Covenants of the Lessor. The Lessor hereby agrees that so long as this Agreement is in effect: (a) The Lessor will not create or permit to exist at any time, and the Lessor will, at its own cost and expense, promptly take such action as may be necessary duly to discharge, or to cause to be discharged, all Lessor Liens on the Property and the Collateral; provided, however, that the Lessor shall not be required to so discharge any such Lessor Lien while the same is being contested in good faith by appropriate proceedings diligently prosecuted so long as such proceedings shall not materially and adversely affect the rights of the Lessee under the Lease and the other Operative Agreements or involve any material danger of impairment of the Liens of the Security Documents or of the sale, forfeiture or loss of, and shall not interfere with the use or disposition of, the Property or title thereto or any interest therein or the payment of Rent; (b) The Lessor shall give prompt notice to the Lessee and the Agent if the Lessor’s location for purposes of the UCC shall cease to be in the State of Delaware or if the Lessor’s principal place of business, chief executive office or office where the records concerning the accounts or contract rights relating to the Property are kept, shall cease to be located at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, Charlotte, North Carolina 28202 or if it shall change its name; and (c) The Lessor shall take or refrain from taking such actions and grant or refrain from granting such approvals with respect to the Operative Agreements and/or relating to the Property in each case as directed in writing by the Agent in accordance with the Operative Agreements (until such time as the Credit Notes and the Mortgage Notes are paid in full, and then as determined by the Lessor, but in all cases subject to the provisions of any intercreditor agreements among the Credit Lenders, the Mortgage Lenders and/or the Lessor) or, in connection with Sections 8.5, 9.1 and 9.2 hereof, the Construction Agent or the Lessee; provided, however, that notwithstanding the foregoing provisions of this subparagraph (c) the Lessor shall retain its right to approve or disapprove of each Unanimous Vote Matter or matters for which its consent is required pursuant to Section 8.6 in its sole discretion and without regard to any direction from any other Financing Party, any Credit Party or any other Person and the Lessor shall retain its rights in the Excepted Payments and any and all other rights expressly reserved by the Lessor under the Operative Agreements. (d) The Lessor shall provide to the Lessee at least twenty (20) days following the end of each calendar quarter and at least forty‑five (45) days following the end of each calendar year, a letter of the same tenor as the Lessor Confirmation Letter; provided, that if there have been any changes to the factual matters set forth in the Lessor Confirmation Letter or the financial accounting standards referenced therein that bear on the conclusions set forth therein, such letter shall set forth the analysis based on such changed factual matters or financial accounting standards. The parties hereto agree that the Credit Parties and their auditors are the sole beneficiaries of the matters addressed in this Section 8.2(d).
Appears in 2 contracts
Sources: Participation Agreement (Nvidia Corp), Participation Agreement (Nvidia Corp)
Covenants of the Lessor. 4.1 The Lessor hereby agrees that so long LESSOR reserves the right to sell, lease or otherwise deal with any plot unleased or unsold, in any manner it deems suitable and the LESSEE shall not raise objections to the same.
4.2 It shall be open to the LESSOR to deal with the allotted plot taken by it under the rights conferred on it as this Agreement is per Clause 7.2 and Clause 12.2 in effect:any manner it likes either by retaining or by leasing it to any other person, without any let or any hindrance or claim whatsoever to the LESSEE to compensation and the LESSEE has no right to interdict the same.
(a) 4.3 The Lessor will not create or permit LESSOR shall have the power to exist at any grant extension of time, and the Lessor will, at its own cost and expense, promptly take subject to such action conditions as may be imposed to the LESSEE in all matters which are required to be done or completed within the prescribed time, under this deed by imposing suitable penalties as per the prevailing policy of the LESSOR.
4.4 The LESSOR or persons authorised by it shall have the right to enter upon and inspect the said allotted plot, during the currency of the lease at all times.
4.5 The LESSOR shall obtain the Environmental Clearances wherever applicable, DTCP approvals and other necessary duly statutory clearances for the Industrial Parks.
4.6 The LESSOR reserves the right to dischargeimpose any further conditions and stipulations, or alterations in the regulations which are reasonable, justified and necessary at any time for the establishment of Industrial Park to cause to be discharged, all Lessor Liens on implement the Property conditions of this deed and for the Collateral; provided, however, that the Lessor shall not be required to so discharge any such Lessor Lien while the same is being contested in good faith by appropriate proceedings diligently prosecuted so long as such proceedings shall not materially and adversely affect the rights benefit of the Lessee under Industrial Park as a whole by way of policy decisions and office orders/circulars which shall be published as and when imposed, which shall be binding thereon.
4.7 The Lease Deed shall be executed in two counterparts. The LESSOR shall hold the Lease registered lease deed, on which full stamp duty has been paid, in its safe custody and the other Operative Agreements or involve any material danger copy of impairment of the Liens of the Security Documents or of the sale, forfeiture or loss of, and registered lease deed shall not interfere with the use or disposition of, the Property or title thereto or any interest therein or the payment of Rent;
(b) The Lessor shall give prompt notice to the Lessee and the Agent if the Lessor’s location for purposes of the UCC shall cease to be in the State of Delaware or if the Lessor’s principal place of business, chief executive office or office where the records concerning the accounts or contract rights relating to the Property are kept, shall cease to be located at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, Charlotte, North Carolina 28202 or if it shall change its name; and
(c) The Lessor shall take or refrain from taking such actions and grant or refrain from granting such approvals with respect to the Operative Agreements and/or relating to the Property in each case as directed in writing held by the Agent in accordance with the Operative Agreements (until such time as the Credit Notes and the Mortgage Notes are paid in full, and then as determined by the Lessor, but in all cases subject to the provisions of any intercreditor agreements among the Credit Lenders, the Mortgage Lenders and/or the Lessor) or, in connection with Sections 8.5, 9.1 and 9.2 hereof, the Construction Agent or the Lessee; provided, however, that notwithstanding the foregoing provisions of this subparagraph (c) the Lessor shall retain its right to approve or disapprove of each Unanimous Vote Matter or matters for which its consent is required pursuant to Section 8.6 in its sole discretion and without regard to any direction from any other Financing Party, any Credit Party or any other Person and the Lessor shall retain its rights in the Excepted Payments and any and all other rights expressly reserved by the Lessor under the Operative AgreementsLESSEE.
(d) The Lessor shall provide to the Lessee at least twenty (20) days following the end of each calendar quarter and at least forty‑five (45) days following the end of each calendar year, a letter of the same tenor as the Lessor Confirmation Letter; provided, that if there have been any changes to the factual matters set forth in the Lessor Confirmation Letter or the financial accounting standards referenced therein that bear on the conclusions set forth therein, such letter shall set forth the analysis based on such changed factual matters or financial accounting standards. The parties hereto agree that the Credit Parties and their auditors are the sole beneficiaries of the matters addressed in this Section 8.2(d).
Appears in 2 contracts
Sources: Lease Deed, Lease Deed
Covenants of the Lessor. 10.1 The Lessor hereby agrees that so long as this Agreement is in effect:
(a) The Lessor will not create or permit to exist at any time, and the Lessor will, at its own cost and expense, promptly take such action as may be necessary duly to discharge, or to cause to be discharged, all Lessor Liens on the Property and the Collateral; provided, however, that the Lessor shall not be required to so discharge any such Lessor Lien while the same is being contested in good faith by appropriate proceedings diligently prosecuted so long as such proceedings shall not materially and adversely affect the rights Co-developer of the Lessee under the Lease and the other Operative Agreements or involve any material danger of impairment of the Liens of the Security Documents or of the sale, forfeiture or loss of, and shall not interfere with the use or disposition of, the Property or title thereto or any interest therein or the payment of Rent;
(b) The Lessor shall give prompt notice to the Lessee and the Agent if the Lessor’s location for purposes of the UCC shall cease to be in the State of Delaware or if the Lessor’s principal place of business, chief executive office or office where the records concerning the accounts or contract rights relating to the Property are kept, shall cease to be located at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ said P▇▇▇▇▇▇▇ and has good right, Charlottetitle and interest save and except the mortgage defined above and is competent and free to enter into this Lease Deed and there is no impediment or restraint or injunction against Lessor from being able to fulfil its rights and obligations under this Agreement and /or all the other incidental agreements / documents in respect of the said P▇▇▇▇▇▇▇.
10.2 The Lessor shall, North Carolina 28202 at its own cost, promptly to carry out all repairs as are necessary due to fundamental or if it shall change its name; andstructural defects in the said Premises provided they are not due to any act/s omission/s and/or commission/s of the Lessee. And the Lessee will render necessary co-operation to the Lessor while such repair work is being carried out without disturbing the business of the Lessee. Lessor Sign: _________________ Page 7 Lessee Sign: _________________
(c) 10.3 The Lessor shall take or refrain from taking such actions duly observe and grant or refrain from granting such approvals perform, abide by and otherwise comply with respect all laws, rules and SEZ Act, rules and regulations, amendment and notifications applicable to the Operative Agreements said Building from time to time and for the time being in force insofar as and to the extent they are required to be observed, performed or complied with by it.
10.4 The Lessor agrees that the Lessee and/or their employee/s its customers, servants, agents, visitors and invitees shall, for the purpose of ingress (going in) and egress (going out) from the said Premises and the said Building, have the right to use and enjoy the entrance, staircase, landing, corridors, passage lifts, escalators and such other facilities in and outside the said P▇▇▇▇▇▇▇ and the said Building so far as the same are necessary for the enjoyment of the said Premises.
10.5 No suit, proceedings or any litigation concerning or touching the said Premises or any part thereof is pending before any court or arbitrators or quasi-judicial or judicial or other authority. There is no notice received for any proposed / threatened litigation relating to the Property in each case as directed in writing by said Premises or any part thereof.
10.6 The Lessor shall obtain the Agent in accordance with necessary and requisite permissions/ approvals for the Operative Agreements (until such time as supply of water to the Credit Notes and the Mortgage Notes are paid in fullsaid Premises, and then as determined by the Lessor, but in all cases subject to the provisions availability of water supply by the concerned Authorities.
10.7 The Lessor has not entered into any agreement or arrangement for lease in relation to the Leased Property with any third party.
10.8 Lessor has no objection for Lessee to obtain necessary approvals and / or permissions from the government agencies / authorities / departments, to operate its approved business operations during the term, and shall provide all reasonable assistance, in the capacity of owner / lessor of the leased premises and the Developer of the IT SEZ, if requested by Licensee.
10.9 On and from the date of execution of this Agreement, Lessor shall not create any further mortgage or security or encumbrance of any intercreditor agreements among nature whatsoever on or in respect of the Credit Lenders, the Mortgage Lenders and/or the Lessor) or, in connection with Sections 8.5, 9.1 and 9.2 hereof, the Construction Agent or the Lessee; provided, however, that notwithstanding the foregoing provisions of this subparagraph (c) the Lessor shall retain its right to approve or disapprove of each Unanimous Vote Matter or matters for which its consent is required pursuant to Section 8.6 in its sole discretion and without regard to any direction from any other Financing Party, any Credit Party Leased premises or any other Person and the Lessor shall retain its rights in the Excepted Payments and part thereof till such time this Agreement (including any and all other rights expressly reserved by the Lessor under the Operative Agreementsrenewals thereof) is terminated or expires, whichever is earlier.
(d) The Lessor shall provide to the Lessee at least twenty (20) days following the end of each calendar quarter and at least forty‑five (45) days following the end of each calendar year, a letter of the same tenor as the Lessor Confirmation Letter; provided, that if there have been any changes to the factual matters set forth in the Lessor Confirmation Letter or the financial accounting standards referenced therein that bear on the conclusions set forth therein, such letter shall set forth the analysis based on such changed factual matters or financial accounting standards. The parties hereto agree that the Credit Parties and their auditors are the sole beneficiaries of the matters addressed in this Section 8.2(d).
Appears in 1 contract
Covenants of the Lessor. The Lessor hereby agrees that so long as this Agreement is in effect:
(a) The Lessor will not create or permit to exist at any time, and the Lessor will, at its own cost and expense, promptly take such action as may be necessary duly to discharge, or to cause to be discharged, all Lessor Liens on the Property and the Collateralattributable to it; provided, however, that the Lessor shall not be required to so discharge any such Lessor Lien while the same is being contested in good faith by appropriate proceedings diligently prosecuted so long as such proceedings shall not materially and adversely affect the rights of the Lessee under the Lease and the other Operative Agreements or involve any material danger of impairment of the Liens of the Security Documents or of the sale, forfeiture or loss of, and shall not interfere with the use or disposition of, the Property or title thereto or any interest therein or the payment of Rent;
(b) The Lessor shall not (i) commence any case, proceeding or other action under any existing or future law of any jurisdiction, domestic or foreign, relating to bankruptcy, insolvency, reorganization, arrangement, winding-up, liquidation, dissolution, composition or other relief with respect to it or its debts, or (ii) seek appointment of a receiver, trustee, custodian or other similar official for all or any substantial benefit of the creditors of the Lessor; and the Lessor shall not take any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the acts set forth in this paragraph;
(c) The Lessor shall give prompt written notice to the Lessee Lessee, the Primary Financing Parties (other than the Lessor) and the Agent if the Lessor’s location for purposes of the UCC shall cease to be in the State of Delaware North Carolina, or if the Lessor’s principal place of business, business or chief executive office office, or the office where the records concerning the accounts or contract rights relating to the Property are kept, shall cease to be located at ▇▇▇ ▇▇▇One Wachovia Center, 3▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Charlotte▇▇▇▇▇▇▇▇▇, North Carolina 28202 or if it shall change its name; and▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇;
(cd) The Lessor shall take or refrain from taking such actions and grant or refrain from granting such approvals with respect to the Operative Agreements and/or relating to the Property in each case as directed in writing by the Agent in accordance with the Operative Agreements (until such time as the Credit Notes and the Mortgage Notes Loans are paid in full, and then as determined by the Lessor, but in all cases subject to the provisions of any intercreditor agreements among the Credit Lenders, the Mortgage Lenders and/or the Lessor) or, in connection with Sections 8.5, 9.1 and 9.2 Section 8.5 hereof, the Construction Agent or the Lessee; provided, however, that notwithstanding each of the foregoing provisions of this subparagraph Agent, the Primary Financing Parties (cother than the Lessor) and the Lessee acknowledges, covenants and agrees that it will not instruct the Lessor shall retain its right to approve or disapprove take any action in violation of each Unanimous Vote Matter or matters for which its consent is required pursuant to Section 8.6 in its sole discretion and without regard to the terms of any direction from any other Financing Party, any Credit Party or any other Person and the Lessor shall retain its rights in the Excepted Payments and any and all other rights expressly reserved by the Lessor under the Operative Agreements.Agreement; and
(de) The Lessor shall provide to give the Lessee at least twenty prompt written notice (20a “Lessor Notice”) days following the end Lessor’s knowledge, but in any event promptly upon receipt by it of each calendar quarter (x) notice from an acquiring Person as provided in the related underlying transaction documents that a disposition of property will occur or (y) an appraisal or other form of written valuation study, in either case that, in the exercise of the Lessor’s reasonable judgment, would (regarding the Fair Market Sales Value of the Property as set forth in the Appraisal delivered pursuant to Section 5.3(s) or as set forth in any Appraisal requested from time to time by the Lessee and obtained at least forty‑five the sole cost and expense of the Lessee), in the case of clause (x) above, cause such Fair Market Sales Value of the Property to exceed forty-five percent (45%) days following of (or, in the end case of each calendar yearclause (y) above, a letter provide the Lessor with adequate information to determine that, such Fair Market Sales Value of the same tenor as Property exceeds forty-five percent (45%) of) the fair market value (based on appraisals or other information in the Lessor’s possession and delivered in connection with the consummation of such underlying transactions relating to various properties of the Lessor Confirmation Letter; providedor received by the Lessor as described in clause (y) above) of all of the property owned (as determined in accordance with Lessor’s financial reporting under GAAP) by the Lessor (the “Forty-five Percent FMV Event”). In the event that a Lessor Notice is given, the Lessor, upon receipt of a written request from the Lessee, may, at its option, elect to either (i) obtain additional assets such that if there have been any changes the gross asset value of the Property does not ever constitute more than fifty percent (50%) of the total assets of the Lessor, (ii) transfer its interests in all of the Property to another Affiliate of the factual matters Lessor such that the representations set forth in the Lessor Confirmation Letter remain correct, (iii) obtain, at the Lessee’s sole cost and expense, additional appraisals on assets owned by the Lessor, or (iv) obtain, at the Lessee’s sole cost and expense, a SAS 97-type letter reasonably acceptable to the Lessee from the Lessor’s auditor to certify that the Lessor is either (1) a business or (2) a voting interest entity as defined by FASB Interpretation No. 46 (as revised in December of 2003). Nothing relating to the circumstances surrounding or the financial physical delivery of the Lessor Notice will in any way inhibit or prohibit the Lessee’s right to replace the Lessor pursuant to Section 10.1(d). Notwithstanding the foregoing, in no event will the Lessor be required to disclose or provide access to any information to the extent that such disclosure or access would violate any law applicable to the Lessor or its Affiliates, including without limitation banking regulations applicable to national banks, or result in a breach of the Lessor’s or any Affiliate’s confidentiality agreements. In addition to the foregoing, if the Lessee determines, in its sole discretion, that a Forty-Five Percent FMV Event will occur, the Lessor agrees to use all reasonable commercial efforts to provide the non-confidential information necessary for the Lessee to make its accounting standards referenced therein assessment under FASB Interpretation No. 46. Notwithstanding the foregoing, in no event will the Lessor be required to disclose or provide access to any information to the extent that bear on such disclosure or access would violate any Law applicable to the conclusions set forth thereinLessor or its Affiliates, such letter shall set forth including banking regulations applicable to national banks, or result in a breach of the analysis based on such changed factual matters Lessor’s or financial accounting standardsany Affiliate’s confidentiality agreements. The parties hereto agree that the Credit Parties Lessee and their its auditors are the sole beneficiaries of the matters addressed in this Section 8.2(d8.2(e).
(f) Upon the Lessee’s prior written request, the Lessor shall provide to the Lessee at least fifteen (15) days prior to the end of each calendar quarter and at least forty-five (45) days prior to the end of each calendar year, a confirmed copy of the Lessor Confirmation Letter. The parties hereto agree that the Lessee and its auditors are the sole beneficiaries of the matters addressed in this Section 8.2(f).
(g) [Reserved].
(h) The Lessor will not finance an amount equal to or greater than ninety-five percent (95%) of the fair value of the property with non-recourse debt or targeted equity.
Appears in 1 contract
Covenants of the Lessor. The Lessor hereby agrees that so long as this Agreement is in effect:
(a) The Lessor will not create or permit to exist at any time, and the Lessor will, at its own cost and expense, promptly take such action as may be necessary duly to discharge, or to cause to be discharged, all Lessor Liens on the Property and the Collateralattributable to it; provided, however, that the Lessor shall not be required to so discharge any such Lessor Lien while the same is being contested in good faith by appropriate proceedings diligently prosecuted so long as such proceedings shall not materially and adversely affect the rights of the Lessee under the Lease and the other Operative Agreements or involve any material danger of impairment of the Liens of the Security Documents or of the sale, forfeiture or loss of, and shall not interfere with the use or disposition of, the Property or title thereto or any interest therein or the payment of Rent;
(b) The Lessor shall not (i) commence any case, proceeding or other action under any existing or future law of any jurisdiction, domestic or foreign, relating to bankruptcy, insolvency, reorganization, arrangement, winding-up, liquidation, dissolution, composition or other relief with respect to it or its debts, or (ii) seek appointment of a receiver, trustee, custodian or other similar official for all or any substantial benefit of the creditors of the Lessor; and the Lessor shall not take any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the acts set forth in this paragraph;
(c) The Lessor shall give prompt written notice to the Lessee Lessee, the Primary Financing Parties (other than the Lessor) and the Agent if the Lessor’s 's location for purposes of the UCC shall cease to be in the State of Delaware North Carolina, or if the Lessor’s 's principal place of business, business or chief executive office office, or the office where the records concerning the accounts or contract rights relating to the Property are kept, shall cease to be located at ▇▇▇ ▇▇One Wachovia Center, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Charlotte▇▇▇▇▇▇▇▇▇, North Carolina 28202 or if it shall change its name; and▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇;
(cd) The Lessor shall take or refrain from taking such actions and grant or refrain from granting such approvals with respect to the Operative Agreements and/or relating to the Property in each case as directed in writing by the Agent in accordance with the Operative Agreements (until such time as the Credit Notes and the Mortgage Notes are Financing is paid in full, and then as determined by the Lessor, but in all cases subject to the provisions of any intercreditor agreements among the Credit Lenders, the Mortgage Lenders and/or the Lessor) or, in connection with Sections 8.5, 9.1 and 9.2 Section 8.5 hereof, the Construction Agent or the Lessee; provided, however, that notwithstanding the foregoing provisions of this subparagraph (cd) the Lessor, the Agent and each of the other Primary Financing Parties each acknowledge, covenant and agree that neither the Lessor nor the Agent shall act or refrain from acting except in accordance with the provisions of any intercreditor agreement among such Persons; provided, further, that each of the Agent, the Primary Financing Parties (other than the Lessor) and the Lessee acknowledges, covenants and agrees that it will not instruct the Lessor to take any action in violation of the terms of any Operative Agreement; and
(e) The Lessor shall retain its right to approve give the Lessee prompt written notice (a "Lessor Notice") following the Lessor's knowledge, but in any event promptly upon receipt by it of (x) notice from an acquiring Person as provided in the related underlying transaction documents that a disposition of property will occur or disapprove (y) an appraisal or other form of each Unanimous Vote Matter or matters for which its consent is required written valuation study, in either case that, in the exercise of the Lessor's reasonable judgment, would (regarding the Fair Market Sales Value of the Property as set forth in the Appraisal delivered pursuant to Section 8.6 5.3(s)), in its sole discretion and without regard the case of clause (x) above, cause such Fair Market Sales Value of the Property to any direction from any other Financing Partyexceed fifty percent (50%) of (or, any Credit Party or any other Person and in the case of clause (y) above, provide the Lessor shall retain its rights with adequate information to determine that, such Fair Market Sales Value of the Property exceeds fifty percent (50%) of) the fair market value (based on appraisals or other information in the Excepted Payments Lessor's possession and any and all other rights expressly reserved delivered in connection with the consummation of such underlying transactions relating to various properties of the Lessor or received by the Lessor as described in clause (y) above) of all of the property owned (as determined in accordance with Lessor's financial reporting under GAAP and excluding those assets that are subject to leases that contain fixed price purchase options and residual value guarantees (a) where the Operative Agreementstitle to such assets does not reside directly with the Lessor or (b) such assets were financed with either (i) non-recourse debt exceeding 95% of the cost of the such assets, or (ii) equity or other non-controlling interests that do not participate in all of the profits and losses of the Lessor) by the Lessor (the "Fifty Percent FMV Event"). In the event that a Lessor Notice is given, the Lessor, upon receipt of a written request from the Lessee, may, at its option, elect to either (i) obtain additional assets such that the gross asset value of the Property does not ever constitute more than fifty percent (50%) of the total assets of the Lessor (excluding those assets that are subject to leases that contain fixed price purchase options and residual value guarantees (a) where the title to such assets does not reside directly with the Lessor or (b) such assets were financed with either (i) non-recourse debt exceeding 95% of the cost of the such assets, or (ii) equity or other non-controlling interests that do not participate in all of the profits and losses of the Lessor), (ii) transfer its interests in all of the Property to another Affiliate of the Lessor such that the representations set forth in the Lessor Confirmation Letter remain correct, or (iii) obtain, at the Lessee's sole cost and expense, a SAS 97-type letter reasonably acceptable to the Lessee from the Lessor's auditor to certify that the Lessor is a voting interest entity as defined by FASB Interpretation No. 46 (to be renewed as required). Nothing relating to the circumstances surrounding or the physical delivery of the Lessor Notice will in any way inhibit or prohibit the Lessee's right to replace the Lessor pursuant to Section 10.1(d). Notwithstanding the foregoing, in no event will the Lessor be required to disclose or provide access to any information to the extent that such disclosure or access would violate any law applicable to the Lessor or its Affiliates, including without limitation banking regulations applicable to national banks, or result in a breach of the Lessor's or any Affiliate's confidentiality policies or agreements. The parties hereto agree that the Lessee is the sole beneficiary of the matters addressed in this Section 8.2(e).
(df) The Upon the Lessee's prior written request, the Lessor shall provide to the Lessee at least twenty fifteen (2015) days following prior to the end of each calendar quarter and at least forty‑five forty-five (45) days following prior to the end of each calendar year, a letter confirmed copy of the same tenor as the Lessor Confirmation Letter; provided, that if there have been any changes to the factual matters set forth in the Lessor Confirmation Letter or the financial accounting standards referenced therein that bear on the conclusions set forth therein, such letter shall set forth the analysis based on such changed factual matters or financial accounting standards. The parties hereto agree that the Credit Parties and their auditors are Lessee is the sole beneficiaries beneficiary of the matters addressed in this Section 8.2(d8.2(f).
(g) Lessor shall not finance any portion of the Lessor Advance with non-recourse debt to the extent that such financing of the Lessor Advance will cause more than 94% of the aggregate amount of the Financing to be funded with non-recourse debt.
Appears in 1 contract
Covenants of the Lessor. The Lessor hereby agrees that so long as this Agreement is in effect:
(a) The Lessor will not create or permit to exist at any time, and the Lessor will, at its own cost and expense, promptly take such action as may be necessary duly to discharge, or to cause to be discharged, all Lessor Liens on the Property and the Collateralattributable to it; provided, however, that the Lessor shall not be required to so discharge any such Lessor Lien while the same is being contested in good faith by appropriate proceedings diligently prosecuted so long as such proceedings shall not materially and adversely affect the rights of the Lessee under the Lease and the other Operative Agreements or involve any material danger of impairment of the Liens of the Security Documents or of the sale, forfeiture or loss of, and shall not interfere with the use or disposition of, the Property or title thereto or any interest therein or the payment of Rent;
(b) The Lessor shall not (i) commence any case, proceeding or other action under any existing or future law of any jurisdiction, domestic or foreign, relating to bankruptcy, insolvency, reorganization, arrangement, winding-up, liquidation, dissolution, composition or other relief with respect to it or its debts, or (ii) seek appointment of a receiver, trustee, custodian or other similar official for all or any substantial benefit of the creditors of the Lessor; and the Lessor shall not take any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the acts set forth in this paragraph;
(c) The Lessor shall give prompt written notice to the Lessee Lessee, the Primary Financing Parties (other than the Lessor) and the Agent if the Lessor’s location for purposes of the UCC shall cease to be in the State of Delaware North Carolina, or if the Lessor’s principal place of business, business or chief executive office office, or the office where the records concerning the accounts or contract rights relating to the Property are kept, shall cease to be located at ▇▇▇ ▇▇▇One Wachovia Center, 3▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Charlotte▇▇▇▇▇▇▇▇▇, North Carolina 28202 or if it shall change its name; and▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇;
(cd) The Lessor shall take or refrain from taking such actions and grant or refrain from granting such approvals with respect to the Operative Agreements and/or relating to the Property in each case as directed in writing by the Agent in accordance with the Operative Agreements (until such time as the Credit Notes and the Mortgage Notes Loans are paid in full, and then as determined by the Lessor, but in all cases subject to the provisions of any intercreditor agreements among the Credit Lenders, the Mortgage Lenders and/or the Lessor) or, in connection with Sections 8.5, 9.1 and 9.2 Section 8.5 hereof, the Construction Agent or the Lessee; provided, however, that notwithstanding each of the foregoing provisions of this subparagraph Agent, the Primary Financing Parties (cother than the Lessor) and the Lessee acknowledges, covenants and agrees that it will not instruct the Lessor shall retain its right to approve or disapprove take any action in violation of each Unanimous Vote Matter or matters for which its consent is required pursuant to Section 8.6 in its sole discretion and without regard to the terms of any direction from any other Financing Party, any Credit Party or any other Person and the Lessor shall retain its rights in the Excepted Payments and any and all other rights expressly reserved by the Lessor under the Operative Agreements.Agreement; and
(de) The Lessor shall provide to give the Lessee at least twenty prompt written notice (20a “Lessor Notice”) days following the end Lessor’s knowledge, but in any event promptly upon receipt by it of each calendar quarter (x) notice from an acquiring Person as provided in the related underlying transaction documents that a disposition of property will occur or (y) an appraisal or other form of written valuation study, in either case that, in the exercise of the Lessor’s reasonable judgment, would (regarding the Fair Market Sales Value of the Property as set forth in the Appraisal delivered pursuant to Section 5.3(s) or as set forth in any Appraisal requested from time to time by the Lessee and obtained at least forty‑five the sole cost and expense of the Lessee), in the case of clause (x) above, cause such Fair Market Sales Value of the Property to exceed forty-five percent (45%) days following of (or, in the end case of each calendar yearclause (y) above, a letter provide the Lessor with adequate information to determine that, such Fair Market Sales Value of the same tenor as Property exceeds forty-five percent (45%) of) the fair market value (based on appraisals or other information in the Lessor’s possession and delivered in connection with the consummation of such underlying transactions relating to various properties of the Lessor Confirmation Letter; providedor received by the Lessor as described in clause (y) above) of all of the property owned (as determined in accordance with Lessor’s financial reporting under GAAP) by the Lessor (the “Forty-five Percent FMV Event”). In the event that a Lessor Notice is given, the Lessor, upon receipt of a written request from the Lessee, may, at its option, elect to either (i) obtain additional assets such that if there have been any changes the gross asset value of the Property does not ever constitute more than fifty percent (50%) of the total assets of the Lessor, (ii) transfer its interests in all of the Property to another Affiliate of the factual matters Lessor such that the representations set forth in the Lessor Confirmation Letter remain correct, (iii) obtain, at the Lessee’s sole cost and expense, additional appraisals on assets owned by the Lessor, or (iv) obtain, at the Lessee’s sole cost and expense, a SAS 97-type letter reasonably acceptable to the Lessee from the Lessor’s auditor to certify that the Lessor is a voting interest entity as defined by FASB Interpretation No. 46 (to be renewed as required). Nothing relating to the circumstances surrounding or the financial physical delivery of the Lessor Notice will in any way inhibit or prohibit the Lessee’s right to replace the Lessor pursuant to Section 10.1(d). Notwithstanding the foregoing, in no event will the Lessor be required to disclose or provide access to any information to the extent that such disclosure or access would violate any law applicable to the Lessor or its Affiliates, including without limitation banking regulations applicable to national banks, or result in a breach of the Lessor’s or any Affiliate’s confidentiality agreements. In addition to the foregoing, if the Lessee determines, in its sole discretion, that a Forty-Five Percent FMV Event will occur, the Lessor agrees to use all reasonable commercial efforts to provide the non-confidential information necessary for the Lessee to make its accounting standards referenced therein assessment under FASB Interpretation No. 46. Notwithstanding the foregoing, in no event will the Lessor be required to disclose or provide access to any information to the extent that bear on such disclosure or access would violate any Law applicable to the conclusions set forth thereinLessor or its Affiliates, such letter shall set forth including banking regulations applicable to national banks, or result in a breach of the analysis based on such changed factual matters Lessor’s or financial accounting standardsany Affiliate’s confidentiality agreements. The parties hereto agree that the Credit Parties Lessee and their its auditors are the sole beneficiaries of the matters addressed in this Section 8.2(d8.2(e).
(f) Upon the Lessee’s prior written request, the Lessor shall provide to the Lessee at least fifteen (15) days prior to the end of each calendar quarter and at least forty-five (45) days prior to the end of each calendar year, a confirmed copy of the Lessor Confirmation Letter. The parties hereto agree that the Lessee and its auditors are the sole beneficiaries of the matters addressed in this Section 8.2(f).
(g) At the direction of the Lessee, the Lessor shall undertake to enter into and maintain one or more Hedging Agreements (on terms and conditions satisfactory to the Agent) with respect to the financing of the Property regardless of whether Completion and/or the Commencement Date shall have occurred with respect to the Property and to terminate any such Hedging Agreement in accordance with the terms thereof; provided, (i) the Lessee must consent in writing (in form and substance satisfactory to the Hedge Provider and the Agent and in such form as may be relied upon by the Hedge Provider and each Financing Party) to each such Hedging Agreement and certify in such consent that each such Hedging Agreement is customary and reasonable, (ii) the Lessee must provide a copy of each such consent to each Financing Party, (iii) upon the date as of which the Lessor initially enters into any such Hedging Agreement, no Default or Event of Default shall have occurred and be continuing and (iv) each such Hedging Agreement must terminate on or prior to the last day of the Term.
(h) The Lessor will not finance an amount equal to or greater than ninety-five percent (95%) of the fair value of the property with non-recourse debt or targeted equity.
Appears in 1 contract
Sources: Participation Agreement (Human Genome Sciences Inc)
Covenants of the Lessor. The Lessor hereby agrees that so long as this Agreement is in effect:
(a) The Lessor will not create or permit to exist at any time, and the Lessor will, at its own cost and expense, promptly take such action as may be necessary duly to discharge, or to cause to be discharged, all Lessor Liens on the Property and the CollateralProperties attributable to it; provided, however, that the Lessor shall not be required to so discharge any such Lessor Lien while the same is being contested in good faith by appropriate proceedings diligently prosecuted so long as such proceedings shall not materially and adversely affect the rights of the Lessee under the Lease and the other Operative Agreements or involve any material danger of impairment of the Liens of the Security Documents or of the sale, forfeiture or loss of, and shall not interfere with the use or disposition of, the any Property or title thereto or any interest therein or the payment of Rent;
(b) The Lessor shall give the Lessee prompt written notice (a "Lessor Notice") following the Lessor's knowledge of an event that would cause the Fair Market Sales Value of the Property to exceed forty-five percent (45%) of the fair market value of all of the property owned by the Lessor, as determined in accordance with Lessor's financial reporting under GAAP (the "Forty-five Percent FMV Event"). In the event that a Lessor Notice is given, the Lessor, upon receipt of a written request from the Lessee, may, at Lessor's option, elect (but Lessor shall have no obligation) to either (i) obtain additional assets such that the gross asset value of the Property does not constitute more than forty-five percent (45%) of the total assets of the Lessor or (ii) transfer its interests in some or all of the Properties to another Affiliate of the Lessor such that the representations set forth in the Lessor Confirmation Letter remain correct. In the event that Lessor is unable or does elect to pursue either option (i) or (ii) above, Lessee may require, upon providing prompt and timely written notice to the Lessor, that the Lessor (i) obtain, at the Lessee's sole cost and expense, a SAS 97?type letter reasonably acceptable to the Lessee from the Lessor's auditor to certify that the Lessor is a voting interest entity as that term is contemplated by FASB Interpretation No. 46 (to be renewed as required), (ii) permit (and the Lessor shall so permit) Lessee to deliver a Termination Notice with respect to certain of the Properties identified by Lessee such that upon the purchase of such Properties by the Lessee under the Lease, the remaining Fair Market Value of the Properties then subject to the Lease is less than 45% of the fair market value of all property then owned by Lessor, or (iii) transfer its interest in all but not less than all the Property and its rights and obligations under the Operative Agreements (arising from and after the date of such transfer) to an Eligible Lessor selected by the Lessee upon payment to the Lessor of the outstanding Lessor Advance, all accrued and unpaid Lessor Yield and all other amounts then due and owing the Lessor under the Operative Agreements. Nothing relating to the circumstances surrounding or the physical delivery of the Lessor Notice will in any way inhibit or prohibit the Lessee's right to replace the Lessor pursuant to Section 10.1(d). Notwithstanding the foregoing but without limiting Lessor's obligation to provide the Lessor Notice, in no event will the Lessor be required to disclose or provide access to any information to the extent that such disclosure or access would violate any law applicable to the Lessor or its Affiliates, including without limitation banking regulations applicable to national banks, or result in a breach of the Lessor's or any Affiliate's confidentiality policies or agreements. The parties hereto agree that the Lessee and their auditors are the sole beneficiary of the matters addressed in this Section 8.2(b);
(c) Upon the Lessee's providing three Business Days prior written request during any calendar quarter, the Lessor shall provide to the Lessee at least fifteen (15) days prior to the end of each calendar quarter and at least forty- five (45) days prior to the end of each calendar year, a confirmed and updated copy of the Lessor Confirmation Letter. The parties hereto agree that the Lessee and their auditors are the sole beneficiary of the matters addressed in this Section 8.2(c);
(d) Lessor shall not finance any portion of the Lessor Advance with non- recourse debt to the extent that such financing of the Lessor Advance will cause more than 95% of the aggregate amount of the Financing to be funded with non-recourse debt;
(e) [Intentionally Reserved];
(f) The Lessor shall not (i) commence any case, proceeding or other action with respect to the Lessor under any existing or future law of any jurisdiction, domestic or foreign, relating to bankruptcy, insolvency, reorganization, arrangement, winding-up, liquidation, dissolution, composition or other relief with respect to it or its debts, or (ii) seek appointment of a receiver, trustee, custodian or other similar official with respect to the Lessor or for all or any substantial benefit of the creditors of the Lessor; and the Lessor shall not take any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the acts set forth in this paragraph;
(g) The Lessor shall give prompt notice to the Lessee and the Agent if the Lessor’s 's location for purposes of the UCC shall cease to be in the State of Delaware North Carolina, or if the Lessor’s 's principal place of business, business or chief executive office office, or the office where the records concerning the accounts or contract rights relating to the any Property are kept, shall cease to be located at ▇▇▇ ▇▇One Wachovia Center, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Charlotte▇▇▇▇▇▇▇▇▇, North Carolina 28202 ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or if it shall change its name; and
(ch) The Lessor shall take or refrain from taking such actions and grant or refrain from granting such approvals with respect to the Operative Agreements and/or relating to the any Property in each case as directed in writing by the Agent in accordance with the Operative Agreements (until such time as the Credit Notes and the Mortgage Notes Loans are paid in full, and then as determined by the Lessor, but in all cases subject to the provisions of any intercreditor agreements among the Credit Lenders, the Mortgage Lenders and/or the Lessor) or, in connection with Sections 8.5, 9.1 8.5 and 9.2 hereof, the Construction Agent or the Lessee; provided, however, that notwithstanding the foregoing provisions of this subparagraph (ch), (i) the Lessor shall retain its right to approve or disapprove of each Unanimous Vote Matter or matters for which its consent is required pursuant to Section 8.6 in its sole discretion and without regard to any direction from any other Financing PartyAgent, any Credit Party or any other Person the Lenders and the Lessor shall retain its rights in the Excepted Payments each acknowledge, covenant and any and all other rights expressly reserved by agree that neither the Lessor nor the Agent shall act or refrain from acting, in a manner inconsistent with the terms of the Intercreditor Agreement and (ii) Lessor shall, or Agent on behalf of Lessor, shall during the continuance of an Event of Default and immediately upon the request of Congress demand immediate payment in full of all of the Company Obligations under the Operative Agreements.
Lease (d) The Lessor shall provide to including the Lessee at least twenty (20) days following the end of each calendar quarter and at least forty‑five (45) days following the end of each calendar year, a letter payment in respect of the same tenor as the Lessor Confirmation Letter; provided, that if there have been any changes to the factual matters set forth in the Lessor Confirmation Letter or the financial accounting standards referenced therein that bear on the conclusions set forth therein, such letter shall set forth the analysis based on such changed factual matters or financial accounting standards. The parties hereto agree that the Credit Parties and their auditors are the sole beneficiaries of the matters addressed in this Section 8.2(dTermination Value).
Appears in 1 contract
Sources: Participation Agreement (Pep Boys Manny Moe & Jack)
Covenants of the Lessor. 10.1 The Lessor hereby agrees that so long as this Agreement is in effect:
(a) The Lessor will not create or permit to exist at any time, and the Lessor will, at its own cost and expense, promptly take such action as may be necessary duly to discharge, or to cause to be discharged, all Lessor Liens on the Property and the Collateral; provided, however, that the Lessor shall not be required to so discharge any such Lessor Lien while the same is being contested in good faith by appropriate proceedings diligently prosecuted so long as such proceedings shall not materially and adversely affect the rights Co-developer of the Lessee under the Lease and the other Operative Agreements or involve any material danger of impairment of the Liens of the Security Documents or of the sale, forfeiture or loss of, and shall not interfere with the use or disposition of, the Property or title thereto or any interest therein or the payment of Rent;
(b) The Lessor shall give prompt notice to the Lessee and the Agent if the Lessor’s location for purposes of the UCC shall cease to be in the State of Delaware or if the Lessor’s principal place of business, chief executive office or office where the records concerning the accounts or contract rights relating to the Property are kept, shall cease to be located at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ said P▇▇▇▇▇▇▇ and has good right, Charlottetitle and interest save and except the mortgage defined above and is competent and free to enter into this Lease Deed and there is no impediment or restraint or injunction against Lessor from being able to fulfil its rights and obligations under this Agreement and /or all the other incidental agreements / documents in respect of the said P▇▇▇▇▇▇▇.
10.2 The Lessor shall, North Carolina 28202 at its own cost, promptly to carry out all repairs as are necessary due to fundamental or if it shall change its name; andstructural defects in the said Premises provided they are not due to any act/s omission/s and/or commission/s of the Lessee. And the Lessee will render necessary co-operation to the Lessor while such repair work is being carried out without disturbing the business of the Lessee.
(c) 10.3 The Lessor shall take or refrain from taking such actions duly observe and grant or refrain from granting such approvals perform, abide by and otherwise comply with respect all laws, rules and SEZ Act, rules and regulations, amendment and notifications applicable to the Operative Agreements said Building from time to time and for the time being in force insofar as and to the extent they are required to be observed, performed or complied with by it.
10.4 The Lessor agrees that the Lessee and/or their employee/s its customers, servants, agents, visitors and invitees shall, for the purpose of ingress (going in) and egress (going out) from the said Premises and the said Building, have the right to use and enjoy the entrance, staircase, landing, corridors, passage lifts, escalators and such other facilities in and outside the said P▇▇▇▇▇▇▇ and the said Building so far as the same are necessary for the enjoyment of the said Premises.
10.5 No suit, proceedings or any litigation concerning or touching the said Premises or any part thereof is pending before any court or arbitrators or quasi-judicial or judicial or other authority. There is no notice received for any proposed / threatened litigation relating to the Property in each case as directed in writing by said Premises or any part thereof.
10.6 The Lessor shall obtain the Agent in accordance with necessary and requisite permissions/ approvals for the Operative Agreements (until such time as supply of water to the Credit Notes and the Mortgage Notes are paid in fullsaid Premises, and then as determined by the Lessor, but in all cases subject to the provisions availability of water supply by the concerned Authorities.
10.7 The Lessor has not entered into any agreement or arrangement for lease in relation to the Leased Property with any third party.
10.8 Lessor has no objection for Lessee to obtain necessary approvals and / or permissions from the government agencies / authorities / departments, to develop the Leased Property and operate its business during the term, and shall provide all reasonable assistance, in the capacity of owner / lessor of the leased premises and the Developer of the IT SEZ, if requested by Licensee. Lessor Sign: _________________ Page 7 Lessee Sign: _________________
10.9 On and from the date of execution of this Agreement, Lessor shall not create any further mortgage or security or encumbrance of any intercreditor agreements among nature whatsoever on or in respect of the Credit Lenders, the Mortgage Lenders and/or the Lessor) or, in connection with Sections 8.5, 9.1 and 9.2 hereof, the Construction Agent or the Lessee; provided, however, that notwithstanding the foregoing provisions of this subparagraph (c) the Lessor shall retain its right to approve or disapprove of each Unanimous Vote Matter or matters for which its consent is required pursuant to Section 8.6 in its sole discretion and without regard to any direction from any other Financing Party, any Credit Party Leased premises or any other Person and part thereof the Lessor shall retain its rights in the Excepted Payments and leased premises till such time this Agreement (including any and all other rights expressly reserved by the Lessor under the Operative Agreementsrenewals thereof) is terminated or expires, whichever is earlier.
(d) The Lessor shall provide to the Lessee at least twenty (20) days following the end of each calendar quarter and at least forty‑five (45) days following the end of each calendar year, a letter of the same tenor as the Lessor Confirmation Letter; provided, that if there have been any changes to the factual matters set forth in the Lessor Confirmation Letter or the financial accounting standards referenced therein that bear on the conclusions set forth therein, such letter shall set forth the analysis based on such changed factual matters or financial accounting standards. The parties hereto agree that the Credit Parties and their auditors are the sole beneficiaries of the matters addressed in this Section 8.2(d).
Appears in 1 contract
Covenants of the Lessor. The Lessor hereby agrees that so long as this Agreement is in effect:
(a) The Lessor will not create or permit to exist at any time, and the Lessor it will, at its own cost and expense, promptly take such action as may be necessary duly to discharge, or to cause to be discharged, all Lessor Liens on the Property Property;
(b) [Reserved];
(c) The Lessor shall not (i) commence any case, proceeding or other action under any existing or future law of any jurisdiction, domestic or foreign, relating to bankruptcy, insolvency, reorganization, arrangement, winding-up, liquidation, dissolution, composition or other relief with respect to it or its debts, or (ii) seek appointment of a receiver, trustee, custodian or other similar official for all or any substantial benefit of the creditors of the Lessor; and the Collateral; provided, however, that the Lessor shall not be required to so discharge take any such Lessor Lien while the same is being contested action in good faith by appropriate proceedings diligently prosecuted so long as such proceedings shall not materially and adversely affect the rights furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the Lessee under the Lease and the other Operative Agreements or involve any material danger of impairment of the Liens of the Security Documents or of the sale, forfeiture or loss of, and shall not interfere with the use or disposition of, the Property or title thereto or any interest therein or the payment of Rentacts set forth in this paragraph;
(bd) The Lessor shall give prompt written notice to the Lessee Lessee, the Primary Financing Parties and the Agent if the Lessor’s location for purposes of the UCC shall cease to be in the State of Delaware or if the Lessor’s 's principal place of business, business or chief executive office office, or the office where the records concerning the accounts or contract rights relating to the Property are kept, shall cease to be located at One First Union Center, 301 South College Street, Charlotte, Mecklenburg County, Nor▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇; ▇▇▇
(▇) ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇, Charlotte, North Carolina 28202 or if it shall change its name; and
(c) The Lessor shall take or refrain from ▇▇▇▇ ▇▇▇m taking such actions and grant or refrain from granting such approvals with respect to the Operative Agreements and/or relating to the Property in each case as directed in writing by the Agent in accordance with the Operative Agreements (until such time as the Credit Notes and the Mortgage Notes are paid in full, and then as determined by the Lessor, but in all cases subject to the provisions of any intercreditor agreements among the Credit Lenders, the Mortgage Lenders and/or the Lessor) or, in connection with Sections 8.5, 9.1 and 9.2 Section 8.5 hereof, the Construction Agent or the Lessee; provided, however, that notwithstanding the foregoing provisions of this subparagraph (ce) the Lessor shall retain its right to approve or disapprove of each Unanimous Vote Matter or matters for which its consent is required pursuant to Section 8.6 in its sole discretion and without regard to any direction from any other Financing PartyLessor, any Credit Party or any other Person the Agent and the Lessor shall retain its rights in the Excepted Payments Primary Financing Parties each acknowledge, covenant and any and all other rights expressly reserved by agree that neither the Lessor under nor the Operative Agreements.
(d) The Lessor Agent shall provide to act or refrain from acting except in accordance with the Lessee at least twenty (20) days following the end of each calendar quarter and at least forty‑five (45) days following the end of each calendar year, a letter provisions of the same tenor as the Lessor Confirmation LetterIntercreditor Agreement; provided, further, that if there have been any changes to each of the factual matters set forth in Agent, the Primary Financing Parties and the Lessee acknowledges, covenants and agrees that it will not instruct the Lessor Confirmation Letter or the financial accounting standards referenced therein that bear on the conclusions set forth therein, such letter shall set forth the analysis based on such changed factual matters or financial accounting standards. The parties hereto agree that the Credit Parties and their auditors are the sole beneficiaries to take any action in violation of the matters addressed in this Section 8.2(d)terms of any Operative Agreement.
Appears in 1 contract
Covenants of the Lessor. The Lessor hereby agrees that so long as this Agreement is in effect, unless the Agent, the Lessee and the other Financing Parties shall have otherwise consented in writing:
(a) The Lessor the proceeds of the Loans received from the Lenders (i) on the Restatement Effective Date will not create or permit to exist at any time, and be used by the Lessor willsolely to repay the Existing Loans of the Exiting Lenders, at its own cost to repay a portion of the Existing Loans to the extent contemplated by Section 1.2 and expenseto fund the Transaction Expenses and (ii) on the subsequent Funding Dates will be used by the Lessor solely to fund Construction Costs that have not previously been funded. No portion of the proceeds of the Loans will be used by the Lessor (i) in connection with, promptly take such action as may be necessary duly to dischargewhether directly or indirectly, any tender offer for, or to cause to be discharged, all Lessor Liens on the Property and the Collateral; provided, however, that the Lessor shall not be required to so discharge any such Lessor Lien while the same is being contested in good faith by appropriate proceedings diligently prosecuted so long as such proceedings shall not materially and adversely affect the rights of the Lessee under the Lease and the other Operative Agreements or involve any material danger of impairment of the Liens of the Security Documents or of the sale, forfeiture or loss acquisition of, and shall not interfere stock of any corporation with a view towards obtaining control of such other corporation, (ii) directly or indirectly, for the use purpose, whether immediate, incidental or disposition ofultimate, the Property of purchasing or title thereto carrying any Margin Stock, or (iii) for any interest therein or the payment purpose in violation of Rentany Applicable Law;
(b) The it shall not consent to or suffer or permit any Lien against the Property, other than as expressly contemplated pursuant to the Operative Documents;
(c) it shall not consent to or suffer or permit the creation of any easement or other restriction against the Property other than as permitted pursuant to Section 7.5;
(d) it shall promptly discharge each Lessor Lien and shall indemnify the Lenders and the Lessee for any diminution in value of any Property resulting from such Lessor Liens;
(e) it shall give prompt notice to the Lessee and the Agent if the Lessor’s location for purposes of the UCC shall cease to be in the State of Delaware or if the Lessor’s principal place of business, chief executive office or office where the records concerning the accounts or contract rights relating to the Property are kept, shall cease to be located at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, Charlotte, North Carolina 28202 or if it Lessor shall change its namejurisdiction of organization;
(f) provided that no Lease Event of Default has occurred and is continuing, it shall not, without the prior written consent of the Lessee, consent to or permit any amendment, supplement or other modification of the terms and provisions of the Credit Agreement or the Notes or (to the extent such amendment, supplement or modification would have an adverse effect on the rights or obligations of the Lessee under the Lease) any other Operative Agreement;
(g) it shall not consent to or permit any amendment, supplement or other modification of the terms and provisions of any Operative Agreement, in each case without the prior written consent of the Agent and in accordance with Section 11.5 of this Agreement, except as described in Section 7.5 of this Agreement; and
(ch) The Lessor it (i) shall take or such actions and shall refrain from taking such actions and grant or refrain from granting such approvals with respect to the Operative Agreements and/or relating or the Properties and shall grant such approvals and otherwise act or refrain from acting with respect to the Property Operative Agreements or the Properties, in each case as directed in writing by the Agent in accordance or, to the extent required by Section 7.5, the Lessee; and (ii) shall not take any action, grant any approvals or otherwise act under or with respect to the Operative Agreements (until such time as the Credit Notes and the Mortgage Notes are paid in full, and then as determined by the Lessor, but in all cases subject or any matters relating to the provisions Properties without first obtaining the prior written consent of any intercreditor agreements among the Credit Lenders, the Mortgage Lenders and/or the Lessor) or, in connection with Sections 8.5, 9.1 and 9.2 hereof, the Construction Agent or the LesseeAgent; provided, however, that notwithstanding the foregoing provisions of this subparagraph (ch) the Lessor and the Agent each acknowledge, covenant and agree that, with respect to all Unanimous Vote Matters, neither the Lessor nor the Agent shall retain its right act or refrain from acting with respect to approve or disapprove of each any Unanimous Vote Matter or matters for which its consent is required pursuant until such party has received the approval of each Financing Party with respect thereto and with respect to Section 8.6 in its sole discretion and without regard to any direction from any all other Financing Partymatters, any Credit Party or any other Person and neither the Lessor nor the Agent shall retain its rights in act or refrain from acting until the Excepted Payments and any and all other rights expressly reserved by Agent has received the Lessor under the Operative Agreements.
(d) The Lessor shall provide to the Lessee at least twenty (20) days following the end of each calendar quarter and at least forty‑five (45) days following the end of each calendar year, a letter approval of the same tenor as the Lessor Confirmation Letter; provided, that if there have been any changes to the factual matters set forth Majority Financing Parties in the Lessor Confirmation Letter or the financial accounting standards referenced therein that bear on the conclusions set forth therein, such letter shall set forth the analysis based on such changed factual matters or financial accounting standards. The parties hereto agree that the Credit Parties and their auditors are the sole beneficiaries of the matters addressed in this accordance with Section 8.2(d)11.5.
Appears in 1 contract
Covenants of the Lessor. The Lessor hereby agrees that so long as this Agreement is in effect:
(a) The Lessor will not create or permit to exist at any time, and the Lessor it will, at its own cost and expense, promptly take such action as may be necessary duly to discharge, or to cause to be discharged, all Lessor Liens on the Property Properties;
(b) [Reserved];
(c) The Lessor shall not (i) commence any case, proceeding or other action under any existing or future law of any jurisdiction, domestic or foreign, relating to bankruptcy, insolvency, reorganization, arrangement, winding-up, liquidation, dissolution, composition or other relief with respect to it or its debts, or (ii) seek appointment of a receiver, trustee, custodian or other similar official for all or any substantial benefit of the creditors of the Lessor; and the Collateral; provided, however, that the Lessor shall not be required to so discharge take any such Lessor Lien while the same is being contested action in good faith by appropriate proceedings diligently prosecuted so long as such proceedings shall not materially and adversely affect the rights furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the Lessee under the Lease and the other Operative Agreements or involve any material danger of impairment of the Liens of the Security Documents or of the sale, forfeiture or loss of, and shall not interfere with the use or disposition of, the Property or title thereto or any interest therein or the payment of Rentacts set forth in this paragraph;
(bd) The Lessor shall give prompt written notice to the Lessee Lessee, the Primary Financing Parties (other than the Lessor) and the Agent if the Lessor’s 's location for purposes of the UCC shall cease to be in the State of Delaware North Carolina, or if the Lessor’s 's principal place of business, business or chief executive office office, or the office where the records concerning the accounts or contract rights relating to the Property Properties are kept, shall cease to be located at One Wachovia Center, 301 South College Street, Charlott▇▇▇ ▇▇▇▇▇ , ▇▇▇▇▇ ▇▇▇▇▇▇, Charlotte, North Carolina 28202 or if it shall change its name▇▇ ▇▇▇▇▇; and▇▇▇
(c▇) The Lessor ▇▇▇ ▇▇▇▇▇▇ shall take or refrain from taking such actions and grant or refrain from granting such approvals with respect to the Operative Agreements and/or relating to the Property Properties in each case as directed in writing by the Agent in accordance with the Operative Agreements (until such time as the Credit Notes and the Mortgage Notes are paid in full, and then as determined by the Lessor, but in all cases subject to the provisions of any intercreditor agreements among the Credit Lenders, the Mortgage Lenders and/or the Lessor) or, in connection with Sections 8.5, 9.1 and 9.2 Section 8.5 hereof, the Construction Agent or the Lessee; provided, however, that notwithstanding the foregoing provisions of this subparagraph (ce) the Lessee, the Agent and the Primary Financing Parties each acknowledge, covenant and agree that neither the Lessor not the Agent shall act or refrain from acting except in accordance with the provisions of the Intercreditor Agreement; provided, further, that each of the Agent, the Primary Financing Parties (other than the Lessor) and the Lessee acknowledges, covenants and agrees that it will not instruct the Lessor to take any action in violation of the terms of any Operative Agreement.
(f) The Lessor shall retain its right to approve give the Lessee prompt written notice (a "Lessor Notice") following the Lessor's knowledge, but in any event promptly upon receipt by it of (x) notice from an acquiring Person as provided in the related underlying transaction documents that a disposition of property will occur or disapprove (y) an appraisal or other form of each Unanimous Vote Matter or matters for which its consent is required written valuation study, in either case that, in the exercise of the Lessor's reasonable judgment, would (regarding the Fair Market Sales Value of the Property as set forth in the Appraisal delivered pursuant to Section 8.6 5.3(s)), in its sole discretion and without regard the case of clause (x) above, cause such Fair Market Sales Value of the Property to any direction from any other Financing Partyexceed fifty percent (50%) of (or, any Credit Party or any other Person and in the case of clause (y) above, provide the Lessor shall retain its rights with adequate information to determine that, such Fair Market Sales Value of the Property exceeds fifty percent (50%) of) the fair market value (based on appraisals or other information in the Excepted Payments Lessor's possession and any and all other rights expressly reserved delivered in connection with the consummation of such underlying transactions relating to various properties of the Lessor or received by the Lessor as described in clause (y) above) of all of the property owned (as determined in accordance with Lessor's financial reporting under GAAP) by the Operative AgreementsLessor (the "Fifty Percent FMV Event"). In the event that a Lessor Notice is given, the Lessor, upon receipt of a written request from the Lessee, may, at its option, elect to either (i) obtain additional assets such that the gross asset value of the Property does not ever constitute more than fifty percent (50%) of the total assets of the Lessor, (ii) transfer its interests in all of the Property to another Affiliate of the Lessor such that the representations set forth in the Lessor Confirmation Letter remain correct, (iii) obtain, at the Lessee's sole cost and expense, additional appraisals on assets owned by the Lessor, or (iv) obtain, at the Lessee's sole cost and expense, a SAS 97-type letter reasonably acceptable to the Lessee from the Lessor's auditor to certify that the Lessor is a voting interest entity as defined by FASB Interpretation No. 46 (to be renewed as required). Nothing relating to the circumstances surrounding or the physical delivery of the Lessor Notice will in any way inhibit or prohibit the Lessee's right to replace the Lessor pursuant to Section 10.1(d). Notwithstanding the foregoing, in no event will the Lessor be required to disclose or provide access to any information to the extent that such disclosure or access would violate any law applicable to the Lessor or its Affiliates, including without limitation banking regulations applicable to national banks, or result in a breach of the Lessor's or any Affiliate's confidentiality policies or agreements. The parties hereto agree that the Lessee is the sole beneficiary of the matters addressed in this Section 8.2(f).
(dg) The Upon the Lessee's prior written request, the Lessor shall provide to the Lessee at least twenty fifteen (2015) days following prior to the end of each calendar quarter and at least forty‑five forty-five (45) days following prior to the end of each calendar year, a letter confirmed copy of the same tenor as the Lessor Confirmation Letter; provided, that if there have been any changes to the factual matters set forth in the Lessor Confirmation Letter or the financial accounting standards referenced therein that bear on the conclusions set forth therein, such letter shall set forth the analysis based on such changed factual matters or financial accounting standards. The parties hereto agree that the Credit Parties and their auditors are Lessee is the sole beneficiaries beneficiary of the matters addressed in this Section 8.2(d8.2(g).
(h) Lessor shall not obtain nonrecourse financing with respect to the Properties in excess of ninety-four percent (94%) of the aggregate Termination Value for all Properties.
Appears in 1 contract
Sources: Participation Agreement (Cypress Semiconductor Corp /De/)
Covenants of the Lessor. The Lessor hereby agrees that so long as this Agreement is in effect:
(a) The Lessor will not create or permit to exist at any time, and the Lessor will, at its own cost and expense, promptly take such action as may be necessary duly to discharge, or to cause to be discharged, all Lessor Liens on the Property and the Collateralattributable to it; provided, however, that the Lessor shall not be required to so discharge any such Lessor Lien while the same is being contested in good faith by appropriate proceedings diligently prosecuted so long as such proceedings shall not materially and adversely affect the rights of the Lessee under the Lease and the other Operative Agreements or involve any material danger of impairment of the Liens of the Security Documents or of the sale, forfeiture or loss of, and shall not interfere with the use or disposition of, the Property or title thereto or any interest therein or the payment of Rent;
(b) The Lessor shall not (i) commence any case, proceeding or other action under any existing or future law of any jurisdiction, domestic or foreign, relating to bankruptcy, insolvency, reorganization, arrangement, winding-up, liquidation, dissolution, composition or other relief with respect to it or its debts, or (ii) seek appointment of a receiver, trustee, custodian or other similar official for all or any substantial benefit of the creditors of the Lessor; and the Lessor shall not take any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the acts set forth in this paragraph;
(c) The Lessor shall give prompt written notice to the Lessee Lessee, the Primary Financing Parties (other than the Lessor) and the Agent if the Lessor’s location for purposes of the UCC shall cease to be in the State of Delaware North Carolina, or if the Lessor’s principal place of business, business or chief executive office office, or the office where the records concerning the accounts or contract rights relating to the Property are kept, shall cease to be located at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Charlotte▇▇▇▇▇▇▇▇▇, North Carolina 28202 or if it shall change its name; and▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇;
(cd) The Lessor shall take or refrain from taking such actions and grant or refrain from granting such approvals with respect to the Operative Agreements and/or relating to the Property in each case as directed in writing by the Agent in accordance with the Operative Agreements (until such time as the Credit Notes and the Mortgage Notes are Financing is paid in full, and then as determined by the Lessor, but in all cases subject to the provisions of any intercreditor agreements among the Credit Lenders, the Mortgage Lenders and/or the Lessor) or, in connection with Sections 8.5, 9.1 and 9.2 Section 8.5 hereof, the Construction Agent or the Lessee; provided, however, that notwithstanding the foregoing provisions of this subparagraph (cd) the Lessor, the Agent and each of the other Primary Financing Parties each acknowledge, covenant and agree that neither the Lessor nor the Agent shall act or refrain from acting except in accordance with the provisions of any intercreditor agreement among such Persons; provided, further, that each of the Agent, the Primary Financing Parties (other than the Lessor) and the Lessee acknowledges, covenants and agrees that the Lessor will not be obligated to comply with any instruction to take any action in violation of the terms of any Operative Agreement; and
(e) The Lessor shall retain its right to approve give the Lessee prompt written notice (a “Lessor Notice”) following the Lessor’s knowledge, but in any event promptly upon receipt by it of (x) notice from an acquiring Person as provided in the related underlying transaction documents that a disposition of property will occur or disapprove (y) an appraisal or other form of each Unanimous Vote Matter or matters for which its consent is required written valuation study, in either case that, in the exercise of the Lessor’s reasonable judgment, would (regarding the Fair Market Sales Value of the Property as set forth in the Appraisal delivered pursuant to Section 8.6 5.3(s)), in its sole discretion and without regard the case of clause (x) above, cause such Fair Market Sales Value of the Property to any direction from any other Financing Partyexceed fifty percent (50%) of (or, any Credit Party or any other Person and in the case of clause (y) above, provide the Lessor shall retain its rights with adequate information to determine that, such Fair Market Sales Value of the Property exceeds fifty percent (50%) of) the fair market value (based on appraisals or other information in the Excepted Payments Lessor’s possession and any and all other rights expressly reserved delivered in connection with the consummation of such underlying transactions relating to various properties of the Lessor or received by the Lessor as described in clause (y) above) of all of the property owned (as determined in accordance with Lessor’s financial reporting under GAAP and excluding those assets that are subject to leases that contain fixed price purchase options and residual value guarantees (a) where the Operative Agreementstitle to such assets does not reside directly with the Lessor or (b) such assets were financed with either (i) non-recourse debt exceeding 95% of the cost of the such assets, or (ii) equity or other non-controlling interests that do not participate in all of the profits and losses of the Lessor) by the Lessor (the “Fifty Percent FMV Event”). In the event that a Lessor Notice is given, the Lessor, upon receipt of a written request from the Lessee, may, at its option, elect to either (i) obtain additional assets such that the gross asset value of the Property does not ever constitute more than fifty percent (50%) of the total assets of the Lessor (excluding those assets that are subject to leases that contain fixed price purchase options and residual value guarantees (a) where the title to such assets does not reside directly with the Lessor or (b) such assets were financed with either (i) non-recourse debt exceeding 95% of the cost of the such assets, or (ii) equity or other non-controlling interests that do not participate in all of the profits and losses of the Lessor), (ii) transfer its interests in all of the Property to another Affiliate of the Lessor such that the representations set forth in the Lessor Confirmation Letter remain correct, or (iii) obtain, at the Lessee’s sole cost and expense, a SAS 97-type letter reasonably acceptable to the Lessee from the Lessor’s auditor to certify that the Lessor is a voting interest entity as defined by FASB Interpretation No. 46 (to be renewed as required). Nothing relating to the circumstances surrounding or the physical delivery of the Lessor Notice will in any way inhibit or prohibit the Lessee’s right to replace the Lessor pursuant to Section 10.1(d). Notwithstanding the foregoing, in no event will the Lessor be required to disclose or provide access to any information to the extent that such disclosure or access would violate any law applicable to the Lessor or its Affiliates, including without limitation banking regulations applicable to national banks, or result in a breach of the Lessor’s or any Affiliate’s confidentiality policies or agreements. The parties hereto agree that the Lessee is the sole beneficiary of the matters addressed in this Section 8.2(e).
(df) The Upon the Lessee’s prior written request, the Lessor shall provide to the Lessee at least twenty fifteen (2015) days following prior to the end of each calendar quarter and at least forty‑five forty-five (45) days following prior to the end of each calendar year, a letter confirmed copy of the same tenor as the Lessor Confirmation Letter; provided, that if there have been any changes to the factual matters set forth in the Lessor Confirmation Letter or the financial accounting standards referenced therein that bear on the conclusions set forth therein, such letter shall set forth the analysis based on such changed factual matters or financial accounting standards. The parties hereto agree that the Credit Parties and their auditors are Lessee is the sole beneficiaries beneficiary of the matters addressed in this Section 8.2(d8.2(f).
(g) Lessor shall not finance any portion of the Lessor Advance with non-recourse debt to the extent that such financing of the Lessor Advance will cause more than ninety-five percent (95%) of the aggregate amount of the Financing to be funded with non-recourse debt.
Appears in 1 contract
Covenants of the Lessor. The Lessor hereby agrees that so long as this Agreement is in effect:
(a) The Lessor will not create or permit to exist at any time, and the Lessor it will, at its own cost and expense, promptly take such action as may be necessary duly to discharge, or to cause to be discharged, all Lessor Liens on the Property Property;
(b) [Reserved];
(c) The Lessor shall not (i) commence any case, proceeding or other action under any existing or future law of any jurisdiction, domestic or foreign, relating to bankruptcy, insolvency, reorganization, arrangement, winding-up, liquidation, dissolution, composition or other relief with respect to it or its debts, or (ii) seek appointment of a receiver, trustee, custodian or other similar official for all or any substantial benefit of the creditors of the Lessor; and the Collateral; provided, however, that the Lessor shall not be required to so discharge take any such Lessor Lien while the same is being contested action in good faith by appropriate proceedings diligently prosecuted so long as such proceedings shall not materially and adversely affect the rights furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the Lessee under the Lease and the other Operative Agreements or involve any material danger of impairment of the Liens of the Security Documents or of the sale, forfeiture or loss of, and shall not interfere with the use or disposition of, the Property or title thereto or any interest therein or the payment of Rentacts set forth in this paragraph;
(bd) The Lessor shall give prompt written notice to the Lessee Lessee, the Primary Financing Parties and the Agent if the Lessor’s location for purposes of the UCC shall cease to be in the State of Delaware or if the Lessor’s 's principal place of business, business or chief executive office office, or the office where the records concerning the accounts or contract rights relating to the Property are kept, shall cease to be located at ▇▇▇ ▇▇One First Union Center, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Charlotte▇▇▇▇▇▇▇▇▇, North Carolina 28202 or if it shall change its name▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇; and
(ce) The Lessor shall take or refrain from taking such actions and grant or refrain from granting such approvals with respect to the Operative Agreements and/or relating to the Property in each case as directed in writing by the Agent in accordance with the Operative Agreements (until such time as the Credit Notes and the Mortgage Notes are paid in full, and then as determined by the Lessor, but in all cases subject to the provisions of any intercreditor agreements among the Credit Lenders, the Mortgage Lenders and/or the Lessor) or, in connection with Sections 8.5, 9.1 and 9.2 Section 8.5 hereof, the Construction Agent or the Lessee; provided, however, that notwithstanding the -------- ------- foregoing provisions of this subparagraph (ce) the Lessor shall retain its right to approve or disapprove of each Unanimous Vote Matter or matters for which its consent is required pursuant to Section 8.6 in its sole discretion and without regard to any direction from any other Financing PartyLessor, any Credit Party or any other Person the Agent and the Lessor shall retain its rights in the Excepted Payments Primary Financing Parties each acknowledge, covenant and any and all other rights expressly reserved by agree that neither the Lessor under nor the Operative Agreements.
(d) The Lessor Agent shall provide to act or refrain from acting except in accordance with the Lessee at least twenty (20) days following the end of each calendar quarter and at least forty‑five (45) days following the end of each calendar year, a letter provisions of the same tenor as the Lessor Confirmation LetterIntercreditor Agreement; provided, further, that if there have been any changes to each -------- ------- of the factual matters set forth in Agent, the Primary Financing Parties and the Lessee acknowledges, covenants and agrees that it will not instruct the Lessor Confirmation Letter or the financial accounting standards referenced therein that bear on the conclusions set forth therein, such letter shall set forth the analysis based on such changed factual matters or financial accounting standards. The parties hereto agree that the Credit Parties and their auditors are the sole beneficiaries to take any action in violation of the matters addressed in this Section 8.2(d)terms of any Operative Agreement.
Appears in 1 contract
Sources: Participation Agreement (Capital One Financial Corp)
Covenants of the Lessor. (i) The Lessor hereby agrees covenants that so long as it shall not lease out any portion of the Premises of which the Demised Premises forms a part to any other individual or organization whether a firm or a company engaged in the business of medical transcription, medical billing and coding during the subsistence of this Agreement is in effect:Lease.
(aii) The Lessor will not create or permit further covenants that the Food Court forming part of the premises of which the Demised Premises forms a part shall be ready for use by the Lessee by 30th July 2005.
(iii) The Lessee to exist at any time, and the Lessor will, at its own cost and expense, promptly take such action as may be necessary duly to discharge, or to cause to be discharged, all Lessor Liens have a first right of refusal on the Property and the Collateral; provided, however, that the Lessor shall not be required to so discharge any such Lessor Lien while the same is being contested in good faith by appropriate proceedings diligently prosecuted so long as such proceedings shall not materially and adversely affect the rights first floor of the Lessee under the Lease and the other Operative Agreements or involve any material danger of impairment IT Park measuring approx.19,676 sq.ft. space forming part of the Liens premises of which the Security Documents or of the sale, forfeiture or loss of, and shall not interfere with the use or disposition of, the Property or title thereto or any interest therein or the payment of Rent;Demised Premises forms a part.
(biv) The Lessor shall give prompt notice to the Lessee allow use of facilities such as conference hail, meeting rooms, library, indoor and the Agent if the Lessor’s location for purposes of the UCC shall cease to be in the State of Delaware or if the Lessor’s principal place of businessoutdoor playing courts, chief executive office or office where the records concerning the accounts or contract rights relating to the Property are keptdormitory suites, shall cease to be located etc. at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, Charlotte, North Carolina 28202 or if it shall change its name; and
(c) The Lessor shall take or refrain from taking such actions and grant or refrain from granting such approvals with respect to the Operative Agreements and/or relating to the Property in each case as directed in writing by the Agent in accordance with the Operative Agreements (until such time as the Credit Notes and the Mortgage Notes are paid in full, and then as determined by the Lessor, but in all cases subject to the provisions of any intercreditor agreements among the Credit Lenders, the Mortgage Lenders and/or the Lessor) or, in connection with Sections 8.5, 9.1 and 9.2 hereof, the Construction Agent or the Lessee; provided, however, that notwithstanding the foregoing provisions of this subparagraph (c) the Lessor shall retain its right to approve or disapprove of each Unanimous Vote Matter or matters for which its consent is required pursuant to Section 8.6 in its sole discretion and without regard to any direction from any other Financing Party, any Credit Party or any other Person and the Lessor shall retain its rights in the Excepted Payments and any and all other rights expressly reserved by the Lessor under the Operative Agreementsmutually agreed terms.
(dv) The Lessor shall provide and maintain an elevator of 20 people capacity for the exclusive use of the Lessee.
(vi) The Lessor shall allow installation of radio tower/boosters/dish and equipment on the terrace of the Demised Premises/Premises with the restriction that the same will not obstruct and disturb the general appearance of the building housing the Demised Premises.
(vii) The Lessor shall do the interiors/fit-out as per the specification of the Lessee on mutually agreed terms under a separate agreement entered for this purpose.
(viii) The Lessor shall allow installation of the Lessee's A/C Chiller plant on the terrace of the Demised Premises and the space thus utilized will be part of the leasehold premises allotted to the Lessee at least twenty (20) days following the end of each calendar quarter and at least forty‑five (45) days following the end of each calendar year, a letter of the same tenor as the Lessor Confirmation Letter; provided, that if there have been any changes to the factual matters set forth in the Lessor Confirmation Letter or the financial accounting standards referenced therein that bear on the conclusions set forth therein, such letter shall set forth the analysis based on such changed factual matters or financial accounting standards. The parties hereto agree that the Credit Parties and their auditors are the sole beneficiaries of the matters addressed in this Section 8.2(d)Lessee.
Appears in 1 contract
Sources: Lease Deed (Spheris Leasing LLC)
Covenants of the Lessor. The Lessor hereby covenants and agrees with the Lessee as follows:
A. That upon the breach of any of the covenants, conditions and stipulations herein contained to be kept and performed by the Lessee, the Lessor may immediately without notice and without the necessity of legal process re-enter said premises, and thereupon, at the Lessor's option, said lease shall forthwith be terminated and/or the Lessor may exercise any of the options hereinbefore provided for the Lessor's benefit in case of default on the part of the Lessee.
B. That in the event improvements on the demised premises shall be partially damaged by fire or other casualty but not rendered untenantable, the same shall be repaired with due diligence by the Lessor and at its expense, to the extent insurance proceeds are available therefor, and subject to delay for causes beyond Lessor's control, e.g., act of God, strikes, shortages, or unavailability of equipment/material. If the demised premises shall be damaged by fire, the elements or unavoidable casualty, leaving not less than 60% of the lease floor space usable for Lessee's purposes and rendering the premises unfit for occupancy the lessor shall, within sixty (60) days after said damage advise the Lessee of its intention to rebuild the premises. Provided that so long the Lessor elects to rebuild the premises, the Lessor shall proceed with such construction and complete same with all reasonable diligence. In the event the Lessor elects not to reconstruct, then and in that event, the Lease shall be deemed terminated as this Agreement of the date of Lessee's removal provided that the Lessee removes itself from the premises within thirty (30) days of the date of said election. In the event of said damage, but rendering the premises not more than 25% untenantable the Lessee, the rent provided for herein shall not be abated. If said premises are rendered more than 25% untenantable, then and in that event, the rent during the period that the premises are in said condition, shall be reduced in direct proportion to that portion of the premises which is in effect:fact untenantable.
(a) The Lessor will not create or permit to exist at any timeC. That simultaneously with the execution of this Lease, and the Lessee has deposited with the Lessor willthe sum of $10,558.33 Dollars, at its own cost receipt of which said sum is hereby acknowledged by the Lessor, as a security deposit to guarantee the full and expensefaithful performance of all of the terms, promptly take such action as may be necessary duly to discharge, or to cause conditions and obligations to be discharged, all Lessor Liens performed by the Lessee under the terms hereof; same to be returned upon the expiration of this Lease.
D. That the covenants and agreements contained in this Lease are interdependent and are binding on the Property parties hereto, their successors and assigns. This Lease has been prepared in several counterparts, each of which said counterpart, when executed, shall be deemed to be an original hereof. There shall be no construction or interpretation of this Lease favorable or unfavorable to either party by virtue of its' preparation by Lessor. The parties hereby waive any right to trial by jury. In the Collateral; providedevent of any litigation, however, the prevailing party shall recover reasonable attorney fees and costs incurred. Any claim whatsoever that the Lessee may have against Lessor shall not be required to so discharge any such Lessor Lien while asserted as a counterclaim by Lessee in an eviction action commenced by Lessor, but rather shall be brought by Lessee as a separate action.
E. That if the same is being contested in good faith by appropriate proceedings diligently prosecuted so long as such proceedings Lessee shall not materially pay the rents herein reserved at the time and adversely affect in the rights manner stated, or shall fail to keep and perform any other condition, stipulation or agreement herein contained on the part of the Lessee to be kept and performed, or in the event that any petition or suit shall be filed by or against the Lessee under the bankruptcy laws (state or federal) more make any assignment for the benefit of creditors, or should there be appointed a receiver to take charge of the premises either in the state courts, or in the federal courts, then in any of such events, the Lessor may, at Lessor's option, terminate and end this Lease and re-enter upon the other Operative Agreements or involve any material danger of impairment property, whereupon the term hereby granted and at the Lessor's option, terminate and end this Lease and re-enter upon the property, whereupon the term hereby granted and at the Lessor's option, elect to declare the entire rent for the balance of the Liens term due and payable forthwith, and may proceed to collect the same by distress or otherwise, and thereupon said term shall terminate, at the option of the Security Documents Lessor or else and said Lessor may take possession of the salepremises and rent the same for the account of the Lessee, forfeiture or loss ofthe exercise of any of which option herein contained shall not be deemed the exclusive Lessor's remedy, the expression "entire rent for the balance of the term" as used herein, shall mean all of the rent prescribed to be paid by the Lessee unto the Lessor for the full term of the Lease; less, however, any payments that shall have been made on account of and pursuant to the terms of said Lease. Lessor shall immediately be entitled to relief from the automatic stay provided by Section 362 of the bankruptcy code; irrespective of the requirements of Section 362, and Lessor shall not interfere with be obligated to satisfy those requirements in order to obtain relief. This provision is a material inducement to Lessor entering into this Lease.
F. That at Lessor's option if the use Lessee shall abandon, vacate or disposition ofremove the major portion of the goods, wares, merchandise, machinery, equipment and any other material held on these premises in the Property or title thereto or any interest therein or course of business, usually kept on said premises when the same is open for business and shall cease doing business in said premises, then and in such event, this Lease shall immediately become canceled and null and void and all payments made by said Lessee shall be retained by the Lessor as payment in full for the period of Rent;
(b) The Lessor shall give prompt notice to time the premises are occupied by the Lessee and the Agent if the Lessor’s location Lessee shall not be entitled to any monies to paid by it, even though such payment is for purposes time subsequent to such closing of the UCC premises and removal of the goods, wares, merchandise, machinery, equipment, etc
G. If, as a result of Lessee's failure to timely pay rent, Lessor, by and through its Property Manager, provides Lessee with a three day notice to pay or vacate, Lessee agrees to pay to Lessor a fee of $75.000 for the Property Manager's time and effort in providing the three day notice. This $75.00 is hereby defined and deemed as "rent" hereunder. Lessee agrees that in case of the failure of the said Lessee to pay the rent herein reserved whom the same shall cease become due and it becomes necessary for the Lessor to be in collect said rent through an attorney, the State of Delaware Lessee will further pay a reasonable attorney's fee together with all costs and charges thereof.
H. That if Lessee shall hereafter install, at its expense, any shelving, lighting and other fixtures, until heaters, portable air conditioning units, portable partitions or any trade fixtures, or if Lessee shall hereafter install or apply any advertising signs or other standard identifications of Lessee, any article so installed or any identification so applied shall be the Lessor’s principal place property of businessLessee, chief executive office or office where which Lessee may remove at the records concerning the accounts or contract rights relating termination of this Lease, provided that in such removal Lessee shall repair any damage occasioned to the Property are keptdemised premises, shall cease to be located at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ in good ▇▇▇▇▇▇▇-like manner. The Lessee shall not remove any fixtures, Charlotteequipment, North Carolina 28202 or if it shall change its name; and
(c) The Lessor shall take or refrain from taking such actions and grant or refrain from granting such approvals with respect additions which are normally considered to be affixed to the Operative Agreements and/or relating to the Property in each case as directed in writing by the Agent in accordance with the Operative Agreements (until realty, such time as the Credit Notes and the Mortgage Notes are paid in full, and then as determined by the Lessoras, but in all cases subject to the provisions of any intercreditor agreements among the Credit Lendersnot limited to, the Mortgage Lenders and/or the Lessor) orelectrical conduit and wiring, in connection with Sections 8.5panel or circuit boxes, 9.1 terminal boxes, partition walls, paneling, central air conditioning and 9.2 hereofducts, the Construction Agent or the Lessee; providedplumbing fixtures, however, that notwithstanding the foregoing provisions of this subparagraph (c) the Lessor shall retain its right to approve or disapprove of each Unanimous Vote Matter or matters for which its consent is required pursuant to Section 8.6 in its sole discretion and without regard to any direction from any other Financing Party, any Credit Party or any other Person equipment or material affixed to the structure.
I. That Lessor shall have the right to affix a reasonable sign to the premises six months prior to the termination of the Lease advertising same for rent and the Lessor shall retain its rights in have the Excepted Payments right to exhibit the premises during said six months, provided that same is during business hours and any and all other rights expressly reserved not more frequently than once every day.
J. That notices as herein provided shall be given by registered or certified mail, return receipt requested, to the Lessor under the Operative Agreements.
(d) The Lessor shall provide to the Lessee at least twenty (20) days following the end of each calendar quarter and at least forty‑five (45) days following the end of each calendar year, a letter of the same tenor as the Lessor Confirmation Letter; provided, that if there have been any changes to the factual matters set forth in the Lessor Confirmation Letter or the financial accounting standards referenced therein that bear on the conclusions set forth therein, such letter shall set forth the analysis based on such changed factual matters or financial accounting standards. The parties hereto agree that the Credit Parties and their auditors are the sole beneficiaries of the matters addressed in this Section 8.2(d).at:
Appears in 1 contract
Sources: Office/Warehouse Lease Agreement (Ginsite Materials Inc)
Covenants of the Lessor. The Lessor hereby agrees that so long as this Agreement is in effect, unless the Agent, the Lessee and the other Financing Parties shall have otherwise consented in writing:
(a) The Lessor the proceeds of the Loans received from the Lenders will not create or permit to exist at any time, and be used by the Lessor willsolely to fund the Property Additional Amounts, at its own cost to repay the Existing Loans of the Exiting Lenders, to repay a portion of the Existing Loans to the extent contemplated by Section 1.2 and expenseto fund the Transaction Expenses. No portion of the proceeds of the Loans will be used by the Lessor (i) in connection with, promptly take such action as may be necessary duly to dischargewhether directly or indirectly, any tender offer for, or to cause to be discharged, all Lessor Liens on the Property and the Collateral; provided, however, that the Lessor shall not be required to so discharge any such Lessor Lien while the same is being contested in good faith by appropriate proceedings diligently prosecuted so long as such proceedings shall not materially and adversely affect the rights of the Lessee under the Lease and the other Operative Agreements or involve any material danger of impairment of the Liens of the Security Documents or of the sale, forfeiture or loss acquisition of, and shall not interfere stock of any corporation with a view towards obtaining control of such other corporation, (ii) directly or indirectly, for the use purpose, whether immediate, incidental or disposition ofultimate, the Property of purchasing or title thereto carrying any Margin Stock, or (iii) for any interest therein or the payment purpose in violation of Rentany Applicable Law;
(b) The it shall not consent to or suffer or permit any Lien against the Property, other than as expressly contemplated pursuant to the Operative Documents;
(c) it shall not consent to or suffer or permit the creation of any easement or other restriction against the Property other than as permitted pursuant to Section 7.5;
(d) it shall promptly discharge each Lessor Lien and shall indemnify the Lenders and the Lessee for any diminution in value of any Property resulting from such Lessor Liens;
(e) it shall give prompt notice to the Lessee and the Agent if the Lessor’s location for purposes of the UCC shall cease to be in the State of Delaware or if the Lessor’s principal place of business, chief executive office or office where the records concerning the accounts or contract rights relating to the Property are kept, shall cease to be located at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, Charlotte, North Carolina 28202 or if it Lessor shall change its namejurisdiction of organization;
(f) provided that no Lease Event of Default has occurred and is continuing, it shall not, without the prior written consent of the Lessee, consent to or permit any amendment, supplement or other modification of the terms and provisions of the Credit Agreement or the Notes or (to the extent such amendment, supplement or modification would have an adverse effect on the rights or obligations of the Lessee under the Lease) any other Operative Agreement;
(g) it shall not consent to or permit any amendment, supplement or other modification of the terms and provisions of any Operative Agreement, in each case without the prior written consent of the Agent and in accordance with Section 11.5 of this Agreement, except as described in Section 7.5 of this Agreement; and
(ch) The Lessor it (i) shall take or such actions and shall refrain from taking such actions and grant or refrain from granting such approvals with respect to the Operative Agreements and/or relating or the Properties and shall grant such approvals and otherwise act or refrain from acting with respect to the Property Operative Agreements or the Properties in each case as directed in writing by the Agent in accordance or, to the extent required by Section 7.5, the Lessee; and (ii) shall not take any action, grant any approvals or otherwise act under or with respect to the Operative Agreements (until such time as the Credit Notes and the Mortgage Notes are paid in full, and then as determined by the Lessor, but in all cases subject or any matters relating to the provisions Properties without first obtaining the prior written consent of any intercreditor agreements among the Credit Lenders, the Mortgage Lenders and/or the Lessor) or, in connection with Sections 8.5, 9.1 and 9.2 hereof, the Construction Agent or the LesseeAgent; provided, however, that notwithstanding the foregoing provisions of this subparagraph (ch) the Lessor and the Agent each acknowledge, covenant and agree that, with respect to all matters under the Operative Agreements that require the consent or concurrence of all of the Financing Parties pursuant to the terms of Section 11.5 (the “Unanimous Vote Matters”), neither the Lessor nor the Agent shall retain its right act or refrain from acting with respect to approve or disapprove of each any Unanimous Vote Matter or matters for which its consent is required pursuant to Section 8.6 in its sole discretion and without regard to any direction from any other Financing Party, any Credit Party or any other Person and until such party has received the Lessor shall retain its rights in the Excepted Payments and any and all other rights expressly reserved by the Lessor under the Operative Agreements.
(d) The Lessor shall provide to the Lessee at least twenty (20) days following the end approval of each calendar quarter and at least forty‑five (45) days following the end of each calendar year, a letter of the same tenor as the Lessor Confirmation Letter; provided, that if there have been any changes to the factual matters set forth in the Lessor Confirmation Letter or the financial accounting standards referenced therein that bear on the conclusions set forth therein, such letter shall set forth the analysis based on such changed factual matters or financial accounting standards. The parties hereto agree that the Credit Parties and their auditors are the sole beneficiaries of the matters addressed in this Section 8.2(d).Financing Party with respect thereto;
Appears in 1 contract
Covenants of the Lessor. The Lessor hereby agrees that so long as this Agreement is in effect:
(a) The Lessor will not create or permit to exist at any time, and the Lessor will, at its own cost and expense, promptly take such action as may be necessary duly to discharge, or to cause to be discharged, all Lessor Liens on the Property and the CollateralProperties attributable to it; provided, however, that the Lessor shall not be required to so discharge any such Lessor Lien while the same is being contested in good faith by appropriate proceedings diligently prosecuted so long as such proceedings shall not materially and adversely affect the rights of the Lessee under the Lease and the other Operative Agreements or involve any material danger of impairment of the Liens of the Security Documents or of the sale, forfeiture or loss of, and shall not interfere with the use or disposition of, the any Property or title thereto or any interest therein or the payment of Rent;
(b) The Lessor shall not (i) commence any case, proceeding or other action under any existing or future law of any jurisdiction, domestic or foreign, relating to bankruptcy, insolvency, reorganization, arrangement, winding-up, liquidation, dissolution, composition or other relief with respect to it or its debts, or (ii) seek appointment of a receiver, trustee, custodian or other similar official for all or any substantial benefit of the creditors of the Lessor; and the Lessor shall not take any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the acts set forth in this paragraph;
(c) The Lessor shall give prompt written notice to the Lessee Lessee, the Primary Financing Parties (other than the Lessor) and the Agent if the Lessor’s 's location for purposes of the UCC shall cease to be in the State of Delaware North Carolina, or if the Lessor’s 's principal place of business, business or chief executive office office, or the office where the records concerning the accounts or contract rights relating to the any Property are kept, shall cease to be located at One Wachovia Center, 301 South College Street, Charlotte, North Carolina 28288; ▇▇▇
(▇) ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇, Charlotte, North Carolina 28202 or if it shall change its name; and
(c) The Lessor shall take or refrain from ▇▇▇▇ ▇rom taking such actions and grant or refrain from granting such approvals with respect to the Operative Agreements and/or relating to the any Property in each case as directed in writing by the Agent in accordance with the Operative Agreements (until such time as the Credit Notes and the Mortgage Notes Loans are paid in full, and then as determined by the Lessor, but in all cases subject to the provisions of any intercreditor agreements among the Credit Lenders, the Mortgage Lenders and/or the Lessor) or, in connection with Sections 8.5, 9.1 and 9.2 Section 8.5 hereof, the Construction Agent or the Lessee; provided, however, that notwithstanding each of the foregoing provisions Agent, the Primary Financing Parties (other than the Lessor) and the Lessee acknowledges, covenants and agrees that it will not instruct the Lessor to take any action in violation of this subparagraph the terms of any Operative Agreement.
(ce) Upon receipt by the Lessor from the Lessee, but in no event more often than once per fiscal quarter of the Lessor, of (i) a request to update the letter previously delivered by the Lessor regarding certain statements by the Lessor, regarding the Lessor's business and (ii) updated attachments A and B to such letter or such other information to be provided by any Credit Party, the Lessor shall retain its right to approve or disapprove deliver within a reasonable amount of each Unanimous Vote Matter or matters for which its consent is required pursuant to Section 8.6 in its sole discretion and without regard to any direction from any other Financing Party, any Credit Party or any other Person and the Lessor shall retain its rights in the Excepted Payments and any and all other rights expressly reserved by the Lessor under the Operative Agreements.
(d) The Lessor shall provide time to the Lessee at least twenty (20) days following the end of each calendar quarter and at least forty‑five (45) days following the end of each calendar year, a letter or an Affiliate of the same tenor as the Lessor Confirmation Letter; provided, that if there have been any changes to the factual matters set forth in the Lessor Confirmation Letter or the financial accounting standards referenced therein that bear on the conclusions set forth therein, Lessee such letter shall set forth the analysis based on such changed factual matters or financial accounting standards. The parties hereto agree that the Credit Parties and their auditors are the sole beneficiaries updated as of the matters addressed in this Section 8.2(d)Lessor's fiscal quarter most recently ended.
Appears in 1 contract
Sources: Participation Agreement (West Corp)