) for more than thirty (30) days and such termination, revocation, suspension or trusteeship is not stayed pending appeal and would reasonably be expected to have a material adverse effect on Tenant taken as a whole or on the FacilityFacility taken as a whole;
(li) if a Licensing Event with respect to Tenant under clause (a) of the definition of Licensing Event shall occur and is not resolved in accordance with Section 41.13 within the later of (i) thirty (30) days or (ii) such additional time period as may be permitted by the applicable Gaming Authorities;
(mj) Tenant fails to comply with any Additional Fee Mortgagee Requirements (and in the case of any representation or warranty made by Tenant under Section 8.2 and Exhibit L having been false or misleading as of the date the representation or warranty was made, such false or misleading representation or warranty has had or is reasonably expected to result in a Material Adverse Effect (as defined in Exhibit L))Requirements, which default is not cured within the shortest applicable cure period set forth in the Fee Mortgage Documents (i.e., such default is not cured prior to the same constituting an “Event of Default” under any Fee Mortgage Document)Documents, if the effect of such default is to cause, or to permit the holder or holders of the applicable Fee Mortgage (or a trustee or agent on behalf of such holder or holders) to cause, cause such Fee Mortgage to become or be declared due and payable (or redeemable) prior to its stated maturity (without regard to any standstill or forbearance period that might be provided to Landlord with respect to the same); provided, however, that, if any such standstill or forbearance period shall be provided to Landlord with respect to the same, so long as Tenant is reasonably cooperating with Landlord in connection with a potential refinancing of the defaulted Fee Mortgage(s) by providing information with respect to the Leased Property, Tenant or its Affiliates (excluding (i) any material non-public information, unless the same shall only be provided to potential financing sources in accordance with and subject to Section 41.22 hereof, and (ii) any information subject to bona fide confidentiality restrictions) requested by Landlord in order to satisfy the market standards to which such potential refinancing lenders customarily adhere or which may be reasonably required by prospective investors and/or rating agencies, such default shall not constitute a Tenant Event of Default hereunder for the first half of the shortest applicable standstill or forbearance period so provided to Landlord, as determined by Landlord in its sole but good faith discretionmaturity;
(nk) a transfer of Tenant’s interest in this Lease (including pursuant to a Change in Control) shall have occurred without the consent of Landlord to the extent such consent is required under Article XXII or Tenant is otherwise in default of the provisions set forth in Section 22.1 belowXXII;
(ol) if Tenant shall fail to observe or perform any other term, covenant or condition of this Lease and or Guarantor shall fail to observe or perform any term, covenant or condition under the Guaranty (other than a failure of Guarantor as provided in Section 16.1(g) above) and, in each case, such failure is not cured within thirty (30) days after written notice thereof from Landlord, provided, however, if such failure cannot reasonably be cured within such thirty (30) day period and Tenant (or Guarantor, as applicable) shall have commenced to cure such failure within such thirty (30) day period and thereafter diligently proceeds to cure the same, such thirty (30) day period shall be extended for such time as is reasonably necessary for Tenant (or Guarantor, as applicable) in the exercise of due diligence to cure such failure, provided that, with respect to any failure to perform (i) that is still continuing on or after the first day of the sixth (6th) Lease Year such cure period shall not extend beyond the later of such first day of the sixth (6th) Lease Year or one-hundred and eighty (180) days in the aggregate, and (ii) that is first arising on or after the first day of the sixth (6th) Lease Yearperform, such cure period shall not exceed one-hundred and eighty (180) days in the aggregate, provided, further however, that no . No Tenant Event of Default under this clause (oother than a failure to make payment of money) or under clause (p) below shall be deemed to exist under this Lease during any time the curing thereof is prevented by an Unavoidable Delay, provided that upon the cessation of the Unavoidable Delay, Tenant (or Guarantor, as applicable) remedies the default within the time periods otherwise required hereunder;; and
(pm) the occurrence of a Tenant Event of Default pursuant to Section 10.5(a)(x10.5(a)(vi);
(q) unless the Guarantor EOD Conditions exist, if Guarantor shall, in any judicial or quasi-judicial case, action or proceeding, contest (or collude with or otherwise affirmatively assist any other Person, or solicit or cause to be solicited any other Person to contest) the validity or enforceability of Guarantor’s obligations under the MLSA (or any Qualified Replacement Guarantor’s obligations under a Replacement Guaranty); and
(r) if Tenant shall fail to comply with any of the provisions, terms or conditions of the Octavius Ground Lease (or any renewals thereof) as required under Section 7.3 hereof, which failure is not cured within the applicable time period set forth in the applicable Ground Lease and the effect of such failure is to permit the applicable Ground Lessor to terminate such Ground Lease or to result in the Ground Lease being terminated pursuant to the terms thereof. Notwithstanding anything contained herein to the contrary, (xi) Landlord shall deliver all notices required pursuant to Section 16.1 concurrently to Tenant and Guarantor and (yii) a default by Tenant under any Permitted Leasehold Mortgage shall not in and of itself be a Tenant Event of Default hereunder (it being understood that if the circumstances that cause such default independently comprise a default hereunder that continues beyond all applicable notice and cure periods hereunder then such circumstances would cause a Tenant Event of Default hereunder). Notwithstanding the foregoing, (i) Tenant shall not be in breach of this Lease solely as a result of the exercise by the party (other than Tenant, CECCRC, CEOC CEC or any of their respective Affiliates) to any of the Permitted Exception Documents of such party’s rights thereunder so long as Tenant undertakes commercially reasonable efforts to cause such party to comply or otherwise minimize such breach, and (ii) in the event that Tenant is required, under the express terms of any Permitted Exception Document(s), to take or refrain from taking any action, and taking or refraining from taking such action would result in a default under this Lease, then Tenant shall advise Landlord of the same, and Tenant and Landlord shall reasonably cooperate in order to address the same in a mutually acceptable manner, and so as to minimize any harm or liability to Landlord and to Tenant. For the avoidance of doubt, in no event shall a Permitted Exception Document excuse Tenant from its obligation to pay Rent or Additional Charges.
Appears in 1 contract
Tenant Events of Default. Any one or more of the following shall constitute a “Tenant Event of Default”:
(a) Tenant shall fail to pay any installment of Rent when due and such failure is not cured within six ten (610) days after written notice from Landlord (which notice for purposes of this provision may be in the form of an email and shall be deemed effective as of transmittal (without requirement that receipt thereof be acknowledged), provided that (without vitiating the effectiveness of such email notice) a separate notice is separately delivered on the same day or, if such day is not a Business Day, on the following Business Day, which separate notice shall be delivered in accordance with Article XXXV (it being understood that the delivery of such separate notice shall not vitiate the effectiveness of such email notice)) of Tenant’s failure to pay such installment of Rent when due (and such notice of failure from Landlord may be given any time after such installment of Rent is one (1) day late);
(b) Tenant shall fail to pay any Additional Charge (excluding, for the avoidance of doubt the Minimum Cap Ex Amount) within seven ten (710) days after written notice from Landlord of Tenant’s failure to pay such Additional Charge when due (and such notice of failure from Landlord may be given any time after such payment of any Additional Charge is one (1) day late);
(c) Tenant or, unless the Guarantor EOD Conditions exist, or Guarantor shall:
(i) file a petition in bankruptcy or a petition to take advantage of any insolvency law or statute under Federal law, specifically including Xxxxx 00, Xxxxxx Xxxxxx Code, §§ 101-1532, or analogous state law;
(ii) make an assignment for the benefit of its creditors; or
(iii) consent to the appointment of a receiver of itself or of the whole or substantially all of its property;
(i) Tenant shall be adjudicated as bankrupt or a court of competent jurisdiction shall enter an order or decree appointing, without the consent of Tenant, a receiver of Tenant or of all or substantially all of Tenant’s property, or approving a petition filed against Tenant seeking reorganization or arrangement of Tenant under Federal law, specifically including Title 0011, Xxxxxx Xxxxxx XxxxUnited States Code, §§ 000101-00001532, or analogous state law, and such judgment, order or decree shall not be vacated or set aside or stayed within sixty (60) days from the date of the entry thereof;; or
(ii) Unless the Guarantor EOD Conditions exist, Guarantor shall be adjudicated as bankrupt or a court of competent jurisdiction shall enter an order or decree appointing, without the consent of Guarantor, a receiver of Guarantor or of all or substantially all of Guarantor’s property, or approving a petition filed against Guarantor seeking reorganization or arrangement of Guarantor under Federal law, specifically including Title 00, Xxxxxx Xxxxxx Xxxx, §§ 000-0000, or analogous state law, and such judgment, order or decree shall not be vacated or set aside or stayed within sixty (60) days from the date of the entry thereof; or;
(e) entry of an order or decree liquidating or dissolving Tenant, Manager or, unless the Guarantor EOD Conditions exist, Tenant or Guarantor, provided that the same shall not constitute a Tenant Event of Default if (i) such order or decree shall be vacated, set aside or stayed within ninety (90) days from the date of the entry thereof, or (ii) with respect to Manager only, (x) Manager is not an Affiliate of Tenant, or (y) another wholly-owned subsidiary of CEC assumes the MLSA and the other Lease/MLSA Related Agreements to which Manager is a party;
(f) Tenant shall fail to cause the Facility to be Operated (as defined in the MLSA) in a Non-Discriminatory (as defined in the MLSA) mannercomply with Section 7.5, in accordance with the Operating Standard (as defined in the MLSA) and subject to Manager’s Standard of Care (as defined in the MLSA) (in each case as and to the extent required under the MLSA, including as provided in Section 2.1.1, Section 2.1.2, Section 2.1.3, Section 2.1.4, Section 2.3.1, and Section 2.3.2 of the MLSA, but subject to Section 5.9.1 of the MLSA), which failure would reasonably be expected to have a material and adverse effect on Landlord or on the Facility, and which failure is not cured within thirty (30) days following notice thereof from Landlord to Tenant; provided that, if: (i) such failure is not susceptible of cure within such thirty (30) day period; and (ii) such failure would not expose Landlord to an imminent and material risk of criminal liability or of material damage to its business reputation, such thirty (30) day cure period shall be extended for such time as is necessary (but in no event longer than ninety (90) days) to cure such failure so long as Tenant commences to cure such failure or other breach within such thirty (30) day period and thereafter proceeds with reasonable diligence to complete such cure);
(g) the estate or interest of Tenant in the Leased Property or any part thereof shall be levied upon or attached in any proceeding relating to more than Twenty-Five Million and No/100 Dollars ($25,000,000.00), and the same shall not be vacated, discharged or stayed pending appeal (or paid or bonded or otherwise similarly secured payment) within the later of ninety (90) days after commencement thereof or thirty (30) days after receipt by Tenant of notice thereof from Landlord; provided, however, that such notice shall be in lieu of and not in addition to any notice required under applicable law;
(h) if Tenant or, unless the Guarantor EOD Conditions exist, or Guarantor shall fail to pay, bond, escrow or otherwise similarly secure payment of one or more final judgments aggregating in excess of the amount of Seventy-Five Million and No/100 Dollars ($75,000,000.00), which judgments are not discharged or effectively waived or stayed for a period of forty-five (45) consecutive days;
(i) unless Guarantor (A) shall fail to satisfy any of the Guarantor EOD Conditions existObligations (as defined in the Guaranty) of a monetary nature or (B) shall otherwise fail to satisfy any other Obligations or shall otherwise fail to perform or comply with any other term, a Lease Guarantor Event of Default shall occur covenant or condition under the MLSAGuaranty, and, in any case under this clause (B), such failure is not cured within ten (10) days following notice of such failure from Landlord to Guarantor;
(j) except as a result of a Permitted Operation Interruption, Tenant fails to cause the Facility to be Continuously Operated during the Termintentionally omitted;
(k) any applicable Gaming License or other license material to the Facility’s operation for its Primary Intended Use is at any time terminated or revoked or suspended or placed under a trusteeship (and in each case such termination, revocation, suspension or trusteeship causes cessation of Gaming activity at the Facility) for more than thirty (30) days and such termination, revocation, suspension or trusteeship is not stayed pending appeal and would reasonably be expected to have a material adverse effect on Tenant or on the Facilityintentionally omitted;
(l) if a Licensing Event with respect to Tenant under clause (a) of the definition of Licensing Event shall occur and is not resolved in accordance with Section 41.13 within the later of (i) thirty (30) days or (ii) such additional time period as may be permitted by the applicable Gaming Authorities;
(m) Tenant fails to comply with any Additional Fee Mortgagee Requirements (and in the case of any representation or warranty made by Tenant under Section 8.2 and Exhibit L having been false or misleading as of the date the representation or warranty was made, such false or misleading representation or warranty has had or is reasonably expected to result in a Material Adverse Effect (as defined in Exhibit L))Requirements, which default is not cured within the shortest applicable cure period set forth in the Fee Mortgage Documents (i.e., such default is not cured prior to the same constituting an “Event of Default” under any Fee Mortgage Document)Documents, if the effect of such default is to cause, or to permit the holder or holders of the applicable Fee Mortgage (or a trustee or agent on behalf of such holder or holders) to cause, such Fee Mortgage to become or be declared due and payable (or redeemable) prior to its stated maturity (without regard to any standstill or forbearance period that might be provided to Landlord with respect to the same); provided, however, that, if any such standstill or forbearance period shall be provided to Landlord with respect to the same, so long as Tenant is reasonably cooperating with Landlord in connection with a potential refinancing of the defaulted Fee Mortgage(s) by providing information with respect to the Leased Property, Tenant or its Affiliates (excluding (i) any material non-public information, unless the same shall only be provided to potential financing sources in accordance with and subject to Section 41.22 hereof, and (ii) any information subject to bona fide confidentiality restrictions) requested by Landlord in order to satisfy the market standards to which such potential refinancing lenders customarily adhere or which may be reasonably required by prospective investors and/or rating agencies, such default shall not constitute a Tenant Event of Default hereunder for the first half of the shortest applicable standstill or forbearance period so provided to Landlord, as determined by Landlord in its sole but good faith discretionmaturity;
(n) a transfer of Tenant’s interest in this Lease (including pursuant to a Change in of Control) shall have occurred without the consent of Landlord to the extent such consent is required under Article XXII or Tenant is otherwise in default of the provisions set forth in Section 22.1 below;
(o) if Tenant shall fail to observe or perform any other term, covenant or condition of this Lease and such failure is not cured within thirty (30) days after written notice thereof from Landlord, provided, however, if such failure cannot reasonably be cured within such thirty (30) day period and Tenant shall have commenced to cure such failure within such thirty (30) day period and thereafter diligently proceeds to cure the same, such thirty (30) day period shall be extended for such time as is reasonably necessary for Tenant in the exercise of due diligence to cure such failure, provided that, with respect to any failure to perform (i) that is still continuing on or after the first (1st) day of the sixth (6th) Lease Year such cure period shall not extend beyond the later of such first (1st) day of the sixth (6th) Lease Year or one-one hundred and eighty (180) days in the aggregate, and (ii) that is first arising on or after the first (1st) day of the sixth (6th) Lease Year, such cure period shall not exceed one-one hundred and eighty (180) days in the aggregate, provided, further however, that no Tenant Event of Default under this clause (o) or under clause (pq) below shall be deemed to exist under this Lease during any time the curing thereof is prevented by an Unavoidable Delay, provided that upon the cessation of the Unavoidable Delay, Tenant remedies the default within the time periods otherwise required hereunder;
(p) (i) A “Tenant Event of Default” (as defined in the Regional Lease) shall occur under the Regional Lease or (ii) so long as the Existing Original Fee Financing has not been replaced with replacement financing, a “Tenant Event of Default” (as defined in the Las Vegas Lease) shall occur under the Las Vegas Lease;
(q) the occurrence of a Tenant Event of Default pursuant to Section 10.5(a)(x);; and
(qr) unless the Guarantor EOD Conditions exist, if Guarantor shall, in any judicial or quasi-judicial case, action or proceeding, contest (or collude with or otherwise affirmatively assist any other Person, or solicit or cause to be solicited any other Person to contest) the validity or enforceability of Guarantor’s obligations under the MLSA Guaranty (or any Qualified Replacement Guarantor’s obligations under a Replacement Guaranty); and
(r) if Tenant shall fail to comply with any of the provisions, terms or conditions of the Octavius Ground Lease (or any renewals thereof) as required under Section 7.3 hereof, which failure is not cured within the applicable time period set forth in the applicable Ground Lease and the effect of such failure is to permit the applicable Ground Lessor to terminate such Ground Lease or to result in the Ground Lease being terminated pursuant to the terms thereof. Notwithstanding anything contained herein to the contrary, (x) Landlord shall deliver all notices required pursuant to Section 16.1 concurrently to Tenant and Guarantor and (y) a default by Tenant under any Permitted Leasehold Mortgage shall not in and of itself be a Tenant Event of Default hereunder (it being understood that if the circumstances that cause such default independently comprise a default hereunder that continues beyond all applicable notice and cure periods hereunder then such circumstances would cause a Tenant Event of Default hereunder). Notwithstanding the foregoing, (i) Tenant shall not be in breach of this Lease solely as a result of the exercise by the party (other than Tenant, CECERI, CEOC or any of their respective Affiliates) to any of the Permitted Exception Documents of such party’s rights thereunder so long as Tenant undertakes commercially reasonable efforts to cause such party to comply or otherwise minimize such breach, and (ii) in the event that Tenant is required, under the express terms of any Permitted Exception Document(s), to take or refrain from taking any action, and taking or refraining from taking such action would result in a default under this Lease, then Tenant shall advise Landlord of the same, and Tenant and Landlord shall reasonably cooperate in order to address the same in a mutually acceptable manner, and so as to minimize any harm or liability to Landlord and to Tenant. For the avoidance of doubt, in no event shall a Permitted Exception Document excuse Tenant from its obligation to pay Rent or Additional Charges.
Appears in 1 contract
Samples: Lease (Vici Properties Inc.)
Tenant Events of Default. Any one or more of the following shall constitute a “Tenant Event of Default”:
(a) Tenant shall fail to pay any installment of Rent when due and such failure is not cured within six (6) days after written notice from Landlord (which notice for purposes of this provision may be in the form of an email and shall be deemed effective as of transmittal (without requirement that receipt thereof be acknowledged), provided that (without vitiating the effectiveness of such email notice) a separate notice is separately delivered on the same day or, if such day is not a Business Day, on the following Business Day, which separate notice shall be delivered in accordance with Article XXXV (it being understood that the delivery of such separate notice shall not vitiate the effectiveness of such email notice)) of Tenant’s failure to pay such installment of Rent when due (and such notice of failure from Landlord may be given any time after such installment of Rent is one (1) day late);
(b) Tenant shall fail to pay any Additional Charge (excluding, for the avoidance of doubt the Minimum Cap Ex Amount) within seven (7) days after written notice from Landlord of Tenant’s failure to pay such Additional Charge when due (and such notice of failure from Landlord may be given any time after such payment of any Additional Charge is one (1) day late);
(c) Tenant or, unless the Guarantor EOD Conditions exist, or Guarantor shall:
(i) file a petition in bankruptcy or a petition to take advantage of any insolvency law or statute under Federal law, specifically including Xxxxx 00, Xxxxxx Xxxxxx Code, §§ 101-1532, or analogous state law;
(ii) make an assignment for the benefit of its creditors; or
(iii) consent to the appointment of a receiver of itself or of the whole or substantially all of its property;
(i) Tenant shall be adjudicated as bankrupt or a court of competent jurisdiction shall enter an order or decree appointing, without the consent of Tenant, a receiver of Tenant or of all or substantially all of Tenant’s property, or approving a petition filed against Tenant seeking reorganization or arrangement of Tenant under Federal law, specifically including Title 00, Xxxxxx Xxxxxx Xxxx, §§ 000-0000, or analogous state law, and such judgment, order or decree shall not be vacated or set aside or stayed within sixty (60) days from the date of the entry thereof;; or
(iii) Unless the Guarantor EOD Conditions exist, Guarantor shall be adjudicated as bankrupt or a court of competent jurisdiction shall enter an order or decree appointing, without the consent of Guarantor, a receiver of Guarantor or of all or substantially all of Guarantor’s property, or approving a petition filed against Guarantor seeking reorganization or arrangement of Guarantor under Federal law, specifically including Title 00, Xxxxxx Xxxxxx Xxxx, §§ 000-0000, or analogous state law, and such judgment, order or decree shall not be vacated or set aside or stayed within sixty (60) days from the date of the entry thereof; or;
(e) entry of an order or decree liquidating or dissolving Tenant, Manager or, unless the Guarantor EOD Conditions exist, Tenant or Guarantor, provided that the same shall not constitute a Tenant Event of Default if (i) such order or decree shall be vacated, set aside or stayed within ninety (90) days from the date of the entry thereof, or (ii) with respect to Manager only, (x) Manager is not an Affiliate of Tenant, or (y) another wholly-owned subsidiary of CEC assumes the MLSA and the other Lease/MLSA Related Agreements to which Manager is a party;
(f) Tenant shall fail to cause the Facility to be Operated (as defined in the MLSA) in a Non-Discriminatory (as defined in the MLSA) mannercomply with Section 7.5, in accordance with the Operating Standard (as defined in the MLSA) and subject to Manager’s Standard of Care (as defined in the MLSA) (in each case as and to the extent required under the MLSA, including as provided in Section 2.1.1, Section 2.1.2, Section 2.1.3, Section 2.1.4, Section 2.3.1, and Section 2.3.2 of the MLSA, but subject to Section 5.9.1 of the MLSA), which failure would reasonably be expected to have a material and adverse effect on Landlord or on the Facility, and which failure is not cured within thirty (30) days following notice thereof from Landlord to Tenant; provided that, if: (i) such failure is not susceptible of cure within such thirty (30) day period; and (ii) such failure would not expose Landlord to an imminent and material risk of criminal liability or of material damage to its business reputation, such thirty (30) day cure period shall be extended for such time as is necessary (but in no event longer than ninety (90) days) to cure such failure so long as Tenant commences to cure such failure or other breach within such thirty (30) day period and thereafter proceeds with reasonable diligence to complete such cure);
(g) the estate or interest of Tenant in the Leased Property or any part thereof shall be levied upon or attached in any proceeding relating to more than Twenty-Five Million and No/100 Dollars ($25,000,000.00), and the same shall not be vacated, discharged or stayed pending appeal (or paid or bonded or otherwise similarly secured payment) within the later of ninety (90) days after commencement thereof or thirty (30) days after receipt by Tenant of notice thereof from Landlord; provided, however, that such notice shall be in lieu of and not in addition to any notice required under applicable law;
(h) if Tenant or, unless the Guarantor EOD Conditions exist, or Guarantor shall fail to pay, bond, escrow or otherwise similarly secure payment of one or more final judgments aggregating in excess of the amount of Seventy-Five Million and No/100 Dollars ($75,000,000.00), which judgments are not discharged or effectively waived or stayed for a period of forty-five (45) consecutive days;
(i) unless Guarantor (A) shall fail to satisfy any of the Guarantor EOD Conditions existObligations (as defined in the Guaranty) of a monetary nature or (B) shall otherwise fail to satisfy any other Obligations or shall otherwise fail to perform or comply with any other term, a Lease Guarantor Event of Default shall occur covenant or condition under the MLSAGuaranty, and, in any case under this clause (B), such failure is not cured within ten (10) days following notice of such failure from Landlord to Guarantor;
(j) except as a result of a Permitted Operation Interruption, Tenant fails to cause the any Facility to be Continuously Operated during the Term;
(k) any applicable Gaming License or other license material to the any Facility’s operation for its Primary Intended Use is at any time terminated or revoked or suspended or placed under a trusteeship (and in each case such termination, revocation, suspension or trusteeship causes cessation of Gaming activity at the such Facility) for more than thirty (30) days and such termination, revocation, suspension or trusteeship is not stayed pending appeal and would reasonably be expected to have a material adverse effect on the applicable Tenant or on the such Facility;
(l) if a Licensing Event with respect to Tenant under clause (a) of the definition of Licensing Event shall occur and is not resolved in accordance with Section 41.13 within the later of (i) thirty (30) days or (ii) such additional time period as may be permitted by the applicable Gaming Authorities;
(m) Tenant fails to comply with any Additional Fee Mortgagee Requirements (and in the case of any representation or warranty made by Tenant under Section 8.2 and Exhibit L having been false or misleading as of the date the representation or warranty was made, such false or misleading representation or warranty has had or is reasonably expected to result in a Material Adverse Effect (as defined in Exhibit L))Requirements, which default is not cured within the shortest applicable cure period set forth in the Fee Mortgage Documents (i.e., such default is not cured prior to the same constituting an “Event of Default” under any Fee Mortgage Document), if the effect of such default is to cause, or to permit the holder or holders of the applicable Fee Mortgage (or a trustee or agent on behalf of such holder or holders) to cause, such Fee Mortgage to become or be declared due and payable (or redeemable) prior to its stated maturity (without regard to any standstill or forbearance period that might be provided to Landlord with respect to the same); provided, however, that, if any such standstill or forbearance period shall be provided to Landlord with respect to the same, so long as Tenant is reasonably cooperating with Landlord in connection with a potential refinancing of the defaulted Fee Mortgage(s) by providing information with respect to the Leased Property, Tenant or its Affiliates (excluding (i) any material non-public information, unless the same shall only be provided to potential financing sources in accordance with and subject to Section 41.22 hereof, and (ii) any information subject to bona fide confidentiality restrictions) requested by Landlord in order to satisfy the market standards to which such potential refinancing lenders customarily adhere or which may be reasonably required by prospective investors and/or rating agencies, such default shall not constitute a Tenant Event of Default hereunder for the first half of the shortest applicable standstill or forbearance period so provided to Landlord, as determined by Landlord in its sole but good faith discretion;
(n) a transfer of Tenant’s interest in this Lease (including pursuant to a Change in of Control) shall have occurred without the consent of Landlord to the extent such consent is required under Article XXII or Tenant is otherwise in default of the provisions set forth in Section 22.1 below;
(o) if Tenant shall fail to observe or perform any other term, covenant or condition of this Lease and such failure is not cured within thirty (30) days after written notice thereof from Landlord, provided, however, if such failure cannot reasonably be cured within such thirty (30) day period and Tenant shall have commenced to cure such failure within such thirty (30) day period and thereafter diligently proceeds to cure the same, such thirty (30) day period shall be extended for such time as is reasonably necessary for Tenant in the exercise of due diligence to cure such failure, provided that, with respect to any failure to perform (i) that is still continuing on or after the first day of the sixth (6th) Lease Year such cure period shall not extend beyond the later of such first day of the sixth (6th) Lease Year or one-one hundred and eighty (180) days in the aggregate, and (ii) that is first arising on or after the first day of the sixth (6th) Lease Year, such cure period shall not exceed one-one hundred and eighty (180) days in the aggregate, provided, further however, that no Tenant Event of Default under this clause (o) or under clause (p) below shall be deemed to exist under this Lease during any time the curing thereof is prevented by an Unavoidable Delay, provided that upon the cessation of the Unavoidable Delay, Tenant remedies the default within the time periods otherwise required hereunder;
(p) the occurrence of a Tenant Event of Default pursuant to Section 10.5(a)(x);; and
(q) unless the Guarantor EOD Conditions exist, if Guarantor shall, in any judicial or quasi-judicial case, action or proceeding, contest (or collude with or otherwise affirmatively assist any other Person, or solicit or cause to be solicited any other Person to contest) the validity or enforceability of Guarantor’s obligations under the MLSA Guaranty (or any Qualified Replacement Guarantor’s obligations under a Replacement Guaranty); and
(r) if Tenant shall fail to comply with any of the provisions, terms or conditions of the Octavius Ground Lease (or any renewals thereof) as required under Section 7.3 hereof, which failure is not cured within the applicable time period set forth in the applicable Ground Lease and the effect of such failure is to permit the applicable Ground Lessor to terminate such Ground Lease or to result in the Ground Lease being terminated pursuant to the terms thereof. Notwithstanding anything contained herein to the contrary, (x) Landlord shall deliver all notices required pursuant to Section 16.1 concurrently to Tenant and Guarantor and (y) a default by Tenant under any Permitted Leasehold Mortgage shall not in and of itself be a Tenant Event of Default hereunder (it being understood that if the circumstances that cause such default independently comprise a default hereunder that continues beyond all applicable notice and cure periods hereunder then such circumstances would cause a Tenant Event of Default hereunder). Notwithstanding the foregoing, (i) Tenant shall not be in breach of this Lease solely as a result of the exercise by the party (other than Tenant, CECERI, CEOC or any of their respective Affiliates) to any of the Permitted Exception Documents of such party’s rights thereunder so long as Tenant undertakes commercially reasonable efforts to cause such party to comply or otherwise minimize such breach, and (ii) in the event that Tenant is required, under the express terms of any Permitted Exception Document(s), to take or refrain from taking any action, and taking or refraining from taking such action would result in a default under this Lease, then Tenant shall advise Landlord of the same, and Tenant and Landlord shall reasonably cooperate in order to address the same in a mutually acceptable manner, and so as to minimize any harm or liability to Landlord and to Tenant. For the avoidance of doubt, in no event shall a Permitted Exception Document excuse Tenant from its obligation to pay Rent or Additional Charges.
Appears in 1 contract
Samples: Lease (Vici Properties Inc.)
Tenant Events of Default. Any one or more of the following shall constitute a “Tenant Event of Default”:
(a) Tenant shall fail to pay any installment of Rent when due and such failure is not cured within six ten (610) days after written notice from Landlord (which notice for purposes of this provision may be in the form of an email and shall be deemed effective as of transmittal (without requirement that receipt thereof be acknowledged), provided that (without vitiating the effectiveness of such email notice) a separate notice is separately delivered on the same day or, if such day is not a Business Day, on the following Business Day, which separate notice shall be delivered in accordance with Article XXXV (it being understood that the delivery of such separate notice shall not vitiate the effectiveness of such email notice)) of Tenant’s failure to pay such installment of Rent when due (and such notice of failure from Landlord may be given any time after such installment of Rent is one (1) day late);
(b) Tenant shall fail to pay any Additional Charge (excluding, for the avoidance of doubt the Minimum Cap Ex Amount) within seven ten (710) days after written notice from Landlord of Tenant’s failure to pay such Additional Charge when due (and such notice of failure from Landlord may be given any time after such payment of any Additional Charge is one (1) day late);
(c) Tenant or, unless the Guarantor EOD Conditions exist, or Guarantor shall:
(i) file a petition in bankruptcy or a petition to take advantage of any insolvency law or statute under Federal law, specifically including Xxxxx 00, Xxxxxx Xxxxxx Code, §§ 101-1532, or analogous state law;
(ii) make an assignment for the benefit of its creditors; or
(iii) consent to the appointment of a receiver of itself or of the whole or substantially all of its property;
(i) Tenant shall be adjudicated as bankrupt or a court of competent jurisdiction shall enter an order or decree appointing, without the consent of Tenant, a receiver of Tenant or of all or substantially all of Tenant’s property, or approving a petition filed against Tenant seeking reorganization or arrangement of Tenant under Federal law, specifically including Title 00, Xxxxxx Xxxxxx Xxxx, §§ 000-0000, or analogous state law, and such judgment, order or decree shall not be vacated or set aside or stayed within sixty (60) days from the date of the entry thereof;; or
(ii) Unless the Guarantor EOD Conditions exist, Guarantor shall be adjudicated as bankrupt or a court of competent jurisdiction shall enter an order or decree appointing, without the consent of Guarantor, a receiver of Guarantor or of all or substantially all of Guarantor’s property, or approving a petition filed against Guarantor seeking reorganization or arrangement of Guarantor under Federal law, specifically including Title 00, Xxxxxx Xxxxxx Xxxx, §§ 000-0000, or analogous state law, and such judgment, order or decree shall not be vacated or set aside or stayed within sixty (60) days from the date of the entry thereof; or;
(e) entry of an order or decree liquidating or dissolving Tenant, Manager or, unless the Guarantor EOD Conditions exist, Tenant or Guarantor, provided that the same shall not constitute a Tenant Event of Default if (i) such order or decree shall be vacated, set aside or stayed within ninety (90) days from the date of the entry thereof, or (ii) with respect to Manager only, (x) Manager is not an Affiliate of Tenant, or (y) another wholly-owned subsidiary of CEC assumes the MLSA and the other Lease/MLSA Related Agreements to which Manager is a party;
(f) Tenant shall fail to cause the Facility to be Operated (as defined in the MLSA) in a Non-Discriminatory (as defined in the MLSA) mannercomply with Section 7.5, in accordance with the Operating Standard (as defined in the MLSA) and subject to Manager’s Standard of Care (as defined in the MLSA) (in each case as and to the extent required under the MLSA, including as provided in Section 2.1.1, Section 2.1.2, Section 2.1.3, Section 2.1.4, Section 2.3.1, and Section 2.3.2 of the MLSA, but subject to Section 5.9.1 of the MLSA), which failure would reasonably be expected to have a material and adverse effect on Landlord or on the Facility, and which failure is not cured within thirty (30) days following notice thereof from Landlord to Tenant; provided that, if: (i) such failure is not susceptible of cure within such thirty (30) day period; and (ii) such failure would not expose Landlord to an imminent and material risk of criminal liability or of material damage to its business reputation, such thirty (30) day cure period shall be extended for such time as is necessary (but in no event longer than ninety (90) days) to cure such failure so long as Tenant commences to cure such failure or other breach within such thirty (30) day period and thereafter proceeds with reasonable diligence to complete such cure);
(g) the estate or interest of Tenant in the Leased Property or any part thereof shall be levied upon or attached in any proceeding relating to more than Twenty-Five Million and No/100 Dollars ($25,000,000.00), and the same shall not be vacated, discharged or stayed pending appeal (or paid or bonded or otherwise similarly secured payment) within the later of ninety (90) days after commencement thereof or thirty (30) days after receipt by Tenant of notice thereof from Landlord; provided, however, that such notice shall be in lieu of and not in addition to any notice required under applicable law;
(h) if Tenant or, unless the Guarantor EOD Conditions exist, or Guarantor shall fail to pay, bond, escrow or otherwise similarly secure payment of one or more final judgments aggregating in excess of the amount of Seventy-Five Million and No/100 Dollars ($75,000,000.00), which judgments are not discharged or effectively waived or stayed for a period of forty-five (45) consecutive days;
(i) unless Guarantor (A) shall fail to satisfy any of the Guarantor EOD Conditions existObligations (as defined in the Guaranty) of a monetary nature or (B) shall otherwise fail to satisfy any other Obligations or shall otherwise fail to perform or comply with any other term, a Lease Guarantor Event of Default shall occur covenant or condition under the MLSAGuaranty, and, in any case under this clause (B), such failure is not cured within ten (10) days following notice of such failure from Landlord to Guarantor;
(j) except as a result of a Permitted Operation Interruption, Tenant fails to cause the Facility to be Continuously Operated during the Termintentionally omitted;
(k) any applicable Gaming License or other license material to the Facility’s operation for its Primary Intended Use is at any time terminated or revoked or suspended or placed under a trusteeship (and in each case such termination, revocation, suspension or trusteeship causes cessation of Gaming activity at the Facility) for more than thirty (30) days and such termination, revocation, suspension or trusteeship is not stayed pending appeal and would reasonably be expected to have a material adverse effect on Tenant or on the Facilityintentionally omitted;
(l) if a Licensing Event with respect to Tenant under clause (a) of the definition of Licensing Event shall occur and is not resolved in accordance with Section 41.13 within the later of (i) thirty (30) days or (ii) such additional time period as may be permitted by the applicable Gaming Authorities;
(m) Tenant fails to comply with any Additional Fee Mortgagee Requirements (and in the case of any representation or warranty made by Tenant under Section 8.2 and Exhibit L having been false or misleading as of the date the representation or warranty was made, such false or misleading representation or warranty has had or is reasonably expected to result in a Material Adverse Effect (as defined in Exhibit L))Requirements, which default is not cured within the shortest applicable cure period set forth in the Fee Mortgage Documents (i.e., such default is not cured prior to the same constituting an “Event of Default” under any Fee Mortgage Document)Documents, if the effect of such default is to cause, or to permit the holder or holders of the applicable Fee Mortgage (or a trustee or agent on behalf of such holder or holders) to cause, such Fee Mortgage to become or be declared due and payable (or redeemable) prior to its stated maturity (without regard to any standstill or forbearance period that might be provided to Landlord with respect to the same); provided, however, that, if any such standstill or forbearance period shall be provided to Landlord with respect to the same, so long as Tenant is reasonably cooperating with Landlord in connection with a potential refinancing of the defaulted Fee Mortgage(s) by providing information with respect to the Leased Property, Tenant or its Affiliates (excluding (i) any material non-public information, unless the same shall only be provided to potential financing sources in accordance with and subject to Section 41.22 hereof, and (ii) any information subject to bona fide confidentiality restrictions) requested by Landlord in order to satisfy the market standards to which such potential refinancing lenders customarily adhere or which may be reasonably required by prospective investors and/or rating agencies, such default shall not constitute a Tenant Event of Default hereunder for the first half of the shortest applicable standstill or forbearance period so provided to Landlord, as determined by Landlord in its sole but good faith discretionmaturity;
(n) a transfer of Tenant’s interest in this Lease (including pursuant to a Change in of Control) shall have occurred without the consent of Landlord to the extent such consent is required under Article XXII or Tenant is otherwise in default of the provisions set forth in Section 22.1 below;
(o) if Tenant shall fail to observe or perform any other term, covenant or condition of this Lease and such failure is not cured within thirty (30) days after written notice thereof from Landlord, provided, however, if such failure cannot reasonably be cured within such thirty (30) day period and Tenant shall have commenced to cure such failure within such thirty (30) day period and thereafter diligently proceeds to cure the same, such thirty (30) day period shall be extended for such time as is reasonably necessary for Tenant in the exercise of due diligence to cure such failure, provided that, with respect to any failure to perform (i) that is still continuing on or after the first (1st) day of the sixth (6th) Lease Year such cure period shall not extend beyond the later of such first (1st) day of the sixth (6th) Lease Year or one-one hundred and eighty (180) days in the aggregate, and (ii) that is first arising on or after the first (1st) day of the sixth (6th) Lease Year, such cure period shall not exceed one-one hundred and eighty (180) days in the aggregate, provided, further however, that no Tenant Event of Default under this clause (o) or under clause (pq) below shall be deemed to exist under this Lease during any time the curing thereof is prevented by an Unavoidable Delay, provided that upon the cessation of the Unavoidable Delay, Tenant remedies the default within the time periods otherwise required hereunder;
(p) (i) A “Tenant Event of Default” (as defined in the Regional Lease) shall occur under the Regional Lease or (ii) so long as the Existing Original Fee Financing has not been replaced with replacement financing, a “Tenant Event of Default” (as defined in the Las Vegas Lease) shall occur under the Las Vegas Lease;
(q) the occurrence of a Tenant Event of Default pursuant to Section 10.5(a)(x);; and
(qr) unless the Guarantor EOD Conditions exist, if Guarantor shall, in any judicial or quasi-judicial case, action or proceeding, contest (or collude with or otherwise affirmatively assist any other Person, or solicit or cause to be solicited any other Person to contest) the validity or enforceability of Guarantor’s obligations under the MLSA Guaranty (or any Qualified Replacement Guarantor’s obligations under a Replacement Guaranty); and
(r) if Tenant shall fail to comply with any of the provisions, terms or conditions of the Octavius Ground Lease (or any renewals thereof) as required under Section 7.3 hereof, which failure is not cured within the applicable time period set forth in the applicable Ground Lease and the effect of such failure is to permit the applicable Ground Lessor to terminate such Ground Lease or to result in the Ground Lease being terminated pursuant to the terms thereof. Notwithstanding anything contained herein to the contrary, (x) Landlord shall deliver all notices required pursuant to Section 16.1 concurrently to Tenant and Guarantor and (y) a default by Tenant under any Permitted Leasehold Mortgage shall not in and of itself be a Tenant Event of Default hereunder (it being understood that if the circumstances that cause such default independently comprise a default hereunder that continues beyond all applicable notice and cure periods hereunder then such circumstances would cause a Tenant Event of Default hereunder). Notwithstanding the foregoing, (i) Tenant shall not be in breach of this Lease solely as a result of the exercise by the party (other than Tenant, CECERI, CEOC or any of their respective Affiliates) to any of the Permitted Exception Documents of such party’s rights thereunder so long as Tenant undertakes commercially reasonable efforts to cause such party to comply or otherwise minimize such breach, and (ii) in the event that Tenant is required, under the express terms of any Permitted Exception Document(s), to take or refrain from taking any action, and taking or refraining from taking such action would result in a default under this Lease, then Tenant shall advise Landlord of the same, and Tenant and Landlord shall reasonably cooperate in order to address the same in a mutually acceptable manner, and so as to minimize any harm or liability to Landlord and to Tenant. For the avoidance of doubt, in no event shall a Permitted Exception Document excuse Tenant from its obligation to pay Rent or Additional Charges.
Appears in 1 contract
Tenant Events of Default. Any one or more The occurrence of any of the following shall constitute a an “Tenant Event of Default”:
” by Tenant under this Lease: (ai) Tenant shall fail fails to pay any installment of Rent when which is due and payable hereunder by Tenant and such failure is not cured within six continues for a period of fifteen (615) days after written Tenant’s receipt of notice thereof from Landlord (which notice for purposes of this provision may be in the form of an email and shall be deemed effective as of transmittal (without requirement that receipt thereof be acknowledged)provided, provided that (without vitiating the effectiveness of such email notice) a separate notice is separately delivered on the same day orhowever, if such day is not a Business Day, on the following Business Day, which separate notice shall be delivered in accordance with Article XXXV (it being understood that the delivery of such separate notice Landlord shall not vitiate the effectiveness of such email notice)) of Tenant’s failure be required to pay such installment of Rent when due (and provide such notice more than twice in any Lease Year, in which case an Event of failure from Landlord may be given any time after such installment of Rent is one Default shall occur fifteen (1) day late);
(b) Tenant shall fail to pay any Additional Charge (excluding, for the avoidance of doubt the Minimum Cap Ex Amount) within seven (715) days after written notice from Landlord of Tenant’s failure Tenant fails to pay such Additional Charge when due (and such notice any installment of failure from Landlord may be given any time after such payment of any Additional Charge is one (1) day lateRent);
(c) Tenant or, unless the Guarantor EOD Conditions exist, Guarantor shall:
(i) file a petition in bankruptcy or a petition to take advantage of any insolvency law or statute under Federal law, specifically including Xxxxx 00, Xxxxxx Xxxxxx Code, §§ 101-1532, or analogous state law;
(ii) make an assignment for the benefit of its creditors; or
(iii) consent to the appointment of a receiver of itself or of the whole or substantially all of its property;
(i) Tenant shall be adjudicated as bankrupt or a court of competent jurisdiction shall enter an order or decree appointing, without the consent of Tenant, a receiver of Tenant or of all or substantially all of Tenant’s property, or approving a petition filed against Tenant seeking reorganization or arrangement of Tenant under Federal law, specifically including Title 00, Xxxxxx Xxxxxx Xxxx, §§ 000-0000, or analogous state law, and such judgment, order or decree shall not be vacated or set aside or stayed within sixty (60) days from the date of the entry thereof;
(ii) Unless the Guarantor EOD Conditions exist, Guarantor shall be adjudicated as bankrupt or a court of competent jurisdiction shall enter an order or decree appointing, without the consent of Guarantor, a receiver of Guarantor or of all or substantially all of Guarantor’s property, or approving a petition filed against Guarantor seeking reorganization or arrangement of Guarantor under Federal law, specifically including Title 00, Xxxxxx Xxxxxx Xxxx, §§ 000-0000, or analogous state law, and such judgment, order or decree shall not be vacated or set aside or stayed within sixty (60) days from the date of the entry thereof; or;
(e) entry of an order or decree liquidating or dissolving Tenant, Manager or, unless the Guarantor EOD Conditions exist, Guarantor, provided that the same shall not constitute a Tenant Event of Default if (i) such order or decree shall be vacated, set aside or stayed within ninety (90) days from the date of the entry thereof, or (ii) with respect to Manager only, (x) Manager is not an Affiliate of Tenant, or (y) another wholly-owned subsidiary of CEC assumes the MLSA and the other Lease/MLSA Related Agreements to which Manager is a party;
(f) Tenant shall fail to cause the Facility to be Operated (as defined in the MLSA) in a Non-Discriminatory (as defined in the MLSA) manner, in accordance with the Operating Standard (as defined in the MLSA) and subject to Manager’s Standard of Care (as defined in the MLSA) (in each case as and to the extent required under the MLSA, including as provided in Section 2.1.1, Section 2.1.2, Section 2.1.3, Section 2.1.4, Section 2.3.1, and Section 2.3.2 of the MLSA, but subject to Section 5.9.1 of the MLSA), which failure would reasonably be expected to have a material and adverse effect on Landlord or on the Facility, and which failure is not cured within thirty (30) days following notice thereof from Landlord to Tenant; provided that, if: (i) such failure is not susceptible of cure within such thirty (30) day period; and (ii) such failure would not expose Landlord to an imminent and material risk of criminal liability or of material damage to its business reputation, such thirty (30) day cure period shall be extended for such time as is necessary (but in no event longer than ninety (90) days) to cure such failure so long as Tenant commences to cure such failure or other breach within such thirty (30) day period and thereafter proceeds with reasonable diligence to complete such cure);
(g) the estate or interest of Tenant in the Leased Property or any part thereof shall be levied upon or attached in any proceeding relating to more than Twenty-Five Million and No/100 Dollars ($25,000,000.00), and the same shall not be vacated, discharged or stayed pending appeal (or paid or bonded or otherwise similarly secured payment) within the later of ninety (90) days after commencement thereof or thirty (30) days after receipt by Tenant of notice thereof from Landlord; provided, however, that such notice shall be in lieu of and not in addition to any notice required under applicable law;
(h) if Tenant or, unless the Guarantor EOD Conditions exist, Guarantor shall fail to pay, bond, escrow or otherwise similarly secure payment of one or more final judgments aggregating in excess of the amount of Seventy-Five Million and No/100 Dollars ($75,000,000.00), which judgments are not discharged or effectively waived or stayed for a period of forty-five (45) consecutive days;
(i) unless the Guarantor EOD Conditions exist, a Lease Guarantor Event of Default shall occur under the MLSA;
(j) except as a result of a Permitted Operation Interruption, Tenant fails to cause the Facility to be Continuously Operated during the Term;
(k) any applicable Gaming License or other license material to the Facility’s operation for its Primary Intended Use is at any time terminated or revoked or suspended or placed under a trusteeship (and in each case such terminationkeep, revocation, suspension or trusteeship causes cessation of Gaming activity at the Facility) for more than thirty (30) days and such termination, revocation, suspension or trusteeship is not stayed pending appeal and would reasonably be expected to have a material adverse effect on Tenant or on the Facility;
(l) if a Licensing Event with respect to Tenant under clause (a) of the definition of Licensing Event shall occur and is not resolved in accordance with Section 41.13 within the later of (i) thirty (30) days or (ii) such additional time period as may be permitted by the applicable Gaming Authorities;
(m) Tenant fails to comply with any Additional Fee Mortgagee Requirements (and in the case of any representation or warranty made by Tenant under Section 8.2 and Exhibit L having been false or misleading as of the date the representation or warranty was made, such false or misleading representation or warranty has had or is reasonably expected to result in a Material Adverse Effect (as defined in Exhibit L)), which default is not cured within the shortest applicable cure period set forth in the Fee Mortgage Documents (i.e., such default is not cured prior to the same constituting an “Event of Default” under any Fee Mortgage Document), if the effect of such default is to cause, or to permit the holder or holders of the applicable Fee Mortgage (or a trustee or agent on behalf of such holder or holders) to cause, such Fee Mortgage to become or be declared due and payable (or redeemable) prior to its stated maturity (without regard to any standstill or forbearance period that might be provided to Landlord with respect to the same); provided, however, that, if any such standstill or forbearance period shall be provided to Landlord with respect to the same, so long as Tenant is reasonably cooperating with Landlord in connection with a potential refinancing of the defaulted Fee Mortgage(s) by providing information with respect to the Leased Property, Tenant or its Affiliates (excluding (i) any material non-public information, unless the same shall only be provided to potential financing sources in accordance with and subject to Section 41.22 hereof, and (ii) any information subject to bona fide confidentiality restrictions) requested by Landlord in order to satisfy the market standards to which such potential refinancing lenders customarily adhere or which may be reasonably required by prospective investors and/or rating agencies, such default shall not constitute a Tenant Event of Default hereunder for the first half of the shortest applicable standstill or forbearance period so provided to Landlord, as determined by Landlord in its sole but good faith discretion;
(n) a transfer of Tenant’s interest in this Lease (including pursuant to a Change in Control) shall have occurred without the consent of Landlord to the extent such consent is required under Article XXII or Tenant is otherwise in default of the provisions set forth in Section 22.1 below;
(o) if Tenant shall fail to observe or perform any other term, covenant or condition of this Lease to be kept, observed or performed by Tenant and such failure is continues after Tenant’s receipt of notice of default thereof from Landlord for more than thirty (30) days, provided that if the same cannot be cured within thirty (30) days after written notice thereof from Landlorddays, provided, howeverthen within such additional time, if any, as is reasonably necessary to complete such failure cannot reasonably be cured cure, provided that Tenant has commenced such cure within such the initial thirty (30) day period and Tenant shall have commenced to cure such failure within such thirty (30) day period and thereafter diligently proceeds to cure the same, such thirty (30) day period shall be extended for such time as is reasonably necessary for Tenant in the exercise of due diligence to cure such failure, provided that, with respect to any failure to perform (i) that is still continuing on or after the first day of the sixth (6th) Lease Year pursues such cure period shall to completion, or (iii) Tenant fails to maintain the insurance required to be maintained by Tenant pursuant to this Lease and does not extend beyond the later of such first day of the sixth secure replacement insurance within ten (6th) Lease Year or one-hundred and eighty (18010) days in the aggregate, and (ii) that is first arising on or after the first day of the sixth (6th) Lease Year, such cure period shall not exceed one-hundred and eighty (180) days in the aggregate, provided, further however, that no Tenant Event of Default under this clause (o) or under clause (p) below shall be deemed to exist under this Lease during any time the curing thereof is prevented by an Unavoidable Delay, provided that upon the cessation of the Unavoidable Delay, Tenant remedies the default within the time periods otherwise required hereunder;
(p) the occurrence of a Tenant Event of Default pursuant to Section 10.5(a)(x);
(q) unless the Guarantor EOD Conditions exist, if Guarantor shall, in any judicial or quasi-judicial case, action or proceeding, contest (or collude with or otherwise affirmatively assist any other Person, or solicit or cause to be solicited any other Person to contest) the validity or enforceability of Guarantor’s obligations under the MLSA (or any Qualified Replacement Guarantor’s obligations under a Replacement Guaranty); and
(r) if Tenant shall fail to comply with any of the provisions, terms or conditions of the Octavius Ground Lease (or any renewals thereof) as required under Section 7.3 hereof, which failure is not cured within the applicable time period set forth in the applicable Ground Lease and the effect notice of such failure to maintain insurance from Landlord, Landlord’s agent or Tenant’s insurance carrier, or (iv) if there is filed by or against Tenant a petition in bankruptcy or insolvency or for reorganization or for the appointment of a receiver or trustee, or if Tenant makes an assignment for the benefit of creditors or takes advantage of any insolvency act or code, and within one hundred twenty (120) days thereafter Tenant fails to permit the applicable Ground Lessor to terminate such Ground Lease or to result in the Ground Lease being terminated pursuant to the terms thereof. Notwithstanding anything contained herein to the contrary, (x) Landlord shall deliver all notices required pursuant to Section 16.1 concurrently to Tenant and Guarantor and (y) a default by Tenant under any Permitted Leasehold Mortgage shall not in and secure discharge of itself be a Tenant Event of Default hereunder (it being understood that if the circumstances that cause such default independently comprise a default hereunder that continues beyond all applicable notice and cure periods hereunder then such circumstances would cause a Tenant Default hereunder). Notwithstanding the foregoing, (i) Tenant shall not be in breach of this Lease solely as a result of the exercise by the party (other than Tenant, CEC, CEOC or any of their respective Affiliates) to any of the Permitted Exception Documents of such party’s rights thereunder so long as Tenant undertakes commercially reasonable efforts to cause such party to comply or otherwise minimize such breach, and (ii) in the event that Tenant is required, under the express terms of any Permitted Exception Document(s), to take or refrain from taking any action, and taking or refraining from taking such action would result in a default under this Lease, then Tenant shall advise Landlord of the same, and Tenant and Landlord shall reasonably cooperate in order to address the same in a mutually acceptable manner, and so as to minimize any harm or liability to Landlord and to Tenant. For the avoidance of doubt, in no event shall a Permitted Exception Document excuse Tenant from its obligation to pay Rent or Additional Chargesproceedings.
Appears in 1 contract
Samples: Acquisition and Development Agreement (Urban Outfitters Inc)
Tenant Events of Default. Any one or more of the following shall constitute a “Tenant Event of Default”:
(a) Tenant shall fail to pay any installment of Rent when due and such failure is not cured within six ten (610) days after written notice from Landlord (which notice for purposes of this provision may be in the form of an email and shall be deemed effective as of transmittal (without requirement that receipt thereof be acknowledged), provided that (without vitiating the effectiveness of such email notice) a separate notice is separately delivered on the same day or, if such day is not a Business Day, on the following Business Day, which separate notice shall be delivered in accordance with Article XXXV (it being understood that the delivery of such separate notice shall not vitiate the effectiveness of such email notice)) of Tenant’s failure to pay such installment of Rent when due (and such notice of failure from Landlord may be given any time after such installment of Rent is one (1) day late);
(b) Tenant shall fail to pay any Additional Charge (excluding, for the avoidance of doubt the Minimum Cap Ex Amount) within seven ten (710) days after written notice from Landlord of Tenant’s failure to pay such Additional Charge when due (and such notice of failure from Landlord may be given any time after such payment of any Additional Charge is one (1) day late);
(c) Tenant or, unless the Guarantor EOD Conditions exist, Guarantor shall:
(i) file a petition in bankruptcy or a petition to take advantage of any insolvency law or statute under Federal law, specifically including Xxxxx 00, Xxxxxx Xxxxxx Code, §§ 101-1532, or analogous state law;
(ii) make an assignment for the benefit of its creditors; or
(iii) consent to the appointment of a receiver of itself or of the whole or substantially all of its property;
(i) Tenant shall be adjudicated as bankrupt or a court of competent jurisdiction shall enter an order or decree appointing, without the consent of Tenant, a receiver of Tenant or of all or substantially all of Tenant’s property, or approving a petition filed against Tenant seeking reorganization or arrangement of Tenant under Federal law, specifically including Title 00, Xxxxxx Xxxxxx Xxxx, §§ 000-0000, or analogous state law, and such judgment, order or decree shall not be vacated or set aside or stayed within sixty (60) days from the date of the entry thereof;
(ii) Unless the Guarantor EOD Conditions exist, Guarantor shall be adjudicated as bankrupt or a court of competent jurisdiction shall enter an order or decree appointing, without the consent of Guarantor, a receiver of Guarantor or of all or substantially all of Guarantor’s property, or approving a petition filed against Guarantor seeking reorganization or arrangement of Guarantor under Federal law, specifically including Title 00, Xxxxxx Xxxxxx Xxxx, §§ 000-0000, or analogous state law, and such judgment, order or decree shall not be vacated or set aside or stayed within sixty (60) days from the date of the entry thereof; or;
(e) entry of an order or decree liquidating or dissolving Tenant, Manager or, unless the Guarantor EOD Conditions exist, Guarantor, provided that the same shall not constitute a Tenant Event of Default if (i) such order or decree shall be vacated, set aside or stayed within ninety (90) days from the date of the entry thereof, or (ii) with respect to Manager only, (x) Manager is not an Affiliate of Tenant, or (y) another wholly-owned subsidiary of CEC assumes the MLSA and the other Lease/MLSA Related Agreements to which Manager is a party;
(fi) If the Facility is not subject to a Permitted Facility Sublease, Tenant shall fail to cause the Facility to be Operated (as defined in the MLSA) in a Non-Discriminatory (as defined in the MLSA) manner, in accordance with the Operating Standard (as defined in the MLSA) and subject to Manager’s Standard of Care (as defined in the MLSA) (in each case as and to the extent required under the MLSA, including as provided in Section 2.1.1, Section 2.1.2, Section 2.1.3, Section 2.1.4, Section 2.3.1, and Section 2.3.2 of the MLSA, but subject to Section 5.9.1 of the MLSA), which failure would reasonably be expected to have a material and adverse effect on Landlord (taken as a whole with “Landlord” as defined under the Non-CPLV Lease) or on the FacilityFacility (taken as a whole with the Non-CPLV Facilities), and which failure is not cured within thirty (30) days following notice thereof from Landlord to Tenant; provided that, if: (i) such failure is not susceptible of cure within such thirty (30) day period; and (ii) such failure would not expose Landlord to an imminent and material risk of criminal liability or of material damage to its business reputation, such thirty (30) day cure period shall be extended for such time as is necessary (but in no event longer than ninety (90) days) to cure such failure so long as Tenant commences to cure such failure or other breach within such thirty (30) day period and thereafter proceeds with reasonable diligence to complete such cure);
(ii) If the Facility is subject to a Permitted Facility Sublease, Tenant shall fail to comply with Section 7.5(b), which failure would reasonably be expected to have a material and adverse effect on Landlord (taken as a whole with “Landlord” as defined under the Non-CPLV Lease) or on the Facility (taken as a whole with the Non-CPLV Facilities), and which failure is not cured within thirty (30) days following notice thereof from Landlord to Tenant; provided that, if: (i) such failure is not susceptible of cure within such thirty (30) day period; and (ii) such failure would not expose Landlord to an imminent and material risk of criminal liability or of material damage to its business reputation, such thirty (30) day cure period shall be extended for such time as is necessary (but in no event longer than ninety (90) days) to cure such failure so long as Tenant commences to cure such failure within such thirty (30) day period and thereafter proceeds with reasonable diligence to complete such cure);
(g) the estate or interest of Tenant in the Leased Property or any part thereof shall be levied upon or attached in any proceeding relating to more than Twenty-Five Million and No/100 Dollars ($25,000,000.00), and the same shall not be vacated, discharged or stayed pending appeal (or paid or bonded or otherwise similarly secured payment) within the later of ninety (90) days after commencement thereof or thirty (30) days after receipt by Tenant of notice thereof from Landlord; provided, however, that such notice shall be in lieu of and not in addition to any notice required under applicable law;
(h) if Tenant or, unless the Guarantor EOD Conditions exist, Guarantor shall fail to pay, bond, escrow or otherwise similarly secure payment of one or more final judgments aggregating in excess of the amount of Seventy-Five Million and No/100 Dollars ($75,000,000.00), which judgments are not discharged or effectively waived or stayed for a period of forty-five (45) consecutive days;
(i) unless the Guarantor EOD Conditions exist, a Lease Guarantor Event of Default shall occur under the MLSA;
(j) except as a result of a Permitted Operation Interruption, Tenant fails to cause the Facility to be Continuously Operated during the Termintentionally omitted;
(k) any applicable Gaming License or other license material to the Facility’s operation for its Primary Intended Use is at any time terminated or revoked or suspended or placed under a trusteeship (and in each case such termination, revocation, suspension or trusteeship causes cessation of Gaming activity at the Facility) for more than thirty (30) days and such termination, revocation, suspension or trusteeship is not stayed pending appeal and would reasonably be expected to have a material adverse effect on Tenant or on the Facilityintentionally omitted;
(l) if a Licensing Event with respect to Tenant under clause (a) of the definition of Licensing Event shall occur and is not resolved in accordance with Section 41.13 within the later of (i) thirty (30) days or (ii) such additional time period as may be permitted by the applicable Gaming Authorities;
(m) Tenant fails to comply with any Additional Fee Mortgagee Requirements (and in the case of any representation or warranty made by Tenant under Section 8.2 and Exhibit L having been false or misleading as of the date the representation or warranty was made, such false or misleading representation or warranty has had or is reasonably expected to result in a Material Adverse Effect (as defined in Exhibit L))Requirements, which default is not cured within the shortest applicable cure period set forth in the Fee Mortgage Documents (i.e., such default is not cured prior to the same constituting an “Event of Default” under any Fee Mortgage Document)Documents, if the effect of such default is to cause, or to permit the holder or holders of the applicable Fee Mortgage (or a trustee or agent on behalf of such holder or holders) to cause, such Fee Mortgage to become or be declared due and payable (or redeemable) prior to its stated maturity (without regard to any standstill or forbearance period that might be provided to Landlord with respect to the same); provided, however, that, if any such standstill or forbearance period shall be provided to Landlord with respect to the same, so long as Tenant is reasonably cooperating with Landlord in connection with a potential refinancing of the defaulted Fee Mortgage(s) by providing information with respect to the Leased Property, Tenant or its Affiliates (excluding (i) any material non-public information, unless the same shall only be provided to potential financing sources in accordance with and subject to Section 41.22 hereof, and (ii) any information subject to bona fide confidentiality restrictions) requested by Landlord in order to satisfy the market standards to which such potential refinancing lenders customarily adhere or which may be reasonably required by prospective investors and/or rating agencies, such default shall not constitute a Tenant Event of Default hereunder for the first half of the shortest applicable standstill or forbearance period so provided to Landlord, as determined by Landlord in its sole but good faith discretionmaturity;
(n) a transfer of Tenant’s interest in this Lease (including pursuant to a Change in Control) shall have occurred without the consent of Landlord to the extent such consent is required under Article XXII or Tenant is otherwise in default of the provisions set forth in Section 22.1 below;
(o) if Tenant shall fail to observe or perform any other term, covenant or condition of this Lease and such failure is not cured within thirty (30) days after written notice thereof from Landlord, provided, however, if such failure cannot reasonably be cured within such thirty (30) day period and Tenant shall have commenced to cure such failure within such thirty (30) day period and thereafter diligently proceeds to cure the same, such thirty (30) day period shall be extended for such time as is reasonably necessary for Tenant in the exercise of due diligence to cure such failure, provided that, with respect to any failure to perform (i) that is still continuing on or after the first day of the sixth (6th) Lease Year such cure period shall not extend beyond the later of such first day of the sixth (6th) Lease Year or one-hundred and eighty (180) days in the aggregate, and (ii) that is first arising on or after the first day of the sixth (6th) Lease Year, such cure period shall not exceed one-hundred and eighty (180) days in the aggregate, provided, further however, that no Tenant Event of Default under this clause (o) or under clause (pq) below shall be deemed to exist under this Lease during any time the curing thereof is prevented by an Unavoidable Delay, provided that upon the cessation of the Unavoidable Delay, Tenant remedies the default within the time periods otherwise required hereunder;
(p) (i) A “Tenant Event of Default” (as defined in the Non-CPLV Lease) shall occur under the Non-CPLV Lease or (ii) so long as the Existing Fee Financing has not been replaced with replacement financing, a “Tenant Event of Default” (as defined in the CPLV Lease) shall occur under the CPLV Lease;
(q) the occurrence of a Tenant Event of Default pursuant to Section 10.5(a)(x);
(qr) unless the Guarantor EOD Conditions exist, if Guarantor shall, in any judicial or quasi-judicial case, action or proceeding, contest (or collude with or otherwise affirmatively assist any other Person, or solicit or cause to be solicited any other Person to contest) the validity or enforceability of Guarantor’s obligations under the MLSA (or any Qualified Replacement Guarantor’s obligations under a Replacement Guaranty); and
(rs) if Tenant shall fail to comply with any of the provisions, terms or conditions of the Octavius any Ground Lease in effect as of the Commencement Date (or any renewals thereof) with respect to any of the Continuous Operation Facilities as required under Section 7.3 hereof, which failure is not cured within the applicable time period set forth in the applicable Ground Lease and the effect of such failure is to permit the applicable Ground Lessor to terminate such Ground Lease or to result in the Ground Lease being terminated pursuant to the terms thereof. Notwithstanding anything contained herein to the contrary, (x) Landlord shall deliver all notices required pursuant to Section 16.1 concurrently to Tenant and Guarantor and (y) a default by Tenant under any Permitted Leasehold Mortgage shall not in and of itself be a Tenant Event of Default hereunder (it being understood that if the circumstances that cause such default independently comprise a default hereunder that continues beyond all applicable notice and cure periods hereunder then such circumstances would cause a Tenant Default hereunder). Notwithstanding the foregoing, (i) Tenant shall not be in breach of this Lease solely as a result of the exercise by the party (other than Tenant, CEC, CEOC or any of their respective Affiliates) to any of the Permitted Exception Documents of such party’s 's rights thereunder so long as Tenant undertakes commercially reasonable efforts to cause such party to comply or otherwise minimize such breach, and (ii) in the event that Tenant is required, under the express terms of any Permitted Exception Document(s), to take or refrain from taking any action, and taking or refraining from taking such action would result in a default under this Lease, then Tenant shall advise Landlord of the same, and Tenant and Landlord shall reasonably cooperate in order to address the same in a mutually acceptable manner, and so as to minimize any harm or liability to Landlord and to Tenant. For the avoidance of doubt, in no event shall a Permitted Exception Document excuse Tenant from its obligation to pay Rent or Additional Charges.
Appears in 1 contract
Tenant Events of Default. Any one or more of the following shall constitute a “Tenant Event of Default”:
(a) Tenant shall fail to pay any installment of Rent when due and such failure is not cured within six ten (610) days after written notice from Landlord (which notice for purposes of this provision may be in the form of an email and shall be deemed effective as of transmittal (without requirement that receipt thereof be acknowledged), provided that (without vitiating the effectiveness of such email notice) a separate notice is separately delivered on the same day or, if such day is not a Business Day, on the following Business Day, which separate notice shall be delivered in accordance with Article XXXV (it being understood that the delivery of such separate notice shall not vitiate the effectiveness of such email notice)) of Tenant’s failure to pay such installment of Rent when due (and such notice of failure from Landlord may be given any time after such installment of Rent is one (1) day late);
(b) Tenant shall fail to pay any Additional Charge (excluding, for the avoidance of doubt the Minimum Cap Ex Amount) within seven ten (710) days after written notice from Landlord of Tenant’s failure to pay such Additional Charge when due (and such notice of failure from Landlord may be given any time after such payment of any Additional Charge is one (1) day late);
(c) Tenant or, unless the Guarantor EOD Conditions exist, Guarantor shall:
(i) file a petition in bankruptcy or a petition to take advantage of any insolvency law or statute under Federal law, specifically including Xxxxx 00, Xxxxxx Xxxxxx Code, §§ 101-1532, or analogous state law;
(ii) make an assignment for the benefit of its creditors; or
(iii) consent to the appointment of a receiver of itself or of the whole or substantially all of its property;
(i) Tenant shall be adjudicated as bankrupt or a court of competent jurisdiction shall enter an order or decree appointing, without the consent of Tenant, a receiver of Tenant or of all or substantially all of Tenant’s property, or approving a petition filed against Tenant seeking reorganization or arrangement of Tenant under Federal law, specifically including Title 00, Xxxxxx Xxxxxx Xxxx, §§ 000-0000, or analogous state law, and such judgment, order or decree shall not be vacated or set aside or stayed within sixty (60) days from the date of the entry thereof;
(ii) Unless the Guarantor EOD Conditions exist, Guarantor shall be adjudicated as bankrupt or a court of competent jurisdiction shall enter an order or decree appointing, without the consent of Guarantor, a receiver of Guarantor or of all or substantially all of Guarantor’s property, or approving a petition filed against Guarantor seeking reorganization or arrangement of Guarantor under Federal law, specifically including Title 00, Xxxxxx Xxxxxx Xxxx, §§ 000-0000, or analogous state law, and such judgment, order or decree shall not be vacated or set aside or stayed within sixty (60) days from the date of the entry thereof; or;
(e) entry of an order or decree liquidating or dissolving Tenant, Manager or, unless the Guarantor EOD Conditions exist, Guarantor, provided that the same shall not constitute a Tenant Event of Default if (i) such order or decree shall be vacated, set aside or stayed within ninety (90) days from the date of the entry thereof, or (ii) with respect to Manager only, (x) Manager is not an Affiliate of Tenant, or (y) another wholly-owned subsidiary of CEC assumes the MLSA and the other Lease/MLSA Related Agreements to which Manager is a party;
(fi) If the Facility is not subject to a Permitted Facility Sublease, Tenant shall fail to cause the Facility to be Operated (as defined in the MLSA) in a Non-Discriminatory (as defined in the MLSA) manner, in accordance with the Operating Standard (as defined in the MLSA) and subject to Manager’s Standard of Care (as defined in the MLSA) (in each case as and to the extent required under the MLSA, including as provided in Section 2.1.1, Section 2.1.2, Section 2.1.3, Section 2.1.4, Section 2.3.1, and Section 2.3.2 of the MLSA, but subject to Section 5.9.1 of the MLSA), which failure would reasonably be expected to have a material and adverse effect on Landlord (taken as a whole with “Landlord” as defined under the Non-CPLV Lease) or on the FacilityFacility (taken as a whole with the Non-CPLV Facilities), and which failure is not cured within thirty (30) days following notice thereof from Landlord to Tenant; provided that, if: (i) such failure is not susceptible of cure within such thirty (30) day period; and (ii) such failure would not expose Landlord to an imminent and material risk of criminal liability or of material damage to its business reputation, such thirty (30) day cure period shall be extended for such time as is necessary (but in no event longer than ninety (90) days) to cure such failure so long as Tenant commences to cure such failure or other breach within such thirty (30) day period and thereafter proceeds with reasonable diligence to complete such cure);
(ii) If the Facility is subject to a Permitted Facility Sublease, Tenant shall fail to comply with Section 7.5(b), which failure would reasonably be expected to have a material and adverse effect on Landlord (taken as a whole with “Landlord” as defined under the Non-CPLV Lease) or on the Facility (taken as a whole with the Non-CPLV Facilities), and which failure is not cured within thirty (30) days following notice thereof from Landlord to Tenant; provided that, if: (i) such failure is not susceptible of cure within such thirty (30) day period; and (ii) such failure would not expose Landlord to an imminent and material risk of criminal liability or of material damage to its business reputation, such thirty (30) day cure period shall be extended for such time as is necessary (but in no event longer than ninety (90) days) to cure such failure so long as Tenant commences to cure such failure within such thirty (30) day period and thereafter proceeds with reasonable diligence to complete such cure);
(g) the estate or interest of Tenant in the Leased Property or any part thereof shall be levied upon or attached in any proceeding relating to more than Twenty-Five Million and No/100 Dollars ($25,000,000.00), and the same shall not be vacated, discharged or stayed pending appeal (or paid or bonded or otherwise similarly secured payment) within the later of ninety (90) days after commencement thereof or thirty (30) days after receipt by Tenant of notice thereof from Landlord; provided, however, that such notice shall be in lieu of and not in addition to any notice required under applicable law;
(h) if Tenant or, unless the Guarantor EOD Conditions exist, Guarantor shall fail to pay, bond, escrow or otherwise similarly secure payment of one or more final judgments aggregating in excess of the amount of Seventy-Five Million and No/100 Dollars ($75,000,000.00), which judgments are not discharged or effectively waived or stayed for a period of forty-five (45) consecutive days;
(i) unless the Guarantor EOD Conditions exist, a Lease Guarantor Event of Default shall occur under the MLSA;
(j) except as a result of a Permitted Operation Interruption, Tenant fails to cause the Facility to be Continuously Operated during the Termintentionally omitted;
(k) any applicable Gaming License or other license material to the Facility’s operation for its Primary Intended Use is at any time terminated or revoked or suspended or placed under a trusteeship (and in each case such termination, revocation, suspension or trusteeship causes cessation of Gaming activity at the Facility) for more than thirty (30) days and such termination, revocation, suspension or trusteeship is not stayed pending appeal and would reasonably be expected to have a material adverse effect on Tenant or on the Facilityintentionally omitted;
(l) if a Licensing Event with respect to Tenant under clause (a) of the definition of Licensing Event shall occur and is not resolved in accordance with Section 41.13 within the later of (i) thirty (30) days or (ii) such additional time period as may be permitted by the applicable Gaming Authorities;
(m) Tenant fails to comply with any Additional Fee Mortgagee Requirements (and in the case of any representation or warranty made by Tenant under Section 8.2 and Exhibit L having been false or misleading as of the date the representation or warranty was made, such false or misleading representation or warranty has had or is reasonably expected to result in a Material Adverse Effect (as defined in Exhibit L))Requirements, which default is not cured within the shortest applicable cure period set forth in the Fee Mortgage Documents (i.e., such default is not cured prior to the same constituting an “Event of Default” under any Fee Mortgage Document)Documents, if the effect of such default is to cause, or to permit the holder or holders of the applicable Fee Mortgage (or a trustee or agent on behalf of such holder or holders) to cause, such Fee Mortgage to become or be declared due and payable (or redeemable) prior to its stated maturity (without regard to any standstill or forbearance period that might be provided to Landlord with respect to the same); provided, however, that, if any such standstill or forbearance period shall be provided to Landlord with respect to the same, so long as Tenant is reasonably cooperating with Landlord in connection with a potential refinancing of the defaulted Fee Mortgage(s) by providing information with respect to the Leased Property, Tenant or its Affiliates (excluding (i) any material non-public information, unless the same shall only be provided to potential financing sources in accordance with and subject to Section 41.22 hereof, and (ii) any information subject to bona fide confidentiality restrictions) requested by Landlord in order to satisfy the market standards to which such potential refinancing lenders customarily adhere or which may be reasonably required by prospective investors and/or rating agencies, such default shall not constitute a Tenant Event of Default hereunder for the first half of the shortest applicable standstill or forbearance period so provided to Landlord, as determined by Landlord in its sole but good faith discretionmaturity;
(n) a transfer of Tenant’s interest in this Lease (including pursuant to a Change in Control) shall have occurred without the consent of Landlord to the extent such consent is required under Article XXII or Tenant is otherwise in default of the provisions set forth in Section 22.1 below;
(o) if Tenant shall fail to observe or perform any other term, covenant or condition of this Lease and such failure is not cured within thirty (30) days after written notice thereof from Landlord, provided, however, if such failure cannot reasonably be cured within such thirty (30) day period and Tenant shall have commenced to cure such failure within such thirty (30) day period and thereafter diligently proceeds to cure the same, such thirty (30) day period shall be extended for such time as is reasonably necessary for Tenant in the exercise of due diligence to cure such failure, provided that, with respect to any failure to perform (i) that is still continuing on or after the first day of the sixth (6th) Lease Year such cure period shall not extend beyond the later of such first day of the sixth (6th) Lease Year or one-hundred and eighty (180) days in the aggregate, and (ii) that is first arising on or after the first day of the sixth (6th) Lease Year, such cure period shall not exceed one-hundred and eighty (180) days in the aggregate, provided, further however, that no Tenant Event of Default under this clause (o) or under clause (pq) below shall be deemed to exist under this Lease during any time the curing thereof is prevented by an Unavoidable Delay, provided that upon the cessation of the Unavoidable Delay, Tenant remedies the default within the time periods otherwise required hereunder;
(p) (i) A “Tenant Event of Default” (as defined in the Non-CPLV Lease) shall occur under the Non-CPLV Lease or (ii) so long as the Existing Fee Financing has not been replaced with replacement financing, a “Tenant Event of Default” (as defined in the CPLV Lease) shall occur under the CPLV Lease;
(q) the occurrence of a Tenant Event of Default pursuant to Section 10.5(a)(x);
(qr) unless the Guarantor EOD Conditions exist, if Guarantor shall, in any judicial or quasi-judicial case, action or proceeding, contest (or collude with or otherwise affirmatively assist any other Person, or solicit or cause to be solicited any other Person to contest) the validity or enforceability of Guarantor’s obligations under the MLSA (or any Qualified Replacement Guarantor’s obligations under a Replacement Guaranty); and
(rs) if Tenant shall fail to comply with any of the provisions, terms or conditions of the Octavius any Ground Lease in effect as of the Commencement Date (or any renewals thereof) with respect to any of the Continuous Operation Facilities as required under Section 7.3 hereof, which failure is not cured within the applicable time period set forth in the applicable Ground Lease and the effect of such failure is to permit the applicable Ground Lessor to terminate such Ground Lease or to result in the Ground Lease being terminated pursuant to the terms thereof. Notwithstanding anything contained herein to the contrary, (x) Landlord shall deliver all notices required pursuant to Section 16.1 concurrently to Tenant and Guarantor and (y) a default by Tenant under any Permitted Leasehold Mortgage shall not in and of itself be a Tenant Event of Default hereunder (it being understood that if the circumstances that cause such default independently comprise a default hereunder that continues beyond all applicable notice and cure periods hereunder then such circumstances would cause a Tenant Default hereunder). Notwithstanding the foregoing, (i) Tenant shall not be in breach of this Lease solely as a result of the exercise by the party (other than Tenant, CEC, CEOC or any of their respective Affiliates) to any of the Permitted Exception Documents of such party’s rights thereunder so long as Tenant undertakes commercially reasonable efforts to cause such party to comply or otherwise minimize such breach, and (ii) in the event that Tenant is required, under the express terms of any Permitted Exception Document(s), to take or refrain from taking any action, and taking or refraining from taking such action would result in a default under this Lease, then Tenant shall advise Landlord of the same, and Tenant and Landlord shall reasonably cooperate in order to address the same in a mutually acceptable manner, and so as to minimize any harm or liability to Landlord and to Tenant. For the avoidance of doubt, in no event shall a Permitted Exception Document excuse Tenant from its obligation to pay Rent or Additional Charges.
Appears in 1 contract
Samples: Lease (CAESARS ENTERTAINMENT Corp)
