Defaults. The following events shall constitute an "Event of Default" hereunder (whether any such event shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any Governmental Entity): (a) the Guarantor or the RockGen Lessee under the Facility Lease shall fail to make any payment with respect to Periodic Rent or the Termination Value (including the Equity Portion of Termination Value and Debt Portion of Termination Value) when due and payable under such Facility Lease or this Guaranty within five (5) days after the same shall become due thereunder; or (b) the Guarantor or the RockGen Lessee shall fail to make any other amount payable under any Operative Document after the same shall become due thereunder and such failure shall have continued from a period of ten (10) Business Days after receipt by the RockGen Lessee and the Guarantor of written notice of such failure by the RockGen Lessee and/or the Guarantor, as applicable; (c) The Guarantor shall fail to comply with its covenants set forth in Section 3.3 (transfer of RockGen Lessee ownership), 3.6 (Guarantor merger) or 8.4 (assignment of Guaranty) of this Guaranty. (d) the Guarantor shall fail to perform or observe any covenant, obligation or agreement to be performed or observed by it under any Calpine Document (other than any covenant, obligation or agreement referred to in clauses (a) or (b) of this Section 7.1) in any material respect, which shall continue unremedied for (1) with respect to the Guarantor's guaranty of, and agreement with respect to, any nonmonetary obligation, covenant or agreement of the RockGen Lessee under any of the Operative Documents, 30 days after receipt by the Guarantor of written notice thereof from the Owner Participant, the Owner Lessor, the Indenture Trustee or the Pass Through Trustee; provided, however, if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 180 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 180-day period, and (2) with respect to any other obligation, covenant or agreement hereunder, 30 days after receipt by the Guarantor of written notice thereof; (e) there shall have occurred either (i) a default by the Guarantor or any Restricted Subsidiary under any instrument or instruments under which there is or may be secured or evidenced any Indebtedness of the Guarantor or any Restricted Subsidiary of the Guarantor (other than the Obligations) having an outstanding principal amount of $50,000,000 (or its foreign currency equivalent) or more individually or in the aggregate that has caused the holders thereof to declare such Indebtedness to be due and payable prior to its Stated Maturity, unless such declaration has been rescinded within 30 days or (ii) a default by the Guarantor or any Restricted Subsidiary in the payment when due of any portion of the principal under any such instrument or instruments, and such unpaid portion exceeds $50,000,000 (or its foreign currency equivalent) individually or in the aggregate and is not paid, or such default is not cured or waived, within any grace period applicable thereto, unless such Indebtedness is discharged within 30 days of the Guarantor or a Restricted Subsidiary becoming aware of such default; (f) the Guarantor or any Significant Subsidiary pursuant to or within the meaning of any Bankruptcy Law: (i) commences a voluntary case; (ii) consents to the entry of an order for relief against it in an involuntary case; (iii) consents to the appointment of a Custodian of it or for all or substantially all of its property; (iv) makes a general assignment for the benefit of its creditors; or (v) admits in writing its inability to generally pay its debts as such debts become due; or takes any comparable action under any foreign laws relating to insolvency; (g) an involuntary case or other proceeding shall be commenced against the Guarantor or any Significant Subsidiary seeking (i) liquidation, reorganization or other relief with respect to it or its debts under Title 11 of the Bankruptcy Code or any bankruptcy, insolvency or other similar law now or hereafter in effect, or (ii) the appointment of a trustee, receiver, liquidator, custodian or other similar official with respect to it or any substantial part of its property or (iii) the winding-up or liquidation of the Guarantor or such Significant Subsidiary; and such involuntary case or other proceeding shall remain undismissed and unstayed for a period of 60 days; (h) any representation or warranty made by the Guarantor herein shall prove to have been incorrect in any material respect when made or misleading in any material respect when made because of the omission to state a material fact and such incorrect or misleading representation is and continues to be material and unremedied for a period of 30 days after receipt by the Guarantor of written notice thereof; provided, however, that if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 60 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 60-day period. The grace periods set forth in Section 7.1(a) and (b) above shall not affect in any way the right hereunder of any Beneficiary entitled to a payment of any amount payable to it, or performance of any obligation, by the RockGen Lessee under any Operative Document to demand prompt payment thereof, or performance thereof, by the Guarantor immediately upon any failure of the RockGen Lessee to pay or perform the same when it has become due (and, for the avoidance of doubt, without regard to the existence of any cure or grace period before such failure by the RockGen Lessee becomes a Lease Event of Default); provided, however, notwithstanding the foregoing, no Lease Event of Default under Section 16(m) and no remedies under the Facility Lease may be exercised until a Calpine Guaranty Event of Default has occurred and is continuing.
Appears in 4 contracts
Sources: Guaranty and Payment Agreement (Calpine Corp), Guaranty and Payment Agreement (Calpine Corp), Guaranty and Payment Agreement (Calpine Corp)
Defaults. The (a) Each of the following events shall constitute an "“Event of Default" ” hereunder (whether any whatever the reason for such event of default and whether it shall be voluntary or involuntary involuntary, or come about or be effected by operation of law law, or be pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any Governmental Entityadministrative or governmental body):
(a1) the Guarantor or the RockGen if Lessee under the Facility Lease shall fail to make any payment with respect to Periodic Rent or the Termination Value (including the Equity Portion of Termination Value and Debt Portion of Termination Value) pay when due any sum under this Agreement and payable under such Facility Lease failure shall continue for a period of three business days after oral, facsimile, electronic mail or written notice has been given by Lessor to Lessee; (2) if Lessee shall fail to perform any covenant or agreement contained herein, and such failure shall continue for a period of fifteen (15) calendar days after notice thereof shall have been given in writing; (3) if any representation or warranty made by Lessee in this Guaranty within five Agreement or any agreement, document or certificate delivered by the Lessee in connection herewith is or shall become incorrect in any material respect; (4) if Lessee shall operate the Aircraft in violation of any applicable law, regulation, rule or order of any governmental authority having jurisdiction thereof or shall operate the Aircraft when the insurance required hereunder shall not be in effect; (5) if any proceedings shall be commenced under any bankruptcy, insolvency, reorganization, readjustment of debt, receivership or liquidation law or statute of any jurisdiction; or (6) if any such proceedings shall be instituted against either Party and shall not be withdrawn or terminated within thirty (30) calendar days after the same shall become due thereunder; ortheir commencement.
(b) Upon the Guarantor occurrence of any Event of Default Lessor may, at its option, exercise any or all remedies available at law or in equity, including, without limitation, any or all of the RockGen following remedies, as Lessor in its sole discretion shall elect: (1) by notice in writing to terminate this Agreement immediately, whereupon all rights of the Lessee to the use or possession of the Aircraft or any part thereof shall absolutely cease and terminate but Lessee shall fail to make any other amount payable under any Operative Document after remain liable as hereinafter provided; and thereupon Lessee, if so requested by Lessor, shall at its expense promptly return the Aircraft and Aircraft Documentation as required by this Agreement or Lessor, at its option, may enter upon the premises where the Aircraft or Aircraft Documentation are located and take immediate possession of and remove the same shall become due thereunder by summary proceedings or otherwise. Lessee specifically authorizes Lessor’s entry upon any premises where the Aircraft or Aircraft Documentation may be located for the purpose of, and such failure shall waives any cause of action it may have continued from arising from, a period peaceful retaking of ten the Aircraft or Aircraft Documentation; or (102) Business Days after receipt by the RockGen Lessee and the Guarantor of written notice of such failure by the RockGen Lessee and/or the Guarantor, as applicable;
(c) The Guarantor shall fail to comply with its covenants set forth in Section 3.3 (transfer of RockGen Lessee ownership), 3.6 (Guarantor merger) or 8.4 (assignment of Guaranty) of this Guaranty.
(d) the Guarantor shall fail to perform or observe any covenant, obligation or agreement cause to be performed or observed by it under any Calpine Document (other than any covenant, obligation or agreement referred to in clauses (a) or (b) of this Section 7.1) in any material respect, which shall continue unremedied for (1) with respect to the Guarantor's guaranty of, and agreement with respect to, any nonmonetary obligation, covenant or agreement of the RockGen Lessee under any hereunder. Lessee agrees to pay all costs and expenses incurred by Lessor for such performance and acknowledges that such performance by Lessor shall not be deemed to cure said Event of Default.
(c) Lessee shall be liable for all costs, charges and expenses, including reasonable legal fees and disbursements, incurred by Lessor by reason of the Operative Documents, 30 days after receipt by the Guarantor occurrence of written notice thereof from the Owner Participant, the Owner Lessor, the Indenture Trustee any Event of Default or the Pass Through Trustee; providedexercise of Lessor’s remedies with respect thereto. No remedy referred to herein is intended to be exclusive, however, if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition but each shall be extended up to an additional 180 days, so long as the Guarantor diligently pursues such remedy cumulative and such condition is reasonably capable of being remedied within such additional 180-day period, and (2) with respect in addition to any other obligation, covenant remedy referred to above or agreement hereunder, 30 days after receipt by the Guarantor of written notice thereof;
(e) there shall have occurred either (i) a default by the Guarantor or any Restricted Subsidiary under any instrument or instruments under which there is or may be secured or evidenced any Indebtedness of the Guarantor or any Restricted Subsidiary of the Guarantor (other than the Obligations) having an outstanding principal amount of $50,000,000 (or its foreign currency equivalent) or more individually otherwise available to Lessor at law or in equity. Lessor shall not be deemed to have waived any default, Event of Default or right hereunder unless the aggregate that has caused the holders thereof to declare such Indebtedness to be due and payable prior to its Stated Maturity, unless such declaration has been rescinded within 30 days or (ii) a default same is acknowledged in writing by the Guarantor or any Restricted Subsidiary in the payment when due duly authorized representative of Lessor. No waiver by Lessor of any portion default or Event of the principal under any such instrument or instruments, and such unpaid portion exceeds $50,000,000 (or its foreign currency equivalent) individually or in the aggregate and is not paid, or such default is not cured or waived, within any grace period applicable thereto, unless such Indebtedness is discharged within 30 days of the Guarantor or a Restricted Subsidiary becoming aware of such default;
(f) the Guarantor or any Significant Subsidiary pursuant to or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case;
(ii) consents to the entry of an order for relief against it in an involuntary case;
(iii) consents to the appointment of a Custodian of it or for all or substantially all of its property;
(iv) makes a general assignment for the benefit of its creditors; or
(v) admits in writing its inability to generally pay its debts as such debts become due; or takes any comparable action under any foreign laws relating to insolvency;
(g) an involuntary case or other proceeding Default hereunder shall be commenced against the Guarantor or any Significant Subsidiary seeking (i) liquidation, reorganization or other relief with respect to it or its debts under Title 11 of the Bankruptcy Code or any bankruptcy, insolvency or other similar law now or hereafter in effect, or (ii) the appointment of a trustee, receiver, liquidator, custodian or other similar official with respect to it or any substantial part of its property or (iii) the winding-up or liquidation of the Guarantor or such Significant Subsidiary; and such involuntary case or other proceeding shall remain undismissed and unstayed for a period of 60 days;
(h) any representation or warranty made by the Guarantor herein shall prove to have been incorrect in any material respect when made or misleading in any material respect when made because of the omission to state a material fact and such incorrect or misleading representation is and continues to be material and unremedied for a period of 30 days after receipt by the Guarantor of written notice thereof; provided, however, that if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 60 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 60-day period. The grace periods set forth in Section 7.1(a) and (b) above shall not affect in any way the right hereunder be, or be construed to be, a waiver of any Beneficiary entitled to a payment of any amount payable to it, future or performance of any obligation, by the RockGen Lessee under any Operative Document to demand prompt payment thereof, subsequent default or performance thereof, by the Guarantor immediately upon any failure of the RockGen Lessee to pay or perform the same when it has become due (and, for the avoidance of doubt, without regard to the existence of any cure or grace period before such failure by the RockGen Lessee becomes a Lease Event of Default); provided. The failure or delay of Lessor in exercising any rights granted it hereunder upon any occurrence of any such right upon the continuation or recurrence of any such contingencies or similar contingencies, however, notwithstanding and any single or partial exercise of any particular right by Lessor shall not exhaust the foregoing, no Lease Event same or constitute a waiver of Default under Section 16(m) and no remedies under the Facility Lease may be exercised until a Calpine Guaranty Event of Default has occurred and is continuingany other right provided herein.
Appears in 4 contracts
Sources: Aircraft Dry Lease Agreement (Blackstone Group L.P.), Aircraft Dry Lease Agreement (Blackstone Group L.P.), Aircraft Dry Lease Agreement (Blackstone Group L.P.)
Defaults. The occurrence of any one or more of the following events shall constitute an "Event a material default and breach of Default" this Lease by Lessee:
(a) The failure by Lessee to make any payment of rent or any other payment required to be made by Lessee hereunder within ten (whether 10) days of the date when due.
(b) The failure by Lessee to observe or perform any of the covenants, conditions or provisions of this Lease to be observed or performed by Lessee, other than described in Section15.1(b) above, where such failure shall continue for a period of thirty (30) days after written notice thereof from Lessor to Lessee.
(i) The making by Lessee of any general assignment or general arrangement for the benefit of creditors; (ii) the filing by or against Lessee of a petition to have Lessee adjudged a bankrupt or a petition for reorganization or arrangement under any law relating to bankruptcy (unless, in the case of a petition filed against Lessee, the same is dismissed within sixty (60) days); (iii) the appointment of a trustee or receiver to take possession of substantially all of Lessee’s assets located at the Premises or of Lessee’s interest in this Lease, where possession is not restored to Lessee within thirty (30) days; or (iv) the attachment, execution, or other judicial seizure of substantially all of Lessee’s assets located at the Premises or of Lessee’s interest in this Lease, where such seizure is not discharged within thirty (30) days.
(d) The chronic delinquency by Lessee in the payment of monthly rental, or any other periodic payment required to be paid by Lessee under this Lease. “Chronic delinquency” shall mean failure by Lessee to pay monthly rental, or any other periodic payment required to be paid by Lessee under this Lease, within ten (10) days as described in Section 15.1(b) above, for any three (3) months (consecutive or nonconsecutive) during any twelve (12) month period. In the event of the chronic delinquency, at Lessor’s option, Lessor shall have the additional right to require that monthly rental be voluntary paid by Lessee quarter-annually, in advance, for the remainder of the Term.
(e) Any guarantor of the Lease revokes or involuntary otherwise terminates, or come about purports to revoke or be effected otherwise terminate (by operation of law or pursuant to otherwise) any guaranty of all or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any Governmental Entity):
(a) the Guarantor or the RockGen Lessee under the Facility Lease shall fail to make any payment with respect to Periodic Rent or the Termination Value (including the Equity Portion of Termination Value and Debt Portion of Termination Value) when due and payable under such Facility Lease or this Guaranty within five (5) days after the same shall become due thereunder; or
(b) the Guarantor or the RockGen Lessee shall fail to make any other amount payable under any Operative Document after the same shall become due thereunder and such failure shall have continued from a period of ten (10) Business Days after receipt by the RockGen Lessee and the Guarantor of written notice of such failure by the RockGen Lessee and/or the Guarantor, as applicable;
(c) The Guarantor shall fail to comply with its covenants set forth in Section 3.3 (transfer of RockGen Lessee ownership), 3.6 (Guarantor merger) or 8.4 (assignment of Guaranty) of this Guaranty.
(d) the Guarantor shall fail to perform or observe any covenant, obligation or agreement to be performed or observed by it under any Calpine Document (other than any covenant, obligation or agreement referred to in clauses (a) or (b) of this Section 7.1) in any material respect, which shall continue unremedied for (1) with respect to the Guarantor's guaranty of, and agreement with respect to, any nonmonetary obligation, covenant or agreement of the RockGen Lessee under any of the Operative Documents, 30 days after receipt by the Guarantor of written notice thereof from the Owner Participant, the Owner Lessor, the Indenture Trustee or the Pass Through Trustee; provided, however, if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 180 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 180-day period, and (2) with respect to any other obligation, covenant or agreement hereunder, 30 days after receipt by the Guarantor of written notice thereof;
(e) there shall have occurred either (i) a default by the Guarantor or any Restricted Subsidiary under any instrument or instruments under which there is or may be secured or evidenced any Indebtedness of the Guarantor or any Restricted Subsidiary of the Guarantor (other than the Obligations) having an outstanding principal amount of $50,000,000 (or its foreign currency equivalent) or more individually or in the aggregate that has caused the holders thereof to declare such Indebtedness to be due and payable prior to its Stated Maturity, unless such declaration has been rescinded within 30 days or (ii) a default by the Guarantor or any Restricted Subsidiary in the payment when due of any portion of the principal Lessee’s obligations under any such instrument or instruments, and such unpaid portion exceeds $50,000,000 (or its foreign currency equivalent) individually or in the aggregate and is not paid, or such default is not cured or waived, within any grace period applicable thereto, unless such Indebtedness is discharged within 30 days of the Guarantor or a Restricted Subsidiary becoming aware of such default;
(f) the Guarantor or any Significant Subsidiary pursuant to or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case;
(ii) consents to the entry of an order for relief against it in an involuntary case;
(iii) consents to the appointment of a Custodian of it or for all or substantially all of its property;
(iv) makes a general assignment for the benefit of its creditors; or
(v) admits in writing its inability to generally pay its debts as such debts become due; or takes any comparable action under any foreign laws relating to insolvency;
(g) an involuntary case or other proceeding shall be commenced against the Guarantor or any Significant Subsidiary seeking (i) liquidation, reorganization or other relief with respect to it or its debts under Title 11 of the Bankruptcy Code or any bankruptcy, insolvency or other similar law now or hereafter in effect, or (ii) the appointment of a trustee, receiver, liquidator, custodian or other similar official with respect to it or any substantial part of its property or (iii) the winding-up or liquidation of the Guarantor or such Significant Subsidiary; and such involuntary case or other proceeding shall remain undismissed and unstayed for a period of 60 days;
(h) any representation or warranty made by the Guarantor herein shall prove to have been incorrect in any material respect when made or misleading in any material respect when made because of the omission to state a material fact and such incorrect or misleading representation is and continues to be material and unremedied for a period of 30 days after receipt by the Guarantor of written notice thereof; provided, however, that if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 60 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 60-day period. The grace periods set forth in Section 7.1(a) and (b) above shall not affect in any way the right hereunder of any Beneficiary entitled to a payment of any amount payable to it, or performance of any obligation, by the RockGen Lessee under any Operative Document to demand prompt payment thereof, or performance thereof, by the Guarantor immediately upon any failure of the RockGen Lessee to pay or perform the same when it has become due (and, for the avoidance of doubt, without regard to the existence of any cure or grace period before such failure by the RockGen Lessee becomes a Lease Event of Default); provided, however, notwithstanding the foregoing, no Lease Event of Default under Section 16(m) and no remedies under the Facility Lease may be exercised until a Calpine Guaranty Event of Default has occurred and is continuing.this Lease
Appears in 4 contracts
Sources: Standard Commercial Industrial Multi Tenant Triple Net Lease (HTG Molecular Diagnostics, Inc), Standard Commercial Industrial Multi Tenant Triple Net Lease (HTG Molecular Diagnostics, Inc), Standard Commercial Industrial Multi Tenant Triple Net Lease (HTG Molecular Diagnostics, Inc)
Defaults. The following events (hereinafter called “Events of Default”) shall constitute an "Event “Events of Default" hereunder (whether any such event shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any Governmental Entity):” under this Agreement:
(a) the Guarantor Borrower shall fail to pay any principal of any Loan or any Reimbursement Obligation when and as the RockGen Lessee same shall become due and payable, whether at the due date thereof or at a date fixed for prepayment thereof or otherwise;
(b) the Borrower shall fail to pay any interest on any Loan or any fee or any other amount (other than an amount referred to in Section 10.1(a)) payable under this Agreement, when and as the Facility Lease same shall become due and payable, and such failure shall continue unremedied for a period of three Business Days;
(c) any representation or warranty made or deemed made by or on behalf of any Loan Party or any Subsidiary in or in connection with this Agreement or any Loan Document or any amendment or modification thereof or waiver thereunder, or in any report, certificate, financial statement or other document furnished pursuant to or in connection with this Agreement or any Loan Document or any amendment or modification thereof or waiver thereunder, shall prove to have been materially incorrect when made or deemed made; provided, however, if any Event of Default under this Section 10.1(c) occurs on account of a misrepresentation made in good faith under Section 4.19 hereof, the Borrower shall have 30 consecutive days from the earlier of (i) the date the Borrower becomes aware of the facts forming the basis of the Event of Default, or (ii) the date notice of such Event of Default shall have been made to the Borrower by the Lender, in which to take the steps necessary to remedy the underlying facts and render the representation or warranty true and correct;
(d) any Loan Party shall fail to observe or perform any covenant, condition or agreement contained in Section 6.6(a), Section 6.7(a) (with respect to a Loan Party’s existence) or 6.11, or in Article 7;
(e) any Loan Party shall fail to observe or perform any covenant, condition or agreement contained in this Agreement (other than those which constitute a default under another Section of this Article 10), and such failure shall continue unremedied for a period of (i) 5 days after the earlier of such breach or notice thereof from the Lender if such breach relates to terms or provisions of Section 6.1, 6.3, 6.4, 6.5, 6.6 (other than Section 6.6(a)), 6.7, or 6.9 of this Agreement or (ii) 15 days after the earlier of such breach or notice thereof from the Lender if such breach relates to terms or provisions of any other Section of this Agreement;
(f) any Loan Party or any Subsidiary shall fail to make any payment with (whether of principal or interest and regardless of amount) in respect to Periodic Rent or the Termination Value (including the Equity Portion of Termination Value any Material Indebtedness, when and Debt Portion of Termination Value) when due and payable under such Facility Lease or this Guaranty within five (5) days after as the same shall become due thereunder; or
(b) the Guarantor or the RockGen Lessee shall fail to make any other amount payable under any Operative Document after the same shall become due thereunder and such failure shall have continued from a period of ten (10) Business Days after receipt by the RockGen Lessee and the Guarantor of written notice of such failure by the RockGen Lessee and/or the Guarantor, as applicable;
(c) The Guarantor shall fail to comply with its covenants set forth in Section 3.3 (transfer of RockGen Lessee ownership), 3.6 (Guarantor merger) or 8.4 (assignment of Guaranty) of this Guaranty.
(d) the Guarantor shall fail to perform or observe any covenant, obligation or agreement to be performed or observed by it under any Calpine Document (other than any covenant, obligation or agreement referred to in clauses (a) or (b) of this Section 7.1) in any material respect, which shall continue unremedied for (1) with respect to the Guarantor's guaranty of, and agreement with respect to, any nonmonetary obligation, covenant or agreement of the RockGen Lessee under any of the Operative Documents, 30 days after receipt by the Guarantor of written notice thereof from the Owner Participant, the Owner Lessor, the Indenture Trustee or the Pass Through Trustee; provided, however, if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 180 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 180-day period, and (2) with respect to any other obligation, covenant or agreement hereunder, 30 days after receipt by the Guarantor of written notice thereof;
(e) there shall have occurred either (i) a default by the Guarantor or any Restricted Subsidiary under any instrument or instruments under which there is or may be secured or evidenced any Indebtedness of the Guarantor or any Restricted Subsidiary of the Guarantor (other than the Obligations) having an outstanding principal amount of $50,000,000 (or its foreign currency equivalent) or more individually or in the aggregate that has caused the holders thereof to declare such Indebtedness to be due and payable prior to its Stated Maturitypayable, unless such declaration has been rescinded within 30 days or (ii) a default by the Guarantor or any Restricted Subsidiary failure is being contested in the payment when due of any portion of the principal under any such instrument or instruments, and such unpaid portion exceeds $50,000,000 (or its foreign currency equivalent) individually or in the aggregate and is not paid, or such default is not cured or waived, within any grace period applicable thereto, unless such Indebtedness is discharged within 30 days of the Guarantor or a Restricted Subsidiary becoming aware of such default;
(f) the Guarantor or any Significant Subsidiary pursuant to or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case;
(ii) consents to the entry of an order for relief against it in an involuntary case;
(iii) consents to the appointment of a Custodian of it or for all or substantially all of its property;
(iv) makes a general assignment for the benefit of its creditors; or
(v) admits in writing its inability to generally pay its debts as such debts become due; or takes any comparable action under any foreign laws relating to insolvencycompliance with Section 6.5;
(g) any event or condition occurs that results in any Material Indebtedness becoming due prior to its scheduled maturity or that enables or permits (with or without the giving of notice, the lapse of time or both) the holder or holders of any Material Indebtedness or any trustee or agent on its or their behalf to cause any Material Indebtedness to become due, or to require the prepayment, repurchase, redemption or defeasance thereof, prior to its scheduled maturity; provided that this Section 10.1(g) shall not apply to secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the property or assets securing such Indebtedness;
(h) an involuntary case or other proceeding shall be commenced against the Guarantor or any Significant Subsidiary an involuntary petition shall be filed seeking (i) liquidation, reorganization or other relief with in respect to it of a Loan Party or any Subsidiary of any Loan Party or its debts debts, or of a substantial part of its assets, under Title 11 any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect or (ii) the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for any Loan Party or any Subsidiary of any Loan Party or for a substantial part of its assets, and, in any such case, such proceeding or petition shall continue undismissed for 60 days or an order or decree approving or ordering any of the Bankruptcy Code foregoing shall be entered;
(i) any Loan Party or any Subsidiary of any Loan Party shall (i) voluntarily commence any proceeding or file any petition seeking liquidation, reorganization or other relief under any Federal, state or foreign bankruptcy, insolvency insolvency, receivership or other similar law now or hereafter in effect, or (ii) consent to the institution of, or fail to contest in a timely and appropriate manner, any proceeding or petition described in Section 10.1(h), (iii) apply for or consent to the appointment of a receiver, trustee, receivercustodian, liquidatorsequestrator, custodian conservator or other similar official with respect to it for such Loan Party or Subsidiary of any Loan Party or for a substantial part of its property assets, (iv) file an answer admitting the material allegations of a petition filed against it in any such proceeding, (v) make a general assignment for the benefit of creditors or (iiivi) take any action for the winding-up or liquidation purpose of effecting any of the Guarantor or such Significant Subsidiary; and such involuntary case or other proceeding shall remain undismissed and unstayed for a period of 60 daysforegoing;
(hj) any representation Loan Party or warranty made by any Subsidiary of any Loan Party shall become unable, admit in writing its inability or fail generally to pay its debts as they become due;
(k) one or more judgments for the Guarantor herein payment of money in an aggregate amount in excess of $500,000 shall prove to have been incorrect in be rendered against any material respect when made or misleading in any material respect when made because of Loan Party, and the omission to state a material fact and such incorrect or misleading representation is and continues to be material and unremedied same shall remain undischarged for a period of 30 consecutive days after receipt during which execution shall not be effectively stayed or any action shall be legally taken by a judgment creditor to attach or levy upon any assets with an aggregate market value in excess of $200,000 of any Loan Party or to enforce any such judgment or any Loan Party shall fail within 30 days to discharge one or more non-monetary judgments or orders which, individually or in the Guarantor aggregate, could reasonably be expected to have a Material Adverse Effect, which judgments or orders, in any such case, are not stayed on appeal or otherwise being appropriately contested in good faith by proper proceedings diligently pursued;
(l) an ERISA Event shall have occurred that, in the opinion of written notice thereof; the Lender, when taken together with all other ERISA Events that have occurred, could reasonably be expected to result in a Material Adverse Effect;
(m) a Change in Control shall occur;
(n) the occurrence of any “default”, as defined in any Loan Document (other than this Agreement) or the breach of any of the terms or provisions of any Loan Document (other than this Agreement), which default or breach continues beyond any period of grace therein provided, howeverprovided if such default is on account of a default by a Loan Party other than the Borrower, that if such condition cannot default also could reasonably be remedied within such 30-day period, then the period within which expected to remedy such condition have a Material Adverse Effect;
(o) any Loan Guaranty shall fail to remain in full force or effect or any action shall be extended up taken to an additional 60 daysdiscontinue or to assert the invalidity or unenforceability of the Loan Guaranty, so long as or any Loan Guarantor shall fail to comply with any of the Guarantor diligently pursues such remedy terms or provisions of the Loan Guaranty to which it is a party and such condition could reasonably be expected to have a Material Adverse Effect, or any Loan Guarantor shall deny that it has any further liability under the Loan Guaranty to which it is reasonably capable of being remedied within a party, or shall give notice to such additional 60-day period. The grace periods effect;
(p) any Security Document shall for any reason fail to create a valid and perfected first priority security interest in any Collateral appropriately described therein and purported to be covered thereby, after any applicable cure period as set forth in Section 7.1(a10.1(c), except as permitted by the terms of any Collateral Document, or any Collateral Document shall fail to remain in full force or effect or any action shall be taken to discontinue or to assert the invalidity or unenforceability of any Collateral Document, or there shall exist a default under any Collateral Document beyond any applicable notice or cure period, provided if such default is on account of a default by a Loan Party other than the Borrower, that such default also could reasonably be expected to have a Material Adverse Effect;
(q) any material provision of any Loan Document for any reason ceases to be valid, binding and enforceable in accordance with its terms (b) above or any Loan Party shall not affect challenge the enforceability of any Loan Document or shall assert in writing, or engage in any way the right hereunder action or inaction based on any such assertion, that any provision of any Beneficiary entitled of the Loan Documents has ceased to a payment be or otherwise is not valid, binding and enforceable in accordance with its terms); or
(r) any event of default occurs and is continuing beyond any amount payable applicable grace and cure periods with respect to it, or performance of any obligation, by the RockGen Lessee under any Operative Document to demand prompt payment thereof, or performance thereof, by the Guarantor immediately upon any failure of the RockGen Lessee to pay or perform the same when it has become due (and, for the avoidance of doubt, without regard that is not pursuant to the existence Loan Documents, of any cure or grace period before such failure by the RockGen Lessee becomes a Lease Event of Default); provided, however, notwithstanding the foregoing, no Lease Event of Default under Section 16(m) and no remedies under the Facility Lease may be exercised until a Calpine Guaranty Event of Default has occurred and is continuingLoan Party to Lender.
Appears in 4 contracts
Sources: Credit Facility Agreement (Transcat Inc), Credit Facility Agreement (Transcat Inc), Credit Facility Agreement (Transcat Inc)
Defaults. The (a) Each of the following events shall constitute an "“Event of Default" ” hereunder (whether any whatever the reason for such event of default and whether it shall be voluntary or involuntary involuntary, or come about or be effected by operation of law law, or be pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any Governmental Entityadministrative or governmental body):
(a1) the Guarantor or the RockGen if Lessee under the Facility Lease shall fail to make any payment with respect to Periodic Rent or the Termination Value (including the Equity Portion of Termination Value and Debt Portion of Termination Value) pay when due any sum under this Agreement and payable under such Facility Lease failure shall continue for a period of three business days after oral, facsimile, electronic mail or written notice has been given by Lessor to Lessee; (2) if Lessee shall fail to perform any covenant or agreement contained herein, and such failure shall continue for a period of fifteen (15) calendar days after notice thereof shall have been given in writing; (3) if any representation or warranty made by Lessee in this Guaranty within five Agreement or any agreement, document or certificate delivered by the Lessee in connection herewith is or shall become incorrect in any material respect; (4) if Lessee shall operate the Aircraft in violation of any applicable law, regulation, rule or order of any governmental authority having jurisdiction thereof or shall operate the Aircraft when the insurance required hereunder shall not be in effect; (5) if any proceedings shall be commenced under any bankruptcy, insolvency, reorganization, readjustment of debt, receivership or liquidation law or statute of any jurisdiction; or (6) if any such proceedings shall be instituted against either Party and shall not be withdrawn or terminated within thirty (30) calendar days after the same shall become due thereunder; ortheir commencement. BLACKSTONE DRY LEASE - PAGE 6 OF 9
(b) Upon the Guarantor occurrence of any Event of Default Lessor may, at its option, exercise any or all remedies available at law or in equity, including, without limitation, any or all of the RockGen following remedies, as Lessor in its sole discretion shall elect: (1) by notice in writing to terminate this Agreement immediately, whereupon all rights of the Lessee to the use or possession of the Aircraft or any part thereof shall absolutely cease and terminate but Lessee shall fail to make any other amount payable under any Operative Document after remain liable as hereinafter provided; and thereupon Lessee, if so requested by Lessor, shall at its expense promptly return the Aircraft and Aircraft Documentation as required by this Agreement or Lessor, at its option, may enter upon the premises where the Aircraft or Aircraft Documentation are located and take immediate possession of and remove the same shall become due thereunder by summary proceedings or otherwise. Lessee specifically authorizes Lessor’s entry upon any premises where the Aircraft or Aircraft Documentation may be located for the purpose of, and such failure shall waives any cause of action it may have continued from arising from, a period peaceful retaking of ten the Aircraft or Aircraft Documentation; or (102) Business Days after receipt by the RockGen Lessee and the Guarantor of written notice of such failure by the RockGen Lessee and/or the Guarantor, as applicable;
(c) The Guarantor shall fail to comply with its covenants set forth in Section 3.3 (transfer of RockGen Lessee ownership), 3.6 (Guarantor merger) or 8.4 (assignment of Guaranty) of this Guaranty.
(d) the Guarantor shall fail to perform or observe any covenant, obligation or agreement cause to be performed or observed by it under any Calpine Document (other than any covenant, obligation or agreement referred to in clauses (a) or (b) of this Section 7.1) in any material respect, which shall continue unremedied for (1) with respect to the Guarantor's guaranty of, and agreement with respect to, any nonmonetary obligation, covenant or agreement of the RockGen Lessee under any hereunder. Lessee agrees to pay all costs and expenses incurred by Lessor for such performance and acknowledges that such performance by Lessor shall not be deemed to cure said Event of Default.
(c) Lessee shall be liable for all costs, charges and expenses, including reasonable legal fees and disbursements, incurred by Lessor by reason of the Operative Documents, 30 days after receipt by the Guarantor occurrence of written notice thereof from the Owner Participant, the Owner Lessor, the Indenture Trustee any Event of Default or the Pass Through Trustee; providedexercise of Lessor’s remedies with respect thereto. No remedy referred to herein is intended to be exclusive, however, if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition but each shall be extended up to an additional 180 days, so long as the Guarantor diligently pursues such remedy cumulative and such condition is reasonably capable of being remedied within such additional 180-day period, and (2) with respect in addition to any other obligation, covenant remedy referred to above or agreement hereunder, 30 days after receipt by the Guarantor of written notice thereof;
(e) there shall have occurred either (i) a default by the Guarantor or any Restricted Subsidiary under any instrument or instruments under which there is or may be secured or evidenced any Indebtedness of the Guarantor or any Restricted Subsidiary of the Guarantor (other than the Obligations) having an outstanding principal amount of $50,000,000 (or its foreign currency equivalent) or more individually otherwise available to Lessor at law or in equity. Lessor shall not be deemed to have waived any default, Event of Default or right hereunder unless the aggregate that has caused the holders thereof to declare such Indebtedness to be due and payable prior to its Stated Maturity, unless such declaration has been rescinded within 30 days or (ii) a default same is acknowledged in writing by the Guarantor or any Restricted Subsidiary in the payment when due duly authorized representative of Lessor. No waiver by Lessor of any portion default or Event of the principal under any such instrument or instruments, and such unpaid portion exceeds $50,000,000 (or its foreign currency equivalent) individually or in the aggregate and is not paid, or such default is not cured or waived, within any grace period applicable thereto, unless such Indebtedness is discharged within 30 days of the Guarantor or a Restricted Subsidiary becoming aware of such default;
(f) the Guarantor or any Significant Subsidiary pursuant to or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case;
(ii) consents to the entry of an order for relief against it in an involuntary case;
(iii) consents to the appointment of a Custodian of it or for all or substantially all of its property;
(iv) makes a general assignment for the benefit of its creditors; or
(v) admits in writing its inability to generally pay its debts as such debts become due; or takes any comparable action under any foreign laws relating to insolvency;
(g) an involuntary case or other proceeding Default hereunder shall be commenced against the Guarantor or any Significant Subsidiary seeking (i) liquidation, reorganization or other relief with respect to it or its debts under Title 11 of the Bankruptcy Code or any bankruptcy, insolvency or other similar law now or hereafter in effect, or (ii) the appointment of a trustee, receiver, liquidator, custodian or other similar official with respect to it or any substantial part of its property or (iii) the winding-up or liquidation of the Guarantor or such Significant Subsidiary; and such involuntary case or other proceeding shall remain undismissed and unstayed for a period of 60 days;
(h) any representation or warranty made by the Guarantor herein shall prove to have been incorrect in any material respect when made or misleading in any material respect when made because of the omission to state a material fact and such incorrect or misleading representation is and continues to be material and unremedied for a period of 30 days after receipt by the Guarantor of written notice thereof; provided, however, that if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 60 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 60-day period. The grace periods set forth in Section 7.1(a) and (b) above shall not affect in any way the right hereunder be, or be construed to be, a waiver of any Beneficiary entitled to a payment of any amount payable to it, future or performance of any obligation, by the RockGen Lessee under any Operative Document to demand prompt payment thereof, subsequent default or performance thereof, by the Guarantor immediately upon any failure of the RockGen Lessee to pay or perform the same when it has become due (and, for the avoidance of doubt, without regard to the existence of any cure or grace period before such failure by the RockGen Lessee becomes a Lease Event of Default); provided. The failure or delay of Lessor in exercising any rights granted it hereunder upon any occurrence of any such right upon the continuation or recurrence of any such contingencies or similar contingencies, however, notwithstanding and any single or partial exercise of any particular right by Lessor shall not exhaust the foregoing, no Lease Event same or constitute a waiver of Default under Section 16(m) and no remedies under the Facility Lease may be exercised until a Calpine Guaranty Event of Default has occurred and is continuingany other right provided herein.
Appears in 3 contracts
Sources: Aircraft Dry Lease Agreement (Blackstone Inc.), Aircraft Dry Lease Agreement (Blackstone Group Inc), Aircraft Dry Lease Agreement (Blackstone Group Inc)
Defaults. The following events shall constitute an "Event of Default" hereunder (whether any such event A Party shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with any judgment, decree or order default under this Lease upon the occurrence of any court one or any order, rule or regulation more of any Governmental Entity):the following events:
(a) the Guarantor or the RockGen Lessee under the Facility Lease shall fail The failure by such Party to make any payment with respect of any amount required to Periodic Rent or the Termination Value be made by such Party hereunder, as and when due, where such failure shall continue for a period of thirty (including the Equity Portion of Termination Value and Debt Portion of Termination Value) when due and payable under such Facility Lease or this Guaranty within five (530) days after receipt by such Party of written notice thereof from the same shall become due thereunderother Party; or
(b) the Guarantor The failure by such Party to observe or the RockGen Lessee shall fail to make perform any other amount payable under any Operative Document after the same shall become due thereunder and material covenants, conditions or provisions of this Lease to be observed or performed by such Party, where such failure shall have continued from continue for a period of ten thirty (1030) Business Days after receipt by the RockGen Lessee and the Guarantor of written notice of such failure by the RockGen Lessee and/or the Guarantor, as applicable;
(c) The Guarantor shall fail to comply with its covenants set forth in Section 3.3 (transfer of RockGen Lessee ownership), 3.6 (Guarantor merger) or 8.4 (assignment of Guaranty) of this Guaranty.
(d) the Guarantor shall fail to perform or observe any covenant, obligation or agreement to be performed or observed by it under any Calpine Document (other than any covenant, obligation or agreement referred to in clauses (a) or (b) of this Section 7.1) in any material respect, which shall continue unremedied for (1) with respect to the Guarantor's guaranty of, and agreement with respect to, any nonmonetary obligation, covenant or agreement of the RockGen Lessee under any of the Operative Documents, 30 days after receipt by the Guarantor such Party of written notice thereof from the Owner Participant, the Owner Lessor, the Indenture Trustee or the Pass Through Trusteeother Party; provided, however, that if the nature of the failure is such that more than thirty (30) days are reasonably required for its cure, then such Party shall not be deemed to be in default if such condition cannot be remedied Party commences such cure within said thirty (30) day period and thereafter diligently prosecutes such 30-day periodcure to completion; or
(c) If by order of a court of competent jurisdiction, then the period within which to remedy such condition a receiver or liquidator or trustee of a Party shall be extended up to an additional 180 daysappointed, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable receiver or liquidator or trustee shall not have been discharged within a period of being remedied within sixty (60) days; or if by decree of such additional 180-day perioda court, a Party shall be adjudicated bankrupt or insolvent or any substantial part of the property of such Party shall have been sequestered, and such decree shall have continued undischarged and unstayed for a period of sixty (260) with respect days after the entry thereof; or if a petition to declare bankruptcy or to reorganize a Party pursuant to any of the provisions of the federal bankruptcy laws or pursuant to any other obligationsimilar state statute applicable to such Party, covenant as now or agreement hereunderhereafter in effect, 30 shall be filed against such Party and shall not be dismissed within sixty (60) days after receipt by the Guarantor of written notice thereof;such filing; or
(ed) there If a Party shall have occurred either (i) file a default by the Guarantor or any Restricted Subsidiary voluntary petition in bankruptcy under any instrument provision of any federal or instruments state bankruptcy law or shall consent to the filing of any bankruptcy or reorganization petition against it under which there is or may be secured or evidenced any Indebtedness similar law; or, without limitation of the Guarantor or any Restricted Subsidiary generality of the Guarantor (other than the Obligations) having an outstanding principal amount of $50,000,000 (foregoing, if a Party shall file a petition or its foreign currency equivalent) answer or more individually consent seeking relief or assisting in the aggregate that has caused the holders thereof to declare such Indebtedness to be due and payable prior to its Stated Maturity, unless such declaration has been rescinded within 30 days or (ii) seeking relief in a default by the Guarantor or proceeding under any Restricted Subsidiary in the payment when due of any portion of the principal under provisions of the federal bankruptcy laws or pursuant to any other similar state statute applicable to such instrument Party, as now or instruments, and such unpaid portion exceeds $50,000,000 (or its foreign currency equivalent) individually or hereafter in the aggregate and is not paideffect, or such default is not cured or waived, within any grace period applicable thereto, unless such Indebtedness is discharged within 30 days an answer admitting the material allegations of the Guarantor or a Restricted Subsidiary becoming aware of such default;
(f) the Guarantor or any Significant Subsidiary pursuant to or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case;
(ii) consents to the entry of an order for relief petition filed against it in such a proceeding; or if a Party shall make an involuntary case;
(iii) consents to the appointment of a Custodian of it or for all or substantially all of its property;
(iv) makes a general assignment for the benefit of its creditors; or
(v) admits or if a Party shall admit in writing its inability to generally pay its debts generally as such debts they become due; or takes any comparable action under any foreign laws relating if a Party shall consent to insolvency;
(g) an involuntary case or other proceeding shall be commenced against the Guarantor or any Significant Subsidiary seeking (i) liquidation, reorganization or other relief with respect to it or its debts under Title 11 of the Bankruptcy Code or any bankruptcy, insolvency or other similar law now or hereafter in effect, or (ii) the appointment of a trusteereceiver or receivers, receiveror trustee or trustees, liquidator, custodian or other similar official with respect to liquidator or liquidators of it or of all or any substantial part of its property or (iii) the winding-up or liquidation of the Guarantor or such Significant Subsidiary; and such involuntary case or other proceeding shall remain undismissed and unstayed for a period of 60 days;
(h) any representation or warranty made by the Guarantor herein shall prove to have been incorrect in any material respect when made or misleading in any material respect when made because of the omission to state a material fact and such incorrect or misleading representation is and continues to be material and unremedied for a period of 30 days after receipt by the Guarantor of written notice thereof; provided, however, that if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 60 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 60-day period. The grace periods set forth in Section 7.1(a) and (b) above shall not affect in any way the right hereunder of any Beneficiary entitled to a payment of any amount payable to it, or performance of any obligation, by the RockGen Lessee under any Operative Document to demand prompt payment thereof, or performance thereof, by the Guarantor immediately upon any failure of the RockGen Lessee to pay or perform the same when it has become due (and, for the avoidance of doubt, without regard to the existence of any cure or grace period before such failure by the RockGen Lessee becomes a Lease Event of Default); provided, however, notwithstanding the foregoing, no Lease Event of Default under Section 16(m) and no remedies under the Facility Lease may be exercised until a Calpine Guaranty Event of Default has occurred and is continuingproperty.
Appears in 3 contracts
Sources: Contribution, Conveyance and Assumption Agreement (Phillips 66 Partners Lp), Contribution, Conveyance and Assumption Agreement (Phillips 66 Partners Lp), Contribution, Conveyance and Assumption Agreement
Defaults. The following events shall constitute an "Event of Default" hereunder (whether any such event shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any Governmental Entity):
(a) the Guarantor or the RockGen Broad River Lessee under the Facility Lease shall fail to make any payment with respect to Periodic Rent or the Termination Value (including the Equity Portion of Termination Value and Debt Portion of Termination Value) when due and payable under such Facility Lease or this Guaranty within five (5) days after the same shall become due thereunder; or
(b) the Guarantor or the RockGen Broad River Lessee shall fail to make any other amount payable under any Operative Document after the same shall become due thereunder and such failure shall have continued from a period of ten (10) Business Days after receipt by the RockGen Broad River Lessee and the Guarantor of written notice of such failure by the RockGen Broad River Lessee and/or the Guarantor, as applicable;
(c) The Guarantor shall fail to comply with its covenants set forth in Section 3.3 (transfer of RockGen Broad River Lessee ownership), 3.6 (Guarantor merger) or 8.4 (assignment of Guaranty) of this Guaranty.
(d) the Guarantor shall fail to perform or observe any covenant, obligation or agreement to be performed or observed by it under any Calpine Document (other than any covenant, obligation or agreement referred to in clauses (a) or (b) of this Section 7.1) in any material respect, which shall continue unremedied for (1) with respect to the Guarantor's guaranty of, and agreement with respect to, any nonmonetary obligation, covenant or agreement of the RockGen Broad River Lessee under any of the Operative DocumentsDocuments or the FILOT Lease, 30 days after receipt by the Guarantor of written notice thereof from the Owner Participant, the Owner Lessor, the Indenture Trustee or the Pass Through Trustee; provided, however, if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 180 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 180-day period, and (2) with respect to any other obligation, covenant or agreement hereunder, 30 days after receipt by the Guarantor of written notice thereof;
(e) there shall have occurred either (i) a default by the Guarantor or any Restricted Subsidiary under any instrument or instruments under which there is or may be secured or evidenced any Indebtedness of the Guarantor or any Restricted Subsidiary of the Guarantor (other than the Obligations) having an outstanding principal amount of $50,000,000 (or its foreign currency equivalent) or more individually or in the aggregate that has caused the holders thereof to declare such Indebtedness to be due and payable prior to its Stated Maturity, unless such declaration has been rescinded within 30 days or (ii) a default by the Guarantor or any Restricted Subsidiary in the payment when due of any portion of the principal under any such instrument or instruments, and such unpaid portion exceeds $50,000,000 (or its foreign currency equivalent) individually or in the aggregate and is not paid, or such default is not cured or waived, within any grace period applicable thereto, unless such Indebtedness is discharged within 30 days of the Guarantor or a Restricted Subsidiary becoming aware of such default;
(f) the Guarantor or any Significant Subsidiary pursuant to or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case;
(ii) consents to the entry of an order for relief against it in an involuntary case;
(iii) consents to the appointment of a Custodian of it or for all or substantially all of its property;
(iv) makes a general assignment for the benefit of its creditors; or
(v) admits in writing its inability to generally pay its debts as such debts become due; or takes any comparable action under any foreign laws relating to insolvency;
(g) an involuntary case or other proceeding shall be commenced against the Guarantor or any Significant Subsidiary seeking (i) liquidation, reorganization or other relief with respect to it or its debts under Title 11 of the Bankruptcy Code or any bankruptcy, insolvency or other similar law now or hereafter in effect, or (ii) the appointment of a trustee, receiver, liquidator, custodian or other similar official with respect to it or any substantial part of its property or (iii) the winding-up or liquidation of the Guarantor or such Significant Subsidiary; and such involuntary case or other proceeding shall remain undismissed and unstayed for a period of 60 days;
(h) any representation or warranty made by the Guarantor herein shall prove to have been incorrect in any material respect when made or misleading in any material respect when made because of the omission to state a material fact and such incorrect or misleading representation is and continues to be material and unremedied for a period of 30 days after receipt by the Guarantor of written notice thereof; provided, however, that if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 60 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 60-day period. The grace periods set forth in Section 7.1(a) and (b) above shall not affect in any way the right hereunder of any Beneficiary entitled to a payment of any amount payable to it, or performance of any obligation, by the RockGen Broad River Lessee under any Operative Document to demand prompt payment thereof, or performance thereof, by the Guarantor immediately upon any failure of the RockGen Broad River Lessee to pay or perform the same when it has become due (and, for the avoidance of doubt, without regard to the existence of any cure or grace period before such failure by the RockGen Broad River Lessee becomes a Lease Event of Default); provided, however, notwithstanding the foregoing, no Lease Event of Default under Section 16(m) and no remedies under the Facility Lease may be exercised until a Calpine Guaranty Event of Default has occurred and is continuing.
Appears in 3 contracts
Sources: Guaranty and Payment Agreement (Calpine Corp), Guaranty and Payment Agreement (Calpine Corp), Guaranty and Payment Agreement (Calpine Corp)
Defaults. The Lessee agrees that any one or more of the following events shall constitute an "Event be considered Events of Default" hereunder (whether any such event shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any Governmental Entity):Default as said term is used herein:
(a) the Guarantor Lessee shall be adjudged an involuntary bankrupt, or the RockGen a decree or order approving, as properly filed, a petition or answer filed against Lessee asking reorganization of Lessee under the Facility Lease Federal bankruptcy laws as now or hereafter amended, or under the laws of any state, shall fail be entered, and any such decree or judgment or order shall not have been vacated or set aside within sixty (60) days from the date of the entry or granting thereof; or
(b) Lessee shall file or admit the jurisdiction of the court and the material allegations contained in any petition in bankruptcy or any petition pursuant or purporting to be pursuant to the Federal bankruptcy laws as now or hereafter amended, or Lessee shall institute any proceeding or shall give its consent to the institution of any proceedings for any relief of Lessee under any bankruptcy or insolvency laws or any laws relating to the relief of 20 debtors, readjustment of indebtedness, reorganization, arrangements, composition or extension; or
(c) Lessee shall make any assignment for the benefit of creditors or shall apply for or consent to the appointment of a receiver for Lessee or any of the property of Lessee; or
(d) The leased premises are levied upon by any revenue officer or similar officer; or
(e) A decree or order appointing a receiver of the property of Lessee shall be made and such decree or order shall not have been vacated or set aside within sixty (60) days from the date of entry or granting thereof; or
(f) Lessee shall abandon the leased premises during the term hereof; or
(g) Lessee shall default in any payment with respect to Periodic of Rent or the Termination Value (including the Equity Portion of Termination Value and Debt Portion of Termination Value) in any other payment required to be made by Lessee hereunder when due as herein provided (all of which other payments shall be deemed 'additional rent' payable hereunder), or shall default under Section 6.2 hereof, and payable under any such Facility Lease or this Guaranty within default shall continue for five (5) days after the same shall become due thereundernotice thereof in writing to Lessee; or
(bh) the Guarantor or the RockGen Lessee shall fail to make contest the validity of any other amount payable under any Operative Document after lien or claimed lien and give security to Lessor to assure payment thereof, or, having commenced to contest the same and having given such security, shall become due thereunder fail to prosecute such contest with diligence, or shall fail to have the same released and satisfy any judgment rendered thereon, and such failure shall have continued from a period of default continues for ten (10) Business Days after receipt by the RockGen Lessee and the Guarantor of written notice of such failure by the RockGen Lessee and/or the Guarantor, as applicable;
(c) The Guarantor shall fail to comply with its covenants set forth in Section 3.3 (transfer of RockGen Lessee ownership), 3.6 (Guarantor merger) or 8.4 (assignment of Guaranty) of this Guaranty.
(d) the Guarantor shall fail to perform or observe any covenant, obligation or agreement to be performed or observed by it under any Calpine Document (other than any covenant, obligation or agreement referred to in clauses (a) or (b) of this Section 7.1) in any material respect, which shall continue unremedied for (1) with respect to the Guarantor's guaranty of, and agreement with respect to, any nonmonetary obligation, covenant or agreement of the RockGen Lessee under any of the Operative Documents, 30 days after receipt by the Guarantor of written notice thereof from the Owner Participant, the Owner Lessor, the Indenture Trustee or the Pass Through Trusteein writing to Lessee; provided, however, if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 180 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 180-day period, and (2) with respect to any other obligation, covenant or agreement hereunder, 30 days after receipt by the Guarantor of written notice thereof;
(e) there shall have occurred either (i) a default by the Guarantor or any Restricted Subsidiary under any instrument or instruments under which there is or may be secured or evidenced any Indebtedness of the Guarantor or any Restricted Subsidiary of the Guarantor (other than the Obligations) having an outstanding principal amount of $50,000,000 (or its foreign currency equivalent) or more individually or in the aggregate that has caused the holders thereof to declare such Indebtedness to be due and payable prior to its Stated Maturity, unless such declaration has been rescinded within 30 days or (ii) a default by the Guarantor or any Restricted Subsidiary in the payment when due of any portion of the principal under any such instrument or instruments, and such unpaid portion exceeds $50,000,000 (or its foreign currency equivalent) individually or in the aggregate and is not paid, or such default is not cured or waived, within any grace period applicable thereto, unless such Indebtedness is discharged within 30 days of the Guarantor or a Restricted Subsidiary becoming aware of such default;
(f) the Guarantor or any Significant Subsidiary pursuant to or within the meaning of any Bankruptcy Law:or
(i) commences a voluntary case;
Lessee shall default in keeping, observing or performing any of the other covenants or agreements herein contained to be kept, observed and performed by Lessee, and such default shall continue for thirty (ii30) consents days after notice thereof in writing to Lessee or shall exist at the entry expiration of an order for relief against it in an involuntary case;
(iii) consents to the appointment of a Custodian of it or for all or substantially all of its property;
(iv) makes a general assignment for the benefit of its creditorsLease term; or
(vj) admits Lessee shall default in writing its inability keeping, observing or performing any covenant or agreement herein contained to generally pay its debts as such debts become due; be kept, observed and performed by Lessee, which default may result in an imminent risk of damage to property (including without limitation the leased premises or takes any comparable action under any foreign laws relating the Improvements thereon) or injury to insolvency;
(g) an involuntary case or other proceeding shall be commenced against the Guarantor or any Significant Subsidiary seeking (i) liquidationdeath of persons, reorganization or other relief with respect to it or its debts under Title 11 of the Bankruptcy Code or any bankruptcy, insolvency or other similar law now or hereafter in effect, or (ii) the appointment of a trustee, receiver, liquidator, custodian or other similar official with respect to it or any substantial part of its property or (iii) the winding-up or liquidation of the Guarantor or such Significant Subsidiary; and such involuntary case or other proceeding default shall remain undismissed and unstayed for a period of 60 days;
(h) any representation or warranty made by the Guarantor herein shall prove to have been incorrect in any material respect when made or misleading in any material respect when made because of the omission to state a material fact and such incorrect or misleading representation is and continues to be material and unremedied for a period of 30 days after receipt by the Guarantor of written notice thereof; provided, however, that if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 60 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 60-day period. The grace periods set forth in Section 7.1(a) and (b) above shall not affect in any way the right hereunder of any Beneficiary entitled to a payment of any amount payable to it, or performance of any obligation, by the RockGen Lessee under any Operative Document to demand prompt payment thereof, or performance thereof, by the Guarantor cured immediately upon any failure of the RockGen notice thereof to Lessee to pay or perform the same when it has become due (and, for the avoidance of doubt, without regard to the existence of any cure or grace period before such failure by the RockGen Lessee becomes a Lease Event of Defaultwhich notice may be oral); provided, however, notwithstanding the foregoing, no Lease Event of Default under Section 16(m) and no remedies under the Facility Lease may be exercised until a Calpine Guaranty Event of Default has occurred and is continuing.or
Appears in 3 contracts
Sources: Lease Agreement (Spartan Stores Inc), Lease (Spartan Stores Inc), Lease Agreement (Spartan Stores Inc)
Defaults. The following events shall constitute an "Event of Default" hereunder (whether any such event shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any Governmental Entity):
If Maker (a) defaults in the Guarantor payment of the principal or the RockGen Lessee interest under the Facility Lease shall fail to make any payment with respect to Periodic Rent or the Termination Value (including the Equity Portion of Termination Value and Debt Portion of Termination Value) Note when it becomes due and payable under such Facility Lease or this Guaranty within five (5) days after the same shall become due thereunder; or
(b) the Guarantor or the RockGen Lessee shall fail to make any other amount payable under any Operative Document after the same shall become due thereunder and such failure shall have continued from a period of ten (10) Business Days after receipt by the RockGen Lessee and the Guarantor of written notice of such failure by the RockGen Lessee and/or the Guarantor, as applicable;
(c) The Guarantor shall fail to comply with its covenants set forth in Section 3.3 (transfer of RockGen Lessee ownership), 3.6 (Guarantor merger) or 8.4 (assignment of Guaranty) of this Guaranty.
(d) the Guarantor shall fail to perform or observe any covenant, obligation or agreement to be performed or observed by it under any Calpine Document (other than any covenant, obligation or agreement referred to in clauses (a) or (b) of this Section 7.1) in any material respect, which shall continue unremedied for (1) with respect to the Guarantor's guaranty of, and agreement with respect to, any nonmonetary obligation, covenant or agreement of the RockGen Lessee under any of the Operative Documents, 30 days after receipt by the Guarantor of written notice thereof from the Owner Participant, the Owner Lessor, the Indenture Trustee or the Pass Through Trustee; provided, however, if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 180 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 180-day period, and (2) with respect to any other obligation, covenant or agreement hereunder, 30 days after receipt by the Guarantor of written notice thereof;
(e) there shall have occurred either (i) a default by the Guarantor or any Restricted Subsidiary under any instrument or instruments under which there is or may be secured or evidenced any Indebtedness of the Guarantor or any Restricted Subsidiary of the Guarantor (other than the Obligations) having an outstanding principal amount of $50,000,000 (or its foreign currency equivalent) or more individually or in the aggregate that has caused the holders thereof to declare such Indebtedness to be due and payable prior to its Stated Maturity, unless such declaration has been rescinded within 30 days or (ii) a default by the Guarantor or any Restricted Subsidiary in the payment when due of any portion of the principal under any such instrument or instruments, and such unpaid portion exceeds $50,000,000 (or its foreign currency equivalent) individually or in the aggregate and is not paid, or such default is not cured or waived, within any grace period applicable thereto, unless such Indebtedness is discharged within 30 days of the Guarantor or a Restricted Subsidiary becoming aware of such default;
(f) the Guarantor or any Significant Subsidiary pursuant to or within the meaning of any Bankruptcy Law:)
(i) commences a voluntary case;
(ii) consents to the entry of makes an order for relief against it in an involuntary case;
(iii) consents to the appointment of a Custodian of it or for all or substantially all of its property;
(iv) makes a general assignment for the benefit of its creditors; or
(v) creditors or admits in writing its his inability to pay his debts generally pay its debts as such debts they become due; or takes any comparable action under any foreign laws relating to insolvency;
(gii) an involuntary case order, judgment or other proceeding shall be commenced against the Guarantor decree is entered adjudicating Maker bankrupt or insolvent; or (iii) any Significant Subsidiary seeking (i) liquidation, reorganization or other order for relief with respect to it Maker is entered under the Federal Bankruptcy Code; or its debts (iv) Maker commences any proceeding relating to Maker under Title 11 any bankruptcy reorganization, arrangement, insolvency, or readjustment of debt law of any jurisdiction; or any such petition or application is filed, or any such proceeding is commenced, against Maker, the Company may exercise any and all the rights, powers and remedies of any owner of the Bankruptcy Pledged Securities (including the right to vote the Units) and shall have and may exercise without demand any and all the rights and remedies granted to a secured party upon default under the Uniform Commercial Code of Delaware (the “UCC”) or otherwise available to the Company under applicable law. Without limiting the foregoing, upon a default in the payment of principal or interest under this Note, the Company is authorized to sell, assign and deliver at its discretion, from time to time, all or any bankruptcypart of the Pledged Securities at any private sale or public auction, insolvency on not less than ten days written notice to Maker, at such price or prices and upon such terms as the Company may deem advisable. Maker shall have no right to the Pledged Securities after any such sale or assignment. At any such sale or auction, the Company may bid for, and become the acquirer of, the whole or any part of the Pledged Securities offered for sale. In case of any such sale, after deducting the costs, attorneys’ fees and other similar law now or hereafter expenses of sale and delivery, the remaining proceeds of such sale shall be applied to the principal of and accrued interest on this Note; provided that after payment in effectfull of the indebtedness evidenced by this Note, the balance of the proceeds of sale then remaining shall be paid to Maker and Maker shall be entitled to the return of any of the Pledged Securities remaining in the hands of the Company. Maker, or (ii) the appointment his successors and assigns, hereby waives diligence, presentment, protest and demand and notice of a trusteeprotest, receiverdemand, liquidatordishonor and nonpayment of this Note, custodian or other similar official with respect to it and expressly agrees that this Note, or any substantial part of its property or (iii) the winding-up or liquidation of the Guarantor or such Significant Subsidiary; and such involuntary case or other proceeding shall remain undismissed and unstayed for a period of 60 days;
(h) any representation or warranty made by the Guarantor herein shall prove to have been incorrect in any material respect when made or misleading in any material respect when made because of the omission to state a material fact and such incorrect or misleading representation is and continues to be material and unremedied for a period of 30 days after receipt by the Guarantor of written notice thereof; providedpayment hereunder, however, that if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall may be extended up from time to an additional 60 daystime and that the holder hereof may accept security for this Note or release security for this Note, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 60-day period. The grace periods set forth in Section 7.1(a) and (b) above shall not affect all without in any way affecting the right hereunder liability of any Beneficiary entitled to a payment of any amount payable to it, or performance of any obligation, by the RockGen Lessee under any Operative Document to demand prompt payment thereof, or performance thereof, by the Guarantor immediately upon any failure of the RockGen Lessee to pay or perform the same when it has become due (and, for the avoidance of doubt, without regard to the existence of any cure or grace period before such failure by the RockGen Lessee becomes a Lease Event of Default); provided, however, notwithstanding the foregoing, no Lease Event of Default under Section 16(m) and no remedies under the Facility Lease may be exercised until a Calpine Guaranty Event of Default has occurred and is continuingMaker hereunder.
Appears in 3 contracts
Sources: Non Recourse Demand Note (Madison River Communications Corp.), Non Recourse Demand Note (Madison River Communications Corp.), Non Recourse Demand Note (Madison River Communications Corp.)
Defaults. The following events shall constitute an "Event of Default" hereunder (whether any such event shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any Governmental Entity):
(a) Customer shall be in default under this Agreement upon the Guarantor or occurrence of any of the RockGen Lessee under the Facility Lease shall fail following:
(i) Customer fails to make any payment with respect to Periodic Rent or the Termination Value (including the Equity Portion of Termination Value and Debt Portion of Termination Value) pay when due and payable any amount to be paid under such Facility Lease or this Guaranty within five (5) days after the same shall become due thereunder; or
(b) the Guarantor or the RockGen Lessee shall fail to make any other amount payable under any Operative Document after the same shall become due thereunder Agreement, and such failure shall have continued from a then continues for an additional period of ten (10) Business Days business days after receipt notice of overdue payment is delivered by ConEdison Solutions to the RockGen Lessee Customer;
(ii) (ii) Customer fails to perform or meet any of its required duties or obligations under this Agreement and fails to cure such failure and the Guarantor effects of such failure within thirty (30) days of receipt of written notice of default, unless such failure by failures and effects cannot be completely cured within thirty (30) days after said written notice, in which case the RockGen Lessee and/or procedures for additional time to cure the Guarantor, as applicable;
(c) The Guarantor shall fail to comply with its covenants default set forth in Section 3.3 12 shall apply;
(transfer iii) Customer goes into receivership, or makes an assignment for the benefit of RockGen Lessee ownership)creditors whether voluntary or involuntary, 3.6 or a petition is filed by or against the Customer under any bankruptcy, insolvency or similar law and such petition is not dismissed within thirty (Guarantor merger30) or 8.4 (assignment of Guaranty) of this Guarantydays.
(d) the Guarantor shall fail to perform or observe any covenant, obligation or agreement to be performed or observed by it under any Calpine Document (other than any covenant, obligation or agreement referred to in clauses (a) or (b) of ConEdison Solutions shall be in default under this Section 7.1) in any material respect, which shall continue unremedied for (1) with respect to Agreement upon the Guarantor's guaranty of, and agreement with respect to, any nonmonetary obligation, covenant or agreement occurrence of the RockGen Lessee under any of the Operative Documents, 30 days after receipt by the Guarantor of written notice thereof from the Owner Participant, the Owner Lessor, the Indenture Trustee or the Pass Through Trustee; provided, however, if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 180 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 180-day period, and (2) with respect to any other obligation, covenant or agreement hereunder, 30 days after receipt by the Guarantor of written notice thereof;
(e) there shall have occurred either (i) a default by the Guarantor or any Restricted Subsidiary under any instrument or instruments under which there is or may be secured or evidenced any Indebtedness of the Guarantor or any Restricted Subsidiary of the Guarantor (other than the Obligations) having an outstanding principal amount of $50,000,000 (or its foreign currency equivalent) or more individually or in the aggregate that has caused the holders thereof to declare such Indebtedness to be due and payable prior to its Stated Maturity, unless such declaration has been rescinded within 30 days or (ii) a default by the Guarantor or any Restricted Subsidiary in the payment when due of any portion of the principal under any such instrument or instruments, and such unpaid portion exceeds $50,000,000 (or its foreign currency equivalent) individually or in the aggregate and is not paid, or such default is not cured or waived, within any grace period applicable thereto, unless such Indebtedness is discharged within 30 days of the Guarantor or a Restricted Subsidiary becoming aware of such default;
(f) the Guarantor or any Significant Subsidiary pursuant to or within the meaning of any Bankruptcy Lawfollowing:
(i) commences a voluntary caseContractor furnishes any statement, representation, warranty, guaranty, certification in connection with this Agreement that is materially false, deceptive or incorrect;
(ii) consents to Contractor is declared bankrupt, has a petition in bankruptcy filed against it, or if the entry of an order Contractor file for relief against it in an involuntary casebankruptcy protection;
(iii) consents Contractor causes or threatens to the appointment of a Custodian of it cause or for all create labor unrest, dispute, picketing, slowdowns, work stoppage, strike or substantially all of its property;disharmony; or
(iv) makes a general assignment for the benefit Contractor fails to perform or meet any of its creditors; or
required duties, obligations, warranties or guarantees under this Agreement, and Contractor fails to cure such failure(s) or effects of such failure(s) within thirty (v30) admits in writing its inability to generally pay its debts as such debts become due; or takes any comparable action under any foreign laws relating to insolvency;
(g) an involuntary case or other proceeding shall be commenced against the Guarantor or any Significant Subsidiary seeking (i) liquidation, reorganization or other relief with respect to it or its debts under Title 11 days of the Bankruptcy Code or any bankruptcy, insolvency or other similar law now or hereafter in effect, or (ii) the appointment of a trustee, receiver, liquidator, custodian or other similar official with respect to it or any substantial part of its property or (iii) the winding-up or liquidation of the Guarantor or such Significant Subsidiary; and such involuntary case or other proceeding shall remain undismissed and unstayed for a period of 60 days;
(h) any representation or warranty made by the Guarantor herein shall prove to have been incorrect in any material respect when made or misleading in any material respect when made because of the omission to state a material fact and such incorrect or misleading representation is and continues to be material and unremedied for a period of 30 days after receipt by the Guarantor of written notice thereof; providedof default, however, that if unless such condition failure(s) or effects cannot be remedied completely cured within such thirty (30-day period) days after said written notice, then in which case the period within which procedures for additional time to remedy such condition shall be extended up to an additional 60 days, so long cure the default as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 60-day period. The grace periods set forth in Section 7.1(a) and (b) above 12 shall not affect in any way the right hereunder of any Beneficiary entitled to a payment of any amount payable to it, or performance of any obligation, by the RockGen Lessee under any Operative Document to demand prompt payment thereof, or performance thereof, by the Guarantor immediately upon any failure of the RockGen Lessee to pay or perform the same when it has become due (and, for the avoidance of doubt, without regard to the existence of any cure or grace period before such failure by the RockGen Lessee becomes a Lease Event of Default); provided, however, notwithstanding the foregoing, no Lease Event of Default under Section 16(m) and no remedies under the Facility Lease may be exercised until a Calpine Guaranty Event of Default has occurred and is continuingapply.
Appears in 3 contracts
Sources: Energy Savings Performance Contract, Energy Savings Performance Contract, Energy Savings Performance Contract
Defaults. The occurrence of any one or more of the following events shall constitute an "Event of Default" hereunder (whether any such event shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any Governmental Entity):":
(a) the Guarantor or the RockGen Lessee under the Facility Lease The Company shall fail to make pay (i) any interest due on any Revolving Credit Note, or any other amount payable hereunder (other than a principal payment with respect to Periodic Rent on any Note or the Termination Value (including the Equity Portion of Termination Value and Debt Portion of Termination Valuea Reimbursement Obligation) when due and payable under such Facility Lease or this Guaranty within by five (5) days after the same shall become becomes due; or (ii) any principal amount due thereunder; oron any Revolving Credit Note or any Reimbursement Obligation when due;
(b) The Company shall default in the Guarantor performance or the RockGen Lessee shall fail to make observance of any agreement, covenant, condition, provision or term contained in Article V (other amount payable under any Operative Document after the same shall become due thereunder and such failure shall have continued from a period than section 5.8) or section 6.1 of ten (10) Business Days after receipt by the RockGen Lessee and the Guarantor of written notice of such failure by the RockGen Lessee and/or the Guarantor, as applicablethis Agreement;
(c) The Guarantor Company shall fail default in the performance or observance of any of the other agreements, covenants, conditions, provisions or terms in this Agreement or any Collateral Document and such default continues for a period of thirty days after written notice thereof is given to comply with its covenants set forth in Section 3.3 (transfer the Company by any of RockGen Lessee ownership), 3.6 (Guarantor merger) or 8.4 (assignment of Guaranty) of this Guaranty.the Banks;
(d) the Guarantor shall fail to perform or observe any covenant, obligation or agreement to be performed or observed by it under any Calpine Document (other than any covenant, obligation or agreement referred to in clauses (a) or (b) of this Section 7.1) in any material respect, which shall continue unremedied for (1) with respect to the Guarantor's guaranty of, and agreement with respect to, any nonmonetary obligation, covenant or agreement of the RockGen Lessee under any of the Operative Documents, 30 days after receipt by the Guarantor of written notice thereof from the Owner Participant, the Owner Lessor, the Indenture Trustee or the Pass Through Trustee; provided, however, if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 180 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 180-day period, and (2) with respect to any other obligation, covenant or agreement hereunder, 30 days after receipt by the Guarantor of written notice thereof;
(e) there shall have occurred either (i) a default by the Guarantor or any Restricted Subsidiary under any instrument or instruments under which there is or may be secured or evidenced any Indebtedness of the Guarantor or any Restricted Subsidiary of the Guarantor (other than the Obligations) having an outstanding principal amount of $50,000,000 (or its foreign currency equivalent) or more individually or in the aggregate that has caused the holders thereof to declare such Indebtedness to be due and payable prior to its Stated Maturity, unless such declaration has been rescinded within 30 days or (ii) a default by the Guarantor or any Restricted Subsidiary in the payment when due of any portion of the principal under any such instrument or instruments, and such unpaid portion exceeds $50,000,000 (or its foreign currency equivalent) individually or in the aggregate and is not paid, or such default is not cured or waived, within any grace period applicable thereto, unless such Indebtedness is discharged within 30 days of the Guarantor or a Restricted Subsidiary becoming aware of such default;
(f) the Guarantor or any Significant Subsidiary pursuant to or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case;
(ii) consents to the entry of an order for relief against it in an involuntary case;
(iii) consents to the appointment of a Custodian of it or for all or substantially all of its property;
(iv) makes a general assignment for the benefit of its creditors; or
(v) admits in writing its inability to generally pay its debts as such debts become due; or takes any comparable action under any foreign laws relating to insolvency;
(g) an involuntary case or other proceeding shall be commenced against the Guarantor or any Significant Subsidiary seeking (i) liquidation, reorganization or other relief with respect to it or its debts under Title 11 of the Bankruptcy Code or any bankruptcy, insolvency or other similar law now or hereafter in effect, or (ii) the appointment of a trustee, receiver, liquidator, custodian or other similar official with respect to it or any substantial part of its property or (iii) the winding-up or liquidation of the Guarantor or such Significant Subsidiary; and such involuntary case or other proceeding shall remain undismissed and unstayed for a period of 60 days;
(h) any Any representation or warranty made by the Guarantor Company herein or any certificate delivered pursuant hereto, or any financial statement delivered to any Bank hereunder, shall prove to have been incorrect false in any material respect as of the time when made or misleading in given;
(e) The Company or any material respect Subsidiary shall fail to pay as and when made because due and payable (whether at maturity, by acceleration or otherwise) all or any part of the omission to state a material fact principal of or interest on any indebtedness of or assumed by it (including without limitation the Demand Notes), or of the rentals due under any lease or sublease, or of any other obligation for the payment of money, in each case where such payments aggregate $1,000,000 or more, and such incorrect default shall not be cured within the period or misleading representation is periods of grace, if any, specified in the instruments governing such obligations; or default shall occur under any evidence of, or any indenture, lease, sublease, agreement or other instrument governing such obligations, and continues to be material and unremedied such default shall continue for a period of 30 days after receipt by time sufficient to permit the Guarantor acceleration of written notice thereof; providedthe maturity of any such indebtedness or other obligation or the termination of such lease or sublease, however, that if unless the Company or such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition Subsidiary shall be extended up to an additional 60 dayscontesting such default in good faith by appropriate proceedings;
(f) A final judgment which, so long as together with all other outstanding final judgments against the Guarantor diligently pursues such remedy Company and such condition is reasonably capable of being remedied within such additional 60-day period. The grace periods set forth in Section 7.1(a) and (b) above shall not affect in any way the right hereunder of any Beneficiary entitled to a payment of any amount payable to itits Subsidiaries, or performance any of them, exceeds an aggregate of $100,000 shall be entered against the Company or any obligationSubsidiary and shall remain outstanding and unsatisfied, by unbonded, unstayed or uninsured after 60 days from the RockGen Lessee under date of entry thereof;
(g) The Company or any Operative Document to demand prompt payment thereofSubsidiary shall: (i) become insolvent; or (ii) be unable, or performance thereof, by the Guarantor immediately upon any failure of the RockGen Lessee admit in writing its inability to pay or perform the same when it has become due (and, for the avoidance of doubt, without regard to the existence of any cure or grace period before such failure by the RockGen Lessee becomes a Lease Event of Default)its debts as they mature; provided, however, notwithstanding the foregoing, no Lease Event of Default under Section 16(m) and no remedies under the Facility Lease may be exercised until a Calpine Guaranty Event of Default has occurred and is continuing.or
Appears in 3 contracts
Sources: Credit Agreement (Oshkosh B Gosh Inc), Credit Agreement (Oshkosh B Gosh Inc), Credit Agreement (Oshkosh B Gosh Inc)
Defaults. The following events (a) It shall constitute be an "event of default (“Event of Default" hereunder ”) under this Note and each of the other Loan Documents if (whether i) any principal, interest or other amount of money due under this Note is not paid in full when due, regardless of how such event amount may have become due; or (ii) there shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any Governmental Entity):
(a) the Guarantor or the RockGen Lessee occur a Default under the Facility Lease Loan Agreement (as such term “Default” is defined in the Loan Agreement) subject to any applicable notice and cure period contained therein. Upon the occurrence of an Event of Default, Lender shall fail have the rights to make any payment with respect to Periodic Rent or declare the Termination Value (including unpaid principal balance and accrued but unpaid interest on this Note, and all other amounts due hereunder and under the Equity Portion of Termination Value and Debt Portion of Termination Value) when other Loan Documents, at once due and payable under (and upon such Facility Lease or this Guaranty within five (5) days after declaration, the same shall become be at once due thereunder; orand payable), to foreclose any liens and security interests securing payment hereof and to exercise any of its other rights, powers and remedies under this Note, under any other Loan Document, or at law or in equity.
(b) All of the Guarantor or the RockGen Lessee shall fail to make rights, remedies, powers and privileges (together, “Rights”) of Lender and Administrative Agent provided for in this Note and in any other amount Loan Document are cumulative of each other and of any and all other Rights at law or in equity. The resort to any Right shall not prevent the concurrent or subsequent employment of any other appropriate Right. No single or partial exercise of any Right shall exhaust it, or preclude any other or further exercise thereof, and every Right may be exercised at any time and from time to time. No failure by Lender to exercise, nor delay in exercising any Right, including but not limited to the right to accelerate the maturity of this Note, shall be construed as a waiver of any Event of Default or as a waiver of any Right. Without limiting the generality of the foregoing provisions, the acceptance by Lender from time to time of any payment under this Note which is past due or which is less than the payment in full of all amounts due and payable under any Operative Document after at the same shall become due thereunder and such failure shall have continued from a period of ten (10) Business Days after receipt by the RockGen Lessee and the Guarantor of written notice time of such failure by the RockGen Lessee and/or the Guarantorpayment, as applicable;
(c) The Guarantor shall fail to comply with its covenants set forth in Section 3.3 (transfer of RockGen Lessee ownership), 3.6 (Guarantor merger) or 8.4 (assignment of Guaranty) of this Guaranty.
(d) the Guarantor shall fail to perform or observe any covenant, obligation or agreement to be performed or observed by it under any Calpine Document (other than any covenant, obligation or agreement referred to in clauses (a) or (b) of this Section 7.1) in any material respect, which shall continue unremedied for (1) with respect to the Guarantor's guaranty of, and agreement with respect to, any nonmonetary obligation, covenant or agreement of the RockGen Lessee under any of the Operative Documents, 30 days after receipt by the Guarantor of written notice thereof from the Owner Participant, the Owner Lessor, the Indenture Trustee or the Pass Through Trustee; provided, however, if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 180 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 180-day period, and (2) with respect to any other obligation, covenant or agreement hereunder, 30 days after receipt by the Guarantor of written notice thereof;
(e) there shall have occurred either (i) constitute a default by waiver of or impair or extinguish the Guarantor right of Lender to accelerate the maturity of this Note or to exercise any Restricted Subsidiary under other Right at the time or at any instrument subsequent time, or instruments under which there is or may be secured or evidenced nullify any Indebtedness of the Guarantor or any Restricted Subsidiary of the Guarantor (other than the Obligations) having an outstanding principal amount of $50,000,000 (or its foreign currency equivalent) or more individually or in the aggregate that has caused the holders thereof to declare such Indebtedness to be due and payable prior to its Stated Maturity, unless such declaration has been rescinded within 30 days or (ii) a default by the Guarantor or any Restricted Subsidiary in the payment when due exercise of any portion of the principal under any such instrument or instruments, and such unpaid portion exceeds $50,000,000 (or its foreign currency equivalent) individually or in the aggregate and is not paid, or such default is not cured or waived, within any grace period applicable thereto, unless such Indebtedness is discharged within 30 days of the Guarantor or a Restricted Subsidiary becoming aware of such default;
(f) the Guarantor or any Significant Subsidiary pursuant to or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case;
(ii) consents to the entry of an order for relief against it in an involuntary case;
(iii) consents to the appointment of a Custodian of it or for all or substantially all of its property;
(iv) makes a general assignment for the benefit of its creditors; or
(v) admits in writing its inability to generally pay its debts as such debts become due; or takes any comparable action under any foreign laws relating to insolvency;
(g) an involuntary case or other proceeding shall be commenced against the Guarantor or any Significant Subsidiary seeking (i) liquidation, reorganization or other relief with respect to it or its debts under Title 11 of the Bankruptcy Code or any bankruptcy, insolvency or other similar law now or hereafter in effectRight, or (ii) the appointment of constitute a trustee, receiver, liquidator, custodian or other similar official with respect to it or any substantial part of its property or (iii) the winding-up or liquidation waiver of the Guarantor requirement of punctual payment and performance or such Significant Subsidiary; and such involuntary case or other proceeding shall remain undismissed and unstayed for a period of 60 days;novation in any respect.
(hc) If any representation or warranty made by the Guarantor herein shall prove to have been incorrect holder of this Note retains an attorney in connection with any material respect when made or misleading in any material respect when made because of the omission to state a material fact and such incorrect or misleading representation is and continues to be material and unremedied for a period of 30 days after receipt by the Guarantor of written notice thereof; provided, however, that if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 60 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 60-day period. The grace periods set forth in Section 7.1(a) and (b) above shall not affect in any way the right hereunder of any Beneficiary entitled to a payment of any amount payable to it, or performance of any obligation, by the RockGen Lessee under any Operative Document to demand prompt payment thereof, or performance thereof, by the Guarantor immediately upon any failure of the RockGen Lessee to pay or perform the same when it has become due (and, for the avoidance of doubt, without regard to the existence of any cure or grace period before such failure by the RockGen Lessee becomes a Lease Event of Default); provided, however, notwithstanding the foregoing, no Lease Event of Default under Section 16(m) or at maturity or to collect, enforce or defend this Note or any other Loan Document in any lawsuit or in any probate, reorganization, bankruptcy, arbitration or other proceeding, or if Borrower sues any holder in connection with this Note or any other Loan Document and no remedies does not prevail, then Borrower agrees to pay to each such holder, in addition to principal, interest and any other sums owing to Lender hereunder and under the Facility Lease may be exercised until a Calpine Guaranty Event of Default has occurred other Loan Documents, all costs and expenses incurred by such holder in trying to collect this Note or in any such suit or proceeding, including, without limitation, reasonable attorneys’ fees and expenses, investigation costs and all court costs, whether or not suit is continuingfiled hereon, whether before or after the Maturity Date, or whether in connection with bankruptcy, insolvency or appeal, or whether collection is made against Borrower or any guarantor or endorser or any other person primarily or secondarily liable hereunder. Any judgment on this Note shall bear interest at the highest rate allowed by applicable law.
Appears in 3 contracts
Sources: Construction Loan Agreement (Skechers Usa Inc), Construction Loan Agreement (Skechers Usa Inc), Construction Loan Agreement (Skechers Usa Inc)
Defaults. The following events shall constitute an "Event of Default" hereunder (whether any such event shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any Governmental Entity):
(a) the Guarantor or the RockGen Lessee under the Facility Lease A. It is covenanted and agreed that if either Party shall fail to make perform any payment with respect to Periodic Rent of the covenants or obligations imposed upon it under and by virtue of the Termination Value (including the Equity Portion of Termination Value and Debt Portion of Termination Value) when due and payable under such Facility Lease Agreement or this Guaranty within five Appendix, in addition to its other rights and remedies, the other Party may terminate the Agreement by proceeding as follows:
1) The Party not In default shall cause a written notice to be served on the other Party in default, stating specifically the cause for terminating the Agreement, and declaring it to be the Intention of the Party giving notice to terminate the same; thereupon, the Party in default shall have thirty (530) days after the same service of the aforesaid notice in which to remedy or remove the cause or causes stated in the notice for terminating the Agreement. If within said thirty (30) days the Party in default does so remove and remedy said cause or causes, or fully indemnifies the Party not in default for any and all consequences of such breach, then such notice shall be withdrawn and the Agreement shall continue in full force and effect.
2) In case the Party in default does not remedy and remove the cause or causes, or does not indemnify the Party giving the notice for any and all consequences of such breach, within said period of thirty (30) days, then the Agreement shall become due thereunder; or
(b) the Guarantor or the RockGen Lessee shall fail to make any other amount payable under any Operative Document null and void from and after the same shall become due thereunder and such failure shall have continued from a period expiration of ten (10) Business Days after receipt by the RockGen Lessee and the Guarantor of written notice of such failure by the RockGen Lessee and/or the Guarantor, as applicable;
(c) The Guarantor shall fail to comply with its covenants set forth in Section 3.3 (transfer of RockGen Lessee ownership), 3.6 (Guarantor merger) or 8.4 (assignment of Guaranty) of this Guarantysaid period.
(d3) Any cancellation of the Guarantor shall fail Agreement pursuant to perform or observe any covenant, obligation or agreement to be performed or observed by it under any Calpine Document (other than any covenant, obligation or agreement referred to in clauses (a) or (b) the provisions of this Section 7.1) in any material respect, which shall continue unremedied for (1) with respect be without prejudice to the Guarantor's guaranty ofobligation of Buyer/Processor to make proper settlement, accounting and distribution of proceeds to ad owners of interest in the proceeds received for Gas delivered to Buyer/Processor thereunder to the time of cancellation, and agreement with respect to, without waiver of any nonmonetary obligation, covenant or agreement remedy to which the Party not in default may be entitled for violations of the RockGen Lessee under Agreement.
B. No waiver by either Seller or Buyer/Processor of any default of the Operative Documentsother under this Agreement shall operate as a waiver of any future default, 30 days after receipt by the Guarantor whether of written notice thereof from the Owner Participantlike or different character or nature, the Owner Lessor, the Indenture Trustee or the Pass Through Trustee; provided, however, if nor shall any failure to exercise any right hereunder be considered as a waiver of such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 180 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 180-day period, and (2) with respect to any other obligation, covenant or agreement hereunder, 30 days after receipt by the Guarantor of written notice thereof;
(e) there shall have occurred either (i) a default by the Guarantor or any Restricted Subsidiary under any instrument or instruments under which there is or may be secured or evidenced any Indebtedness of the Guarantor or any Restricted Subsidiary of the Guarantor (other than the Obligations) having an outstanding principal amount of $50,000,000 (or its foreign currency equivalent) or more individually or right in the aggregate that has caused the holders thereof to declare such Indebtedness to be due and payable prior to its Stated Maturity, unless such declaration has been rescinded within 30 days or (ii) a default by the Guarantor or any Restricted Subsidiary in the payment when due of any portion of the principal under any such instrument or instruments, and such unpaid portion exceeds $50,000,000 (or its foreign currency equivalent) individually or in the aggregate and is not paid, or such default is not cured or waived, within any grace period applicable thereto, unless such Indebtedness is discharged within 30 days of the Guarantor or a Restricted Subsidiary becoming aware of such default;
(f) the Guarantor or any Significant Subsidiary pursuant to or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case;
(ii) consents to the entry of an order for relief against it in an involuntary case;
(iii) consents to the appointment of a Custodian of it or for all or substantially all of its property;
(iv) makes a general assignment for the benefit of its creditors; or
(v) admits in writing its inability to generally pay its debts as such debts become due; or takes any comparable action under any foreign laws relating to insolvency;
(g) an involuntary case or other proceeding shall be commenced against the Guarantor or any Significant Subsidiary seeking (i) liquidation, reorganization or other relief with respect to it or its debts under Title 11 of the Bankruptcy Code or any bankruptcy, insolvency or other similar law now or hereafter in effect, or (ii) the appointment of a trustee, receiver, liquidator, custodian or other similar official with respect to it or any substantial part of its property or (iii) the winding-up or liquidation of the Guarantor or such Significant Subsidiary; and such involuntary case or other proceeding shall remain undismissed and unstayed for a period of 60 days;
(h) any representation or warranty made by the Guarantor herein shall prove to have been incorrect in any material respect when made or misleading in any material respect when made because of the omission to state a material fact and such incorrect or misleading representation is and continues to be material and unremedied for a period of 30 days after receipt by the Guarantor of written notice thereof; provided, however, that if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 60 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 60-day period. The grace periods set forth in Section 7.1(a) and (b) above shall not affect in any way the right hereunder of any Beneficiary entitled to a payment of any amount payable to it, or performance of any obligation, by the RockGen Lessee under any Operative Document to demand prompt payment thereof, or performance thereof, by the Guarantor immediately upon any failure of the RockGen Lessee to pay or perform the same when it has become due (and, for the avoidance of doubt, without regard to the existence of any cure or grace period before such failure by the RockGen Lessee becomes a Lease Event of Default); provided, however, notwithstanding the foregoing, no Lease Event of Default under Section 16(m) and no remedies under the Facility Lease may be exercised until a Calpine Guaranty Event of Default has occurred and is continuing.future
Appears in 3 contracts
Sources: Gas Purchase and Processing Agreement (Petroleum Development Corp), Gas Purchase and Processing Agreement (Rockies Region 2007 Lp), Gas Purchase and Processing Agreement (Rockies Region 2007 Lp)
Defaults. The (a) Each of the following events shall constitute an "“Event of Default" ” hereunder (whether any whatever the reason for such event of default and whether it shall be voluntary or involuntary involuntary, or come about or be effected by operation of law law, or be pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any Governmental Entityadministrative or governmental body):
(a1) the Guarantor or the RockGen if Lessee under the Facility Lease shall fail to make any payment with respect to Periodic Rent or the Termination Value (including the Equity Portion of Termination Value and Debt Portion of Termination Value) pay when due any sum under this Agreement and payable under such Facility Lease failure shall continue for a period of three business days after oral, facsimile, electronic mail or written notice has been given by Lessor to Lessee; (2) if Lessee shall fail to perform any covenant or agreement contained herein, and such failure shall continue for a period of fifteen (15) calendar days after notice thereof shall have been given in writing; (3) if any representation or warranty made by Lessee in this Guaranty within five Agreement or any agreement, document or certificate delivered by the Lessee in connection herewith is or shall become incorrect in any material respect; (4) if Lessee shall operate the Aircraft in violation of any applicable law, regulation, rule or order of any governmental authority having jurisdiction thereof or shall operate the Aircraft BLACKSTONE DRY LEASE - PAGE 6 OF 9 when the insurance required hereunder shall not be in effect; (5) if any proceedings shall be commenced under any bankruptcy, insolvency, reorganization, readjustment of debt, receivership or liquidation law or statute of any jurisdiction; or (6) if any such proceedings shall be instituted against either Party and shall not be withdrawn or terminated within thirty (30) calendar days after the same shall become due thereunder; ortheir commencement.
(b) Upon the Guarantor occurrence of any Event of Default Lessor may, at its option, exercise any or all remedies available at law or in equity, including, without limitation, any or all of the RockGen following remedies, as Lessor in its sole discretion shall elect: (1) by notice in writing to terminate this Agreement immediately, whereupon all rights of the Lessee to the use or possession of the Aircraft or any part thereof shall absolutely cease and terminate but Lessee shall fail to make any other amount payable under any Operative Document after remain liable as hereinafter provided; and thereupon Lessee, if so requested by Lessor, shall at its expense promptly return the Aircraft and Aircraft Documentation as required by this Agreement or Lessor, at its option, may enter upon the premises where the Aircraft or Aircraft Documentation are located and take immediate possession of and remove the same shall become due thereunder by summary proceedings or otherwise. Lessee specifically authorizes Lessor’s entry upon any premises where the Aircraft or Aircraft Documentation may be located for the purpose of, and such failure shall waives any cause of action it may have continued from arising from, a period peaceful retaking of ten the Aircraft or Aircraft Documentation; or (102) Business Days after receipt by the RockGen Lessee and the Guarantor of written notice of such failure by the RockGen Lessee and/or the Guarantor, as applicable;
(c) The Guarantor shall fail to comply with its covenants set forth in Section 3.3 (transfer of RockGen Lessee ownership), 3.6 (Guarantor merger) or 8.4 (assignment of Guaranty) of this Guaranty.
(d) the Guarantor shall fail to perform or observe any covenant, obligation or agreement cause to be performed or observed by it under any Calpine Document (other than any covenant, obligation or agreement referred to in clauses (a) or (b) of this Section 7.1) in any material respect, which shall continue unremedied for (1) with respect to the Guarantor's guaranty of, and agreement with respect to, any nonmonetary obligation, covenant or agreement of the RockGen Lessee under any hereunder. Lessee agrees to pay all costs and expenses incurred by Lessor for such performance and acknowledges that such performance by Lessor shall not be deemed to cure said Event of Default.
(c) Lessee shall be liable for all costs, charges and expenses, including reasonable legal fees and disbursements, incurred by Lessor by reason of the Operative Documents, 30 days after receipt by the Guarantor occurrence of written notice thereof from the Owner Participant, the Owner Lessor, the Indenture Trustee any Event of Default or the Pass Through Trustee; providedexercise of Lessor’s remedies with respect thereto. No remedy referred to herein is intended to be exclusive, however, if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition but each shall be extended up to an additional 180 days, so long as the Guarantor diligently pursues such remedy cumulative and such condition is reasonably capable of being remedied within such additional 180-day period, and (2) with respect in addition to any other obligation, covenant remedy referred to above or agreement hereunder, 30 days after receipt by the Guarantor of written notice thereof;
(e) there shall have occurred either (i) a default by the Guarantor or any Restricted Subsidiary under any instrument or instruments under which there is or may be secured or evidenced any Indebtedness of the Guarantor or any Restricted Subsidiary of the Guarantor (other than the Obligations) having an outstanding principal amount of $50,000,000 (or its foreign currency equivalent) or more individually otherwise available to Lessor at law or in equity. Lessor shall not be deemed to have waived any default, Event of Default or right hereunder unless the aggregate that has caused the holders thereof to declare such Indebtedness to be due and payable prior to its Stated Maturity, unless such declaration has been rescinded within 30 days or (ii) a default same is acknowledged in writing by the Guarantor or any Restricted Subsidiary in the payment when due duly authorized representative of Lessor. No waiver by Lessor of any portion default or Event of the principal under any such instrument or instruments, and such unpaid portion exceeds $50,000,000 (or its foreign currency equivalent) individually or in the aggregate and is not paid, or such default is not cured or waived, within any grace period applicable thereto, unless such Indebtedness is discharged within 30 days of the Guarantor or a Restricted Subsidiary becoming aware of such default;
(f) the Guarantor or any Significant Subsidiary pursuant to or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case;
(ii) consents to the entry of an order for relief against it in an involuntary case;
(iii) consents to the appointment of a Custodian of it or for all or substantially all of its property;
(iv) makes a general assignment for the benefit of its creditors; or
(v) admits in writing its inability to generally pay its debts as such debts become due; or takes any comparable action under any foreign laws relating to insolvency;
(g) an involuntary case or other proceeding Default hereunder shall be commenced against the Guarantor or any Significant Subsidiary seeking (i) liquidation, reorganization or other relief with respect to it or its debts under Title 11 of the Bankruptcy Code or any bankruptcy, insolvency or other similar law now or hereafter in effect, or (ii) the appointment of a trustee, receiver, liquidator, custodian or other similar official with respect to it or any substantial part of its property or (iii) the winding-up or liquidation of the Guarantor or such Significant Subsidiary; and such involuntary case or other proceeding shall remain undismissed and unstayed for a period of 60 days;
(h) any representation or warranty made by the Guarantor herein shall prove to have been incorrect in any material respect when made or misleading in any material respect when made because of the omission to state a material fact and such incorrect or misleading representation is and continues to be material and unremedied for a period of 30 days after receipt by the Guarantor of written notice thereof; provided, however, that if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 60 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 60-day period. The grace periods set forth in Section 7.1(a) and (b) above shall not affect in any way the right hereunder be, or be construed to be, a waiver of any Beneficiary entitled to a payment of any amount payable to it, future or performance of any obligation, by the RockGen Lessee under any Operative Document to demand prompt payment thereof, subsequent default or performance thereof, by the Guarantor immediately upon any failure of the RockGen Lessee to pay or perform the same when it has become due (and, for the avoidance of doubt, without regard to the existence of any cure or grace period before such failure by the RockGen Lessee becomes a Lease Event of Default); provided. The failure or delay of Lessor in exercising any rights granted it hereunder upon any occurrence of any such right upon the continuation or recurrence of any such contingencies or similar contingencies, however, notwithstanding and any single or partial exercise of any particular right by Lessor shall not exhaust the foregoing, no Lease Event same or constitute a waiver of Default under Section 16(m) and no remedies under the Facility Lease may be exercised until a Calpine Guaranty Event of Default has occurred and is continuingany other right provided herein.
Appears in 3 contracts
Sources: Aircraft Dry Lease Agreement (Blackstone Group Inc), Aircraft Dry Lease Agreement (Blackstone Group L.P.), Aircraft Dry Lease Agreement (Blackstone Group L.P.)
Defaults. The occurrence of any one or more of the following events shall constitute an "“Event of Default" hereunder (whether any such event shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any Governmental Entity):” hereunder:
(a) the Guarantor or the RockGen Lessee under the Facility Lease if Borrower shall fail to make any payment with respect to Periodic Rent or the Termination Value (including the Equity Portion of Termination Value and Debt Portion of Termination Value) when due and payable on any Obligation under such Facility Lease this Agreement or this Guaranty within five (5) days after the same shall become due thereunderany other Loan Document; or
(b) the Guarantor or the RockGen Lessee shall fail to make if any other amount payable under any Operative Document after the same shall become due thereunder and such failure shall have continued from a period of ten (10) Business Days after receipt by the RockGen Lessee and the Guarantor of written notice of such failure by the RockGen Lessee and/or the Guarantor, as applicable;
(c) The Guarantor Loan Party shall fail to comply with its covenants set forth in Section 3.3 (transfer of RockGen Lessee ownership)any term, 3.6 (Guarantor merger) or 8.4 (assignment of Guaranty) of this Guaranty.
(d) the Guarantor shall fail to perform or observe any covenant, obligation or agreement to be performed or observed by it under any Calpine Document (other than any covenant, obligation or agreement referred to in clauses (a) or (b) of this Section 7.1) in any material respect, which shall continue unremedied for (1) with respect to the Guarantor's guaranty of, and agreement with respect to, any nonmonetary obligationcondition, covenant or agreement contained in Article 7 or Article 10 of this Agreement or contained in the Warrant or Rights Agreement; or
(c) if any Loan Party shall fail to comply with any term, condition, covenant or agreement contained in this Agreement other than in Articles 7 or 10 of this Agreement, or in any other Loan Document, and such failure continues for a period of fifteen (15) days after the earlier to occur of (i) the date on which such failure to comply is known or reasonably should have become known to any officer of the RockGen Lessee under any relevant Loan Party, or (ii) the date on which Lenders shall have notified the relevant Loan Party of the Operative Documents, 30 days after receipt by the Guarantor of written notice thereof from the Owner Participant, the Owner Lessor, the Indenture Trustee or the Pass Through Trusteesuch failure; provided, however, if that such condition canfifteen (15) day period shall not be remedied within such 30-day period, then apply in the period within case of any failure which to remedy such condition shall be extended up to an additional 180 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably not capable of being remedied cured at all or within such additional 180-fifteen (15) day period or which has been the subject of a prior failure within a six (6) month period, and (2) with respect to any other obligation, covenant or agreement hereunder, 30 days after receipt by the Guarantor of written notice thereof;; or
(ed) there if any Loan Party shall have occurred either (i) a default by the Guarantor or any Restricted Subsidiary under any instrument or instruments under which there is or may be secured or evidenced any Indebtedness of the Guarantor or any Restricted Subsidiary of the Guarantor (other than the Obligations) having an outstanding principal amount of $50,000,000 (or its foreign currency equivalent) or more individually or in the aggregate that has caused the holders thereof to declare such Indebtedness cease to be due and payable prior to its Stated MaturitySolvent, unless such declaration has been rescinded within 30 days or (ii) a default by the Guarantor or any Restricted Subsidiary in the payment when due of any portion of the principal under any such instrument or instruments, and such unpaid portion exceeds $50,000,000 (or its foreign currency equivalent) individually or in the aggregate and is not paid, or such default is not cured or waived, within any grace period applicable thereto, unless such Indebtedness is discharged within 30 days of the Guarantor or a Restricted Subsidiary becoming aware of such default;
(f) the Guarantor or any Significant Subsidiary pursuant to or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case;
(ii) consents to the entry of make an order for relief against it in an involuntary case;
(iii) consents to the appointment of a Custodian of it or for all or substantially all of its property;
(iv) makes a general assignment for the benefit of its creditors; or
(v) admits in writing , call a meeting of its inability creditors to generally pay its debts as such debts become due; obtain any general financial accommodation, or takes suspend business or if any comparable action case under any foreign laws relating to insolvency;
(g) an involuntary case or other proceeding provision of the Bankruptcy Codes including provisions for reorganizations, shall be commenced by or against Borrower (and, in the Guarantor case of any such case commenced against such Loan Party, such case shall not have been dismissed within sixty (60) days) or any Significant Subsidiary seeking (i) liquidation, reorganization or other relief with respect to it or its debts under Title 11 of the Bankruptcy Code or any bankruptcy, insolvency or other similar law now or hereafter in effect, or (ii) the appointment of if a trustee, receiver, liquidator, custodian trustee or other similar official with respect to it equivalent officer shall be appointed for all or any substantial part of its property the Collateral of such Loan Party; or
(e) if any representation or warranty contained in this Agreement or any Loan Document, or in any written statement pursuant hereto or thereto, or in any report, financial statement or certificate delivered by any Loan Party to Lenders shall be false, in any material respect, when made; or
(iiif) the winding-up if any federal or liquidation state tax lien is filed of the Guarantor record against any Loan Party, and is not bonded or such Significant Subsidiarydischarged within fifteen (15) days of filing; and such involuntary case or other proceeding or
(g) if Borrower’s independent public accountants shall remain undismissed and unstayed for a period of 60 days;refuse to deliver any financial statement required by this Agreement; or
(h) if a judgment for $100,000 or more shall be entered against any representation or warranty made by the Guarantor herein shall prove to have been incorrect Loan Party in any material action or proceeding and shall not be stayed, vacated, bonded, paid or discharged within fifteen (15) days of entry, except a judgment where the claim is fully covered by insurance (other than the deductible) and the insurance company has accepted liability therefor in writing; or
(i) if any obligation of any Loan Party in respect of any Indebtedness with a then-outstanding principal balance of one hundred thousand dollars ($100,000) or more shall be declared to be or shall become due and payable prior to its stated maturity or such obligation shall not be paid as and when made the same becomes due and payable; or misleading there shall occur any event or condition which constitutes an event of default under any note, mortgage, indenture, instrument, agreement or evidence of such Indebtedness relating to any obligation of any Loan Party in respect of any material respect when made because such Indebtedness the effect of which is to permit the holder or the holders of such note, mortgage, indenture, instrument, agreement or evidence of such Indebtedness, or a trustee, agent or other representative on behalf of such holder or holders, to cause the Indebtedness evidenced thereby to become due prior to its stated maturity; or
(j) upon the happening of any Reportable Event, or if Borrower terminates or withdraws (full or partial) from any Plan, or if a trustee shall be appointed by an appropriate United States District Court or other court or administrative tribunal to administer any Plan, or if the Pension Benefit Guaranty Corporation shall institute proceedings to terminate any Plan or to appoint a trustee to administer any Plan; or
(k) upon the occurrence and continuance of any Material Adverse Effect, which in the sole discretion of the omission Lenders, impairs the Lenders’ security, increases the Lenders’ risks, or impairs any Loan Party’s ability to state perform under this Agreement or under any of the other Loan Documents; or
(l) if any Guarantor purports to terminate its guaranty; or
(m) if, within three (3) Business Days following the exercise of the Warrant, the Borrower fails to duly and validly issue and deliver pursuant to the terms of the Warrant the common stock thereunder, fully paid and non-assessable, without any preemptive rights or rights of first refusal and free and clear of any liens or other encumbrances; or
(n) if the sales of the Borrower and its Subsidiaries, on a material fact and such incorrect consolidated basis, decline by twenty percent (20%) in a fiscal quarter period compared to the prior fiscal quarter period, in each case, for which financial statements are delivered or misleading representation is and continues required to be material and unremedied for a period of 30 days after receipt by the Guarantor of written notice thereof; provided, however, that if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 60 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 60-day period. The grace periods set forth in Section 7.1(a) and (b) above shall not affect in any way the right hereunder of any Beneficiary entitled to a payment of any amount payable to it, or performance of any obligation, by the RockGen Lessee under any Operative Document to demand prompt payment thereof, or performance thereof, by the Guarantor immediately upon any failure of the RockGen Lessee to pay or perform the same when it has become due (and, for the avoidance of doubt, without regard delivered to the existence of any cure or grace period before such failure by the RockGen Lessee becomes a Lease Event of Default); provided, however, notwithstanding the foregoing, no Lease Event of Default under Section 16(m) and no remedies under the Facility Lease may be exercised until a Calpine Guaranty Event of Default has occurred and is continuingLenders.
Appears in 3 contracts
Sources: Loan and Security Agreement (Fat Brands, Inc), Loan and Security Agreement (Fat Brands, Inc), Loan and Security Agreement (Fat Brands, Inc)
Defaults. The following events shall constitute an "Event of Default" hereunder (whether any such event shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any Governmental Entity):
(a) Upon the Guarantor or occurrence and during the RockGen Lessee continuance of a Default, Administrative Agent on behalf of the Lender and the other Lenders shall have the right to declare the unpaid principal balance and accrued but unpaid interest on this Note, and all other amounts due hereunder and under the Facility Lease shall fail to make any payment with respect to Periodic Rent or the Termination Value (including the Equity Portion of Termination Value and Debt Portion of Termination Value) when other Loan Documents, at once due and payable under (and upon such Facility Lease or this Guaranty within five (5) days after declaration, the same shall become be at once due thereunder; orand payable), to foreclose any liens and security interests securing payment hereof and to exercise any of its other rights, powers and remedies under this Note, under any other Loan Document, or at Law or in equity.
(b) All of the Guarantor or rights, remedies, powers and privileges (together, “Rights”) of Administrative Agent on behalf of the RockGen Lessee shall fail to make Lender and the other Lenders provided for in this Note and in any other amount payable under Loan Document are cumulative of each other and of any Operative Document after and all other Rights at Law or in equity. The resort to any Right shall not prevent the same concurrent or subsequent employment of any other appropriate Right. No single or partial exercise of any Right shall become due thereunder exhaust it or preclude any other or further exercise thereof, and such every Right may be exercised at any time and from time to time. No failure shall have continued from a period of ten (10) Business Days after receipt by the RockGen Lessee Administrative Agent, Lender and the Guarantor other Lenders to exercise, and no delay in exercising any Right, including, but not limited to, the right to accelerate the maturity of written notice this Note, shall be construed as a waiver of any Default or as a waiver of any Right. Without limiting the generality of the foregoing provisions, the acceptance by Administrative Agent or Lender from time to time of any payment under this Note which is past due or which is less than the payment in full of all amounts due and payable at the time of such failure by payment, shall not (i) constitute a waiver of or impair or extinguish the RockGen Lessee and/or right of Administrative Agent, Lender and the Guarantorother Lenders to accelerate the maturity of this Note or to exercise any other Right at the time or at any subsequent time, as applicable;or nullify any prior exercise of any such Right, (ii) constitute a waiver of the requirement of punctual payment and performance or a novation in any respect, or (iii) in any way excuse the existence of a Default.
(c) The Guarantor shall fail If Borrower sues any holder in connection with this Note or any other Loan Document and does not prevail, then Borrower agrees to comply with its covenants set forth pay to each such holder to the extent required under Section 4.15 of the Loan Agreement, in Section 3.3 (transfer of RockGen Lessee ownership)addition to principal, 3.6 (Guarantor merger) or 8.4 (assignment of Guaranty) of this Guaranty.
(d) interest and any other sums owing to Administrative Agent, Lender and the Guarantor shall fail to perform or observe any covenantother Lenders hereunder and under the other Loan Documents, obligation or agreement to be performed or observed all costs and expenses incurred by it under any Calpine Document (other than any covenant, obligation or agreement referred to in clauses (a) or (b) of this Section 7.1) such holder in any material respectsuch suit or proceeding, which shall continue unremedied for (1) with respect to the Guarantor's guaranty ofincluding attorneys’ fees and expenses, investigation costs and agreement with respect to, any nonmonetary obligation, covenant or agreement of the RockGen Lessee under any of the Operative Documents, 30 days after receipt by the Guarantor of written notice thereof from the Owner Participant, the Owner Lessor, the Indenture Trustee or the Pass Through Trustee; provided, however, if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 180 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 180-day period, and (2) with respect to any other obligation, covenant or agreement hereunder, 30 days after receipt by the Guarantor of written notice thereof;
(e) there shall have occurred either (i) a default by the Guarantor or any Restricted Subsidiary under any instrument or instruments under which there is or may be secured or evidenced any Indebtedness of the Guarantor or any Restricted Subsidiary of the Guarantor (other than the Obligations) having an outstanding principal amount of $50,000,000 (or its foreign currency equivalent) or more individually or in the aggregate that has caused the holders thereof to declare such Indebtedness to be due and payable prior to its Stated Maturity, unless such declaration has been rescinded within 30 days or (ii) a default by the Guarantor or any Restricted Subsidiary in the payment when due of any portion of the principal under any such instrument or instruments, and such unpaid portion exceeds $50,000,000 (or its foreign currency equivalent) individually or in the aggregate and is not paid, or such default is not cured or waived, within any grace period applicable thereto, unless such Indebtedness is discharged within 30 days of the Guarantor or a Restricted Subsidiary becoming aware of such default;
(f) the Guarantor or any Significant Subsidiary pursuant to or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case;
(ii) consents to the entry of an order for relief against it in an involuntary case;
(iii) consents to the appointment of a Custodian of it or for all or substantially all of its property;
(iv) makes a general assignment for the benefit of its creditors; or
(v) admits in writing its inability to generally pay its debts as such debts become due; or takes any comparable action under any foreign laws relating to insolvency;
(g) an involuntary case or other proceeding shall be commenced against the Guarantor or any Significant Subsidiary seeking (i) liquidation, reorganization or other relief with respect to it or its debts under Title 11 of the Bankruptcy Code or any bankruptcy, insolvency or other similar law now or hereafter in effect, or (ii) the appointment of a trustee, receiver, liquidator, custodian or other similar official with respect to it or any substantial part of its property or (iii) the winding-up or liquidation of the Guarantor or such Significant Subsidiary; and such involuntary case or other proceeding shall remain undismissed and unstayed for a period of 60 days;
(h) any representation or warranty made by the Guarantor herein shall prove to have been incorrect in any material respect when made or misleading in any material respect when made because of the omission to state a material fact and such incorrect or misleading representation is and continues to be material and unremedied for a period of 30 days after receipt by the Guarantor of written notice thereof; provided, however, that if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 60 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 60-day period. The grace periods set forth in Section 7.1(a) and (b) above shall not affect in any way the right hereunder of any Beneficiary entitled to a payment of any amount payable to it, or performance of any obligation, by the RockGen Lessee under any Operative Document to demand prompt payment thereof, or performance thereof, by the Guarantor immediately upon any failure of the RockGen Lessee to pay or perform the same when it has become due (and, for the avoidance of doubt, without regard to the existence of any cure or grace period before such failure by the RockGen Lessee becomes a Lease Event of Default); provided, however, notwithstanding the foregoing, no Lease Event of Default under Section 16(m) and no remedies under the Facility Lease may be exercised until a Calpine Guaranty Event of Default has occurred and is continuingcourt costs.
Appears in 3 contracts
Sources: Loan Agreement (KBS Real Estate Investment Trust III, Inc.), Loan Agreement (KBS Real Estate Investment Trust III, Inc.), Loan Agreement (KBS Strategic Opportunity REIT, Inc.)
Defaults. The following events shall constitute an "Event of Default" hereunder (whether any such event Debtor shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any Governmental Entity):
(a) the Guarantor or the RockGen Lessee default under the Facility Lease shall fail to make any payment with respect to Periodic Rent or the Termination Value (including the Equity Portion of Termination Value this Agreement and Debt Portion of Termination Value) when due and payable under such Facility Lease or this Guaranty within five (5) days after the same shall become due thereunder; or
(b) the Guarantor or the RockGen Lessee shall fail to make any other amount payable under any Operative Document after the same shall become due thereunder and such failure shall have continued from a period of ten (10) Business Days after receipt by the RockGen Lessee and the Guarantor of written notice of such failure by the RockGen Lessee and/or the Guarantor, as applicable;
(c) The Guarantor shall fail to comply with its covenants set forth in Section 3.3 (transfer of RockGen Lessee ownership), 3.6 (Guarantor merger) or 8.4 (assignment of Guaranty) of this Guaranty.
(d) the Guarantor shall fail to perform or observe any covenant, obligation or agreement to be performed or observed by it under any Calpine Document (other than any covenant, obligation or agreement referred to in clauses (a) or (b) of this Section 7.1) in any material respect, which shall continue unremedied for (1) with respect to the Guarantor's guaranty of, and agreement with respect to, any nonmonetary obligation, covenant or agreement each of the RockGen Lessee under other Debt Documents if any one of the Operative Documents, 30 days after receipt by the Guarantor of written notice thereof from the Owner Participant, the Owner Lessor, the Indenture Trustee or the Pass Through Trustee; provided, however, if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 180 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 180-day period, and (2) with respect to any other obligation, covenant or agreement hereunder, 30 days after receipt by the Guarantor of written notice thereof;
(e) there shall have occurred either (i) a default by the Guarantor or any Restricted Subsidiary under any instrument or instruments under which there is or may be secured or evidenced any Indebtedness of the Guarantor or any Restricted Subsidiary of the Guarantor (other than the Obligations) having an outstanding principal amount of $50,000,000 (or its foreign currency equivalent) or more individually or in the aggregate that has caused the holders thereof to declare such Indebtedness to be due and payable prior to its Stated Maturity, unless such declaration has been rescinded within 30 days or (ii) a default by the Guarantor or any Restricted Subsidiary in the payment when due of any portion of the principal under any such instrument or instruments, and such unpaid portion exceeds $50,000,000 (or its foreign currency equivalent) individually or in the aggregate and is not paid, or such default is not cured or waived, within any grace period applicable thereto, unless such Indebtedness is discharged within 30 days of the Guarantor or a Restricted Subsidiary becoming aware of such default;
(f) the Guarantor or any Significant Subsidiary pursuant to or within the meaning of any Bankruptcy Lawfollowing should occur:
(i) commences Debtor breaches its obligation to pay within three (3) business days following the due date thereof any installment or other amount due or coming due under any of the Debt Documents, other than by Secured Party’s failure to process a voluntary casededuction from Debtor’s Primary Operating Account pursuant to Section 2(w);
(ii) consents Debtor, without the prior written consent of Secured Party, attempts to or does sell, rent, lease, license, mortgage, grant a security interest in, or otherwise transfer or encumber, or allow Liens (except for Permitted Liens) upon, any of the entry of an order for relief against it in an involuntary caseCollateral;
(iii) consents Debtor breaches any of its insurance obligations under Section 4;
(iv) Debtor breaches any of its obligations under Sections 2(m) or 2(y) or Sections 3(i), (j), or (k);
(v) Debtor breaches any of its other non-payment obligations under any of the Debt Documents and fails to cure that breach within thirty (30) days after it has occurred;
(vi) Any warranty, representation or statement made by Debtor in any of the appointment Debt Documents or otherwise in connection with any of the Indebtedness shall be false or misleading in any material respect;
(vii) Any of the Collateral is subjected to attachment, execution, levy, seizure or confiscation in any legal proceeding or otherwise, or if any legal or administrative proceeding is commenced against Debtor or any of the Collateral, which in the good faith judgment of Secured Party subjects any of the Collateral to a Custodian material risk of it attachment, execution, levy, seizure or confiscation and no bond is posted or protective order obtained to negate such risk;
(viii) Debtor breaches or is in default under any other agreement between Debtor and Secured Party;
(ix) Debtor or any guarantor or other obligor for any of the Indebtedness (collectively “Guarantor”) dissolves, terminates its existence, becomes insolvent or ceases to do business as a going concern;
(x) If Debtor or any Guarantor is a natural person, and Debtor or any such Guarantor dies or becomes incompetent;
(xi) A receiver is appointed for all or of any part of the property of Debtor or any Guarantor, or Debtor or any Guarantor makes any assignment for the benefit of creditors;
(xii) Debtor or any Guarantor files a petition under any bankruptcy, insolvency or similar law, or any such petition is filed against Debtor or any Guarantor and is not dismissed within forty-five (45) days;
(xiii) Debtor’s improper filing of an amendment or termination statement relating to a filed financing statement describing the Collateral;
(xiv) Debtor shall merge with or consolidate into any other entity or sell all or substantially all of its propertyassets or in any manner terminate its existence;
(ivxv) makes If Debtor is a general assignment for privately held corporation, more than 50% of Debtor’s voting capital stock, or effective control of Debtor’s voting capital stock, issued and outstanding from time to time, is not retained by the benefit holders of such stock on the date the Agreement is executed;
(xvi) If Debtor is a publicly held corporation, there shall be a change in the ownership of Debtor’s stock such that Debtor is no longer subject to the reporting requirements of the Securities Exchange Act of 1934 or no longer has a class of equity securities registered under Section 12 of the Securities Act of 1933;
(xvii) Debtor defaults under any agreement to pay Additional Indebtedness or any other financing arrangement between Debtor and a third party in an amount exceeding $100,000;
(xviii) Secured Party shall have determined in its creditorssole and good faith judgment that (a) it is the clear intention of Debtor’s investors to not continue to fund the Debtor in the amounts and timeframe necessary to enable Debtor to satisfy the Indebtedness as it becomes due and payable or (b) there is a material impairment in the perfection or priority of the Secured Party’s security interest in the Collateral; or
(vxix) admits in writing its inability to generally pay its debts as such debts become due; or takes any comparable action under any foreign laws relating to insolvency;[intentionally omitted]
(gxx) an involuntary case Without the prior written consent of Secured Party, which consent shall not be unreasonably withheld or other proceeding shall be commenced against delayed, Debtor creates, incurs, assumes or permits to exist any Indebtedness to Maxygen, Inc. (“Maxygen”) in excess of One Million, Two Hundred Twenty-Five Thousand Dollars ($1,225,000) in aggregate in any fiscal year, or Debtor makes any payments to Maxygen in any fiscal year in excess of the Guarantor or any Significant Subsidiary seeking lower of: (i) liquidation, reorganization or other relief with respect to it or its debts under Title 11 the aggregate of the Bankruptcy Code or any bankruptcy, insolvency or other similar law now or hereafter in effectfair market value of services provided by Maxygen to Debtor during such fiscal year, or (ii) the appointment aggregate of a trusteeOne Million, receiver, liquidator, custodian or other similar official with respect to it or any substantial part of its property or Two Hundred Twenty-Five Thousand Dollars (iii) the winding-up or liquidation of the Guarantor or such Significant Subsidiary; and such involuntary case or other proceeding shall remain undismissed and unstayed for a period of 60 days;
(h) any representation or warranty made by the Guarantor herein shall prove to have been incorrect in any material respect when made or misleading in any material respect when made because of the omission to state a material fact and such incorrect or misleading representation is and continues to be material and unremedied for a period of 30 days after receipt by the Guarantor of written notice thereof; provided, however, that if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 60 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 60-day period$1,225,000). The grace periods set forth in Section 7.1(a) and (b) above shall not affect in any way the right hereunder of any Beneficiary entitled to a payment of any amount payable to it, or performance of any obligation, by the RockGen Lessee under any Operative Document to demand prompt payment thereof, or performance thereof, by the Guarantor immediately upon any failure of the RockGen Lessee to pay or perform the same when it has become due (and, for the avoidance of doubt, without regard to the existence of any cure or grace period before such failure by the RockGen Lessee becomes a Lease Event of Default); provided, however, notwithstanding Notwithstanding the foregoing, no Lease Event Debtor shall be permitted to pay the balance of Default under Section 16(mpreviously incurred, existing and anticipated Indebtedness to Maxygen up to a total amount of One Million, Five Hundred Thousand Dollars ($1,500,000) and no remedies under for the Facility Lease may be exercised until a Calpine Guaranty Event of Default has occurred and is continuingperiod January 1, 2005 to December 31, 2005.
Appears in 2 contracts
Sources: Master Security Agreement (Codexis Inc), Master Security Agreement (Codexis Inc)
Defaults. The following events shall constitute an "With respect to any Default or Event of Default" hereunder (whether any such event shall be voluntary , the words “exists”, “is continuing” or involuntary or come about or be effected by operation of law or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any Governmental Entity):
(a) the Guarantor or the RockGen Lessee under the Facility Lease shall fail to make any payment similar expressions with respect to Periodic Rent thereto shall mean that the Default or the Termination Value (including the Equity Portion of Termination Value and Debt Portion of Termination Value) when due and payable under such Facility Lease or this Guaranty within five (5) days after the same shall become due thereunder; or
(b) the Guarantor or the RockGen Lessee shall fail to make any other amount payable under any Operative Document after the same shall become due thereunder and such failure shall have continued from a period of ten (10) Business Days after receipt by the RockGen Lessee and the Guarantor of written notice of such failure by the RockGen Lessee and/or the Guarantor, as applicable;
(c) The Guarantor shall fail to comply with its covenants set forth in Section 3.3 (transfer of RockGen Lessee ownership), 3.6 (Guarantor merger) or 8.4 (assignment of Guaranty) of this Guaranty.
(d) the Guarantor shall fail to perform or observe any covenant, obligation or agreement to be performed or observed by it under any Calpine Document (other than any covenant, obligation or agreement referred to in clauses (a) or (b) of this Section 7.1) in any material respect, which shall continue unremedied for (1) with respect to the Guarantor's guaranty of, and agreement with respect to, any nonmonetary obligation, covenant or agreement of the RockGen Lessee under any of the Operative Documents, 30 days after receipt by the Guarantor of written notice thereof from the Owner Participant, the Owner Lessor, the Indenture Trustee or the Pass Through Trustee; provided, however, if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 180 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 180-day period, and (2) with respect to any other obligation, covenant or agreement hereunder, 30 days after receipt by the Guarantor of written notice thereof;
(e) there shall have occurred either (i) a default by the Guarantor or any Restricted Subsidiary under any instrument or instruments under which there is or may be secured or evidenced any Indebtedness of the Guarantor or any Restricted Subsidiary of the Guarantor (other than the Obligations) having an outstanding principal amount of $50,000,000 (or its foreign currency equivalent) or more individually or in the aggregate that has caused the holders thereof to declare such Indebtedness to be due and payable prior to its Stated Maturity, unless such declaration has been rescinded within 30 days or (ii) a default by the Guarantor or any Restricted Subsidiary in the payment when due of any portion of the principal under any such instrument or instruments, and such unpaid portion exceeds $50,000,000 (or its foreign currency equivalent) individually or in the aggregate and is not paid, or such default is not cured or waived, within any grace period applicable thereto, unless such Indebtedness is discharged within 30 days of the Guarantor or a Restricted Subsidiary becoming aware of such default;
(f) the Guarantor or any Significant Subsidiary pursuant to or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case;
(ii) consents to the entry of an order for relief against it in an involuntary case;
(iii) consents to the appointment of a Custodian of it or for all or substantially all of its property;
(iv) makes a general assignment for the benefit of its creditors; or
(v) admits in writing its inability to generally pay its debts as such debts become due; or takes any comparable action under any foreign laws relating to insolvency;
(g) an involuntary case or other proceeding shall be commenced against the Guarantor or any Significant Subsidiary seeking (i) liquidation, reorganization or other relief with respect to it or its debts under Title 11 of the Bankruptcy Code or any bankruptcy, insolvency or other similar law now or hereafter in effect, or (ii) the appointment of a trustee, receiver, liquidator, custodian or other similar official with respect to it or any substantial part of its property or (iii) the winding-up or liquidation of the Guarantor or such Significant Subsidiary; and such involuntary case or other proceeding shall remain undismissed and unstayed for a period of 60 days;
(h) any representation or warranty made by the Guarantor herein shall prove to have been incorrect in any material respect when made or misleading in any material respect when made because of the omission to state a material fact and such incorrect or misleading representation is and continues to be material and unremedied for a period of 30 days after receipt by the Guarantor of written notice thereof; provided, however, that if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 60 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 60-day period. The grace periods set forth in Section 7.1(a) and (b) above shall not affect in any way the right hereunder of any Beneficiary entitled to a payment of any amount payable to it, or performance of any obligation, by the RockGen Lessee under any Operative Document to demand prompt payment thereof, or performance thereof, by the Guarantor immediately upon any failure of the RockGen Lessee to pay or perform the same when it has become due (and, for the avoidance of doubt, without regard to the existence of any cure or grace period before such failure by the RockGen Lessee becomes a Lease Event of Default); provided, however, notwithstanding the foregoing, no Lease Event of Default under Section 16(m) and no remedies under the Facility Lease may be exercised until a Calpine Guaranty Event of Default has occurred and has not yet been cured or waived. If, prior to the taking of any action under Section 11.12 (or the occurrence of any Event of Default under Section 11.5), any Default or Event of Default occurs due to (a) the failure by any Credit Party to take any action by a specified time, such Default or Event of Default shall be deemed to have been cured at the time, if any, that the applicable Credit Party takes such action or (b) the taking of any action by any Credit Party that is not then permitted by the terms of this Agreement or any other Credit Document, such Default or Event of Default shall be deemed to be cured on the earlier to occur of (x) the date on which such action would be permitted at such time to be taken under this Agreement and the other Credit Documents pursuant to an applicable amendment or waiver permitting such action and (y) the date on which such action is unwound or otherwise modified to the extent necessary for such revised action to be permitted at such time by this Agreement and the other Credit Documents; provided that, subject in all respects to subsection (iv) of this Section 1.18, an Event of Default resulting from the failure to deliver a notice pursuant to Section 9.1(e)(i) shall cease to exist and be cured in all respects if the Default or Event of Default giving rise to such notice requirement shall have ceased to exist and/or be cured. Notwithstanding anything to the contrary in this Section 1.18, an Event of Default (the “Initial Default”) may not be cured pursuant to this Section 1.18:
(i) if the taking of any action by any Credit Party or Restricted Subsidiary of a Credit Party that is not permitted during, and as a result of, the continuance of such Initial Default directly results in the cure of such Initial Default and the applicable Credit Party or Restricted Subsidiary had actual knowledge at the time of taking any such action that the Initial Default had occurred and was continuing,
(ii) in the case of an Event of Default under Section 11.7, 11.8 or 11.9 that directly results in material impairment of the rights and remedies of the Lenders, Collateral Agent and Administrative Agent under the Credit Documents and that is incapable of being cured,
(iii) in the case of an Event of Default under Section 11.3 arising due to the failure to perform or observe Section 9.3 that directly results in a material adverse effect on the ability of the Borrower and the other Credit Parties (taken as a whole) to perform their respective payment obligations under any Credit Document to which the Borrower or any of the other Credit Parties is a party,
(iv) in the case of an Initial Default for which (A) the Borrower failed to give notice to the Agent and the Lenders of such Initial Default in accordance with Section 9.1(e)(i) of this Agreement and (B) the Borrower had actual knowledge of such failure to give such notice, or
(v) if the Initial Default had a Material Adverse Effect.
Appears in 2 contracts
Sources: Credit Agreement (Skillsoft Corp.), Credit Agreement (Skillsoft Corp.)
Defaults. The following events shall constitute an "An Event of Default" hereunder Default shall occur if: (whether any such event i) the Company shall be voluntary or involuntary or come about or be effected by operation -------- default in the payment of law or pursuant to or in compliance with any judgment, decree or order the principal of any court or any orderinstallment of interest on this Note, rule or regulation of any Governmental Entity):
(a) the Guarantor or the RockGen Lessee under the Facility Lease shall fail to make any payment with respect to Periodic Rent or the Termination Value (including the Equity Portion of Termination Value when and Debt Portion of Termination Value) when due and payable under such Facility Lease or this Guaranty within five (5) days after as the same shall become due thereunder; or
and payable, whether at maturity, on demand, on a date fixed for payment thereof, at a date fixed for prepayment, by acceleration or otherwise, (bii) the Guarantor or the RockGen Lessee shall fail to make any other amount payable under any Operative Document after the same shall become due thereunder and such failure shall have continued from a period of ten (10) Business Days after receipt by the RockGen Lessee and the Guarantor of written notice of such failure by the RockGen Lessee and/or the Guarantor, as applicable;
(c) The Guarantor shall fail to comply with its covenants set forth in Section 3.3 (transfer of RockGen Lessee ownership), 3.6 (Guarantor merger) or 8.4 (assignment of Guaranty) of this Guaranty.
(d) the Guarantor Company shall fail to perform or observe any covenant, obligation or agreement contained herein and the Company has not remedied such default within fifteen (15) days after notice of default has been given by the Investor to the Company, (iii) an involuntary proceeding shall be performed commenced or observed by it under any Calpine Document (other than any covenant, obligation or agreement referred to an involuntary petition shall be filed in clauses a court of competent jurisdiction seeking (a) relief in respect of the Company, or of a substantial part of its property or assets, under Title 11 of the United States Code, as now constituted or hereafter amended, or any other federal or state bankruptcy, insolvency, receivership or similar law, (b) of this Section 7.1) in any material respect, which shall continue unremedied for (1) with respect to the Guarantor's guaranty of, and agreement with respect to, any nonmonetary obligation, covenant or agreement of the RockGen Lessee under any of the Operative Documents, 30 days after receipt by the Guarantor of written notice thereof from the Owner Participant, the Owner Lessor, the Indenture Trustee or the Pass Through Trustee; provided, however, if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 180 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 180-day period, and (2) with respect to any other obligation, covenant or agreement hereunder, 30 days after receipt by the Guarantor of written notice thereof;
(e) there shall have occurred either (i) a default by the Guarantor or any Restricted Subsidiary under any instrument or instruments under which there is or may be secured or evidenced any Indebtedness of the Guarantor or any Restricted Subsidiary of the Guarantor (other than the Obligations) having an outstanding principal amount of $50,000,000 (or its foreign currency equivalent) or more individually or in the aggregate that has caused the holders thereof to declare such Indebtedness to be due and payable prior to its Stated Maturity, unless such declaration has been rescinded within 30 days or (ii) a default by the Guarantor or any Restricted Subsidiary in the payment when due of any portion of the principal under any such instrument or instruments, and such unpaid portion exceeds $50,000,000 (or its foreign currency equivalent) individually or in the aggregate and is not paid, or such default is not cured or waived, within any grace period applicable thereto, unless such Indebtedness is discharged within 30 days of the Guarantor or a Restricted Subsidiary becoming aware of such default;
(f) the Guarantor or any Significant Subsidiary pursuant to or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case;
(ii) consents to the entry of an order for relief against it in an involuntary case;
(iii) consents to the appointment of a Custodian of it receiver, trustee, custodian, sequestrator, conservator or similar official for the Company, or for all or substantially all a substantial part of its property;
property or assets, or (c) the winding up or liquidation of the Company, and such proceeding or petition shall continue undismissed for 60 days, or any order or decree approving or ordering any of the foregoing shall be entered or (iv) makes the Company shall (a) voluntarily commence any proceeding or file any petition seeking relief under Title 11 of the United States Code, as now constituted or hereafter amended, or any other federal or state bankruptcy, insolvency, receivership or similar law, (b) consent to the institution of, or fail to contest in a timely and appropriate manner, any proceeding or the filing of any petition described herein, (c) file an answer admitting the material allegations of a petition filed against it in any such proceeding, (e) make a general assignment for the benefit of its creditors; or
, (vf) admits become unable, admit in writing its inability or fail generally to generally pay its debts as such debts they become due; or takes any comparable action under any foreign laws relating to insolvency;
, (g) an involuntary case or other proceeding shall be commenced against suspend the Guarantor or any Significant Subsidiary seeking (i) liquidation, reorganization or other relief with respect to it or its debts under Title 11 of the Bankruptcy Code or any bankruptcy, insolvency or other similar law now or hereafter in effect, or (ii) the appointment of a trustee, receiver, liquidator, custodian or other similar official with respect to it or any substantial part operation of its property business or (iii) the winding-up or liquidation of the Guarantor or such Significant Subsidiary; and such involuntary case or other proceeding shall remain undismissed and unstayed for a period of 60 days;
(h) take any representation or warranty made by action for the Guarantor herein shall prove to have been incorrect in purpose of effecting any material respect when made or misleading in any material respect when made because of the omission to state a material fact and such incorrect or misleading representation is and continues to be material and unremedied for a period of 30 days after receipt by the Guarantor of written notice thereof; provided, however, that if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 60 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 60-day period. The grace periods set forth in Section 7.1(a) and (b) above shall not affect in any way the right hereunder of any Beneficiary entitled to a payment of any amount payable to it, or performance of any obligation, by the RockGen Lessee under any Operative Document to demand prompt payment thereof, or performance thereof, by the Guarantor immediately upon any failure of the RockGen Lessee to pay or perform the same when it has become due (and, for the avoidance of doubt, without regard to the existence of any cure or grace period before such failure by the RockGen Lessee becomes a Lease Event of Default); provided, however, notwithstanding the foregoing, no Lease Event of Default under Section 16(m) and no remedies under the Facility Lease may be exercised until a Calpine Guaranty Event of Default has occurred and is continuing.
Appears in 2 contracts
Sources: Pledge and Security Agreement (Webb Interactive Services Inc), Pledge and Security Agreement (Webb Interactive Services Inc)
Defaults. The (i) Each of the following events shall constitute an "“Event of Default" ” hereunder (whatever the reason and whether any such event it shall be voluntary or involuntary involuntary, or come about or be effected by operation of law law, or be pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any Governmental Entity):
administrative or governmental body): (aA) the Guarantor or the RockGen Lessee under the Facility Lease shall fail to make any payment with respect to Periodic Rent or the Termination Value (including the Equity Portion of Termination Value and Debt Portion of Termination Value) when due and payable under such Facility Lease or this Guaranty within five (5) days after the same shall become due thereunder; or
(b) the Guarantor or the RockGen if Lessee shall fail to make pay when due any other amount payable sum under any Operative Document after the same shall become due thereunder this Agreement and such failure shall have continued from continue for a period of ten fifteen (1015) Business Days business days after receipt by the RockGen Lessee and the Guarantor of oral, facsimile, or written notice of such failure has been given by the RockGen Lessor to Lessee; (B) if Lessee and/or the Guarantor, as applicable;
(c) The Guarantor shall fail to comply with its covenants set forth in Section 3.3 (transfer of RockGen Lessee ownership), 3.6 (Guarantor merger) or 8.4 (assignment of Guaranty) of this Guaranty.
(d) the Guarantor shall fail to perform or observe any covenant, obligation covenant or agreement to be performed contained herein, and such failure shall continue for a period of fifteen (15) days after notice thereof shall have been given in writing; (C) if any representation or observed warranty made by it under Lessee in this Agreement or any Calpine Document (other than any covenantagreement, obligation document or agreement referred to certificate delivered by Lessee in clauses (a) connection herewith is or (b) of this Section 7.1) shall become incorrect in any material respect; (D) if Lessee shall operate the Aircraft in violation of any applicable law, which regulation, rule or order of any governmental authority having jurisdiction thereof or shall continue unremedied for operate the Aircraft when the insurance required hereunder shall not be in effect; (1E) with respect if any proceedings shall be commenced under any bankruptcy, insolvency, reorganization, readjustment of debt, receivership or liquidation law or statute of any jurisdiction; or (F) if any such proceedings shall be instituted against either party and shall not be withdrawn or terminated within thirty (30) days after their commencement.
(ii) Upon the occurrence of any Event of Default, the non-defaulting party may, at its option, exercise any or all remedies available at law or in equity, including, without limitation, any or all of the following remedies, as such non-defaulting party in its sole discretion shall elect: (A) by notice in writing, terminate this Agreement immediately, whereupon all rights of Lessee to the Guarantor's guaranty use or possession of the Aircraft or any part thereof shall absolutely cease and terminate but Lessee shall remain liable as hereinafter provided; and thereupon Lessee, if so requested by Lessor, shall at its expense promptly return the Aircraft as required by this Agreement or Lessor, at its option, may enter upon the premises where the Aircraft is located and take immediate possession of and remove the same by summary proceedings or otherwise. Lessee specifically authorizes Lessor’s entry upon any premises where the Aircraft may be located for the purpose of, and agreement with respect towaives any cause of action it may have arising from, a peaceful retaking of the Aircraft; or (B) perform or cause to be performed any nonmonetary obligation, covenant or agreement of the RockGen defaulting party hereunder. In the event Lessee under any of is the Operative Documentsdefaulting party, 30 days after receipt Lessee agrees to pay all costs and expenses incurred by the Guarantor of written notice thereof from the Owner Participant, the Owner Lessor, the Indenture Trustee or the Pass Through Trustee; provided, however, if Lessor for such condition canperformance and acknowledges that such performance by Lessor shall not be remedied within such 30-day period, then the period within which deemed to remedy such condition shall be extended up to an additional 180 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable cure said Event of being remedied within such additional 180-day period, and (2) with respect to any other obligation, covenant or agreement hereunder, 30 days after receipt by the Guarantor of written notice thereof;
(e) there shall have occurred either (i) a default by the Guarantor or any Restricted Subsidiary under any instrument or instruments under which there is or may be secured or evidenced any Indebtedness of the Guarantor or any Restricted Subsidiary of the Guarantor (other than the Obligations) having an outstanding principal amount of $50,000,000 (or its foreign currency equivalent) or more individually or in the aggregate that has caused the holders thereof to declare such Indebtedness to be due and payable prior to its Stated Maturity, unless such declaration has been rescinded within 30 days or (ii) a default by the Guarantor or any Restricted Subsidiary in the payment when due of any portion of the principal under any such instrument or instruments, and such unpaid portion exceeds $50,000,000 (or its foreign currency equivalent) individually or in the aggregate and is not paid, or such default is not cured or waived, within any grace period applicable thereto, unless such Indebtedness is discharged within 30 days of the Guarantor or a Restricted Subsidiary becoming aware of such default;
(f) the Guarantor or any Significant Subsidiary pursuant to or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case;
(ii) consents to the entry of an order for relief against it in an involuntary case;Default.
(iii) consents to the appointment of a Custodian of it or Lessee shall be liable for all costs, charges and expenses, including reasonable legal fees and disbursements, incurred by Lessor by reason of the occurrence of any Event of Default, for which Lessee is the defaulting party, or substantially all the exercise of its property;
(iv) makes a general assignment for Lessor’s remedies with respect thereto. No remedy referred to herein is intended to be exclusive, but each shall be cumulative and in addition to any other remedy referred to above or otherwise available at law or in equity. Lessor shall not be deemed to have waived any default, Event of Default or right hereunder unless the benefit of its creditors; or
(v) admits same is acknowledged in writing its inability to generally pay its debts as such debts become due; by a duly authorized representative of Lessor. No waiver by Lessor of any default or takes any comparable action under any foreign laws relating to insolvency;
(g) an involuntary case or other proceeding Event of Default hereunder shall be commenced against the Guarantor or any Significant Subsidiary seeking (i) liquidation, reorganization or other relief with respect to it or its debts under Title 11 of the Bankruptcy Code or any bankruptcy, insolvency or other similar law now or hereafter in effect, or (ii) the appointment of a trustee, receiver, liquidator, custodian or other similar official with respect to it or any substantial part of its property or (iii) the winding-up or liquidation of the Guarantor or such Significant Subsidiary; and such involuntary case or other proceeding shall remain undismissed and unstayed for a period of 60 days;
(h) any representation or warranty made by the Guarantor herein shall prove to have been incorrect in any material respect when made or misleading in any material respect when made because of the omission to state a material fact and such incorrect or misleading representation is and continues to be material and unremedied for a period of 30 days after receipt by the Guarantor of written notice thereof; provided, however, that if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 60 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 60-day period. The grace periods set forth in Section 7.1(a) and (b) above shall not affect in any way the right hereunder be, or be construed to be, a waiver of any Beneficiary entitled to a payment of any amount payable to it, future or performance of any obligation, by the RockGen Lessee under any Operative Document to demand prompt payment thereof, subsequent default or performance thereof, by the Guarantor immediately upon any failure of the RockGen Lessee to pay or perform the same when it has become due (and, for the avoidance of doubt, without regard to the existence of any cure or grace period before such failure by the RockGen Lessee becomes a Lease Event of Default); provided. The failure or delay of Lessor in exercising any rights granted it hereunder upon any occurrence of any such right upon the continuation or recurrence of any such contingencies or similar contingencies, however, notwithstanding and any single or partial exercise of any particular right by Lessor shall not exhaust the foregoing, no Lease Event same or constitute a waiver of Default under Section 16(m) and no remedies under the Facility Lease may be exercised until a Calpine Guaranty Event of Default has occurred and is continuingany other right provided herein.
Appears in 2 contracts
Sources: Aircraft Dry Lease Agreement (Domo, Inc.), Aircraft Dry Lease Agreement (Domo, Inc.)
Defaults. The Each of the following events shall constitute an "Event of a Default" hereunder (whether any , whatever the reason for such event and whether it shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with any judgment, decree judgment or order of any court or any order, rule rule, or regulation of any Governmental Entity):governmental or non-governmental body:
(a) the Guarantor Any representation or the RockGen Lessee warranty made under the Facility Lease this Agreement shall fail prove incorrect or misleading in any material respect when made or deemed to make any payment with respect to Periodic Rent or the Termination Value (including the Equity Portion of Termination Value and Debt Portion of Termination Value) when due and payable under such Facility Lease or this Guaranty within five (5) days after the same shall become due thereunder; orhave been made;
(b) The Borrower shall default in the Guarantor payment of any principal, interest or other monetary amounts payable hereunder or under the RockGen Lessee shall fail to make Notes, or any of them, or under the other amount payable under any Operative Document after Loan Documents which payment default (other than payment due on the same shall become due thereunder and such failure shall have continued Maturity Date) is not cured within thirty (30) calendar days of Borrower's receipt of notice from a period of ten (10) Business Days after receipt by the RockGen Lessee and the Guarantor of written notice of such failure by the RockGen Lessee and/or the Guarantor, as applicableAdministrative Agent;
(c) The Guarantor Borrower shall fail default in the performance or observance of any other agreement or covenant contained in this Agreement not specifically referred to comply elsewhere in this Section 6.1, and such Event of Default shall not be cured to the Majority Banks' satisfaction within a period of ninety (90) days from the date the Borrower receives notice from the Administrative Agent with its covenants set forth in Section 3.3 (transfer of RockGen Lessee ownership), 3.6 (Guarantor merger) or 8.4 (assignment of Guaranty) of this Guaranty.respect thereto;
(d) There shall occur any Event of Default in the Guarantor shall fail to perform performance or observe observance of any covenant, obligation agreement or agreement to be performed covenant or observed by it under breach of any Calpine Document representation or warranty contained in any of the Loan Documents (other than any covenant, obligation this Agreement or agreement referred to as otherwise provided in clauses (athis Section 6.1 of this Agreement) or (b) of this Section 7.1) in any material respectSubsidiary Guaranty, which shall continue unremedied not be cured to the Majority Banks' satisfaction within the applicable cure period, if any, provided for in such Loan Document or ninety (190) days from the date the Borrower receives notice from the Administrative Agent with respect to the Guarantor's guaranty of, and agreement with respect to, any nonmonetary obligation, covenant or agreement of the RockGen Lessee under any of the Operative Documents, 30 days after receipt by the Guarantor of written notice thereof from the Owner Participant, the Owner Lessor, the Indenture Trustee or the Pass Through Trustee; provided, however, thereto if no cure period is provided in such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 180 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 180-day period, and (2) with respect to any other obligation, covenant or agreement hereunder, 30 days after receipt by the Guarantor of written notice thereofLoan Document;
(e) there There shall have occurred either (i) be entered a default by the Guarantor decree or any Restricted Subsidiary under any instrument or instruments under which there is or may be secured or evidenced any Indebtedness of the Guarantor or any Restricted Subsidiary of the Guarantor (other than the Obligations) having an outstanding principal amount of $50,000,000 (or its foreign currency equivalent) or more individually or in the aggregate that has caused the holders thereof to declare such Indebtedness to be due and payable prior to its Stated Maturity, unless such declaration has been rescinded within 30 days or (ii) a default by the Guarantor or any Restricted Subsidiary in the payment when due of any portion of the principal under any such instrument or instruments, and such unpaid portion exceeds $50,000,000 (or its foreign currency equivalent) individually or in the aggregate and is not paid, or such default is not cured or waived, within any grace period applicable thereto, unless such Indebtedness is discharged within 30 days of the Guarantor or a Restricted Subsidiary becoming aware of such default;
(f) the Guarantor or any Significant Subsidiary pursuant to or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case;
(ii) consents to the entry of an order for relief against it in an involuntary case;
(iii) consents to respect of the appointment of a Custodian of it Borrower or for all or substantially all any of its property;
(iv) makes a general assignment for the benefit of its creditors; or
(v) admits in writing its inability to generally pay its debts as such debts become due; or takes any comparable action under any foreign laws relating to insolvency;
(g) an involuntary case or other proceeding shall be commenced against the Guarantor or any Significant Subsidiary seeking (i) liquidation, reorganization or other relief with respect to it or its debts Restricted Subsidiaries under Title 11 of the Bankruptcy Code United States Code, as now constituted or hereafter amended, or any bankruptcy, insolvency other applicable federal or state bankruptcy law or other similar law now or hereafter in effectlaw, or (ii) the appointment of appointing a trustee, receiver, liquidator, custodian assignee, trustee, custodian, sequestrator, or other similar official with respect to it of the Borrower or any of its Restricted Subsidiaries, or of any substantial part of its property their respective properties, or (iii) ordering the winding-up or liquidation of the Guarantor affairs of the Borrower or any of its Restricted Subsidiaries, or an involuntary petition shall be filed against the Borrower or any of its Restricted Subsidiaries, and a temporary stay entered, and (i) such Significant Subsidiary; petition and stay shall not be diligently contested, or (ii) any such involuntary case or other proceeding petition and stay shall remain continue undismissed and unstayed for a period of 60 thirty (30) consecutive days;
(hf) The Borrower or any of its Restricted Subsidiaries shall file a petition, answer, or consent seeking relief under Title 11 of the United States Code, as now constituted or hereafter amended, or any other applicable federal or state bankruptcy law or other similar law, make an assignment for the benefit of creditors, or the Borrower or any of its Restricted Subsidiaries shall consent to the institution of proceedings thereunder or to the filing of any such petition or to the appointment or taking of possession of a receiver, liquidator, assignee, trustee, custodian, sequestrator, or other similar official of the Borrower or any of its Restricted Subsidiaries, or of any substantial part of their respective properties, or the Borrower or any of its Restricted Subsidiaries shall fail generally to pay their respective debts as they become due, or the Borrower or any of its Restricted Subsidiaries shall take any corporate or partnership action to authorize any such action;
(g) A final judgment shall be entered by any court against the Borrower or any of its Restricted Subsidiaries for the payment of money which exceeds $1,000,000.00, which judgment is not covered by insurance or a warrant of attachment or execution or similar process shall be issued or levied against property of the Borrower or any of its Restricted Subsidiaries which, together with all other such property of the Borrower or any of its Restricted Subsidiaries subject to other such process, exceeds in value $1,000,000.00 in the aggregate, and if, within thirty (30) days after the entry, issue, or levy thereof, such judgment, warrant, or process shall not have been paid or discharged or bonded or stayed pending appeal, or if, after the expiration of any such stay, such judgment, warrant, or process shall not have been paid or discharged;
(1) There shall be at any time any "accumulated funding deficiency," as defined in ERISA or in Section 412 of the Code, with respect to any Plan; or (2) a trustee shall be appointed by a United States District Court to administer any Plan; or the Pension Benefit Guaranty Corporation shall institute proceedings to terminate any Plan; or (3) any representation of the Borrower and its ERISA Affiliates shall incur any liability to the Pension Benefit Guaranty Corporation in connection with the termination of any Plan; or warranty made (4) any Plan or trust created under any Plan of any of the Borrower and its ERISA Affiliates shall engage in a non-exempt "prohibited transaction" (as such term is defined in Section 406 of ERISA or Section 4975 of the Code) which would subject the Borrower or any ERISA Affiliate to the tax or penalty on "prohibited transactions" imposed by Section 502 of ERISA or Section 4975 of the Code; and by reason of any or all of the events described in clauses (1) through (4), as applicable, the Borrower shall have incurred or is likely to incur liability in excess of $2,000,000.00 in the aggregate;
(i) All or any portion of any Loan Document shall at any time and for any reason be declared by a court of competent jurisdiction in a suit with respect to such Loan Document to be null and void, or a proceeding shall be commenced by any governmental authority involving a legitimate dispute or by the Guarantor herein Borrower or any of its Restricted Subsidiaries, having jurisdiction over the Borrower or any of its Restricted Subsidiaries, seeking to establish the invalidity or unenforceability thereof (exclusive of questions of interpretation of any provision thereof), or the Borrower or any of its Restricted Subsidiaries shall prove deny that it has any liability or obligation for the payment of principal or interest purported to have been incorrect in be created under any material respect when made Loan Document;
(j) There shall occur any Change of Control;
(k) Except for conveyances of all or misleading in any material respect when made because part of the omission to state a material fact Loan Inventory between the Borrower and the Guarantors there occurs any sale, lease, conveyance, assignment, pledge, encumbrance, or transfer of all or any part of the Loan Inventory or any interest therein, voluntarily or involuntarily, whether by operation of law or otherwise, except (i) in accordance with the terms of this Agreement, (ii) for execution of contracts with prospective purchasers, (iii) for Permitted Encumbrances, and (iv) in the ordinary course of business; or
(l) Except in the normal course of Borrower's development of inventory into Developed Lots and construction of Dwellings thereon, without the prior written consent of Administrative Agent, Borrower grants any easement or dedication, files any plat, condominium declaration, or restriction or otherwise encumbers all or any portion of the Loan Inventory, or seeks or permits any zoning reclassification or variance, unless such incorrect or misleading representation action is and continues to be material and unremedied for a period of 30 days after receipt expressly permitted by the Guarantor Loan Documents or does not affect any Inventory which is part of written notice thereof; providedthe Loan Inventory. Notwithstanding anything contained herein to the contrary, however, that if such condition canthe occurrence of any of the foregoing shall not be remedied a Default or an Event of Default hereunder if: (i) the occurrence pertains only to specific parcel(s) within the Loan Inventory; and (ii) the affected parcel(s) is (are) removed from the Loan Inventory on or before ten (10) days in the case of a monetary occurrence and thirty (30) days in the case of a non-monetary occurrence after the occurrence or, if the Borrower is entitled to notice and cure, within the applicable notice and cure period. In the event that any such 30-day periodparcel is a Lot Under Development, Developed Lot or Dwelling Lot, then the period within which to remedy such condition Loan Funding Availability shall be extended up to an additional 60 daysimmediately calculated excluding such parcel. If, so long as the Guarantor diligently pursues result of such remedy and removal, the outstanding principal balance under all Unsecured Indebtedness together with any unreimbursed draws under Letters of Credit would exceed the Loan Funding Availability, the Borrower shall pay (X) to the Administrative Agent on the Reconciliation Date immediately following the removal of such condition is reasonably capable of being remedied within Inventory from the Loan Inventory, a principal payment on the Loans in an amount sufficient to eliminate such additional 60-day period. The grace periods set forth in Section 7.1(a) and (b) above shall not affect in any way the right hereunder of any Beneficiary entitled to a payment of any amount payable to it, or performance of any obligation, by the RockGen Lessee under any Operative Document to demand prompt payment thereof, or performance thereof, by the Guarantor immediately upon any failure excess of the RockGen Lessee to pay aggregate outstanding principal balance of all Unsecured Indebtedness and unreimbursed draws under Letters of Credit over the Loan Funding Availability, together with any due and unpaid interest on such excess or perform the same when it has become due (and, for the avoidance of doubt, without regard Y) add additional Inventory to the existence Loan Inventory (which is acceptable to the Administrative Agent) in an amount sufficient to cause the Loan Funding Availability to equal or exceed the Loans and unreimbursed draws under Letters of any cure or grace period before such failure by the RockGen Lessee becomes a Lease Event of Default); provided, however, notwithstanding the foregoing, no Lease Event of Default under Section 16(m) and no remedies under the Facility Lease may be exercised until a Calpine Guaranty Event of Default has occurred and is continuingCredit.
Appears in 2 contracts
Sources: Loan Agreement (Horton D R Inc /De/), Master Loan and Inter Creditor Agreement (Horton D R Inc /De/)
Defaults. The occurrence of any one or more of the following events shall constitute a default by Borrower under this Note and shall be referred to as an "“Event of Default" hereunder (whether any such event shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any Governmental Entity):”:
(a) the Guarantor or the RockGen Lessee under the Facility Lease shall fail If Borrower fails to make pay any payment with respect to Periodic Rent or the Termination Value (including the Equity Portion of Termination Value and Debt Portion of Termination Value) when amount due and payable under such Facility Lease or this Guaranty hereunder within five (5) business days after of the same shall become due thereunder; ordate when due;
(b) the Guarantor If Borrower otherwise fails to perform, keep or observe any term, provision, condition, covenant, warranty or representation contained in this Note or the RockGen Lessee shall fail Purchase Agreement which is required to make any other amount payable under any Operative Document after the same shall become due thereunder and such failure shall have continued from a period of ten (10) Business Days after receipt be performed, kept or observed by the RockGen Lessee and the Guarantor of written notice of such failure by the RockGen Lessee and/or the Guarantor, as applicableBorrower;
(c) The Guarantor If an Event of Default shall fail to comply with its covenants set forth in Section 3.3 have occurred under the Security Agreement (transfer of RockGen Lessee ownershipas defined below), 3.6 (Guarantor merger) or 8.4 (assignment of Guaranty) of this Guaranty.;
(d) the Guarantor shall fail to perform or observe any covenant, obligation or agreement to be performed or observed by it under any Calpine Document (other than any covenant, obligation or agreement referred to in clauses (a) or (b) of this Section 7.1) in any material respect, which shall continue unremedied for (1) with respect to the Guarantor's guaranty of, and agreement with respect to, any nonmonetary obligation, covenant or agreement of the RockGen Lessee under any of the Operative Documents, 30 days after receipt by the Guarantor of written notice thereof from the Owner Participant, the Owner Lessor, the Indenture Trustee or the Pass Through Trustee; provided, however, if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 180 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 180-day period, and (2) with respect to any other obligation, covenant or agreement hereunder, 30 days after receipt by the Guarantor of written notice thereof;
(e) there shall have occurred either If Borrower (i) a default by the Guarantor becomes insolvent or any Restricted Subsidiary under any instrument generally fails to pay, or instruments under which there is or may be secured or evidenced any Indebtedness of the Guarantor or any Restricted Subsidiary of the Guarantor (other than the Obligations) having an outstanding principal amount of $50,000,000 (or admits in writing its foreign currency equivalent) or more individually or in the aggregate that has caused the holders thereof inability to declare such Indebtedness to be due and payable prior to its Stated Maturity, unless such declaration has been rescinded within 30 days or pay debts as they become due; (ii) a default by the Guarantor or any Restricted Subsidiary in the payment when due of any portion of the principal under any such instrument or instrumentsapplies for, and such unpaid portion exceeds $50,000,000 (or its foreign currency equivalent) individually or in the aggregate and is not paidconsents to, or such default is not cured or waivedacquiesces in, within any grace period applicable thereto, unless such Indebtedness is discharged within 30 days of the Guarantor or a Restricted Subsidiary becoming aware of such default;
(f) the Guarantor or any Significant Subsidiary pursuant to or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case;
(ii) consents to the entry of an order for relief against it in an involuntary case;
(iii) consents to the appointment of a Custodian of trustee, receiver, sequestrator or other custodian for it or for all or substantially all any of its property;
(iv) makes , or make a general assignment for the benefit of its creditors; or
(viii) admits in writing its inability the absence of such application, consents or acquiescences, permits or suffers to generally pay its debts as such debts become due; or takes any comparable action under any foreign laws relating to insolvency;
(g) an involuntary case or other proceeding shall be commenced against the Guarantor or any Significant Subsidiary seeking (i) liquidation, reorganization or other relief with respect to it or its debts under Title 11 of the Bankruptcy Code or any bankruptcy, insolvency or other similar law now or hereafter in effect, or (ii) exist the appointment of a trustee, receiver, liquidator, custodian sequestrator or other similar official with respect to custodian for it or any substantial part for all of its property thereof, and such trustee, receiver, sequestrator or other custodian shall not be discharged within 90 days, provided that it hereby expressly authorizes the Subordinated Lender to appear in any court conducting any relevant proceeding during such 90-day period to preserve, protect and defend Subordinated Lender’s rights under this Note; or (iiiiv) files for or permits or suffers to exist the winding-commencement of any bankruptcy, reorganization, debt arrangement or other case or proceeding under any bankruptcy or insolvency law (including, without limitation, ▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ Code, as amended from time to time), or any dissolution, winding up or liquidation proceeding, in respect of the Guarantor or it, and, if any such Significant Subsidiary; and such involuntary case or other proceeding is not commenced by it, such case or proceeding shall be consented to or acquiesced in by it or shall result in the entry of an order for relief or shall remain undismissed and unstayed for a period of 60 days90 days undismissed;
(he) If a default shall have occurred under any representation or warranty made by agreement between Borrower and any other third party lender to the Guarantor herein shall prove to have been incorrect Borrower, in any material respect when made or misleading each case if such default results in any material respect when made because the acceleration of the omission to state a material fact and such incorrect or misleading representation is and continues to be material and unremedied for a period of 30 days after receipt by the Guarantor of written notice thereof; provided, however, that if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 60 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 60-day period. The grace periods set forth in Section 7.1(a) and (b) above shall not affect in any way the right hereunder of any Beneficiary entitled to a payment of any amount payable to it, or performance of any obligation, by the RockGen Lessee under any Operative Document to demand prompt payment thereof, or performance thereof, by the Guarantor immediately upon any failure maturity of the RockGen Lessee to pay or perform the same when it has become due (and, for the avoidance of doubt, without regard to the existence of any cure or grace period before such failure by the RockGen Lessee becomes a Lease Event of Default); provided, however, notwithstanding the foregoing, no Lease Event of Default under Section 16(m) and no remedies under the Facility Lease may be exercised until a Calpine Guaranty Event of Default has occurred and is continuingunderlying indebtedness.
Appears in 2 contracts
Sources: Subordination Agreement (NXT-Id, Inc.), Subordination Agreement (NXT-Id, Inc.)
Defaults. The following events shall constitute an "Event of Default" hereunder (whether any such event shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any Governmental Entity):
(a) Upon the Guarantor or occurrence and during the RockGen Lessee continuance of a Default, Administrative Agent on behalf of the Lender and the other Lenders shall have the right to declare the unpaid principal balance and accrued but unpaid interest on this Note, and all other amounts due hereunder and under the Facility Lease shall fail to make any payment with respect to Periodic Rent or the Termination Value (including the Equity Portion of Termination Value and Debt Portion of Termination Value) when other Loan Documents, at once due and payable under (and upon such Facility Lease or this Guaranty within five (5) days after declaration, the same shall become be at once due thereunder; orand payable), to foreclose any liens and security interests securing payment hereof and to exercise any of its other rights, powers and remedies under this Note, under any other Loan Document, or at Law or in equity.
(b) All of the Guarantor or rights, remedies, powers and privileges (together, “Rights”) of Administrative Agent on behalf of the RockGen Lessee shall fail to make Lender and the other Lenders provided for in this Note and in any other amount payable under Loan Document are cumulative of each other and of any Operative Document after and all other Rights at Law or in equity. The resort to any Right shall not prevent the same concurrent or subsequent employment of any other appropriate Right. No single or partial exercise of any Right shall become due thereunder exhaust it or preclude any other or further exercise thereof, and such every Right may be exercised at any time and from time to time. No failure by Administrative Agent, Lender and the other Lenders to exercise, and no delay in exercising any Right, including, but not limited to, the right to accelerate the maturity of this Note, shall have continued from be construed as a period waiver of ten (10) Business Days after receipt any Default or as a waiver of any Right. Without limiting the generality of the foregoing provisions, the acceptance by the RockGen Lessee holder hereof from time to time of any payment under this Note which is past due or which is less than the payment in full of all amounts due and payable at the time of such payment, shall not (i) constitute a waiver of or impair or extinguish the right of Administrative Agent, Lender and the Guarantor other Lenders to accelerate the maturity of written notice this Note or to exercise any other Right at the time or at any subsequent time, or nullify any prior exercise of any such failure by Right, (ii) constitute a waiver of the RockGen Lessee and/or requirement of punctual payment and performance or a novation in any respect, or (iii) in any way excuse the Guarantor, as applicable;existence of a Default.
(c) The Guarantor shall fail If any Borrower sues any holder in connection with this Note or any other Loan Document and does not prevail, then Borrowers agree to comply with its covenants set forth pay to each such holder to the extent required under Section 4.15 of the Loan Agreement, in Section 3.3 (transfer of RockGen Lessee ownership)addition to principal, 3.6 (Guarantor merger) or 8.4 (assignment of Guaranty) of this Guaranty.
(d) interest and any other sums owing to Administrative Agent, Lender and the Guarantor shall fail to perform or observe any covenantother Lenders hereunder and under the other Loan Documents, obligation or agreement to be performed or observed all costs and expenses incurred by it under any Calpine Document (other than any covenant, obligation or agreement referred to in clauses (a) or (b) of this Section 7.1) such holder in any material respectsuch suit or proceeding, which shall continue unremedied for (1) with respect to the Guarantor's guaranty ofincluding attorneys’ fees and expenses, investigation costs and agreement with respect to, any nonmonetary obligation, covenant or agreement of the RockGen Lessee under any of the Operative Documents, 30 days after receipt by the Guarantor of written notice thereof from the Owner Participant, the Owner Lessor, the Indenture Trustee or the Pass Through Trustee; provided, however, if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 180 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 180-day period, and (2) with respect to any other obligation, covenant or agreement hereunder, 30 days after receipt by the Guarantor of written notice thereof;
(e) there shall have occurred either (i) a default by the Guarantor or any Restricted Subsidiary under any instrument or instruments under which there is or may be secured or evidenced any Indebtedness of the Guarantor or any Restricted Subsidiary of the Guarantor (other than the Obligations) having an outstanding principal amount of $50,000,000 (or its foreign currency equivalent) or more individually or in the aggregate that has caused the holders thereof to declare such Indebtedness to be due and payable prior to its Stated Maturity, unless such declaration has been rescinded within 30 days or (ii) a default by the Guarantor or any Restricted Subsidiary in the payment when due of any portion of the principal under any such instrument or instruments, and such unpaid portion exceeds $50,000,000 (or its foreign currency equivalent) individually or in the aggregate and is not paid, or such default is not cured or waived, within any grace period applicable thereto, unless such Indebtedness is discharged within 30 days of the Guarantor or a Restricted Subsidiary becoming aware of such default;
(f) the Guarantor or any Significant Subsidiary pursuant to or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case;
(ii) consents to the entry of an order for relief against it in an involuntary case;
(iii) consents to the appointment of a Custodian of it or for all or substantially all of its property;
(iv) makes a general assignment for the benefit of its creditors; or
(v) admits in writing its inability to generally pay its debts as such debts become due; or takes any comparable action under any foreign laws relating to insolvency;
(g) an involuntary case or other proceeding shall be commenced against the Guarantor or any Significant Subsidiary seeking (i) liquidation, reorganization or other relief with respect to it or its debts under Title 11 of the Bankruptcy Code or any bankruptcy, insolvency or other similar law now or hereafter in effect, or (ii) the appointment of a trustee, receiver, liquidator, custodian or other similar official with respect to it or any substantial part of its property or (iii) the winding-up or liquidation of the Guarantor or such Significant Subsidiary; and such involuntary case or other proceeding shall remain undismissed and unstayed for a period of 60 days;
(h) any representation or warranty made by the Guarantor herein shall prove to have been incorrect in any material respect when made or misleading in any material respect when made because of the omission to state a material fact and such incorrect or misleading representation is and continues to be material and unremedied for a period of 30 days after receipt by the Guarantor of written notice thereof; provided, however, that if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 60 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 60-day period. The grace periods set forth in Section 7.1(a) and (b) above shall not affect in any way the right hereunder of any Beneficiary entitled to a payment of any amount payable to it, or performance of any obligation, by the RockGen Lessee under any Operative Document to demand prompt payment thereof, or performance thereof, by the Guarantor immediately upon any failure of the RockGen Lessee to pay or perform the same when it has become due (and, for the avoidance of doubt, without regard to the existence of any cure or grace period before such failure by the RockGen Lessee becomes a Lease Event of Default); provided, however, notwithstanding the foregoing, no Lease Event of Default under Section 16(m) and no remedies under the Facility Lease may be exercised until a Calpine Guaranty Event of Default has occurred and is continuingcourt costs.
Appears in 2 contracts
Sources: Loan Agreement (KBS Real Estate Investment Trust II, Inc.), Loan Agreement (KBS Real Estate Investment Trust III, Inc.)
Defaults. The If any of the following events ("Defaults") shall constitute an "Event occur:
(A) Any Borrower fails to pay any of Default" hereunder its Liabilities when such Liabilities are due or are declared due (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise);
(B) Any Borrower (i) fails or neglects to perform, keep or observe any of its covenants, conditions or agreements contained in any of the subsections of this Agreement or any of the other Financing Agreements other than the provisions in Subsection 3.1 of this Agreement which require such Borrower to deliver a Monthly Report by a particular date, Subsections 7.1 (other than Subsections 7.1(E) or (G)), 7.3 or 7.4 of this Agreement, (ii) fails or neglects to deliver a Monthly Report when required pursuant to Subsection 3.1 of this Agreement and such failure shall continue for two consecutive Business Days, (iii) fails or neglects to perform, keep or observe any covenants, conditions or agreements contained in Subsection 7.1 (other than Subsections 7.1(E) or 7.1(G)) of this Agreement and such failure shall continue for five consecutive Business Days or (iv) fails or neglects to perform, keep or observe any of the covenants, conditions or agreements contained in Subsections 7.3 or 7.4 of this Agreement and such failure shall continue for thirty (30) consecutive days, provided that such 30-day grace period shall not apply and a Default shall be deemed to have occurred promptly upon such breach if (x) such breach cannot, in Agent's reasonable determination, be cured by such Borrower during such period, or (y) such breach shall be deemed by Agent (in its reasonable discretion) to have a material adverse effect on the Collateral (or Agent's or the Lenders' interest or rights therein or with respect thereto), the Current Asset Base of any Borrower or the other rights of Agent or the Lenders under this Agreement or any other Financing Agreement;
(C) any warranty or representation now or hereafter made by any Borrower or any Subsidiary of a Borrower is untrue or incorrect in any material respect when made, or any schedule, certificate, statement, report, financial data, notice, or writing furnished at any time by or on behalf of such Borrower or such Subsidiary to any of Agent, the Issuing Bank and the Lenders is untrue or incorrect in any material respect, on the date as of which the facts set forth therein are stated or certified or any of the foregoing omits to state a fact necessary to make the statements therein contained not misleading in any material respect;
(D) a final judgment or final order requiring payment in excess of $1,000,000 with respect to Rail, or $250,000 with respect to Deco, shall be rendered against such Borrower and such judgment or order shall remain unsatisfied or undischarged and in effect for forty (40) consecutive days without a stay of enforcement or execution, provided that this Subsection 9.1(D) shall not apply to any judgment for which such Borrower is fully insured (except for normal deductibles in connection therewith) and with respect to which the insurer has assumed the defense and is not defending under reservation of right and with respect to which Agent reasonably believes the insurer will pay the full amount thereof (except for normal deductibles in connection therewith);
(E) a notice of Lien, levy, or assessment is filed or recorded with respect to all or a substantial part of the assets of any Borrower by the United States, or any department, agency or instrumentality thereof, or by any state, county, municipality or other governmental agency or any taxes or debts owing at any time or times hereafter to any one or more of them become a Lien upon all or a substantial part of the Collateral or the assets of such Borrower, and such Lien, levy or assessment is not discharged or released within thirty (30) days of the notice or attachment thereof, provided that this Subsection 9.1(E) shall not apply to Liens, levies or assessments which relate to current taxes not yet due and payable or Permitted Liens;
(F) there shall occur any loss, theft, substantial damage or destruction of any item or items of any Borrower's assets for which such Borrower is not fully insured (a "Loss"), if the amount of such Loss not fully covered by insurance (including any deductible in connection therewith), together with the amount of all other Losses incurred by all Borrowers not fully covered by insurance (including any deductibles in connection therewith) occurring in the same Fiscal Year, exceeds $1,000,000;
(G) all or any part of any Borrower's assets is attached, seized, subjected to a writ or distress warrant, or is levied upon, or comes within the possession of any receiver, trustee, custodian or assignee for the benefit of creditors and on or before the forty-fifth (45th) day thereafter such assets are not returned to such Borrower and/or such writ, distress warrant or levy is not dismissed, stayed or lifted if the amount of such Collateral or assets, together with any other such Collateral and assets that is so attached, seized, subjected to writ or distress warrant or levied upon, exceeds $1,000,000 at any time;
(H) a proceeding under any bankruptcy, reorganization, arrangement of debt, insolvency, readjustment of debt or receivership law or statute is filed (i) against any Borrower and an adjudication or appointment is made or order for relief is entered, or such proceeding remains undismissed for a period in excess of forty-five (45) days, or (ii) by any Borrower or any Borrower makes an assignment for the benefit of creditors or any Borrower takes any corporate action to authorize any of the foregoing;
(I) a proceeding under any bankruptcy, reorganization, arrangement of debt, insolvency, readjustment of debt or receivership law or statute is filed (i) against any Subsidiary of any Borrower and an adjudication or appointment is made or order for relief is entered, or such proceeding remains undismissed for a period in excess of forty-five (45) days, or (ii) any Subsidiary of any Borrower makes an assignment for the benefit of creditors or any such event shall be voluntary Subsidiary takes any action to authorize any of the foregoing;
(J) Any Borrower or involuntary any Subsidiary of a Borrower voluntarily or come about involuntarily dissolves or be effected is dissolved, terminates or is terminated (except for a liquidation or dissolution of a Subsidiary permitted by operation Subsection 7.3 hereof);
(K) Any Borrower or any Subsidiary of law a Borrower becomes insolvent or pursuant fails generally to pay its debts as they become due;
(L) Any Borrower is enjoined, restrained, or in compliance with any judgment, decree or way prevented by the order of any court or any order, rule administrative or regulation regulatory agency from conducting all or any material part of any Governmental Entity):its business affairs;
(aM) a breach by any Borrower shall occur under any material agreement, document or instrument (other than an agreement, document or instrument evidencing the Guarantor lending of money), whether heretofore, now or hereafter existing between such Borrower and any other Person, and such breach involves an exposure to such Borrower, or could give rise to liability of such Borrower, in excess of $1,000,000 with respect to Rail, or $250,000 with respect to Deco, and the RockGen Lessee under same continues unwaived for more than forty-five (45) days after such breach first occurs;
(N) as to more than $500,000 individually, or $1,500,000 in the Facility Lease aggregate for all Borrowers in indebtedness at any one time, (i) any Borrower shall fail to make any payment with respect to Periodic Rent due (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise) on any obligation for borrowed money (including, without limitation, Subordinated Debt) other than the Termination Value (including the Equity Portion of Termination Value and Debt Portion of Termination Value) when due and payable under such Facility Lease or this Guaranty within five (5) days after the same shall become due thereunder; or
(b) the Guarantor or the RockGen Lessee shall fail to make any other amount payable under any Operative Document after the same shall become due thereunder Liabilities and such failure shall have continued from a period of ten continue after the applicable grace period, if any, specified in the agreement or instrument relating to such indebtedness; (10ii) Business Days any other default under any agreement or instrument relating to any such indebtedness (including, without limitation, Subordinated Debt), or any other event, shall occur and shall continue after receipt by the RockGen Lessee and applicable grace period, if any, specified in such agreement or instrument if the Guarantor of written notice effect of such failure default or event is to accelerate, or to permit the acceleration of, the maturity of such indebtedness; or (iii) any such indebtedness (including, without limitation, Subordinated Debt) shall be declared to be due and payable or required to be prepaid (other than, with respect to indebtedness other than the Subordinated Debt, by a regularly scheduled required prepayment) prior to the RockGen Lessee and/or the Guarantor, as applicablestated maturity thereof;
(cO) The Guarantor a material and adverse change shall occur (i) in the present or reasonably foreseeable prospective operations or financial condition of Rail or in the value of any material portion of the Collateral, or (ii) which materially impairs the ability of Rail to perform its obligations under this Agreement and the other Financing Agreements, in each case as determined by Agent;
(P) the plan administrator of any Benefit Plan applies under Section 412(d) of the Internal Revenue Code for a waiver of the minimum funding standards of Section 412(a) of the Internal Revenue Code and Agent in good faith believes that the approval of such waiver could subject any Borrower, any of its Subsidiaries or an ERISA Affiliate of such Borrower to liability in excess of $1,000,000;
(Q) a Termination Event occurs which Agent in good faith believes could individually, or together with any other Termination Events subject any Borrower, any of its Subsidiaries or an ERISA Affiliate of such Borrower to liability in excess of $1,000,000;
(R) a Change in Control shall occur;
(S) any guarantor shall fail to comply with its covenants set forth in Section 3.3 (transfer of RockGen Lessee ownership)the terms of, 3.6 (Guarantor merger) or 8.4 (assignment of Guaranty) of this Guaranty.
(d) the Guarantor shall otherwise fail to perform or observe any covenant, obligation or agreement to be performed or observed by it under any Calpine Document (other than any covenant, obligation or agreement referred to in clauses (a) or (b) of this Section 7.1) in any material respect, which shall continue unremedied for (1) with respect to the Guarantor's guaranty of, and agreement with respect toits obligations under, any nonmonetary obligation, covenant or agreement guaranty of the RockGen Lessee under Liabilities or any security or similar agreement relating thereto or shall take any action to disaffirm any of the Operative Documents, 30 days after receipt by the Guarantor of written notice thereof from the Owner Participant, the Owner Lessor, the Indenture Trustee or the Pass Through Trustee; provided, however, if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 180 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 180-day period, and (2) with respect to any other obligation, covenant or agreement hereunder, 30 days after receipt by the Guarantor of written notice thereof;
(e) there shall have occurred either (i) a default by the Guarantor or any Restricted Subsidiary under any instrument or instruments under which there is or may be secured or evidenced any Indebtedness of the Guarantor or any Restricted Subsidiary of the Guarantor (other than the Obligations) having an outstanding principal amount of $50,000,000 (or its foreign currency equivalent) or more individually or in the aggregate that has caused the holders thereof to declare such Indebtedness to be due and payable prior to its Stated Maturity, unless such declaration has been rescinded within 30 days or (ii) a default by the Guarantor or any Restricted Subsidiary in the payment when due of any portion of the principal obligations under any such instrument guaranty or instrumentsagreement or any such guaranty or agreement shall cease to be valid, and such unpaid portion exceeds $50,000,000 (enforceable or its foreign currency equivalent) individually or in of effect without the aggregate and is not paid, or such default is not cured or waived, within any grace period applicable thereto, unless such Indebtedness is discharged within 30 days prior written consent of the Guarantor or a Restricted Subsidiary becoming aware of such default;
(f) Agent and the Guarantor or any Significant Subsidiary pursuant to or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case;
(ii) consents to the entry of an order for relief against it in an involuntary case;
(iii) consents to the appointment of a Custodian of it or for all or substantially all of its property;
(iv) makes a general assignment for the benefit of its creditorsLenders; or
(v) admits in writing its inability to generally pay its debts as such debts become due; or takes any comparable action under any foreign laws relating to insolvency;
(g) an involuntary case or other proceeding shall be commenced against the Guarantor or any Significant Subsidiary seeking (i) liquidation, reorganization or other relief with respect to it or its debts under Title 11 of the Bankruptcy Code or any bankruptcy, insolvency or other similar law now or hereafter in effect, or (ii) the appointment of a trustee, receiver, liquidator, custodian or other similar official with respect to it or any substantial part of its property or (iii) the winding-up or liquidation of the Guarantor or such Significant Subsidiary; and such involuntary case or other proceeding shall remain undismissed and unstayed for a period of 60 days;
(h) any representation or warranty made by the Guarantor herein shall prove to have been incorrect in any material respect when made or misleading in any material respect when made because of the omission to state a material fact and such incorrect or misleading representation is and continues to be material and unremedied for a period of 30 days after receipt by the Guarantor of written notice thereof; provided, however, that if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 60 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 60-day period. The grace periods set forth in Section 7.1(a) and (b) above shall not affect in any way the right hereunder of any Beneficiary entitled to a payment of any amount payable to it, or performance of any obligation, by the RockGen Lessee under any Operative Document to demand prompt payment thereof, or performance thereof, by the Guarantor immediately upon any failure of the RockGen Lessee to pay or perform the same when it has become due (and, for the avoidance of doubt, without regard to the existence of any cure or grace period before such failure by the RockGen Lessee becomes a Lease Event of Default); provided, however, notwithstanding the foregoing, no Lease Event of Default under Section 16(m) and no remedies under the Facility Lease may be exercised until a Calpine Guaranty Event of Default has occurred and is continuing.
Appears in 2 contracts
Sources: Loan and Security Agreement (Abc Rail Products Corp), Loan and Security Agreement (Abc Rail Products Corp)
Defaults. The occurrence of any of the following events shall constitute an "Event of Default" hereunder (whether any such event shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any Governmental Entity):Default hereunder:
(a) the Guarantor or the RockGen Lessee under the Facility Lease shall fail to make any payment with respect to Periodic Rent or the Termination Value (including the Equity Portion of Termination Value and Debt Portion of Termination Value) when due and payable under such Facility Lease or this Guaranty within five (5) days after the same shall become due thereunder; or
(b) the Guarantor or the RockGen Lessee shall fail to make any other amount payable under any Operative Document after the same shall become due thereunder and such failure shall have continued from a period of ten (10) Business Days after receipt by the RockGen Lessee and the Guarantor of written notice of such failure by the RockGen Lessee and/or the Guarantor, as applicable;
(c) The Guarantor shall fail to comply with its covenants set forth in Section 3.3 (transfer of RockGen Lessee ownership), 3.6 (Guarantor merger) or 8.4 (assignment of Guaranty) of this Guaranty.
(d) the Guarantor shall fail to perform or observe any covenant, obligation or agreement to be performed or observed by it under any Calpine Document (other than any covenant, obligation or agreement referred to in clauses (a) or (b) of this Section 7.1) in any material respect, which shall continue unremedied for (1) with respect to the Guarantor's guaranty of, and agreement with respect to, any nonmonetary obligation, covenant or agreement of the RockGen Lessee under any of the Operative Documents, 30 days after receipt by the Guarantor of written notice thereof from the Owner Participant, the Owner Lessor, the Indenture Trustee or the Pass Through Trustee; provided, however, if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 180 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 180-day period, and (2) with respect to any other obligation, covenant or agreement hereunder, 30 days after receipt by the Guarantor of written notice thereof;
(e) there shall have occurred either (i) a default by the Guarantor or any Restricted Subsidiary under any instrument or instruments under which there is or may be secured or evidenced any Indebtedness of the Guarantor or any Restricted Subsidiary of the Guarantor (other than the Obligations) having an outstanding principal amount of $50,000,000 (or its foreign currency equivalent) or more individually or in the aggregate that has caused the holders thereof to declare such Indebtedness to be due and payable prior to its Stated Maturity, unless such declaration has been rescinded within 30 days or (ii) a default by the Guarantor or any Restricted Subsidiary in the payment when due of any portion of the principal under any such instrument or instruments, and such unpaid portion exceeds $50,000,000 (or its foreign currency equivalent) individually or in the aggregate and is not paid, or such default is not cured or waived, within any grace period applicable thereto, unless such Indebtedness is discharged within 30 days of the Guarantor or a Restricted Subsidiary becoming aware of such default;
(f) the Guarantor or any Significant Subsidiary pursuant to or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case;
(ii) consents to the entry of an order for relief against it in an involuntary case;
(iii) consents to the appointment of a Custodian of it or for all or substantially all of its property;
(iv) makes a general assignment for the benefit of its creditors; or
(v) admits in writing its inability to generally pay its debts as such debts become due; or takes any comparable action under any foreign laws relating to insolvency;
(g) an involuntary case or other proceeding shall be commenced against the Guarantor or any Significant Subsidiary seeking (i) liquidation, reorganization or other relief with respect to it or its debts under Title 11 of the Bankruptcy Code or any bankruptcy, insolvency or other similar law now or hereafter in effect, or (ii) the appointment of a trustee, receiver, liquidator, custodian or other similar official with respect to it or any substantial part of its property or (iii) the winding-up or liquidation of the Guarantor or such Significant Subsidiary; and such involuntary case or other proceeding shall remain undismissed and unstayed for a period of 60 days;
(h) any representation or warranty made by the Guarantor herein Issuer, the Master Servicer, the Eligible Lender Trustee, the Indenture Trustee, the Seller, the Administrator or the Depositor hereunder or under the Transaction Documents, or in any certificate furnished hereunder or under the Transaction Documents, shall prove to have been incorrect be untrue or incomplete in any material respect;
(i) the Issuer, the Master Servicer, the Eligible Lender Trustee, the Seller or the Depositor shall fail to pay when due any amount payable by the Issuer, the Master Servicer, the Eligible Lender Trustee, the Indenture Trustee, the Seller, the Administrator or the Depositor hereunder or (ii) a legislative body has enacted any law that declares or a court of competent jurisdiction shall find or rule that any Transaction Document is not valid and binding on the Issuer, the Master Servicer, the Eligible Lender Trustee, the Indenture Trustee, the Seller, the Administrator or the Depositor;
(c) the occurrence and continuance of an "Event of Default" under the Indenture, as defined therein.
(d) any failure on the part of the Issuer, the Master Servicer, the Eligible Lender Trustee, the Indenture Trustee, the Seller, the Administrator or the Depositor duly to observe or perform in any material respect when made any other of the covenants or misleading agreements on the part of the Issuer, the Master Servicer, the Eligible Lender Trustee, the Indenture Trustee, the Seller, the Administrator or the Depositor contained in this Insurance Agreement or in any material respect when made because of the omission to state a material fact and such incorrect or misleading representation is and other Transaction Document which continues to be material and unremedied for a period of 30 days with respect to this Insurance Agreement, or, with respect to any other Transaction Document, beyond any cure period provided for therein, after receipt by the Guarantor of date on which written notice thereof; providedof such failure, howeverrequiring the same to be remedied, that if such condition cannot be remedied within such 30-day periodshall have been given to the Issuer, then the period within which to remedy such condition shall be extended up to an additional 60 daysMaster Servicer, so long the Seller, the Administrator or the Depositor, as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 60-day period. The grace periods set forth in Section 7.1(a) and (b) above shall not affect in any way the right hereunder of any Beneficiary entitled to a payment of any amount payable to it, or performance of any obligationapplicable, by the RockGen Lessee Insurer (with a copy to the Eligible Lender Trustee and the Indenture Trustee) or by the Eligible Lender Trustee or the Indenture Trustee (with a copy to the Insurer);
(e) decree or order of a court or agency or supervisory authority having jurisdiction in the premises in an involuntary case under any Operative Document to demand prompt payment thereofpresent or future federal or state bankruptcy, insolvency or similar law or the appointment of a conservator or receiver or liquidator or other similar official in any insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or performance thereoffor the winding-up or liquidation of its affairs, by shall have been entered against the Guarantor immediately upon Issuer, the Master Servicer, the Seller, the Administrator or the Depositor and such decree or order shall have remained in force undischarged or unstayed for a period of 90 consecutive days;
(f) the Issuer, the Master Servicer, the Seller, the Administrator or the Depositor shall consent to the appointment of a conservator or receiver or liquidator or other similar official in any insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings of or relating to the Issuer, the Master Servicer, the Seller, the Administrator or the Depositor or of or relating to all or substantially all of the property of either;
(g) the Issuer, the Master Servicer, the Seller, the Administrator or the Depositor shall admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of or otherwise voluntarily commence a case or proceeding under any applicable bankruptcy, insolvency, reorganization or other similar statute, make an assignment for the benefit of its creditors or voluntarily suspend payment of its obligations;
(h) the occurrence and continuance of a "Master Servicer Default" or an "Administrator Default" under the Sale and Servicing Agreement as defined herein; or
(i) the failure of the RockGen Lessee Seller to pay comply with, or perform maintain the same when it has become due (andaccuracy of, for the avoidance of doubt, without regard to the existence of any cure or grace period before such failure by the RockGen Lessee becomes a Lease Event of Default); provided, however, notwithstanding the foregoing, no Lease Event of Default under Section 16(m) Opinion Facts and no remedies under the Facility Lease may be exercised until a Calpine Guaranty Event of Default has occurred and is continuingAssumptions.
Appears in 2 contracts
Sources: Insurance Agreement (Keycorp Student Loan Trust 2000-B), Insurance Agreement (Keycorp Student Loan Trust 2000-A)
Defaults. 15.1 The following events shall constitute an "Event failure of Default" hereunder (whether any such event shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with any judgmentthe Owner, decree or order of any court or any order, rule or regulation of any Governmental Entity):
(a) the Guarantor Developer or the RockGen Lessee under Town to comply with the Facility Lease shall fail to make any payment with respect to Periodic Rent or the Termination Value terms of this Agreement not cured within thirty (including the Equity Portion of Termination Value and Debt Portion of Termination Value) when due and payable under such Facility Lease or this Guaranty within five (530) days after written notice from the same shall become due thereunder; or
non-defaulting party to the defaulting party (b) the Guarantor as such time period may be extended with regard to non-monetary breaches or the RockGen Lessee shall fail to make any other amount payable under any Operative Document after the same shall become due thereunder and such failure shall have continued from a reasonable period of ten time based on the circumstances, provided such defaulting party commences to cure such breach within such thirty (1030) Business Days after receipt day period and is proceeding diligently and expeditiously to complete such cure) shall constitute a default, entitling the non-defaulting party to pursue such remedies as deemed appropriate, including specific performance; provided however no termination of this Agreement may be declared by the RockGen Lessee Town absent its according the Owner and any relevant Developer the Guarantor of written notice of notice, hearing and opportunity to cure in accordance with the Act; and provided any such failure by the RockGen Lessee and/or the Guarantor, as applicable;
(c) The Guarantor termination shall fail to comply with its covenants set forth in Section 3.3 (transfer of RockGen Lessee ownership), 3.6 (Guarantor merger) or 8.4 (assignment of Guaranty) of this Guaranty.
(d) the Guarantor shall fail to perform or observe any covenant, obligation or agreement to be performed or observed by it under any Calpine Document (other than any covenant, obligation or agreement referred to in clauses (a) or (b) of this Section 7.1) in any material respect, which shall continue unremedied for (1) with respect limited to the Guarantor's guaranty ofportion of the Property in default, and agreement with respect to, any nonmonetary obligation, covenant provided further that nothing herein shall be deemed or agreement construed to preclude the Town or its designee from issuing stop work orders or voiding permits issued for Development when such Development contravenes the provisions of the RockGen Lessee under any Zoning Regulations or this Agreement. A default of the Operative Documents, 30 days after receipt Owner shall not constitute a default by the Guarantor of written notice thereof from the Owner Participant, the Owner Lessor, the Indenture Trustee or the Pass Through Trustee; provided, however, if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 180 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 180-day periodDevelopers, and (2) with respect to any other obligation, covenant or agreement hereunder, 30 days after receipt default by the Guarantor of written notice thereof;
(e) there Developers shall have occurred either (i) not constitute a default by the Guarantor or any Restricted Subsidiary under any instrument or instruments under which there is or may Owner. The parties acknowledge that individual residents and owners of completed buildings within the Property shall not be secured or evidenced any Indebtedness obligated for the obligations of the Guarantor Owner or any Restricted Subsidiary of the Guarantor (other than the Obligations) having an outstanding principal amount of $50,000,000 (or its foreign currency equivalent) or more individually or in the aggregate that has caused the holders thereof to declare such Indebtedness to be due and payable prior to its Stated Maturity, unless such declaration has been rescinded within 30 days or (ii) a default by the Guarantor or any Restricted Subsidiary in the payment when due of any portion of the principal under any such instrument or instruments, and such unpaid portion exceeds $50,000,000 (or its foreign currency equivalent) individually or in the aggregate and is not paid, or such default is not cured or waived, within any grace period applicable thereto, unless such Indebtedness is discharged within 30 days of the Guarantor or a Restricted Subsidiary becoming aware of such default;
(f) the Guarantor or any Significant Subsidiary pursuant to or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case;
(ii) consents to the entry of an order for relief against it in an involuntary case;
(iii) consents to the appointment of a Custodian of it or for all or substantially all of its property;
(iv) makes a general assignment for the benefit of its creditors; or
(v) admits in writing its inability to generally pay its debts as such debts become due; or takes any comparable action under any foreign laws relating to insolvency;
(g) an involuntary case or other proceeding shall be commenced against the Guarantor or any Significant Subsidiary seeking (i) liquidation, reorganization or other relief with respect to it or its debts under Title 11 of the Bankruptcy Code or any bankruptcy, insolvency or other similar law now or hereafter in effect, or (ii) the appointment of a trustee, receiver, liquidator, custodian or other similar official with respect to it or any substantial part of its property or (iii) the winding-up or liquidation of the Guarantor or such Significant Subsidiary; and such involuntary case or other proceeding shall remain undismissed and unstayed for a period of 60 days;
(h) any representation or warranty made by the Guarantor herein shall prove to have been incorrect in any material respect when made or misleading in any material respect when made because of the omission to state a material fact and such incorrect or misleading representation is and continues to be material and unremedied for a period of 30 days after receipt by the Guarantor of written notice thereof; provided, however, that if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 60 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 60-day period. The grace periods Developer set forth in this Agreement.
15.2 Notwithstanding the foregoing or anything to the contrary in this Agreement, the parties agree that the Town’s sole and exclusive remedy for any default pursuant to Section 7.1(a12.1 of this Agreement (a “Phasing Default”) shall be to terminate this Agreement, upon which termination all rights and (b) above shall not affect in any way the right hereunder of any Beneficiary entitled to a payment of any amount payable to it, or performance of any obligation, by the RockGen Lessee under any Operative Document to demand prompt payment thereof, or performance thereof, by the Guarantor immediately upon any failure obligations of the RockGen Lessee parties under this Agreement shall cease, and the Town hereby expressly waives any and all other remedies it may otherwise have, either at law or in equity, resulting from or arising from a Phasing Default.
15.3 Notwithstanding anything to pay or perform the same when it has become due (andcontrary herein, in no event shall any party to this Agreement be liable, nor shall any action be brought, for the avoidance of doubtconsequential, without regard to the existence of any cure incidental, exemplary or grace period before such failure by the RockGen Lessee becomes a Lease Event of Default); provided, however, notwithstanding the foregoing, no Lease Event of Default under Section 16(m) and no remedies under the Facility Lease may be exercised until a Calpine Guaranty Event of Default has occurred and is continuingpunitive damages.
Appears in 2 contracts
Sources: Annexation and Development Agreement, Annexation and Development Agreement
Defaults. The following events shall constitute an "Event of Default" hereunder (whether any such event shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any Governmental Entity):
(a) It shall be a default ("DEFAULT") under this Note and each of the Guarantor other Loan Documents if, subject to the grace periods provided in the Credit Agreement or the RockGen Lessee other Loan Documents, (i) any principal, interest or other amount of money due under this Note is not paid in full when due, regardless of how such amount may have become due; (ii) any covenant, agreement, condition, representation or warranty herein or in any other Loan Documents is not fully and timely performed, observed or kept; or (iii) there shall occur any default or event of default under the Facility Lease Mortgage or any other Loan Document. Upon the occurrence and during the continuation of a Default, Administrative Agent on behalf of the Lenders shall fail have the rights to make any payment with respect to Periodic Rent or declare the Termination Value (including unpaid principal balance and accrued but unpaid interest on this Note, and all other amounts due hereunder and under the Equity Portion of Termination Value and Debt Portion of Termination Value) when other Loan Documents, at once due and payable under (and upon such Facility Lease or this Guaranty within five (5) days after declaration, the same shall become be at once due thereunder; orand payable), to foreclose any liens and security interests securing payment hereof and to exercise any of its other rights, powers and remedies under this Note, under any other Loan Document, or at Law or in equity.
(b) All of the Guarantor or rights, remedies, powers and privileges (together, "RIGHTS") of Administrative Agent on behalf of the RockGen Lessee shall fail to make Lenders provided for in this Note and in any other amount Loan Document are cumulative of each other and of any and all other Rights at Law or in equity. The resort to any Right shall not prevent the concurrent or subsequent employment of any other appropriate Right. No single or partial exercise of any Right shall exhaust it, or preclude any other or further exercise thereof, and every Right may be exercised at any time and from time to time. No failure by Administrative Agent or LenderS to exercise, nor delay in exercising any Right, including but not limited to the right to accelerate the maturity of this Note, shall be construed as a waiver of any Default or as a waiver of any Right. Without limiting the generality of the foregoing provisions, the acceptance by Lender from time to time of any payment under this Note which is past due or which is less than the payment in full of all amounts due and payable under any Operative Document after at the same shall become due thereunder and such failure shall have continued from a period of ten (10) Business Days after receipt by the RockGen Lessee and the Guarantor of written notice time of such failure by the RockGen Lessee and/or the Guarantorpayment, as applicable;
(c) The Guarantor shall fail to comply with its covenants set forth in Section 3.3 (transfer of RockGen Lessee ownership), 3.6 (Guarantor merger) or 8.4 (assignment of Guaranty) of this Guaranty.
(d) the Guarantor shall fail to perform or observe any covenant, obligation or agreement to be performed or observed by it under any Calpine Document (other than any covenant, obligation or agreement referred to in clauses (a) or (b) of this Section 7.1) in any material respect, which shall continue unremedied for (1) with respect to the Guarantor's guaranty of, and agreement with respect to, any nonmonetary obligation, covenant or agreement of the RockGen Lessee under any of the Operative Documents, 30 days after receipt by the Guarantor of written notice thereof from the Owner Participant, the Owner Lessor, the Indenture Trustee or the Pass Through Trustee; provided, however, if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 180 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 180-day period, and (2) with respect to any other obligation, covenant or agreement hereunder, 30 days after receipt by the Guarantor of written notice thereof;
(e) there shall have occurred either (i) constitute a default by waiver of or impair or extinguish the Guarantor right of Administrative Agent or Lenders to accelerate the maturity of this Note or to exercise any Restricted Subsidiary under other Right at the time or at any instrument subsequent time, or instruments under which there is or may be secured or evidenced nullify any Indebtedness of the Guarantor or any Restricted Subsidiary of the Guarantor (other than the Obligations) having an outstanding principal amount of $50,000,000 (or its foreign currency equivalent) or more individually or in the aggregate that has caused the holders thereof to declare such Indebtedness to be due and payable prior to its Stated Maturity, unless such declaration has been rescinded within 30 days or (ii) a default by the Guarantor or any Restricted Subsidiary in the payment when due exercise of any portion of the principal under any such instrument or instruments, and such unpaid portion exceeds $50,000,000 (or its foreign currency equivalent) individually or in the aggregate and is not paid, or such default is not cured or waived, within any grace period applicable thereto, unless such Indebtedness is discharged within 30 days of the Guarantor or a Restricted Subsidiary becoming aware of such default;
(f) the Guarantor or any Significant Subsidiary pursuant to or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case;
(ii) consents to the entry of an order for relief against it in an involuntary case;
(iii) consents to the appointment of a Custodian of it or for all or substantially all of its property;
(iv) makes a general assignment for the benefit of its creditors; or
(v) admits in writing its inability to generally pay its debts as such debts become due; or takes any comparable action under any foreign laws relating to insolvency;
(g) an involuntary case or other proceeding shall be commenced against the Guarantor or any Significant Subsidiary seeking (i) liquidation, reorganization or other relief with respect to it or its debts under Title 11 of the Bankruptcy Code or any bankruptcy, insolvency or other similar law now or hereafter in effectRight, or (ii) constitute a waiver of the appointment requirement of punctual payment and performance or a trusteenovation in any respect.
(c) If any holder of this Note retains an attorney in connection with any Default or at maturity or to collect, receiverenforce or defend this Note or any other Loan Document in any lawsuit or in any probate, liquidatorreorganization, custodian bankruptcy, arbitration or other similar official proceeding, or if Borrower sues any holder in connection with respect to it this Note or any substantial part of its property other Loan Document and does not prevail, then Borrower agrees to pay to each such holder, in addition to principal, interest and any other sums owing to Lenders hereunder and under the other Loan Documents, all costs and expenses reasonably incurred by such holder in trying to collect this Note or (iii) the winding-up or liquidation of the Guarantor or such Significant Subsidiary; and such involuntary case or other proceeding shall remain undismissed and unstayed for a period of 60 days;
(h) any representation or warranty made by the Guarantor herein shall prove to have been incorrect in any material respect when made such suit or misleading in any material respect when made because of proceeding, including, without limitation, reasonable attorneys' fees and expenses, investigation costs and all court costs, whether or not suit is filed hereon, whether before or after the omission to state a material fact and such incorrect or misleading representation is and continues to be material and unremedied for a period of 30 days after receipt by the Guarantor of written notice thereof; provided, however, that if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 60 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 60-day period. The grace periods set forth in Section 7.1(a) and (b) above shall not affect in any way the right hereunder of any Beneficiary entitled to a payment of any amount payable to itMaturity Date, or performance of any obligationwhether in connection with bankruptcy, by the RockGen Lessee under any Operative Document to demand prompt payment thereofinsolvency or appeal, or performance thereof, by the Guarantor immediately upon whether collection is made against Borrower or any failure of the RockGen Lessee to pay guarantor or perform the same when it has become due (and, for the avoidance of doubt, without regard to the existence of endorser or any cure other Person primarily or grace period before such failure by the RockGen Lessee becomes a Lease Event of Default); provided, however, notwithstanding the foregoing, no Lease Event of Default under Section 16(m) and no remedies under the Facility Lease may be exercised until a Calpine Guaranty Event of Default has occurred and is continuingsecondarily liable hereunder.
Appears in 2 contracts
Sources: Credit Agreement (Behringer Harvard Reit I Inc), Credit Agreement (Behringer Harvard Short Term Opportunity Fund I Lp)
Defaults. The If any of the following events shall constitute (herein called an "Event of Default" hereunder (whether any such event ") shall occur and be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any Governmental Entity):continuing:
(a) If the Guarantor Company shall default in the payment (whether or not such payment is prohibited under Article 5 hereof) of (i) any part of the RockGen Lessee under the Facility Lease shall fail to make principal on any payment with respect to Periodic Rent or the Termination Value (including the Equity Portion of Termination Value and Debt Portion of Termination Value) Convertible Note, when due and payable under such Facility Lease or this Guaranty within five (5) days after the same shall become due thereunder; or
(b) the Guarantor and payable, whether at maturity or the RockGen Lessee shall fail to make any other amount payable under any Operative Document after the same shall become due thereunder and such failure shall have continued from a period of ten (10) Business Days after receipt by the RockGen Lessee and the Guarantor of written notice of such failure by the RockGen Lessee and/or the Guarantor, as applicable;
(c) The Guarantor shall fail to comply with its covenants set forth in Section 3.3 (transfer of RockGen Lessee ownership), 3.6 (Guarantor merger) acceleration or 8.4 (assignment of Guaranty) of this Guaranty.
(d) the Guarantor shall fail to perform or observe any covenant, obligation or agreement to be performed or observed by it under any Calpine Document (other than any covenant, obligation or agreement referred to in clauses (a) or (b) of this Section 7.1) in any material respect, which shall continue unremedied for (1) with respect to the Guarantor's guaranty of, and agreement with respect to, any nonmonetary obligation, covenant or agreement of the RockGen Lessee under any of the Operative Documents, 30 days after receipt by the Guarantor of written notice thereof from the Owner Participant, the Owner Lessor, the Indenture Trustee or the Pass Through Trustee; provided, however, if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 180 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 180-day period, and (2) with respect to any other obligation, covenant or agreement hereunder, 30 days after receipt by the Guarantor of written notice thereof;
(e) there shall have occurred either (i) a default by the Guarantor or any Restricted Subsidiary under any instrument or instruments under which there is or may be secured or evidenced any Indebtedness of the Guarantor or any Restricted Subsidiary of the Guarantor (other than the Obligations) having an outstanding principal amount of $50,000,000 (or its foreign currency equivalent) or more individually or in the aggregate that has caused the holders thereof to declare such Indebtedness to be due and payable prior to its Stated Maturity, unless such declaration has been rescinded within 30 days or (ii) a default by the Guarantor or any Restricted Subsidiary in the payment when due of any portion of the principal under any such instrument or instruments, and such unpaid portion exceeds $50,000,000 (or its foreign currency equivalent) individually or in the aggregate and is not paid, or such default is not cured or waived, within any grace period applicable thereto, unless such Indebtedness is discharged within 30 days of the Guarantor or a Restricted Subsidiary becoming aware of such default;
(f) the Guarantor or any Significant Subsidiary pursuant to or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case;
(ii) consents to the entry of an order for relief against it in an involuntary case;
(iii) consents to the appointment of a Custodian of it or for all or substantially all of its property;
(iv) makes a general assignment for the benefit of its creditors; or
(v) admits in writing its inability to generally pay its debts as such debts become due; or takes any comparable action under any foreign laws relating to insolvency;
(g) an involuntary case or other proceeding shall be commenced against the Guarantor or any Significant Subsidiary seeking (i) liquidation, reorganization or other relief with respect to it or its debts under Title 11 of the Bankruptcy Code or any bankruptcy, insolvency or other similar law now or hereafter in effectotherwise, or (ii) the appointment of a trusteeinterest on any Convertible Note, receiverwhen the same shall become due and payable, liquidator, custodian or other similar official with respect to it or any substantial part of its property or (iii) the winding-up or liquidation of the Guarantor or such Significant Subsidiary; and such involuntary case or other proceeding default in the payment of interest shall remain undismissed and unstayed have continued for a period of 60 fifteen (15) days;
(hb) If the Company shall default in the performance of any agreement or covenant contained in this Agreement or the Convertible Notes and such default shall continue for thirty (30) days; or
(c) If any representation or warranty made by the Guarantor Company herein or any certificate delivered by the Company pursuant hereto shall prove to have been incorrect in any material respect when made made; or
(d) If (i) the Company shall fail to make any payment in respect of any Indebtedness when due or misleading within any applicable grace period; or (ii) any other event of default, as defined in any material respect when made because indenture or material instrument evidencing or under which there is at the time outstanding any Indebtedness of the omission Company, shall occur which (1) results in the acceleration of the maturity of such Indebtedness or (2) enables (or, with the giving of notice, would enable) the holder of such Indebtedness or any person acting on such holder's behalf to state accelerate the maturity thereof if, in the case of subclause (2) hereof, such event or condition has been in existence for 180 days without being cured or waived; provided, that, the aggregate principal amount of the Indebtedness referred to in clause (i) or (ii) (together with any other defaulted Indebtedness) exceeds $1,000,000; or
(e) If a material fact final judgment which, either alone or together with other outstanding final judgments against the Company and its Subsidiaries, exceeds an aggregate of $1,000,000 shall be rendered against the Company or any Subsidiary and such incorrect judgment shall have continued undischarged or misleading representation is and continues unstayed for sixty (60) days after entry thereof; or
(f) If the Company or any Subsidiary shall make an assignment for the benefit of creditors, or shall admit in writing its inability to pay its debts; or if the Company or any Subsidiary shall suffer the appointment of a receiver or trustee for it or substantially all of its assets and, if appointed without its consent, not to be material and unremedied for a period discharged or stayed within sixty (60) days; or if the Company or any Subsidiary shall suffer proceedings under any law relating to bankruptcy, insolvency or the reorganization or relief of 30 debtors to be instituted by or against it, and, if contested by it, not to be dismissed or stayed within sixty (60) days; or if the Company or any Subsidiary shall fail generally to pay its debts as they become due; or if the Company or any Subsidiary shall suffer any writ of attachment or execution or any similar process to be issued or levied against it or any significant part of its property with respect to claims in excess of $1,000,000, which is not released, stayed, bonded or vacated within sixty (60) days after receipt its issue or levy; or if the Company or any Subsidiary takes corporate action in furtherance of any of the aforesaid purposes or conditions; then and in each such event the holders of forty percent (40%) or more in aggregate principal amount of the Convertible Notes then outstanding may at any time (unless all defaults shall theretofore have been remedied) at its or their option, by the Guarantor of written notice thereofor notices to the Company, declare all the Convertible Notes to be due and payable, whereupon the same shall forthwith mature and become due and payable, together with all interest accrued thereon, without presentment, demand, protest or notice, all of which are hereby waived; provided, however, that if such this provision is subject to the condition cannot that if, at any time after the principal of the Convertible Notes shall so become due and payable, any arrears of principal and interest on the Convertible Notes (with interest at the rate specified in the Convertible Notes on any overdue principal and, to the extent legally enforceable, on any interest overdue) shall be remedied within such 30-day periodpaid by or for the account of the Company, then the period within which to remedy such condition shall be extended up to an additional 60 days, so long as holder or holders of at least fifty-one percent (51%) in aggregate principal amount of the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 60-day period. The grace periods set forth in Section 7.1(a) and (b) above shall not affect in any way the right hereunder of any Beneficiary entitled to a payment of any amount payable to it, or performance of any obligationConvertible Notes then outstanding, by the RockGen Lessee under any Operative Document to demand prompt payment thereof, written notice or performance thereof, by the Guarantor immediately upon any failure of the RockGen Lessee to pay or perform the same when it has become due (and, for the avoidance of doubt, without regard notices to the existence of any cure or grace period before Company, may waive such failure by the RockGen Lessee becomes a Lease Event of Default)Default and its consequences and rescind or annul such declaration, but no such waiver shall extend to or affect any subsequent Event of Default or impair any right resulting therefrom; provided, howeverfurther, that notwithstanding the foregoing, no Lease if there shall occur an Event of Default under Section 16(mclause (f) above, or a breach of the covenants contained in Sections 9.1 or 9.3 hereof, then the Convertible Notes, together with all interest accrued thereon, shall immediately mature and no remedies under become due and payable, without the Facility Lease may be exercised until necessity of any action by the Purchasers or notice to the Company. If any holder of a Calpine Guaranty Event Convertible Note shall give any notice or take any other action with respect to a claimed default, the Company, forthwith upon receipt of Default has occurred such notice or obtaining knowledge of such other action, will give written notice thereof to all other holders of the Convertible Notes then outstanding, describing such notice or other action and is continuingthe nature of the claimed default.
Appears in 2 contracts
Sources: Convertible Subordinated Note Purchase Agreement (Langer Inc), Convertible Subordinated Note Purchase Agreement (Langer Partners LLC)
Defaults. The following events shall constitute an be "Event Events of Default" hereunder (whether any such event shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any Governmental Entity):":
(a) The occurrence of an Event of Default (as defined in the Guarantor or the RockGen Lessee Note) under the Facility Lease shall fail to make any payment with respect to Periodic Rent or the Termination Value (including the Equity Portion of Termination Value and Debt Portion of Termination Value) when due and payable under such Facility Lease or this Guaranty within five (5) days after the same shall become due thereunder; orNote;
(b) the Guarantor Any representation or the RockGen Lessee shall fail to make any other amount payable under any Operative Document after the same shall become due thereunder and such failure shall have continued from warranty of a period of ten (10) Business Days after receipt by the RockGen Lessee and the Guarantor of written notice of such failure by the RockGen Lessee and/or the Guarantor, as applicable;
(c) The Guarantor shall fail to comply with its covenants set forth Debtor in Section 3.3 (transfer of RockGen Lessee ownership), 3.6 (Guarantor merger) or 8.4 (assignment of Guaranty) of this Guaranty.
(d) the Guarantor shall fail to perform or observe any covenant, obligation or agreement to be performed or observed by it under any Calpine Document (other than any covenant, obligation or agreement referred to in clauses (a) or (b) of this Section 7.1) in any material respect, which shall continue unremedied for (1) with respect to the Guarantor's guaranty of, and agreement with respect to, any nonmonetary obligation, covenant or agreement of the RockGen Lessee under any of the Operative Documents, 30 days after receipt by the Guarantor of written notice thereof from the Owner Participant, the Owner Lessor, the Indenture Trustee or the Pass Through Trustee; provided, however, if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 180 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 180-day period, and (2) with respect to any other obligation, covenant or agreement hereunder, 30 days after receipt by the Guarantor of written notice thereof;
(e) there shall have occurred either (i) a default by the Guarantor or any Restricted Subsidiary under any instrument or instruments under which there is or may be secured or evidenced any Indebtedness of the Guarantor or any Restricted Subsidiary of the Guarantor (other than the Obligations) having an outstanding principal amount of $50,000,000 (or its foreign currency equivalent) or more individually Agreement or in the aggregate that has caused the holders thereof to declare such Indebtedness to be due and payable prior to its Stated Maturity, unless such declaration has been rescinded within 30 days or (ii) a default by the Guarantor or any Restricted Subsidiary in the payment when due of any portion of the principal under any such instrument or instruments, and such unpaid portion exceeds $50,000,000 (or its foreign currency equivalent) individually or in the aggregate and is not paid, or such default is not cured or waived, within any grace period applicable thereto, unless such Indebtedness is discharged within 30 days of the Guarantor or a Restricted Subsidiary becoming aware of such default;
(f) the Guarantor or any Significant Subsidiary pursuant to or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case;
(ii) consents to the entry of an order for relief against it in an involuntary case;
(iii) consents to the appointment of a Custodian of it or for all or substantially all of its property;
(iv) makes a general assignment for the benefit of its creditors; or
(v) admits in writing its inability to generally pay its debts as such debts become due; or takes any comparable action under any foreign laws relating to insolvency;
(g) an involuntary case or other proceeding shall be commenced against the Guarantor or any Significant Subsidiary seeking (i) liquidation, reorganization or other relief with respect to it or its debts under Title 11 of the Bankruptcy Code or any bankruptcy, insolvency or other similar law now or hereafter in effect, or (ii) the appointment of a trustee, receiver, liquidator, custodian or other similar official with respect to it or any substantial part of its property or (iii) the winding-up or liquidation of the Guarantor or such Significant Subsidiary; and such involuntary case or other proceeding shall remain undismissed and unstayed for a period of 60 days;
(h) any representation or warranty made by the Guarantor herein Intellectual Property Security Agreement shall prove to have been incorrect in any material respect when made made;
(c) The failure by a Debtor to observe or misleading perform any of its obligations hereunder or in the Intellectual Property Security Agreement for five (5) days after delivery to such Debtor of notice of such failure by or on behalf of the Secured Party;
(d) A Debtor shall prepay, redeem, defease, purchase, or otherwise acquire any of its or its subsidiaries' indebtedness, other than permitted prepayments under the Note;
(e) A Debtor shall make any distribution or declare or pay any dividends (in cash or other property, other than common stock) on, or purchase, acquire, redeem, or retire any of its capital stock, of any class, whether now or hereafter outstanding;
(f) Parent shall modify or change its method of accounting or enter into, modify, or terminate any agreement currently existing, or at any time hereafter entered into with any third party accounting firm or service bureau for the preparation or storage of its accounting records;
(g) If a judgment or other claim becomes a lien or encumbrance upon any material respect when made because portion of the omission to state a material fact and such incorrect or misleading representation is and continues Debtor's assets; and
(h) If any provision of this Agreement shall at any time for any reason be declared to be material null and unremedied for a period of 30 days after receipt by void, or the Guarantor of written notice thereof; provided, however, that if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition validity or enforceability thereof shall be extended up to an additional 60 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 60-day period. The grace periods set forth in Section 7.1(a) and (b) above shall not affect in any way the right hereunder of any Beneficiary entitled to contested by a payment of any amount payable to itDebtor, or performance of a proceeding shall be commenced by a Debtor, or by any obligationgovernmental authority having jurisdiction over a Debtor, by seeking to establish the RockGen Lessee under any Operative Document to demand prompt payment invalidity or unenforceability thereof, or performance thereof, by the Guarantor immediately upon a Debtor shall deny that a Debtor has any failure of the RockGen Lessee liability or obligation purported to pay or perform the same when it has become due (and, for the avoidance of doubt, without regard to the existence of any cure or grace period before such failure by the RockGen Lessee becomes a Lease Event of Default); provided, however, notwithstanding the foregoing, no Lease Event of Default be created under Section 16(m) and no remedies under the Facility Lease may be exercised until a Calpine Guaranty Event of Default has occurred and is continuingthis Agreement.
Appears in 2 contracts
Sources: Intellectual Property Security Agreement (E Digital Corp), Security Agreement (E Digital Corp)
Defaults. The following events shall constitute an "Event of Default" hereunder (whether any such event A Party shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with any judgment, decree or order default under this Lease upon the occurrence of any court one or any order, rule or regulation more of any Governmental Entity):the following events:
(a) the Guarantor or the RockGen Lessee under the Facility Lease shall fail The failure by such Party to make any payment with respect of any amount required to Periodic Rent or the Termination Value be made by such Party hereunder, as and when due, where such failure shall continue for a period of thirty (including the Equity Portion of Termination Value and Debt Portion of Termination Value) when due and payable under such Facility Lease or this Guaranty within five (530) days after receipt by such Party of written notice thereof from the same shall become due thereunderother Party; or
(b) the Guarantor The failure by such Party to observe or the RockGen Lessee shall fail to make perform any other amount payable under any Operative Document after the same shall become due thereunder and material covenants, conditions or provisions of this Lease to be observed or performed by such Party, where such failure shall have continued from continue for a period of ten thirty (1030) Business Days after receipt by the RockGen Lessee and the Guarantor of written notice of such failure by the RockGen Lessee and/or the Guarantor, as applicable;
(c) The Guarantor shall fail to comply with its covenants set forth in Section 3.3 (transfer of RockGen Lessee ownership), 3.6 (Guarantor merger) or 8.4 (assignment of Guaranty) of this Guaranty.
(d) the Guarantor shall fail to perform or observe any covenant, obligation or agreement to be performed or observed by it under any Calpine Document (other than any covenant, obligation or agreement referred to in clauses (a) or (b) of this Section 7.1) in any material respect, which shall continue unremedied for (1) with respect to the Guarantor's guaranty of, and agreement with respect to, any nonmonetary obligation, covenant or agreement of the RockGen Lessee under any of the Operative Documents, 30 days after receipt by the Guarantor such Party of written notice thereof from the Owner Participant, the Owner Lessor, the Indenture Trustee or the Pass Through Trusteeother Party; provided, however, that if the nature of the failure is such that more than thirty (30) days are reasonably required for its cure, then such Party shall not be deemed to be in default if such condition cannot be remedied Party commences such cure within said thirty (30) day period and thereafter diligently prosecutes such 30-day periodcure to completion; or
(c) If by order of a court of competent jurisdiction, then the period within which to remedy such condition a receiver or liquidator or trustee of a Party shall be extended up to an additional 180 daysappointed, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable receiver or liquidator or trustee shall not have been discharged within a period of being remedied within sixty (60) days; or if by decree of such additional 180-day perioda court, a Party shall be adjudicated bankrupt or insolvent or any substantial part of the property of such Party shall have been sequestered, and such decree shall have continued undischarged and unstayed for a period of sixty (260) with respect days after the entry thereof; or if a petition to declare bankruptcy or to reorganize a Party pursuant to any of the provisions of the federal bankruptcy laws or pursuant to any other obligationsimilar state statute applicable to such Party, covenant as now or agreement hereunderhereafter in effect, 30 shall be filed against such Party and shall not be dismissed within sixty (60) days after receipt by the Guarantor of written notice thereof;such filing; or
(ed) there If a Party shall have occurred either (i) file a default by the Guarantor or any Restricted Subsidiary voluntary petition in bankruptcy under any instrument provision of any federal or instruments state bankruptcy law or shall consent to the filing of any bankruptcy or reorganization petition against it under which there is or may be secured or evidenced any Indebtedness similar law; or, without limitation of the Guarantor or any Restricted Subsidiary generality of the Guarantor (other than the Obligations) having an outstanding principal amount of $50,000,000 (foregoing, if a Party shall file a petition or its foreign currency equivalent) answer or more individually consent seeking relief or assisting in the aggregate that has caused the holders thereof to declare such Indebtedness to be due and payable prior to its Stated Maturity, unless such declaration has been rescinded within 30 days or (ii) seeking relief in a default by the Guarantor or proceeding under any Restricted Subsidiary in the payment when due of any portion of the principal under provisions of the federal bankruptcy laws or pursuant to any other similar state statute applicable to such instrument Party, as now or instruments, and such unpaid portion exceeds $50,000,000 (or its foreign currency equivalent) individually or hereafter in the aggregate and is not paideffect, or such default is not cured or waived, within any grace period applicable thereto, unless such Indebtedness is discharged within 30 days an answer admitting the material allegations of the Guarantor or a Restricted Subsidiary becoming aware of such default;
(f) the Guarantor or any Significant Subsidiary pursuant to or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case;
(ii) consents to the entry of an order for relief petition filed against it in such a proceeding; or if a Party shall make an involuntary case;
(iii) consents to the appointment of a Custodian of it or for all or substantially all of its property;
(iv) makes a general assignment for the benefit of its creditors; or
(v) admits or if a Party shall admit in writing its inability to generally pay its debts generally as such debts they become due; or takes any comparable action under any foreign laws relating if a Party shall consent to insolvency;
(g) an involuntary case or other proceeding shall be commenced against the Guarantor or any Significant Subsidiary seeking (i) liquidation, reorganization or other relief with respect to it or its debts under Title 11 of the Bankruptcy Code or any bankruptcy, insolvency or other similar law now or hereafter in effect, or (ii) the appointment of a trusteereceiver or receivers, receiveror trustee or trustees, liquidator, custodian or other similar official with respect to liquidator or liquidators of it or of all or any substantial part of its property or (iii) the winding-up or liquidation of the Guarantor or such Significant Subsidiaryproperty; and such involuntary case or other proceeding shall remain undismissed and unstayed for a period of 60 days;
(h) any representation or warranty made by the Guarantor herein shall prove to have been incorrect in any material respect when made or misleading in any material respect when made because of the omission to state a material fact and such incorrect or misleading representation is and continues to be material and unremedied for a period of 30 days after receipt by the Guarantor of written notice thereof; provided, however, that if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 60 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 60-day period. The grace periods set forth in Section 7.1(a) and (b) above shall not affect in any way the right hereunder of any Beneficiary entitled to a payment of any amount payable to it, or performance of any obligation, by the RockGen Lessee under any Operative Document to demand prompt payment thereof, or performance thereof, by the Guarantor immediately upon any failure of the RockGen Lessee to pay or perform the same when it has become due (and, for the avoidance of doubt, without regard to the existence of any cure or grace period before such failure by the RockGen Lessee becomes a Lease Event of Default); provided, however, notwithstanding the foregoing, no Lease Event of Default under Section 16(m) and no remedies under the Facility Lease may be exercised until a Calpine Guaranty Event of Default has occurred and is continuing.or
Appears in 2 contracts
Sources: Contribution, Conveyance and Assumption Agreement (Phillips 66 Partners Lp), Contribution, Conveyance and Assumption Agreement
Defaults. The following events shall constitute an "Event of Default" hereunder (whether any such event shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any Governmental Entity):
(a) It shall be a default ("Default") under this Note and each of the Guarantor other Loan Documents if (i) any principal, interest or other amount of money due under this Note is not paid in full when due, in accordance with the RockGen Lessee terms and conditions of the Loan Agreement, regardless of how such amount may have become due; (ii) any covenant, agreement, condition, representation or warranty herein is not fully and timely performed, observed or kept; or (iii) there shall occur any default or event of default under the Facility Lease Loan Agreement or any other Loan Document, which is not cured pursuant to the terms and provisions therein. Subject to the terms of the Subordination Agreement, upon the occurrence of a Default, Lender shall fail have any and all rights and remedies set forth in the Loan Agreement, including without limitation the right (A) to make any payment declare in accordance with respect to Periodic Rent or the Termination Value (including Loan Agreement the Equity Portion of Termination Value unpaid principal balance and Debt Portion of Termination Value) when accrued but unpaid interest on this Note, and all other amounts due hereunder and under the other Loan Documents, at once due and payable under (upon such Facility Lease or this Guaranty within five (5) days after declaration, the same shall become be at once due thereunder; orand payable), (B) to foreclose any liens and security interests securing payment thereof and (C) to exercise any of its other rights, powers and remedies under this Note, under any other Loan Document, or at law or in equity.
(b) All of the Guarantor or the RockGen Lessee shall fail to make Rights of Lender provided for in this Note and in any other amount Loan Document are cumulative of each other and of any and all other Rights at law or in equity. The resort to any Right shall not prevent the concurrent or subsequent employment of any other appropriate Right. No single or partial exercise of any Right shall exhaust it, or preclude any other or further exercise thereof, and every Right may be exercised, subject to the terms of the Subordination Agreement, at any time and from time to time. No failure by Lender to exercise, nor delay in exercising any Right, including but not limited to the right to accelerate the maturity of this Note, shall be construed as a waiver of any Default or as a waiver of any Right. Without limiting the generality of the foregoing provisions, the acceptance by Lender from time to time of any payment under this Note which is past due or which is less than the payment in full of all amounts due and payable under any Operative Document after at the same shall become due thereunder and such failure shall have continued from a period of ten (10) Business Days after receipt by the RockGen Lessee and the Guarantor of written notice time of such failure by the RockGen Lessee and/or the Guarantorpayment, as applicable;
(c) The Guarantor shall fail to comply with its covenants set forth in Section 3.3 (transfer of RockGen Lessee ownership), 3.6 (Guarantor merger) or 8.4 (assignment of Guaranty) of this Guaranty.
(d) the Guarantor shall fail to perform or observe any covenant, obligation or agreement to be performed or observed by it under any Calpine Document (other than any covenant, obligation or agreement referred to in clauses (a) or (b) of this Section 7.1) in any material respect, which shall continue unremedied for (1) with respect to the Guarantor's guaranty of, and agreement with respect to, any nonmonetary obligation, covenant or agreement of the RockGen Lessee under any of the Operative Documents, 30 days after receipt by the Guarantor of written notice thereof from the Owner Participant, the Owner Lessor, the Indenture Trustee or the Pass Through Trustee; provided, however, if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 180 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 180-day period, and (2) with respect to any other obligation, covenant or agreement hereunder, 30 days after receipt by the Guarantor of written notice thereof;
(e) there shall have occurred either (i) constitute a default by waiver of or impair or extinguish the Guarantor or any Restricted Subsidiary under any instrument or instruments under which there is or may be secured or evidenced any Indebtedness right of Lender to accelerate the maturity of this Note or, subject to the terms of the Guarantor Subordination Agreement, to exercise any other Right at the time or at any Restricted Subsidiary of the Guarantor (other than the Obligations) having an outstanding principal amount of $50,000,000 (subsequent time, or its foreign currency equivalent) or more individually or in the aggregate that has caused the holders thereof to declare such Indebtedness to be due and payable nullify any prior to its Stated Maturity, unless such declaration has been rescinded within 30 days or (ii) a default by the Guarantor or any Restricted Subsidiary in the payment when due exercise of any portion of the principal under any such instrument or instruments, and such unpaid portion exceeds $50,000,000 (or its foreign currency equivalent) individually or in the aggregate and is not paid, or such default is not cured or waived, within any grace period applicable thereto, unless such Indebtedness is discharged within 30 days of the Guarantor or a Restricted Subsidiary becoming aware of such default;
(f) the Guarantor or any Significant Subsidiary pursuant to or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case;
(ii) consents to the entry of an order for relief against it in an involuntary case;
(iii) consents to the appointment of a Custodian of it or for all or substantially all of its property;
(iv) makes a general assignment for the benefit of its creditors; or
(v) admits in writing its inability to generally pay its debts as such debts become due; or takes any comparable action under any foreign laws relating to insolvency;
(g) an involuntary case or other proceeding shall be commenced against the Guarantor or any Significant Subsidiary seeking (i) liquidation, reorganization or other relief with respect to it or its debts under Title 11 of the Bankruptcy Code or any bankruptcy, insolvency or other similar law now or hereafter in effectRight, or (ii) constitute a waiver of the appointment requirement of punctual payment and performance or a trusteenovation in any respect.
(c) If any holder of this Note retains an attorney in connection with any Default or at maturity of this Note or to collect, receiverenforce or defend this Note or any other Loan Document in any lawsuit or in any probate, liquidatorreorganization, custodian bankruptcy, arbitration or other similar official proceeding, or if Borrower sues any holder in connection with respect to it this Note or any substantial part of its property other Loan Document and does not prevail, then Borrower agrees to pay to each such holder, in addition to principal, interest and any other sums owing to Lender hereunder and under the other Loan Documents, all costs and expenses incurred by such holder in trying to collect this Note or (iii) the winding-up or liquidation of the Guarantor or such Significant Subsidiary; and such involuntary case or other proceeding shall remain undismissed and unstayed for a period of 60 days;
(h) any representation or warranty made by the Guarantor herein shall prove to have been incorrect in any material respect when made such suit or misleading in any material respect when made because of proceeding, including, without limitation, attorneys' fees and expenses, investigation costs and all court costs, whether or not suit is filed hereon, whether before or after the omission to state a material fact and such incorrect or misleading representation is and continues to be material and unremedied for a period of 30 days after receipt by the Guarantor of written notice thereof; provided, however, that if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 60 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 60-day period. The grace periods set forth in Section 7.1(a) and (b) above shall not affect in any way the right hereunder of any Beneficiary entitled to a payment of any amount payable to itMaturity Date, or performance of any obligationwhether in connection with bankruptcy, by the RockGen Lessee under any Operative Document to demand prompt payment thereofinsolvency or appeal, or performance thereof, by the Guarantor immediately upon whether collection is made against Borrower or any failure of the RockGen Lessee to pay guarantor or perform the same when it has become due (and, for the avoidance of doubt, without regard to the existence of endorser or any cure other person primarily or grace period before such failure by the RockGen Lessee becomes a Lease Event of Default); provided, however, notwithstanding the foregoing, no Lease Event of Default under Section 16(m) and no remedies under the Facility Lease may be exercised until a Calpine Guaranty Event of Default has occurred and is continuingsecondarily liable hereunder.
Appears in 2 contracts
Sources: Loan and Security Agreement (Signature Eyewear Inc), Loan and Security Agreement (Signature Eyewear Inc)
Defaults. The Any of the following events shall constitute an "Event of Default" hereunder (whether any such event shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any Governmental Entity):a default under this Agreement:
(a) the Guarantor or the RockGen Lessee under the Facility Lease Borrower shall fail to make pay, within 5 days of when due, any payment with respect amount due under the Note or other amount payable to Periodic Rent or the Termination Value (including the Equity Portion of Termination Value and Debt Portion of Termination Value) when due and payable City under such Facility Lease or this Guaranty within five (5) days after the same shall become due thereunder; orAgreement;
(b) the Guarantor or the RockGen Lessee Borrower shall fail to make observe or perform any other amount payable under any Operative Document covenant or agreement contained in this Agreement or associated loan documents such as the Promissory Note and Security agreements, for 10 days after the same shall become due thereunder and such failure shall have continued from a period of ten (10) Business Days after receipt by the RockGen Lessee and the Guarantor of written notice of such failure thereof has been given to Borrower by the RockGen Lessee and/or the Guarantor, as applicableCity;
(c) The Guarantor shall fail to comply with its covenants set forth Borrower uses the Loan Proceeds for purposes other than those stated in Section 3.3 (transfer of RockGen Lessee ownership), 3.6 (Guarantor merger) or 8.4 (assignment of Guaranty) of this Guaranty.Agreement;
(d) ▇▇▇▇▇▇▇▇ has not met the Guarantor shall fail to perform or observe any covenant, obligation or agreement to be performed or observed by it under any Calpine Document (other than any covenant, obligation or agreement referred to Deadline described in clauses (a) or (b) Section 2.3.5 of this Section 7.1Agreement.
(e) Any representation, warranty, certificate or statement made by Borrower in this Agreement, including any Exhibits hereto, or in any certificate, report, financial statement or other document delivered pursuant to this Agreement or as part of the application to the City to enter into this Agreement shall prove to have been incorrect when made in any material respect, which shall continue unremedied for (1) with respect to the Guarantor's guaranty of, and agreement with respect to, any nonmonetary obligation, covenant or agreement of the RockGen Lessee under any of the Operative Documents, 30 days after receipt by the Guarantor of written notice thereof from the Owner Participant, the Owner Lessor, the Indenture Trustee or the Pass Through Trustee; provided, however, if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 180 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 180-day period, and (2) with respect to any other obligation, covenant or agreement hereunder, 30 days after receipt by the Guarantor of written notice thereof;
(e) there shall have occurred either (i) a default by the Guarantor or any Restricted Subsidiary under any instrument or instruments under which there is or may be secured or evidenced any Indebtedness of the Guarantor or any Restricted Subsidiary of the Guarantor (other than the Obligations) having an outstanding principal amount of $50,000,000 (or its foreign currency equivalent) or more individually or in the aggregate that has caused the holders thereof to declare such Indebtedness to be due and payable prior to its Stated Maturity, unless such declaration has been rescinded within 30 days or (ii) a default by the Guarantor or any Restricted Subsidiary in the payment when due of any portion of the principal under any such instrument or instruments, and such unpaid portion exceeds $50,000,000 (or its foreign currency equivalent) individually or in the aggregate and is not paid, or such default is not cured or waived, within any grace period applicable thereto, unless such Indebtedness is discharged within 30 days of the Guarantor or a Restricted Subsidiary becoming aware of such default;
(f) the Guarantor A default shall occur with respect to any indebtedness of Borrower for borrowed money or with respect to any Significant Subsidiary pursuant material agreement or instrument to or within the meaning of any Bankruptcy Law:
(i) commences which Borrower is a voluntary case;
(ii) consents to the entry of an order for relief against it in an involuntary case;
(iii) consents to the appointment of a Custodian of it or for all or substantially all of its property;
(iv) makes a general assignment for the benefit of its creditors; or
(v) admits in writing its inability to generally pay its debts as such debts become due; or takes any comparable action under any foreign laws relating to insolvencyparty;
(g) an involuntary Borrower shall fail to observe or perform any covenant or agreement contained in any Security Document or a default shall occur under any Security Document;
(h) Borrower shall commence a voluntary case or other proceeding shall be commenced against the Guarantor or any Significant Subsidiary seeking (i) liquidation, reorganization or other relief with respect to it itself or its debts under Title 11 of the Bankruptcy Code or any bankruptcy, insolvency or other similar law now or hereafter in effect, effect or (ii) seeking the appointment of a trustee, receiver, liquidator, custodian or other similar official with respect to of it or any substantial part of its property property, or (iii) shall consent to any such relief or to the winding-up appointment of or liquidation taking possession by any such official in an involuntary case or other proceeding commenced against it, or shall make a general assignment for the benefit of creditors, or shall fail generally to pay its debts as they become due, or shall take any corporate action to authorize any of the Guarantor foregoing;
(i) An involuntary case or such Significant Subsidiary; other proceeding shall be commenced against Borrower seeking liquidation, reorganization or other relief with respect to it or its debts under any bankruptcy, insolvency or other similar law now or hereafter in effect or seeking the appointment of a trustee, receiver, liquidator, custodian or other similar official of it or any substantial part of its property, and such involuntary case or other proceeding proceedings shall remain undismissed and unstayed for a period of 60 days; or an order for relief shall be entered against Borrower under the federal bankruptcy laws as now or hereafter in effect;
(hj) There shall be entered against Borrower one or more judgments or decrees in excess of $10,000 in the aggregate at any representation time outstanding, excluding judgments or warranty made decrees which have been vacated, discharged, stayed or bonded pending appeal within 30 days from entry thereof and judgments to the extent covered by insurance;
(k) Borrower ceases the conduct of active trade or business in the City for any reason, including, but not limited to, fire or other casualty;
(l) Borrower moves from the Property or sells any of the items covered by the Guarantor herein shall prove to have been incorrect in any material respect when made or misleading in any material respect when made because of the omission to state a material fact and such incorrect or misleading representation is and continues to be material and unremedied for a period of 30 days after receipt by the Guarantor of written notice thereof; provided, however, that if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 60 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 60-day period. The grace periods set forth in Section 7.1(a) and (b) above shall not affect in any way the right hereunder of any Beneficiary entitled to a payment of any amount payable to it, or performance of any obligation, by the RockGen Lessee under any Operative Document to demand prompt payment thereof, or performance thereof, by the Guarantor immediately upon any failure of the RockGen Lessee to pay or perform the same when it has become due (and, for the avoidance of doubt, without regard to the existence of any cure or grace period before such failure by the RockGen Lessee becomes a Lease Event of Default); provided, however, notwithstanding the foregoing, no Lease Event of Default under Section 16(m) and no remedies under the Facility Lease may be exercised until a Calpine Guaranty Event of Default has occurred and is continuingSecurity Agreement.
Appears in 2 contracts
Sources: Loan Agreement, Loan Agreement
Defaults. The Upon the happening of any of the following events shall constitute an "Event (collectively, “Events of Default" hereunder (whether any such event shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any Governmental Entity”):
(a) the Guarantor or the RockGen Lessee under the Facility Lease if Borrower shall fail to make any payment with respect to Periodic Rent or the Termination Value (including the Equity Portion of Termination Value and Debt Portion of Termination Value) when due of any Obligation under this Agreement or any Loan Document, provided, however, that, for purposes of Borrower’s obligation to make payment of any Obligations to Lender comprised of Obligations to reimburse Lender for or to pay field examination expenses and payable under such Facility Lease or this Guaranty within five legal fees and expenses incurred by Lender after the date hereof, no Event of Default shall be deemed to have occurred, unless sixty (560) days after have elapsed from the same date of demand therefor by Lender; provided that, Lender’s right hereunder to charge such fees and expenses to Borrower shall become due thereundernot be affected by the foregoing and in the event Lender so charges Borrower for such fees and expenses any such incipient Event of Default shall be deemed cured thereby; or
(b) the Guarantor or the RockGen Lessee shall fail to make any other amount payable under any Operative Document after the same shall become due thereunder and such failure shall have continued from a period of ten (10) Business Days after receipt by the RockGen Lessee and the Guarantor of written notice of such failure by the RockGen Lessee and/or the Guarantor, as applicable;
(c) The Guarantor if Borrower shall fail to comply with its covenants set forth any terms, conditions, covenant, warranty or representation contained in Section 3.3 (transfer of RockGen Lessee ownership)10, 3.6 (Guarantor merger) or 8.4 (assignment of Guaranty) Section 11, Section 12 and Section 13 of this Guaranty.Agreement; or
(c) if Borrower shall fail to comply with any term, condition, covenant or warranty of or in this Agreement, any other Loan Document or any other agreement between Lender and Borrower, other than in Section 10, Section 11, Section 12 and Section 13 of this Agreement, and such failure continues for a period in excess of twenty (20) days after notice thereof is given by Lender to Borrower; or
(d) the Guarantor if Borrower shall fail to perform or observe any covenant, obligation or agreement cease to be performed or observed by it under any Calpine Document (other than any covenantSolvent, obligation or agreement referred to in clauses (a) or (b) of this Section 7.1) in any material respect, which shall continue unremedied for (1) with respect to the Guarantor's guaranty of, and agreement with respect to, any nonmonetary obligation, covenant or agreement of the RockGen Lessee under any of the Operative Documents, 30 days after receipt by the Guarantor of written notice thereof from the Owner Participant, the Owner Lessor, the Indenture Trustee or the Pass Through Trustee; provided, however, if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to make an additional 180 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 180-day period, and (2) with respect to any other obligation, covenant or agreement hereunder, 30 days after receipt by the Guarantor of written notice thereof;
(e) there shall have occurred either (i) a default by the Guarantor or any Restricted Subsidiary under any instrument or instruments under which there is or may be secured or evidenced any Indebtedness of the Guarantor or any Restricted Subsidiary of the Guarantor (other than the Obligations) having an outstanding principal amount of $50,000,000 (or its foreign currency equivalent) or more individually or in the aggregate that has caused the holders thereof to declare such Indebtedness to be due and payable prior to its Stated Maturity, unless such declaration has been rescinded within 30 days or (ii) a default by the Guarantor or any Restricted Subsidiary in the payment when due of any portion of the principal under any such instrument or instruments, and such unpaid portion exceeds $50,000,000 (or its foreign currency equivalent) individually or in the aggregate and is not paid, or such default is not cured or waived, within any grace period applicable thereto, unless such Indebtedness is discharged within 30 days of the Guarantor or a Restricted Subsidiary becoming aware of such default;
(f) the Guarantor or any Significant Subsidiary pursuant to or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case;
(ii) consents to the entry of an order for relief against it in an involuntary case;
(iii) consents to the appointment of a Custodian of it or for all or substantially all of its property;
(iv) makes a general assignment for the benefit of its creditors, call a meeting of its creditors to obtain any general financial accommodation, suspend business or if any case under any provision of the Bankruptcy Code, including provisions for reorganizations, shall be commenced by or against Borrower; or
(ve) admits if any statement or representation contained in writing its inability any financial statement or certificate delivered by Borrower to generally pay its debts as such debts become dueLender shall be false, in any material respect, when made; or
(f) if any federal tax lien is filed of record against Borrower or takes any comparable action under any foreign laws relating to insolvency;Guarantor and is not bonded or discharged within ten (10) days; or
(g) an involuntary case or other proceeding if Borrower’s independent public accountants shall be commenced against refuse to deliver any financial statement required by this Agreement (after the Guarantor or any Significant Subsidiary seeking date due hereunder) within ten (i10) liquidation, reorganization or other relief with respect to it or its debts under Title 11 days after written demand by Lender for delivery of the Bankruptcy Code or any bankruptcy, insolvency or other similar law now or hereafter in effect, or (ii) the appointment of a trustee, receiver, liquidator, custodian or other similar official with respect to it or any substantial part of its property or (iii) the winding-up or liquidation of the Guarantor or such Significant Subsidiaryfinancial statements; and such involuntary case or other proceeding shall remain undismissed and unstayed for a period of 60 days;or
(h) if a receiver, trustee or equivalent officer shall be appointed for all or any representation or warranty made by of the Guarantor herein assets of Borrower; or
(i) if a judgment for more than Two Hundred and Fifty Thousand Dollars ($250,000) shall prove to have been incorrect be entered against Borrower in any material respect when made action or misleading proceeding and shall not be stayed, vacated, bonded, paid, discharged or applied in any material respect when made because of the omission to state a material fact and such incorrect or misleading representation is and continues to be material and unremedied for a period of 30 days after receipt by the Guarantor of written notice thereofgood faith within twenty (20) days; provided, howeverthat, that no Event of Default shall be deemed to have occurred in the case of any judgment where the claim is covered by insurance and the insurance company has accepted liability therefor; or
(j) if any obligation of Borrower in respect of Indebtedness shall be declared to be or shall become due and payable prior to the stated maturity thereof or such condition canobligation shall not be remedied within paid as and when the same becomes due and payable; or there shall occur any event or condition which constitutes an event of default under any mortgage, indenture, instrument, agreement or evidence of indebtedness relating to any obligation of Borrower in respect of any such 30-day periodIndebtedness the effect of which is to permit the holder or the holders of such mortgage, then indenture, instrument, agreement or evidence of Indebtedness, or a trustee, agent or other representative on behalf of such holder or holders, to cause the period within which Indebtedness evidenced thereby to remedy such condition become due prior to its stated maturity; provided, that, the foregoing shall be extended not include (a) Indebtedness to Lender; or (b) Indebtedness arising in connection with any real property lease obligations up to an additional 60 days$50,000.00, so long as no judgments are entered against Borrower as a result of Borrower’s failure to pay such Indebtedness; or
(k) upon the Guarantor diligently pursues such remedy happening of any Reportable Event which Lender in its discretion determines could reasonably be expected to constitute grounds for the termination of any Plan, or if a trustee shall be appointed by an appropriate United States District Court or other court of administrative tribunal to administer any Plan, or if the Pension Benefit Guaranty Corporation shall institute proceedings to terminate any Plan or to appoint a trustee to administer any Plan; or
(l) upon the occurrence and such condition is reasonably capable continuance of being remedied within such additional 60-day period. The grace periods set forth any Material Adverse Effect, which in the sole and absolute opinion of Lender, impairs Lender’s security or increases its risks; or
(m) upon the happening of any of the events described in Section 7.1(a17.1(d), Section 17.1(e), Section 17.1(g), Section 17.1(h), Section 17.1(i) or Section 17.1(j) with respect to a Guarantor or if any Guarantor purports to terminate its guaranty or if any Validity/Support Guarantor purports to terminate his/its Validity/Support Guaranty or upon the death of any Guarantor or Validity/Support Guarantor that is a natural person; then and (b) above shall not affect in any way such event, Lender may terminate this Agreement without prior notice or demand to Borrower or may demand payment of all Obligations (whether otherwise then payable on demand or not) without terminating this Agreement and shall, in any event, be under no further responsibility to extend any credit or afford any financial accommodation to Borrower, whether under this Agreement or otherwise or upon the right hereunder sale of any Beneficiary entitled to Guarantor at a payment fair value of any amount payable to it, or performance of any obligation, by the RockGen Lessee under any Operative Document to demand prompt payment thereof, or performance thereof, by the Guarantor immediately upon any failure of the RockGen Lessee to pay or perform the same when it has become due more than fifty thousand (and, for the avoidance of doubt, without regard to the existence of any cure or grace period before such failure by the RockGen Lessee becomes a Lease Event of Default$50,000); provided, however, notwithstanding the foregoing, no Lease Event of Default under Section 16(m) and no remedies under the Facility Lease may be exercised until a Calpine Guaranty Event of Default has occurred and is continuing.
Appears in 2 contracts
Sources: Loan and Security Agreement (Helios & Matheson North America Inc.), Loan and Security Agreement (Helios & Matheson North America Inc.)
Defaults. The occurrence of any one or more of the following events shall constitute an "“Event of Default" hereunder (whether any such event shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any Governmental Entity):”:
(a) the Guarantor or the RockGen Lessee under the Facility Lease The Company shall fail to make pay (i) any interest due on the Note, or any other amount payable hereunder (other than a principal payment with respect to Periodic Rent or on the Termination Value (including the Equity Portion of Termination Value and Debt Portion of Termination ValueNote) when due and payable under such Facility Lease or this Guaranty within by five (5) days after the same shall become becomes due; or (ii) any principal amount due thereunder; oron the Note when due;
(b) The Company shall default in the Guarantor performance or the RockGen Lessee shall fail to make observance of any other amount payable under any Operative Document after the same shall become due thereunder and such failure shall have continued from a period agreement, covenant, condition, provision or term contained in Article VI or Section 7.01 or 7.06 of ten (10) Business Days after receipt by the RockGen Lessee and the Guarantor of written notice of such failure by the RockGen Lessee and/or the Guarantor, as applicablethis Agreement;
(c) The Guarantor Company or any Credit Party shall fail default in the performance or observance of any of the other agreements, covenants, conditions, provisions or terms in this Agreement or any Loan Document continuing for a period of thirty days after the earlier of the date upon which (i) the Chairman, President or Chief Financial Officer of the Company or such other Credit Party obtains knowledge of such default or (ii) written notice thereof is given to comply with its covenants set forth in Section 3.3 (transfer of RockGen Lessee ownership), 3.6 (Guarantor merger) or 8.4 (assignment of Guaranty) of this Guaranty.the Company by the Lender;
(d) Any representation or warranty made by the Guarantor Company herein or any certificate delivered pursuant hereto, or any financial statement delivered to Lender hereunder, shall fail prove to perform or observe any covenant, obligation or agreement to be performed or observed by it under any Calpine Document (other than any covenant, obligation or agreement referred to in clauses (a) or (b) of this Section 7.1) have been false in any material respect, which shall continue unremedied for (1) with respect to the Guarantor's guaranty of, and agreement with respect to, any nonmonetary obligation, covenant or agreement as of the RockGen Lessee under any of the Operative Documents, 30 days after receipt by the Guarantor of written notice thereof from the Owner Participant, the Owner Lessor, the Indenture Trustee time when made or the Pass Through Trustee; provided, however, if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 180 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 180-day period, and (2) with respect to any other obligation, covenant or agreement hereunder, 30 days after receipt by the Guarantor of written notice thereofgiven;
(e) there shall have occurred either (i) a default by the Guarantor The Company or any Restricted Subsidiary under shall fail to pay as and when due and payable (whether at maturity, by acceleration or otherwise) all or any instrument part of the principal of or instruments under which there is or may be secured or evidenced interest on any Indebtedness of the Guarantor or any Restricted Subsidiary assumed by it, or of the Guarantor rentals due under any lease or sublease, or of any other obligation for the payment of money (other than the Obligations) having an outstanding principal aggregate amount of which Indebtedness, rentals and other obligations exceeds $50,000,000 (or its foreign currency equivalent) or more individually or in the aggregate that has caused the holders thereof to declare such Indebtedness to be due and payable prior to its Stated Maturity, unless such declaration has been rescinded within 30 days or (ii) a default by the Guarantor or any Restricted Subsidiary in the payment when due of any portion of the principal under any such instrument or instruments3,000,000), and such unpaid portion exceeds $50,000,000 (default shall not be cured within the period or its foreign currency equivalent) individually or periods of grace, if any, specified in the aggregate and is not paidinstruments governing such obligations; or default shall occur under any evidence of, or any indenture, lease, sublease, agreement or other instrument governing such obligations, and such default is not cured or waived, within shall continue for a period of time sufficient to permit the acceleration of the maturity of any grace period applicable thereto, unless such Indebtedness is discharged within 30 days of or other obligation or the Guarantor or a Restricted Subsidiary becoming aware termination of such defaultlease or sublease;
(f) A final judgment which, together with all other outstanding final judgments against the Guarantor Company and its Restricted Subsidiaries, or any Significant of them, exceeds an aggregate of $3,000,000 shall be entered against the Company or any Restricted Subsidiary pursuant to and shall remain outstanding and unsatisfied, unbonded, unstayed or within uninsured after 60 days from the meaning date of entry thereof;
(g) The Company, any Bankruptcy Law:
Restricted Subsidiary or any Credit Party shall: (i) commences a voluntary case;
become insolvent; or (ii) consents be unable, or admit in writing its inability to the entry of an order for relief against it in an involuntary case;
pay its debts as they mature; or (iii) consents to the appointment of a Custodian of it or for all or substantially all of its property;
(iv) makes make a general assignment for the benefit of creditors or to an agent authorized to liquidate any substantial amount of its creditorsproperty; or
or (iv) become the subject of an “order for relief” within the meaning of the United States Bankruptcy Code; or (v) admits in writing its inability to generally pay its debts as such debts become due; or takes any comparable action under any foreign laws relating to insolvency;
(g) an involuntary case or other proceeding shall be commenced against the Guarantor or any Significant Subsidiary seeking (i) subject of a creditor’s petition for liquidation, reorganization or other relief with respect to it or its debts under Title 11 of the Bankruptcy Code or any bankruptcy, insolvency effect a plan or other similar law now or hereafter in effect, arrangement with creditors which remains undismissed for a period of sixty (60) days; or (iivi) apply to a court for the appointment of a trustee, receiver, liquidator, custodian or other similar official with respect to it or receiver for any substantial part of its property assets; or (iiivii) have a custodian or receiver appointed for any of its assets (with or without its consent); or (viii) have any of its assets garnished, seized or forfeited, or threatened with garnishment, seizure or forfeiture; or (ix) otherwise become the winding-up subject of any insolvency proceedings or liquidation of the Guarantor propose or such Significant Subsidiary; and such involuntary case enter into any formal or other proceeding shall remain undismissed and unstayed for a period of 60 daysinformal composition or arrangement with its creditors;
(h) This Agreement, any representation Note or warranty made any Loan Document shall, at any time after their respective execution and delivery, and for any reason, cease to be in full force and effect or be declared null and void, or be revoked or terminated, or the validity or enforceability thereof or hereof shall be contested by the Guarantor herein shall prove to have been incorrect in Company, any material respect when made Credit Party or misleading in any material respect when made because shareholder of the omission Company or any Credit Party, or the Company or any Credit Party shall deny that it has any or further liability or obligation thereunder or hereunder, as the case may be;
(i) Any Reportable Event, which the Lender determines in good faith to state constitute grounds for the termination of any Plan by the Pension Benefit Guaranty Corporation or for the appointment by the appropriate United States District Court of a material fact trustee to administer any Plan, shall have occurred, or any Plan shall be terminated within the meaning of Title IV of ERISA, or a trustee shall be appointed by the appropriate United States District Court to administer any Plan, or the Pension Benefit Guaranty Corporation shall institute proceedings to terminate any Plan or to appoint a trustee to administer any Plan, and in case of any event described in the preceding provisions of this subsection (i) the Lender determines in good faith that the aggregate amount of the liability of the Company and its Subsidiaries to the Pension Benefit Guaranty Corporation under ERISA shall exceed $3,000,000 and such incorrect or misleading representation liability is and continues to be material and unremedied for a period of 30 days after receipt by the Guarantor of written notice thereof; provided, however, that if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 60 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 60-day period. The grace periods set forth in Section 7.1(a) and (b) above shall not affect in any way the right hereunder of any Beneficiary entitled to a payment of any amount payable to it, or performance of any obligation, by the RockGen Lessee under any Operative Document to demand prompt payment thereof, or performance thereof, by the Guarantor immediately upon any failure of the RockGen Lessee to pay or perform the same when it has become due (andcovered, for the avoidance benefit of doubtthe Company, without regard to by insurance; or the existence Company or any Subsidiary shall become a member of any cure or grace period before such failure by the RockGen Lessee becomes a Lease Event Multiemployer Plan; or
(j) Any Change of Default); provided, however, notwithstanding the foregoing, no Lease Event of Default under Section 16(m) and no remedies under the Facility Lease may be exercised until a Calpine Guaranty Event of Default has occurred and is continuingControl shall occur.
Appears in 2 contracts
Sources: Credit Agreement (Strattec Security Corp), Credit Agreement (Strattec Security Corp)
Defaults. The Tenant agrees that any one or more of the following events shall constitute be considered an "Event event of Default" hereunder (whether any such event shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any Governmental Entity):default as said term is used herein:
(a) the Guarantor Tenant shall be adjudged an involuntary bankrupt, or the RockGen Lessee a decree or order approving, as properly filed, a petition or answer filed against Tenant asking reorganization of Tenant under the Facility Lease Federal bankruptcy laws as now or hereafter amended, or under the laws of any state, shall fail to make be entered, and any payment with respect to Periodic Rent such decree or the Termination Value judgment or order shall not have been vacated or set aside within sixty (including the Equity Portion of Termination Value and Debt Portion of Termination Value) when due and payable under such Facility Lease or this Guaranty within five (560) days after from the same shall become due thereunderdate of the entry or granting thereof; or
(b) Tenant shall file or admit the Guarantor jurisdiction of the court and the material allegations contained in any petition in bankruptcy or any petition pursuant or purporting to be pursuant to the RockGen Lessee Federal bankruptcy laws as now or hereafter amended, or Tenant shall fail institute any proceedings or shall give its consent to make the institution of any other amount payable proceedings for any relief of Tenant under any Operative Document after bankruptcy or insolvency laws or any laws relating to the same shall become due thereunder and such failure shall have continued from a period relief of ten (10) Business Days after receipt by the RockGen Lessee and the Guarantor debtors, readjustment of written notice of such failure by the RockGen Lessee and/or the Guarantorindebtedness, as applicable;reorganization, arrangements, composition, or extension; or
(c) The Guarantor Tenant shall fail to comply with its covenants set forth in Section 3.3 (transfer make any assignment for the benefit of RockGen Lessee ownership), 3.6 (Guarantor merger) creditors or 8.4 (assignment of Guaranty) of this Guaranty.
(d) the Guarantor shall fail to perform apply for or observe any covenant, obligation or agreement to be performed or observed by it under any Calpine Document (other than any covenant, obligation or agreement referred to in clauses (a) or (b) of this Section 7.1) in any material respect, which shall continue unremedied for (1) with respect to the Guarantor's guaranty of, and agreement with respect to, any nonmonetary obligation, covenant or agreement of the RockGen Lessee under any of the Operative Documents, 30 days after receipt by the Guarantor of written notice thereof from the Owner Participant, the Owner Lessor, the Indenture Trustee or the Pass Through Trustee; provided, however, if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 180 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 180-day period, and (2) with respect to any other obligation, covenant or agreement hereunder, 30 days after receipt by the Guarantor of written notice thereof;
(e) there shall have occurred either (i) a default by the Guarantor or any Restricted Subsidiary under any instrument or instruments under which there is or may be secured or evidenced any Indebtedness of the Guarantor or any Restricted Subsidiary of the Guarantor (other than the Obligations) having an outstanding principal amount of $50,000,000 (or its foreign currency equivalent) or more individually or in the aggregate that has caused the holders thereof to declare such Indebtedness to be due and payable prior to its Stated Maturity, unless such declaration has been rescinded within 30 days or (ii) a default by the Guarantor or any Restricted Subsidiary in the payment when due of any portion of the principal under any such instrument or instruments, and such unpaid portion exceeds $50,000,000 (or its foreign currency equivalent) individually or in the aggregate and is not paid, or such default is not cured or waived, within any grace period applicable thereto, unless such Indebtedness is discharged within 30 days of the Guarantor or a Restricted Subsidiary becoming aware of such default;
(f) the Guarantor or any Significant Subsidiary pursuant to or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case;
(ii) consents to the entry of an order for relief against it in an involuntary case;
(iii) consents consent to the appointment of a Custodian receiver for Tenant or any of it or for all or substantially all the property of its property;
(iv) makes a general assignment for the benefit of its creditorsTenant; or
(vd) admits The Leased Premises are levied upon by any revenue officer or similar officer and Tenant shall fail to contest the validity of the levy and give security to Landlord to insure payment thereof, or having commenced to contest the same and having given such security, shall fail to prosecute such contest with diligence, or shall fail to have the same released and satisfy any judgment rendered thereon, and such default continues for ten (10) days after notice thereof in writing its inability to generally pay its debts as Tenant; or
(e) A decree or order appointing a receiver of the property of Tenant shall be made, and such debts become duedecree or order shall not have been vacated or set aside within sixty (60) days from the date of entry or granting thereof; or
(f) Tenant shall abandon the Leased Premises or takes any comparable action under any foreign laws relating to insolvency;vacate the same during the term hereof; or
(g) an involuntary case Tenant shall default in any payment of rent or in any other proceeding shall payment required to be commenced against the Guarantor or any Significant Subsidiary seeking (i) liquidationmade by Tenant hereunder when due as herein provided, reorganization or other relief with respect to it or its debts under Title 11 of the Bankruptcy Code or any bankruptcy, insolvency or other similar law now or hereafter in effect, or (ii) the appointment of a trustee, receiver, liquidator, custodian or other similar official with respect to it or any substantial part of its property or (iii) the winding-up or liquidation of the Guarantor or such Significant Subsidiary; and such involuntary case or other proceeding default shall remain undismissed and unstayed continue for a period of 60 days;
seven (h7) any representation or warranty made by the Guarantor herein shall prove to have been incorrect in any material respect when made or misleading in any material respect when made because of the omission to state a material fact and such incorrect or misleading representation is and continues to be material and unremedied for a period of 30 days after receipt by the Guarantor of written notice thereofthereof in writing to Tenant; provided, however, that if such condition cannot be remedied within such 30-the said seven (7) day period, then the period within which to remedy such condition shall be extended up deemed to an additional 60 days, so long as be three (3) days in the Guarantor diligently pursues such remedy and such condition event that the Tenant assigns this Lease to a person or entity who is reasonably capable either not owned by Tenant or a parent corporation of being remedied within such additional 60-day period. The grace periods set forth in Section 7.1(aTenant; or
(h) and (b) above Tenant shall not affect in any way fail to contest the right hereunder validity of any Beneficiary entitled lien or claimed lien and give security to a payment of any amount payable Landlord to it, or performance of any obligation, by the RockGen Lessee under any Operative Document to demand prompt insure payment thereof, or performance having commenced to contest the same and having given such security, shall fail to prosecute such contest with diligence, or shall fail to have the same released and satisfy any judgment rendered thereon, and such default continues for ten (10) days after notice thereof in writing to Tenant; or
(i) Tenant shall default in keeping, observing, or performing any of the other covenants or agreements herein contained to be kept, observed, and performed by Tenant, and such default shall continue for thirty (30) days after notice thereof in writing to Tenant; or
(j) Tenant shall repeatedly be late in the payment of rent or other charges required to be paid hereunder or shall repeatedly default in the keeping, observing, or performing of any other covenants or agreements herein contained to be kept, observed, or performed by Tenant (provided notice of such payment or other defaults shall have been given to Tenant, but whether or not Tenant shall have timely cured any such payment or other defaults of which notice was given). For purposes of this paragraph, the term “repeatedly” shall mean three (3) times in any twelve (12) month period. The Tenant further covenants and agrees that, if the rent above reserved, or any part thereof, shall be in default, or in case of a breach of any of the covenants or agreements herein, Landlord may declare this Lease terminated, and after the expiration of fifteen (15) days from the date of receipt of service of a written notice to that effect, be entitled to the possession of the Leased Premises, either by the Guarantor immediately upon expiration of this Lease or by any failure termination of said term as herein provided for. If the Tenant shall refuse to surrender and deliver up the possession of the RockGen Lessee to pay Leased Premises, after the service of said notice, then and in that event, the Landlord may, without further notice or perform demand, enter into and upon said Leased Premises, or any part thereof, and take possession thereof and repossess the same when it has become due (andas of the Landlord’s former estate, for and expel, remove and put out of possession the avoidance of doubtTenant, using such help, assistance and force in so doing as may be needful and proper, without regard being liable for prosecution or damages therefor, and without prejudice to the existence of any cure or grace period before remedy allowed by law available in such failure by the RockGen Lessee becomes a Lease Event of Default); provided, however, notwithstanding the foregoing, no Lease Event of Default under Section 16(m) and no remedies under the Facility Lease may be exercised until a Calpine Guaranty Event of Default has occurred and is continuingcases.
Appears in 2 contracts
Sources: Lease Agreement (Cobiz Inc), Lease Agreement (Cobiz Inc)
Defaults. The Upon the happening of any of the following events shall constitute an "Event (collectively, “Events of Default" hereunder (whether any such event shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any Governmental Entity”):
(a) the Guarantor or the RockGen Lessee under the Facility Lease if Borrower shall fail to make any payment with respect to Periodic Rent or the Termination Value (including the Equity Portion of Termination Value and Debt Portion of Termination Value) when due of any Obligation under this Agreement or any Loan Document, provided, however, that, for purposes of Borrower’s obligation to make payment of any Obligations to Lender comprised of Obligations to reimburse Lender for or to pay field examination expenses and payable under such Facility Lease or this Guaranty within five legal fees and expenses incurred by Lender after the date hereof, no Event of Default shall be deemed to have occurred, unless sixty (560) days after have elapsed from the same date of demand therefor by Lender; provided that, Lender’s right hereunder to charge such fees and expenses to Borrower shall become due thereundernot be affected by the foregoing and in the event Lender so charges Borrower for such fees and expenses any such incipient Event of Default shall be deemed cured thereby; or
(b) the Guarantor or the RockGen Lessee shall fail to make any other amount payable under any Operative Document after the same shall become due thereunder and such failure shall have continued from a period of ten (10) Business Days after receipt by the RockGen Lessee and the Guarantor of written notice of such failure by the RockGen Lessee and/or the Guarantor, as applicable;
(c) The Guarantor if Borrower shall fail to comply with its covenants set forth any terms, conditions, covenant, warranty or representation contained in Section 3.3 (transfer of RockGen Lessee ownership), 3.6 (Guarantor merger) Article 11 or 8.4 (assignment of Guaranty) Article 15 of this Guaranty.Agreement; or
(c) if Borrower shall fail to comply with any term, condition, covenant or warranty of or in this Agreement, any other Loan Document or any other agreement between Lender and Borrower, other than in Article 11 or Article 15 of this Agreement, and such failure continues for a period in excess of twenty (20) days after notice thereof is given by Lender to Borrower; or
(d) the Guarantor if Borrower shall fail to perform or observe any covenant, obligation or agreement cease to be performed or observed by it under any Calpine Document (other than any covenantSolvent, obligation or agreement referred to in clauses (a) or (b) of this Section 7.1) in any material respect, which shall continue unremedied for (1) with respect to the Guarantor's guaranty of, and agreement with respect to, any nonmonetary obligation, covenant or agreement of the RockGen Lessee under any of the Operative Documents, 30 days after receipt by the Guarantor of written notice thereof from the Owner Participant, the Owner Lessor, the Indenture Trustee or the Pass Through Trustee; provided, however, if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to make an additional 180 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 180-day period, and (2) with respect to any other obligation, covenant or agreement hereunder, 30 days after receipt by the Guarantor of written notice thereof;
(e) there shall have occurred either (i) a default by the Guarantor or any Restricted Subsidiary under any instrument or instruments under which there is or may be secured or evidenced any Indebtedness of the Guarantor or any Restricted Subsidiary of the Guarantor (other than the Obligations) having an outstanding principal amount of $50,000,000 (or its foreign currency equivalent) or more individually or in the aggregate that has caused the holders thereof to declare such Indebtedness to be due and payable prior to its Stated Maturity, unless such declaration has been rescinded within 30 days or (ii) a default by the Guarantor or any Restricted Subsidiary in the payment when due of any portion of the principal under any such instrument or instruments, and such unpaid portion exceeds $50,000,000 (or its foreign currency equivalent) individually or in the aggregate and is not paid, or such default is not cured or waived, within any grace period applicable thereto, unless such Indebtedness is discharged within 30 days of the Guarantor or a Restricted Subsidiary becoming aware of such default;
(f) the Guarantor or any Significant Subsidiary pursuant to or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case;
(ii) consents to the entry of an order for relief against it in an involuntary case;
(iii) consents to the appointment of a Custodian of it or for all or substantially all of its property;
(iv) makes a general assignment for the benefit of its creditors, call a meeting of its creditors to obtain any general financial accommodation, suspend business or if any case under any provision of the Bankruptcy Code, including provisions for reorganizations, shall be commenced by or against Borrower; or
(ve) admits if any statement or representation contained in writing its inability any financial statement or certificate delivered by Borrower to generally pay its debts as such debts become dueLender shall be false, in any material respect, when made; or
(f) if any federal tax lien is filed of record against Borrower or takes any comparable action under any foreign laws relating to insolvency;Guarantor and is not bonded or discharged within ten (10) days; or
(g) an involuntary case or other proceeding if Borrower’s independent public accountants shall be commenced against refuse to deliver any financial statement required by this Agreement (after the Guarantor or any Significant Subsidiary seeking date due hereunder) within ten (i10) liquidation, reorganization or other relief with respect to it or its debts under Title 11 days after written demand by Lender for delivery of the Bankruptcy Code or any bankruptcy, insolvency or other similar law now or hereafter in effect, or (ii) the appointment of a trustee, receiver, liquidator, custodian or other similar official with respect to it or any substantial part of its property or (iii) the winding-up or liquidation of the Guarantor or such Significant Subsidiaryfinancial statements; and such involuntary case or other proceeding shall remain undismissed and unstayed for a period of 60 days;or
(h) if a receiver, trustee or equivalent officer shall be appointed for all or any representation or warranty made by of the Guarantor herein assets of Borrower; or
(i) if a judgment for more than Two Hundred and Fifty Thousand Dollars ($250,000) shall prove to have been incorrect be entered against Borrower in any material respect when made action or misleading proceeding and shall not be stayed, vacated, bonded, paid, discharged or applied in any material respect when made because of the omission to state a material fact and such incorrect or misleading representation is and continues to be material and unremedied for a period of 30 days after receipt by the Guarantor of written notice thereofgood faith within twenty (20) days; provided, howeverthat, that no Event of Default shall be deemed to have occurred in the case of any judgment where the claim is covered by insurance and the insurance company has accepted liability therefor; or
(j) if any obligation of Borrower in respect of Indebtedness shall be declared to be or shall become due and payable prior to the stated maturity thereof or such condition canobligation shall not be remedied within paid as and when the same becomes due and payable; or there shall occur any event or condition which constitutes an event of default under any mortgage, indenture, instrument, agreement or evidence of indebtedness relating to any obligation of Borrower in respect of any such 30-day periodIndebtedness the effect of which is to permit the holder or the holders of such mortgage, then indenture, instrument, agreement or evidence of Indebtedness, or a trustee, agent or other representative on behalf of such holder or holders, to cause the period within which Indebtedness evidenced thereby to remedy such condition become due prior to its stated maturity; provided, that, the foregoing shall be extended not include (a) Indebtedness to Lender; or (b) Indebtedness arising in connection with any real property lease obligations up to an additional 60 days$50,000.00, so long as no judgments are entered against Borrower as a result of Borrower’s failure to pay such Indebtedness; or
(k) upon the Guarantor diligently pursues such remedy happening of any Reportable Event which Lender in its discretion determines could reasonably be expected to constitute grounds for the termination of any Plan, or if a trustee shall be appointed by an appropriate United States District Court or other court of administrative tribunal to administer any Plan, or if the Pension Benefit Guaranty Corporation shall institute proceedings to terminate any Plan or to appoint a trustee to administer any Plan; or
(l) upon the occurrence and such condition is reasonably capable continuance of being remedied within such additional 60-day period. The grace periods set forth any Material Adverse Effect, which in the sole and absolute opinion of Lender, impairs Lender’s security or increases its risks; or
(m) upon the happening of any of the events described in Section 7.1(a19.1(d), Section 19.1(e), Section 19.1(g), Section 19.1(h), Section 19.1(i) or Section 19.1(j) with respect to a Guarantor or if any Guarantor purports to terminate its guaranty or if any Validity/Support Guarantor purports to terminate his/its Validity/Support Guaranty or upon the death of any Guarantor or Validity/Support Guarantor that is a natural person; then and (b) above shall not affect in any way such event, Lender may terminate this Agreement without prior notice or demand to Borrower or may demand payment of all Obligations (whether otherwise then payable on demand or not) without terminating this Agreement and shall, in any event, be under no further responsibility to extend any credit or afford any financial accommodation to Borrower, whether under this Agreement or otherwise or upon the right hereunder sale of any Beneficiary entitled to Guarantor at a payment fair value of any amount payable to it, or performance of any obligation, by the RockGen Lessee under any Operative Document to demand prompt payment thereof, or performance thereof, by the Guarantor immediately upon any failure of the RockGen Lessee to pay or perform the same when it has become due more than fifty thousand (and, for the avoidance of doubt, without regard to the existence of any cure or grace period before such failure by the RockGen Lessee becomes a Lease Event of Default$50,000); provided, however, notwithstanding the foregoing, no Lease Event of Default under Section 16(m) and no remedies under the Facility Lease may be exercised until a Calpine Guaranty Event of Default has occurred and is continuing.
Appears in 2 contracts
Sources: Loan and Security Agreement (Helios & Matheson North America Inc.), Loan and Security Agreement (Helios & Matheson North America Inc.)
Defaults. The In the event that any one or more of the following events shall constitute an "Event of Default" hereunder (whether any such event shall occur and be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with any judgmentcontinuing, decree or order of any court or any order, rule or regulation of any Governmental Entity):to-wit:
(a) LESSEE shall be in arrears in the Guarantor or payment of the RockGen Lessee under the Facility Lease shall fail to make any payment with respect to Periodic Rent or the Termination Value (including the Equity Portion of Termination Value and Debt Portion of Termination Value) when due and payable under such Facility Lease or this Guaranty within five (5) days after the same shall become due thereunder; or
(b) the Guarantor or the RockGen Lessee shall fail to make any other amount payable under any Operative Document after the same shall become due thereunder and such failure shall have continued from rent for a period of ten (10) Business Days days after receipt by the RockGen Lessee and the Guarantor of written notice thereof, or
(b) LESSEE shall fall or neglect to do or perform or observe any of the other covenants contained herein on its part to be kept and performed and such failure or neglect shall continue for a period of not less than thirty (30) days after LESSOR has notified LESSEE in writing of such failure by the RockGen Lessee and/or the Guarantor, as applicable;or neglect and LESSEE has failed to cure same within said thirty (30) days or made satisfactory provisions to cure same in respect to any covenant which cannot be cured within said thirty (30) days; or
(c) The Guarantor If the interest of LESSEE in this Lease shall fail to comply with its covenants set forth in Section 3.3 be levied on under execution or other legal process, and unless such execution or legal process shall within thirty (transfer 30) days from the date of RockGen Lessee ownership)levy be nullified or otherwise rendered ineffective, 3.6 (Guarantor merger) or 8.4 (if any assignment of Guaranty) LESSEE'S property shall be made for the benefit of this Guaranty.creditors, or if LESSEE shall abandon or vacate said premises; on
(d) If any proceedings shall be commenced by or against LESSEE for any relief which includes, or might result in, any modification of the Guarantor shall fail to perform or observe any covenant, obligation or agreement to be performed or observed by it obligations of LESSEE hereunder under any Calpine Document (other than any covenantbankruptcy or insolvency law, obligation or agreement referred to in clauses (a) or (b) of this Section 7.1) in any material respect, which shall continue unremedied for (1) with respect law relating to the Guarantor's guaranty ofrelief of debts, and agreement with respect toreadjustments of indebtedness, any nonmonetary obligationreorganizations, covenant arrangements, compositions or agreement of the RockGen Lessee extensions, under any of the Operative Documentsbankruptcy or insolvency law, 30 (unless such proceedings shall within thirty (30) days after receipt by the Guarantor of written notice thereof from the Owner Participantfiling or effective date thereof be dismissed, the Owner Lessornullified, the Indenture Trustee stayed or the Pass Through Trustee; providedotherwise rendered ineffective, however, if such condition cannot be remedied within such 30-day period, but then the period within which to remedy such condition shall be extended up to an additional 180 days, only so long as the Guarantor diligently pursues such remedy and stay shall continue in force or such condition is reasonably capable of being remedied within such additional 180-day periodineffectiveness shall continue), and all the obligations of the LESSEE under this Lease shall not have been duly assumed in writing, pursuant to a court order or decree, by a trustee or trustees or receiver or receivers appointed for the LESSEE (2or for its property in connection with any such proceeding) with respect to any other obligationin such a manner that such obligations shall have the same status as obligations incurred by such trustee or trustees or receiver or receivers, covenant or agreement hereunder, 30 within thirty (30) days after receipt by the Guarantor of written notice thereof;such appointment, if any, or sixty (60) days after such proceedings shall have been commenced, whichever shall be earlier; or
(e) there If LESSEE shall have occurred either (i) a default fail to secure or maintain any insurance coverage required by the Guarantor or any Restricted Subsidiary under any instrument or instruments under which there is or may be secured or evidenced any Indebtedness of the Guarantor or any Restricted Subsidiary of the Guarantor (other than the Obligations) having an outstanding principal amount of $50,000,000 (or its foreign currency equivalent) or more individually or in the aggregate that has caused the holders thereof to declare such Indebtedness to be due and payable prior to its Stated Maturity, unless such declaration has been rescinded within 30 days or (ii) a default by the Guarantor or any Restricted Subsidiary in the payment when due of any portion of the principal under any such instrument or instruments, this Lease and such unpaid portion exceeds $50,000,000 (failure or its foreign currency equivalent) individually or in the aggregate and is not paid, or such default is not cured or waived, within any grace period applicable thereto, unless such Indebtedness is discharged within 30 days of the Guarantor or a Restricted Subsidiary becoming aware of such default;
(f) the Guarantor or any Significant Subsidiary pursuant to or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case;
(ii) consents to the entry of an order for relief against it in an involuntary case;
(iii) consents to the appointment of a Custodian of it or for all or substantially all of its property;
(iv) makes a general assignment for the benefit of its creditors; or
(v) admits in writing its inability to generally pay its debts as such debts become due; or takes any comparable action under any foreign laws relating to insolvency;
(g) an involuntary case or other proceeding neglect shall be commenced against the Guarantor or any Significant Subsidiary seeking (i) liquidation, reorganization or other relief with respect to it or its debts under Title 11 of the Bankruptcy Code or any bankruptcy, insolvency or other similar law now or hereafter in effect, or (ii) the appointment of a trustee, receiver, liquidator, custodian or other similar official with respect to it or any substantial part of its property or (iii) the winding-up or liquidation of the Guarantor or such Significant Subsidiary; and such involuntary case or other proceeding shall remain undismissed and unstayed continue for a period of 60 days;
not less than forty-eight (h48) hours after LESSOR has notified LESSEE in writing of such failure or neglect. LESSOR may treat the occurrence of any representation one or warranty made by the Guarantor herein shall prove to have been incorrect in any material respect when made or misleading in any material respect when made because more of the omission to state foregoing events as a material fact breach of this Lease and such incorrect or misleading representation is and continues to be material and unremedied for a period thereupon, at its option, may, without notice of 30 days after receipt by the Guarantor of written notice thereof; provided, however, that if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 60 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 60-day period. The grace periods set forth in Section 7.1(a) and (b) above shall not affect in any way the right hereunder demand of any Beneficiary entitled kind to a payment of LESSEE or any amount payable to itother person, have any one or performance of any obligation, by the RockGen Lessee under any Operative Document to demand prompt payment thereof, or performance thereof, by the Guarantor immediately upon any failure more of the RockGen Lessee to pay or perform the same when it has become due (and, for the avoidance of doubt, without regard to the existence of any cure or grace period before such failure by the RockGen Lessee becomes a Lease Event of Default); provided, however, notwithstanding the foregoing, no Lease Event of Default under Section 16(m) and no remedies under the Facility Lease may be exercised until a Calpine Guaranty Event of Default has occurred and is continuinghereinafter set forth.
Appears in 1 contract
Sources: Lease (Morgan Products LTD)
Defaults. The If any of the following events shall constitute an ("Event Events of Default" hereunder (whether any such event ") shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any Governmental Entity):occur:
(a) the Guarantor or the RockGen Lessee under the Facility Lease Borrower shall fail to make pay any payment with respect to Periodic Rent principal or interest on the Termination Value Note within three (including the Equity Portion of Termination Value and Debt Portion of Termination Value) when due and payable under such Facility Lease or this Guaranty within five (53) days after the same shall become due thereunder; ordate thereof;
(b) any representation or warranty of the Guarantor Borrower herein, in the Security Agreement, or in any certificate delivered hereunder shall prove to have been false in any material respect as of the RockGen Lessee shall fail to make any other amount payable under any Operative Document after the same shall become due thereunder and such failure shall have continued from a period of ten (10) Business Days after receipt by the RockGen Lessee and the Guarantor of written notice of such failure by the RockGen Lessee and/or the Guarantor, as applicabletime made or furnished;
(c) The Guarantor the Borrower shall fail to comply with its covenants set forth in Section 3.3 (transfer of RockGen Lessee ownership), 3.6 (Guarantor merger) suffer a receiver or 8.4 (assignment of Guaranty) of this Guaranty.
(d) the Guarantor shall fail to perform or observe any covenant, obligation or agreement to be performed or observed by it under any Calpine Document (other than any covenant, obligation or agreement referred to in clauses (a) or (b) of this Section 7.1) in any material respect, which shall continue unremedied for (1) with respect to the Guarantor's guaranty of, and agreement with respect to, any nonmonetary obligation, covenant or agreement of the RockGen Lessee under any of the Operative Documents, 30 days after receipt by the Guarantor of written notice thereof from the Owner Participant, the Owner Lessor, the Indenture Trustee or the Pass Through Trustee; provided, however, if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 180 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 180-day period, and (2) with respect to any other obligation, covenant or agreement hereunder, 30 days after receipt by the Guarantor of written notice thereof;
(e) there shall have occurred either (i) a default by the Guarantor or any Restricted Subsidiary under any instrument or instruments under which there is or may be secured or evidenced any Indebtedness of the Guarantor or any Restricted Subsidiary of the Guarantor (other than the Obligations) having an outstanding principal amount of $50,000,000 (or its foreign currency equivalent) or more individually or in the aggregate that has caused the holders thereof to declare such Indebtedness to be due and payable prior to its Stated Maturity, unless such declaration has been rescinded within 30 days or (ii) a default by the Guarantor or any Restricted Subsidiary in the payment when due of any portion of the principal under any such instrument or instruments, and such unpaid portion exceeds $50,000,000 (or its foreign currency equivalent) individually or in the aggregate and is not paid, or such default is not cured or waived, within any grace period applicable thereto, unless such Indebtedness is discharged within 30 days of the Guarantor or a Restricted Subsidiary becoming aware of such default;
(f) the Guarantor or any Significant Subsidiary pursuant to or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case;
(ii) consents to the entry of an order for relief against it in an involuntary case;
(iii) consents to the appointment of a Custodian of it or trustee for all or substantially all of its property;
(iv) makes a general assignment for the benefit of its creditors; or
(v) admits in writing its inability property to generally pay its debts as such debts become duebe appointed; or takes institute or suffer to be instituted against it any comparable action proceedings under any foreign laws law relating to bankruptcy, insolvency;
(g) an involuntary case or other proceeding shall be commenced against the Guarantor or any Significant Subsidiary seeking (i) liquidation, arrangement, reorganization or other relief with respect to it or its debts under Title 11 of the Bankruptcy Code or any bankruptcy, insolvency or other similar law now or hereafter in effect, or (ii) the appointment of a trustee, receiver, liquidator, custodian or other similar official with respect to it or any substantial part of its property or (iii) the winding-up or liquidation of the Guarantor or such Significant Subsidiary; and such involuntary case or other proceeding shall remain undismissed and unstayed for a period of 60 days;
(h) any representation or warranty made by the Guarantor herein shall prove to have been incorrect in any material respect when made or misleading in any material respect when made because of the omission to state a material fact and such incorrect or misleading representation is and continues to be material and unremedied for a period of 30 days after receipt by the Guarantor of written notice thereofdebtors; provided, however, that Borrower may cure an Event of Default resulting from the appointment of a receiver or trustee for Borrower or the institution of any proceedings under any law against Borrower relating to bankruptcy, insolvency, arrangement, reorganization or relief of debtors, commenced by an unrelated third party without the consent or acquiescence of Borrower, if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition receiver or trustee shall be extended up discharged or such proceeding shall be terminated, as appropriate, within sixty (60) days of the appointment or filing thereof;
(d) the Borrower shall fail to an additional 60 daysperform any other term, so long as covenant or agreement contained herein, in the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 60-day period. The grace periods set forth in Section 7.1(a) and (b) above shall not affect Security Agreement or in any way the right hereunder of any Beneficiary entitled to a payment of any amount payable to it, or performance of any obligation, by the RockGen Lessee under any Operative Document to demand prompt payment thereof, or performance thereof, by the Guarantor immediately upon any failure of the RockGen Lessee to pay or perform the same when it has become due (and, for the avoidance of doubt, without regard to the existence of any cure or grace period before such failure by the RockGen Lessee becomes a Lease Event of Default)other agreement with Lender; provided, however, notwithstanding that:
(i) Borrower's failure to perform the foregoingcovenant contained in Section 5.10 hereof shall not be an Event of Default hereunder unless such failure shall continue for at least two days after Lender sends Borrower written notice of such failure; and
(ii) Borrower's failure to perform the covenant contained in Section 6.2 hereof by permitting certain liens to exist upon its assets, no Lease shall not be an Event of Default hereunder unless such failure shall continue for at least thirty days after Lender sends Borrower written notice of such failure or unless such lien is a consensual lien or unless such lien covers the Pledged Account or any of the assets held therein or unless the lienor has taken action to enforce such lien or unless Borrower's failure to perform such covenant is not otherwise susceptible to a cure.
(e) the Borrower shall fail to pay at maturity, or within any applicable period of grace, any obligation in excess of $100,000 for borrowed monies or advances or any capitalized lease obligations or fail to observe or perform any term, covenant or agreement contained in any agreement, by which it is bound, evidencing or securing borrowed monies or advances, for such period of time as would, or would have permitted (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder to accelerate the maturity thereof;
(f) substantial loss, theft, damage, destruction or diminution in market value of the Collateral taken as a whole that is not fully covered by insurance;
(g) the occurrence of any material adverse change in the condition of Borrower, financial or otherwise. then, and in every such event, the Lender may terminate this Agreement, declare all amounts owing hereunder or under the Note and all other obligations to be, and they shall forthwith become, immediately due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived, provided, however, that upon the occurrence of an Event of Default under Section 16(msubsection (c) and no remedies above all such amounts due under the Facility Lease may be exercised until a Calpine Guaranty Event Note shall automatically become immediately due and payable without demand or any action on the part of Default has occurred and is continuingLender.
Appears in 1 contract
Defaults. The occurrence of any of the following events shall constitute an "Event of Default" hereunder (whether any such event shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any Governmental Entity):Default hereunder:
(a) Any representation or warranty made by the Guarantor Servicer, the Indenture Trustee, RBMG, the Sub-Servicer, the Issuer, the Company, Funding Co. or the RockGen Lessee Depositor hereunder or under the Facility Lease Transaction Documents, or in any certificate furnished hereunder or under the Transaction Documents, shall prove to be untrue or incomplete in any material respect;
(i) The Servicer, RBMG, the Sub-Servicer, the Issuer, the Company, Funding Co., First Union or the Depositor shall fail to make pay when due any payment with respect to Periodic Rent amount payable by the Servicer, RBMG, the Sub-Servicer, the Issuer, the Company, Funding Co., First Union or the Termination Value Depositor hereunder or (including ii) a legislative body has enacted any law that declares or a court of competent jurisdiction shall find or rule that any Transaction Document is not valid and binding on the Equity Portion of Termination Value and Debt Portion of Termination Value) when due and payable under such Facility Lease or this Guaranty within five (5) days after Servicer, the same shall become due thereunder; or
(b) Indenture Trustee, RBMG, the Guarantor Sub-Servicer, the Issuer, the Company, Funding Co., First Union or the RockGen Lessee shall fail to make any other amount payable under any Operative Document after the same shall become due thereunder and such failure shall have continued from a period of ten (10) Business Days after receipt by the RockGen Lessee and the Guarantor of written notice of such failure by the RockGen Lessee and/or the Guarantor, as applicableDepositor;
(c) The Guarantor shall fail to comply with its covenants set forth in Section 3.3 occurrence and continuance of a "Servicer Event of Default" under the Servicing Agreement (transfer of RockGen Lessee ownershipas defined therein), 3.6 (Guarantor merger) or 8.4 (assignment of Guaranty) of this Guaranty.;
(d) Any failure on the Guarantor shall fail part of the Servicer, the Indenture Trustee, RBMG, the Sub-Servicer, the Issuer, the Company, Funding Co. or the Depositor duly to observe or perform or observe any covenant, obligation or agreement to be performed or observed by it under any Calpine Document (other than any covenant, obligation or agreement referred to in clauses (a) or (b) of this Section 7.1) in any material respectrespect any other of the covenants or agreements on the part of the Servicer, the Indenture Trustee, RBMG, the Sub-Servicer, the Issuer, the Company, Funding Co. or the Depositor contained in this Insurance Agreement or in any other Transaction Document which shall continue continues unremedied for (1) a period of 30 days with respect to the Guarantor's guaranty ofthis Insurance Agreement, and agreement with respect toor, any nonmonetary obligation, covenant or agreement of the RockGen Lessee under any of the Operative Documents, 30 days after receipt by the Guarantor of written notice thereof from the Owner Participant, the Owner Lessor, the Indenture Trustee or the Pass Through Trustee; provided, however, if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 180 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 180-day period, and (2) with respect to any other obligationTransaction Document, covenant beyond any cure period provided for therein, after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Indenture Trustee, the Servicer, RBMG, the Sub-Servicer, the Issuer, the Company, Funding Co. or agreement hereunderthe Depositor, 30 days after receipt as applicable, by the Guarantor of written notice thereofInsurer (with a copy to the Indenture Trustee) or by the Indenture Trustee (with a copy to the Insurer);
(e) there shall have occurred either (i) A decree or order of a default by the Guarantor court or any Restricted Subsidiary under any instrument agency or instruments under which there is or may be secured or evidenced any Indebtedness of the Guarantor or any Restricted Subsidiary of the Guarantor (other than the Obligations) supervisory authority having an outstanding principal amount of $50,000,000 (or its foreign currency equivalent) or more individually or jurisdiction in the aggregate that has caused the holders thereof to declare such Indebtedness to be due and payable prior to its Stated Maturity, unless such declaration has been rescinded within 30 days or (ii) a default by the Guarantor or any Restricted Subsidiary in the payment when due of any portion of the principal under any such instrument or instruments, and such unpaid portion exceeds $50,000,000 (or its foreign currency equivalent) individually or in the aggregate and is not paid, or such default is not cured or waived, within any grace period applicable thereto, unless such Indebtedness is discharged within 30 days of the Guarantor or a Restricted Subsidiary becoming aware of such default;
(f) the Guarantor or any Significant Subsidiary pursuant to or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case;
(ii) consents to the entry of an order for relief against it premises in an involuntary case;
(iii) consents to case under any present or future federal or state bankruptcy, insolvency or similar law or the appointment of a Custodian of it conservator or for all receiver or substantially all of its property;
(iv) makes a general assignment for the benefit of its creditors; or
(v) admits in writing its inability to generally pay its debts as such debts become due; or takes any comparable action under any foreign laws relating to insolvency;
(g) an involuntary case or other proceeding shall be commenced against the Guarantor or any Significant Subsidiary seeking (i) liquidation, reorganization or other relief with respect to it or its debts under Title 11 of the Bankruptcy Code or any bankruptcy, insolvency or other similar law now or hereafter in effect, or (ii) the appointment of a trustee, receiver, liquidator, custodian liquidator or other similar official with respect to it in any insolvency, readjustment of debt, marshalling of assets and liabilities or any substantial part of its property similar proceedings, or (iii) for the winding-up or liquidation of its affairs, shall have been entered against the Guarantor Servicer, RBMG, the Sub-Servicer, the Issuer, the Company, Funding Co., First Union or such Significant Subsidiary; the Depositor and such involuntary case decree or other proceeding order shall remain undismissed and have remained in force undischarged or unstayed for a period of 60 90 consecutive days;
(f) The Servicer, RBMG, the Sub-Servicer, the Issuer, the Company, Funding Co., First Union or the Depositor shall consent to the appointment of a conservator or receiver or liquidator or other similar official in any insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings of or relating to the Servicer, RBMG, the Sub-Servicer, the Issuer, the Company, Funding Co., First Union or the Depositor or of or relating to all or substantially all of the property of either;
(g) The Servicer, RBMG, the Sub-Servicer, the Issuer, the Company, Funding Co., First Union or the Depositor shall admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of or otherwise voluntarily commence a case or proceeding under any applicable bankruptcy, insolvency, reorganization or other similar statute, make an assignment for the benefit of its creditors or voluntarily suspend payment of its obligations; or
(h) any representation or warranty made by the Guarantor herein shall prove to have been incorrect in any material respect when made or misleading in any material respect when made because The occurrence and continuance of the omission to state a material fact and such incorrect or misleading representation is and continues to be material and unremedied for a period of 30 days after receipt by the Guarantor of written notice thereof; provided, however, that if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 60 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 60-day period. The grace periods set forth in Section 7.1(a) and (b) above shall not affect in any way the right hereunder of any Beneficiary entitled to a payment of any amount payable to it, or performance of any obligation, by the RockGen Lessee under any Operative Document to demand prompt payment thereof, or performance thereof, by the Guarantor immediately upon any failure of the RockGen Lessee to pay or perform the same when it has become due (and, for the avoidance of doubt, without regard to the existence of any cure or grace period before such failure by the RockGen Lessee becomes a Lease "Event of Default" under the Indenture (as defined therein);
(i) The occurrence and continuance of a "Event of Default" under the Sub-Servicing Agreement (as defined therein); provided50
(j) the failure of RBMG, howeverthe Company, notwithstanding Funding Co. or the foregoingDepositor to comply with, no Lease Event of Default under Section 16(m) or maintain the accuracy of, the Opinion Facts and no remedies under the Facility Lease may be exercised until a Calpine Guaranty Event of Default has occurred and is continuingAssumptions.
Appears in 1 contract
Sources: Insurance Agreement (Residential Asset Funding Corp)
Defaults. The (a) Any of the following events shall constitute an "Event of Default" hereunder ":
(whether i) The Company defaults in the payment of (A) any such event shall be voluntary or involuntary or come about or be effected by operation part of law or pursuant to or in compliance with any judgment, decree or order the principal of any court or any orderNote, rule or regulation of any Governmental Entity):
(a) the Guarantor or the RockGen Lessee under the Facility Lease shall fail to make any payment with respect to Periodic Rent or the Termination Value (including the Equity Portion of Termination Value and Debt Portion of Termination Value) when due and payable under such Facility Lease or this Guaranty within five (5) days after the same shall become due thereunder; or
and payable, whether at maturity or at a date fixed for prepayment or by acceleration or otherwise, or (bB) the Guarantor or the RockGen Lessee shall fail to make interest on any other amount payable under any Operative Document after Note, when the same shall become due thereunder and payable, and such failure default in the payment of interest shall have continued from a period of ten for five (105) Business Days after receipt by the RockGen Lessee and the Guarantor of written notice of such failure by the RockGen Lessee and/or the Guarantor, as applicable;
(c) The Guarantor shall fail to comply with its covenants set forth in Section 3.3 (transfer of RockGen Lessee ownership), 3.6 (Guarantor merger) or 8.4 (assignment of Guaranty) of this Guaranty.
(d) the Guarantor shall fail to perform or observe any covenant, obligation or agreement to be performed or observed by it under any Calpine Document (other than any covenant, obligation or agreement referred to in clauses (a) or (b) of this Section 7.1) in any material respect, which shall continue unremedied for (1) with respect to the Guarantor's guaranty of, and agreement with respect to, any nonmonetary obligation, covenant or agreement of the RockGen Lessee under any of the Operative Documents, 30 days after receipt by the Guarantor of written notice thereof from the Owner Participant, the Owner Lessor, the Indenture Trustee or the Pass Through TrusteeDays; provided, however, if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 180 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 180-day period, and (2) with respect to any other obligation, covenant or agreement hereunder, 30 days after receipt by the Guarantor of written notice thereof;
(e) there shall have occurred either (i) a default by the Guarantor or any Restricted Subsidiary under any instrument or instruments under which there is or may be secured or evidenced any Indebtedness of the Guarantor or any Restricted Subsidiary of the Guarantor (other than the Obligations) having an outstanding principal amount of $50,000,000 (or its foreign currency equivalent) or more individually or in the aggregate that has caused the holders thereof to declare such Indebtedness to be due and payable prior to its Stated Maturity, unless such declaration has been rescinded within 30 days or (ii) a default by the Guarantor or any Restricted Subsidiary in the payment when due of any portion of the principal under any such instrument or instruments, and such unpaid portion exceeds $50,000,000 (or its foreign currency equivalent) individually or in the aggregate and is not paid, or such default is not cured or waived, within any grace period applicable thereto, unless such Indebtedness is discharged within 30 days of the Guarantor or a Restricted Subsidiary becoming aware of such default;
(f) the Guarantor or any Significant Subsidiary pursuant to or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case;or
(ii) consents the Company defaults in the performance of any other agreement or covenant contained in the Purchase Agreements, and such default shall not have been remedied within thirty (30) days after written notice thereof shall have been given to the entry Company by any holder of an order for relief against it in an involuntary case;this Note (the Company to give forthwith to all other holders of this Note at the time outstanding written notice of the receipt of such notice, specifying the default referred to therein); or
(iii) consents to the appointment of a Custodian of it or for all or substantially all of its property;
(iv) makes a general assignment for the benefit of its creditors; or
(v) admits in writing its inability to generally pay its debts as such debts become due; or takes any comparable action under any foreign laws relating to insolvency;
(g) an involuntary case or other proceeding shall be commenced against the Guarantor or any Significant Subsidiary seeking (i) liquidation, reorganization or other relief with respect to it or its debts under Title 11 of the Bankruptcy Code or any bankruptcy, insolvency or other similar law now or hereafter in effect, or (ii) the appointment of a trustee, receiver, liquidator, custodian or other similar official with respect to it or any substantial part of its property or (iii) the winding-up or liquidation of the Guarantor or such Significant Subsidiary; and such involuntary case or other proceeding shall remain undismissed and unstayed for a period of 60 days;
(h) any material representation or warranty made by the Guarantor herein shall prove Company herein, in the Purchase Agreements or in any certificate delivered by the Company pursuant hereto proves to have been incorrect in any material respect when made made; or
(iv) the Company or misleading any Subsidiary shall make an assignment for the benefit of creditors, or shall admit in writing its inability to pay its debts; or a receiver or trustee is appointed for the Company or any material respect when made because Subsidiary or for substantially all of its assets and, if appointed without its consent, such appointment is not discharged or stayed within sixty (60) days; or proceedings under any law relating to bankruptcy, insolvency or the reorganization or relief of debtors are instituted by or against the Company or any Subsidiary, and, if contested by it, are not dismissed or stayed within sixty (60) days; or any writ of attachment or execution or any similar process is issued or levied against the Company or any Subsidiary or any of its property and is not released, stayed, bonded or vacated within sixty (60) days after its issue or levy; or the Company or any Subsidiary takes corporate or limited liability company action in furtherance of any of the omission foregoing.
(b) If an Event of Default occurs pursuant to state a material fact any of clauses (i) through (iii) of Section 5(a) of this Note then and in each such incorrect event and with the concurrence of holders of 67% of the Notes any holder of this Note (unless all Events of Default shall theretofore have been waived or misleading representation is and continues remedied) at its option, by written notice or notices to the Company, may declare this Note to be material due and unremedied payable. If an Event of Default occurs pursuant to clause (iv) of Section 5(a) of this Note, this Note shall automatically and without further action become due and payable. Upon any such declaration (or as to such clause (iv) upon its occurrence) this Note shall forthwith immediately mature and become due and payable. However, the foregoing acceleration rights are subject to the following:
(i) if, at any time after the principal of this Note shall so become due and payable and prior to the date of maturity stated in this Note, all interest on this Note (with interest at the rate specified in this Note on any overdue principal and, if applicable, on any overdue interest) shall be paid to the holder of this Note by or for a period the account of 30 days after receipt by the Guarantor of written notice thereof; provided, however, that if such condition cannot be remedied within such 30-day periodCompany, then the period Note holder, by written notice or notices to the Company, may waive such Event of Default and its consequences and rescind or annul any such declaration, but no such waiver shall extend to or affect any subsequent Event of Default or impair any right or remedy resulting therefrom;
(ii) if any holder or holders of Notes which, at the time, holds or hold at least sixty-seven percent (67%) in aggregate principal amount of the Notes then outstanding exercises the above rights of acceleration, then the Company shall notify each other holder of Notes of the fact of such acceleration and each other holder shall, without limiting any other rights hereunder, (A) have the right for thirty (30) days after such notice from the Company to accelerate its own Notes based on the Event or Events of Default on which such acceleration was based (regardless of whether such Event or Events of Default are then continuing), unless at the time there are no outstanding Events of Default and any acceleration of any Notes has been rescinded or (B) be deemed automatically (without any action by such holder) to have accelerated its Notes if such holder has not received such notice of an acceleration from the Company within ten (10) business days after such acceleration; provided that any such automatic acceleration may take place regardless of whether the Event or Events of Default on which the initial acceleration was based are then continuing but such automatic acceleration shall not take place if at the time any and all accelerations of any Notes have been rescinded or annulled pursuant to remedy such condition shall be extended up to an additional 60 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 60-day period. The grace periods set forth in Section 7.1(a) and subparagraph (bi) above or otherwise;
(iii) any holder may at any time rescind and annul any acceleration with respect to its own Notes; and
(iv) if any holder of a Note shall not affect in give any way the right hereunder of notice or take any Beneficiary entitled other action with respect to a payment of any amount payable to it, or performance of any obligation, by the RockGen Lessee under any Operative Document to demand prompt payment thereof, or performance thereof, by the Guarantor immediately upon any failure of the RockGen Lessee to pay or perform the same when it has become due (and, for the avoidance of doubt, without regard to the existence of any cure or grace period before such failure by the RockGen Lessee becomes a Lease claimed Event of Default); provided, howeverthe Company, notwithstanding forthwith upon receipt of such notice or obtaining knowledge of such other action, will give written notice thereof to all other holders of the foregoingNotes then outstanding, no Lease describing such notice or other action and the nature of the claimed Event of Default under Section 16(m) and no remedies under the Facility Lease may be exercised until a Calpine Guaranty Event of Default has occurred and is continuingDefault.
Appears in 1 contract
Defaults. The following events shall constitute an "Event of Default" hereunder In the event that (whether any such event shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any Governmental Entity):
(ai) the Guarantor or the RockGen Lessee under the Facility Lease Tenant shall fail to make pay when and as due any payment with respect to Periodic of rent or of Additional Rent or the Termination Value (including the Equity Portion of Termination Value and Debt Portion of Termination Value) when due and payable under such Facility Lease or this Guaranty within five (5) days after the same shall become due thereunder; or
(b) the Guarantor or the RockGen Lessee shall fail to make any other amount payable under by Tenant hereunder, or (ii) Tenant shall violate any Operative Document after the same shall become due thereunder and such failure shall have continued from a period of ten (10) Business Days after receipt by the RockGen Lessee and the Guarantor of written notice of such failure by the RockGen Lessee and/or the Guarantorother term, as applicable;
(c) The Guarantor shall fail to comply with its covenants set forth in Section 3.3 (transfer of RockGen Lessee ownership)provision, 3.6 (Guarantor merger) covenant or 8.4 (assignment of Guaranty) condition of this Guaranty.
(d) the Guarantor Lease or shall neglect or fail to perform or to observe or comply with any covenantof the other terms, obligation conditions or agreement covenants herein contained on Tenant's part to be performed or observed by it under any Calpine Document and Tenant shall fail to remedy the same within twenty (other than any covenant, obligation or agreement referred to in clauses (a20) or (b) of this Section 7.1) in any material respect, which shall continue unremedied for (1) with respect to the Guarantor's guaranty of, and agreement with respect to, any nonmonetary obligation, covenant or agreement of the RockGen Lessee under any of the Operative Documents, 30 days after receipt by the Guarantor of Landlord shall have sent Tenant written notice thereof from the Owner Participantspecifying such violation, the Owner Lessorneglect or failure, the Indenture Trustee or the Pass Through Trustee; provided, however, if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 180 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 180-day period, and (2) with respect to any other obligation, covenant or agreement hereunder, 30 days after receipt by the Guarantor of written notice thereof;
(e) there shall have occurred either (i) a default by the Guarantor or any Restricted Subsidiary under any instrument or instruments under which there is or may be secured or evidenced any Indebtedness of the Guarantor or any Restricted Subsidiary of the Guarantor (other than the Obligations) having an outstanding principal amount of $50,000,000 (or its foreign currency equivalent) or more individually or in the aggregate that has caused the holders thereof to declare such Indebtedness to be due and payable prior to its Stated Maturity, unless such declaration has been rescinded within 30 days or (ii) a default by the Guarantor or any Restricted Subsidiary in the payment when due of any portion of the principal under any such instrument or instruments, and such unpaid portion exceeds $50,000,000 (or its foreign currency equivalent) individually or in the aggregate and is not paid, or such default is not cured or waived, within any grace period applicable thereto, unless such Indebtedness is discharged within 30 days of the Guarantor or a Restricted Subsidiary becoming aware of such default;
(f) the Guarantor or any Significant Subsidiary pursuant to or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case;
(ii) consents to the entry of an order for relief against it in an involuntary case;
(iii) consents to the appointment of a Custodian of it or for all or substantially all of its property;
(iv) makes a general assignment for the benefit of its creditors; or
(v) admits in writing its inability to generally pay its debts as such debts become due; or takes any comparable action under any foreign laws relating to insolvency;
(g) an involuntary case or other proceeding shall be commenced against the Guarantor or any Significant Subsidiary seeking (i) liquidation, reorganization or other relief with respect to it or its debts under Title 11 of the Bankruptcy Code or any bankruptcy, insolvency or other similar law now or hereafter in effect, or (ii) the appointment of a trustee, receiver, liquidator, custodian or other similar official with respect to it or any substantial part of its property or (iii) this Lease or the winding-up Demised Premises or liquidation any part thereof shall be taken upon execution or by other process of law directed against Tenant, or shall be taken upon or subject to any attachment at the instance of any creditor of or claimant against Tenant, and said attachment shall not be discharged or disposed of within thirty (30) days after the levy thereof; of (iv) Tenant shall abandon, vacate or desert the Demised Premises, or fail to continuously operate the Demised Premises for the Permitted Use specified in Article Fifth hereof; then in any one or more of such events, Landlord shall have the right, at its option, exercisable by sending written notice thereof to Tenant, to terminate this Lease, in which event Tenant agrees to immediately surrender to Landlord possession of the Guarantor Demised Premises, without any notice to quit or such Significant Subsidiary; and such involuntary case or other proceeding shall remain undismissed and unstayed demand for a period of 60 days;
(h) any representation or warranty made by the Guarantor herein shall prove to have been incorrect in any material respect when made or misleading in any material respect when made because possession of the omission Demised Premises whatsoever, all statutory and other notice to state quit or of intention to re-enter the same being hereby expressly waived by Tenant, and Tenant hereby grants Landlord full and free entrance to, into and upon the Demised Premises or any part thereof, to take possession thereof with or without process of law and to expel and remove Tenant or any other person occupying the Demised Premises or any part hereof, and Landlord may repossess itself of the same as if its former estate, but such entry shall not constitute trespass or forcible entry or detainer, nor shall it cause a material fact and such incorrect forfeiture of rents due by virtue hereof nor waiver of any covenant, agreements or misleading representation is and continues promises in this Lease contained to be material performed by Tenant. If this Lease shall be terminated as aforesaid, the Demised Premises, or any part thereof, may be re-let by Landlord for the account and unremedied benefit of Tenant, for such rent and upon such terms and to such person or persons and for such period or periods as may seem fit to Landlord, and if a period of 30 days after receipt by the Guarantor of written notice thereof; provided, however, that if such condition cansufficient sum shall not be remedied within received form such 30-day periodreletting to satisfy the rent reserved in this Lease, then after paying the period within which expense of reletting and collection, including reasonable commissions to remedy agents and reasonable attorneys' fees, and any court costs, Tenant agrees to pay and satisfy any and all such condition shall be extended up to an additional 60 days, so long as deficiencies; but the Guarantor diligently pursues such remedy and such condition is reasonably capable acceptance of being remedied within such additional 60-day period. The grace periods set forth a lessee by Landlord in Section 7.1(a) and (b) above place of Tenant shall not affect in any way operate as a release of Tenant from the right hereunder of any Beneficiary entitled to a payment of any amount payable to it, or performance of any obligationcovenant, promise or agreement herein contained, and the performance of any substitute tenant by the RockGen Lessee under any Operative Document to demand prompt payment thereofof rent, or performance thereofotherwise, by the Guarantor immediately upon any failure shall constitute only satisfaction pro-tanto of the RockGen Lessee obligations of Tenant arising --------- hereunder. Any damages or deficiencies, at the option of Landlord, may be recovered by Landlord in separate actions, from time to time, as Tenant's obligations to pay would have accrued if the term had continued, or perform from time to time as said damages or deficiencies shall have been made more easily ascertainable by relettings of the same when it has become due (andDemised Premises, or any such action by Landlord may, at the option of Landlord, be deferred until the expiration of the term hereof. Notwithstanding anything to the contrary contained in this Lease, to the extent not expressly prohibited by applicable law, in the event of any default of Tenant under this Lease, Landlord at its sole option and discretion may terminate this Lease and/or Tenant's right to possession of the premises, and may accelerate and declare that all rentals and other amounts reserved for the avoidance entire remainder of doubtthe term hereof shall be immediately due and payable, without regard in which event Tenant agrees to pay same on demand. If and to the existence of any cure or grace period before such failure extent Tenant makes the payments demanded by Landlord pursuant to the RockGen Lessee becomes a Lease Event of Default); provided, however, notwithstanding preceding sentence (the foregoing, no Lease Event of Default under Section 16(m"accelerated rent") and no remedies under provided such payments are free of challenge by and are not recovered by Tenant's creditors, trustee or receiver in any creditor proceedings, then it is agreed that Landlord will refund to Tenant (to the Facility Lease may be exercised until extent only of said Accelerated Rent) any actual Net Re-Letting Proceeds (defined below) thereafter received by Landlord during the remainder of the stated term of this Lease. The phrase Net Re-Letting Proceeds as used herein shall mean the total amount of rent and other consideration paid by any Replacement Tenants, less all Costs of Re-Letting, during a Calpine Guaranty Event given period of Default has occurred time. "Costs of Re-Letting" shall include without limitation, all reasonable costs and is continuing.expenses incurred by Landlord for any repairs, maintenance, changes, alterations and improvements to the Premises, brokerage commissions, advertising costs, attorneys' fees, any customary free rent periods or credits, tenant improvement allowances, take-over lease obligations and other customary, necessary or appropriate economic incentives required to enter leases with Replacement Tenants, and costs of collecting rend from Replacement Tenants. The
Appears in 1 contract
Defaults. The following events shall constitute an "Event of Default" hereunder 12.1 In the event that (whether any such event shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any Governmental Entity):
(ai) the Guarantor or the RockGen Lessee under the Facility Lease shall fail to make any payment with respect to Periodic pay the Base Rent or the Termination Value (including the Equity Portion any amounts payable to Lessor as reimbursement of Termination Value and Debt Portion of Termination Value) when due and payable under such Facility Lease insurance premiums for insurance policies maintained by Lessor in accordance with Section 9.1 hereof, or this Guaranty any part thereof, within five (5) days after the same shall become its due thereunder; or
date, which failure is not cured within five (b5) the Guarantor days after receipt of notice of such failure from Lessor, or the RockGen (ii) Lessee shall fail to make pay any Amounts Due (other amount payable under any Operative Document after than Base Rent or such insurance premiums described in the preceding clause) within thirty (30) days of receipt of notice that the same shall become due thereunder and such failure shall have continued from a period of ten is due, or (10iii) Business Days after receipt by the RockGen Lessee and the Guarantor of written notice of such failure by the RockGen Lessee and/or the Guarantor, as applicable;
(c) The Guarantor shall fail to comply with its covenants set forth in Section 3.3 any of the terms, covenants, conditions, or agreements herein contained or any of the rules and regulations now or hereafter established for the government of the Building, which failure is not cured within thirty (transfer 30) days after receipt of RockGen notice of such failure from Lessor, or (iv) Lessee ownership), 3.6 (Guarantor merger) or 8.4 (assignment of Guaranty) of this Guaranty.
(d) the Guarantor shall fail to perform comply with any term provision, condition, or observe covenant of any covenant, obligation or other agreement to be performed or observed by it under any Calpine Document (other than any covenant, obligation or agreement referred to in clauses (a) or (b) of this Section 7.1) in any material respectbetween Lessor and Lessee, which shall continue unremedied for failure is not cured within thirty (130) with respect to the Guarantor's guaranty of, and agreement with respect to, any nonmonetary obligation, covenant or agreement of the RockGen Lessee under any of the Operative Documents, 30 days after receipt by the Guarantor of written notice thereof of such failure from the Owner Participant, the Owner Lessor, the Indenture Trustee or the Pass Through Trustee; provided, however, if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 180 days, so long (v) Lessee commits any default or breach as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 180-day period, and (2) with respect to defined in any other obligationprovision of this lease, covenant which default or agreement hereunder, 30 breach is not cured within thirty (30) days after receipt by the Guarantor of written notice thereof;
(e) there shall have occurred either (i) a default by the Guarantor or any Restricted Subsidiary under any instrument or instruments under which there is or may be secured or evidenced any Indebtedness of the Guarantor or any Restricted Subsidiary of the Guarantor (other than the Obligations) having an outstanding principal amount of $50,000,000 (or its foreign currency equivalent) or more individually or in the aggregate that has caused the holders thereof to declare such Indebtedness to be due and payable prior to its Stated Maturity, unless such declaration has been rescinded within 30 days or (ii) a default by the Guarantor or any Restricted Subsidiary in the payment when due of any portion of the principal under any such instrument or instruments, and such unpaid portion exceeds $50,000,000 (or its foreign currency equivalent) individually or in the aggregate and is not paid, or such default is not cured or waived, within any grace period applicable thereto, unless such Indebtedness is discharged within 30 days of the Guarantor or a Restricted Subsidiary becoming aware of such default;
breach from Lessor (f) the Guarantor or any Significant Subsidiary pursuant to or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case;
(ii) consents to the entry of an order for relief against it in an involuntary case;
(iii) consents to the appointment of a Custodian of it or for all or substantially all of its property;
(iv) makes a general assignment for the benefit of its creditors; or
(v) admits in writing its inability to generally pay its debts as such debts become due; or takes any comparable action under any foreign laws relating to insolvency;
(g) an involuntary case or other proceeding shall be commenced against the Guarantor or any Significant Subsidiary seeking (i) liquidation, reorganization or other relief with respect to it or its debts under Title 11 of the Bankruptcy Code or any bankruptcy, insolvency or other similar law now or hereafter in effect, or (ii) the appointment of a trustee, receiver, liquidator, custodian or other similar official with respect to it or any substantial part of its property or (iii) the winding-up or liquidation of the Guarantor or such Significant Subsidiary; and such involuntary case or other proceeding shall remain undismissed and unstayed for a period of 60 days;
(h) any representation or warranty made by the Guarantor herein shall prove to have been incorrect in any material respect when made or misleading in any material respect when made because of the omission to state a material fact and such incorrect or misleading representation is and continues to be material and unremedied for a period of 30 days after receipt by the Guarantor of written notice thereof; provided, however, that if such condition any default by Lessee described in clauses (iii), (iv) or (v) above cannot reasonably be remedied cured within such thirty (30-day period) days, then the period within which to remedy such condition shall be extended up to an additional 60 days, so long as Lessee shall promptly commence and thereafter diligently and in good faith pursue the Guarantor diligently pursues cure of such remedy and such condition is reasonably capable of being remedied within such additional 60-day period. The grace periods set forth in Section 7.1(a) and (b) above default to completion, Lessee shall not affect be deemed to be in default hereunder), then Lessor shall have the option, but not the obligation, to do any way one or more of the right hereunder following in addition to, and not in limitation of, any other remedy permitted by law, in equity or by this Lease:
12.1.1 Terminate this Lease, in which event Lessee shall surrender the Premises to Lessor immediately, and recover all sums owing and unpaid as of the date of termination and the unpaid rent. If Lessee refuses to surrender or deliver possession of the Premises to Lessor, Lessor may without notice enter into and upon the Premises, or any Beneficiary entitled portion thereof, and take possession of and repossess the Premises and expel and remove the Lessee and its effects from the Premises, without being liable for prosecution and damages therefore, and without prejudice to a any other remedy Lessor may have at law or equity;
12.1.2 Without terminating this Lease, retake possession of the Premises and rent the Premises, or any part thereof, for such term or terms and for such rent and upon such conditions as Lessor may, in its sole discretion, think best, making such changes, improvements, alterations, and repairs to the Premises as may be required. All rent received by Lessor from any reletting shall be applied first to the payment of any indebtedness other than rent due hereunder from Lessee; second, to the payment of any reasonable costs and expenses of the reletting, including but not limited to brokerage fees, attorneys' fees and costs of such changes, improvements, alterations, and repairs; third, to the payment of rent due and unpaid hereunder; and the residue, if any, shall be held by Lessor and applied in payment of future rent or damage as they may become due and payable hereunder. If the rent received from the reletting during the Lease Term is at any time insufficient to cover the costs, expenses, and payments enumerated above, Lessee shall pay any deficiency to Lessor, as often as it shall arise, on demand;
12.1.3 Correct or cure the default and recover any amount payable to itexpended in so doing, together with interest thereon until paid;
12.1.4 Recover any and all costs incurred by Lessor resulting directly, indirectly, approximately, or performance of any obligationremotely from the default, by the RockGen Lessee under any Operative Document including but not limited to demand prompt payment thereofreasonable attorneys, or performance thereof, by the Guarantor immediately upon any failure of the RockGen Lessee to pay or perform the same when it has become due (and, for the avoidance of doubt, without regard to the existence of any cure or grace period before fees actually incurred and calculated at such failure by the RockGen Lessee becomes a Lease Event of Default); provided, however, notwithstanding the foregoing, no Lease Event of Default under Section 16(m) and no remedies under the Facility Lease may be exercised until a Calpine Guaranty Event of Default has occurred and is continuingattorneys' standard hourly rates.
Appears in 1 contract
Sources: Lease (Melita International Corp)
Defaults. The following events shall constitute an "Event If Tenant: (i) fails to pay when due any installment or other payment of Default" hereunder Rent, or to keep in effect any insurance required to be maintained hereunder; or (whether any such event shall be voluntary ii) vacates or involuntary abandons the Premises or come about or be effected by operation fails to accept tender of law or pursuant to or in compliance with any judgment, decree or order possession of any court the Premises or any ordersignificant portion thereof; or (iii) becomes insolvent, rule makes an assignment for the benefit of creditors, files a voluntary bankruptcy or regulation an involuntary petition in bankruptcy is filed against Tenant which petition is not dismissed within sixty (60) days of its filing; or (iv) fails to cause to be released any Governmental Entity):
(a) mechanic’s liens filed against the Guarantor Premises or the RockGen Lessee under the Facility Lease shall fail to make any payment with respect to Periodic Rent or the Termination Value Building within twenty (including the Equity Portion of Termination Value and Debt Portion of Termination Value) when due and payable under such Facility Lease or this Guaranty within five (520) days after the same shall become due thereunder; or
(b) the Guarantor or the RockGen Lessee shall fail to make any other amount payable under any Operative Document after date the same shall become due thereunder and have been filed or recorded; or (v) fails to observe or perform according to the provisions of Article 17 or 18 within the time periods specified in such failure shall have continued from a period of ten Articles, or (10vi) Business Days after receipt by the RockGen Lessee and the Guarantor of written notice of such failure by the RockGen Lessee and/or the Guarantor, as applicable;
(c) The Guarantor shall fail to comply with its covenants set forth in Section 3.3 (transfer of RockGen Lessee ownership), 3.6 (Guarantor merger) or 8.4 (assignment of Guaranty) of this Guaranty.
(d) the Guarantor shall fail fails to perform or observe any covenantof the other covenants, obligation conditions or agreement agreements contained herein on Tenant’s part to be kept or performed and such failure shall continue for thirty (30) days after notice thereof is given by or observed by it under any Calpine Document (other than any covenant, obligation or agreement referred to in clauses (a) on behalf of Landlord; or (bvii) if the interest of Tenant under this Section 7.1Lease shall be offered for sale or sold under execution or other legal process; or (viii) if Tenant makes any transfer, assignment, conveyance, sale, pledge, disposition of all or a substantial portion of Tenant’s property, then any such event or conduct shall constitute a “default” hereunder. All notices required to be given under this paragraph shall be in any material respect, which shall continue unremedied for (1) with respect to the Guarantor's guaranty lieu of, and agreement with respect tonot in addition to any notice requirements imposed by law, any nonmonetary obligationstatute, covenant ordinance, governmental regulation or agreement requirement of the RockGen Lessee under United States, the State in which the Building is located or any local government authority or agency or any political subdivision thereof, now or hereafter in effect. If Tenant or any guarantor hereunder files a voluntary petition pursuant to the United States Bankruptcy Reform Act of 1978, as the Operative Documentssame may be from time to time amended (the “Bankruptcy Code”), 30 or take the benefit of any insolvency act or be dissolved, or if an involuntary petition or proceeding for dissolution or liquidation is filed against Tenant pursuant to the Bankruptcy Code and said petition is not dismissed within thirty (30) days after receipt by the Guarantor of written notice thereof from the Owner Participant, the Owner Lessor, the Indenture Trustee or the Pass Through Trustee; provided, however, if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 180 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 180-day period, and (2) with respect to any other obligation, covenant or agreement hereunder, 30 days after receipt by the Guarantor of written notice thereof;
(e) there shall have occurred either (i) a default by the Guarantor or any Restricted Subsidiary under any instrument or instruments under which there is or may be secured or evidenced any Indebtedness of the Guarantor or any Restricted Subsidiary of the Guarantor (other than the Obligations) having an outstanding principal amount of $50,000,000 (or its foreign currency equivalent) or more individually or in the aggregate that has caused the holders thereof to declare such Indebtedness to be due and payable prior to its Stated Maturity, unless such declaration has been rescinded within 30 days or (ii) a default by the Guarantor or any Restricted Subsidiary in the payment when due of any portion of the principal under any such instrument or instruments, and such unpaid portion exceeds $50,000,000 (or its foreign currency equivalent) individually or in the aggregate and is not paidfiling, or such default is not cured or waived, within any grace period applicable thereto, unless such Indebtedness is discharged within 30 days of the Guarantor or if a Restricted Subsidiary becoming aware of such default;
(f) the Guarantor or any Significant Subsidiary pursuant to or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case;
(ii) consents to the entry of an order proceeding for relief against it in an involuntary case;
(iii) consents to the appointment of a Custodian of it trustee or a receiver is commenced for Tenant’s business or all or substantially all a portion of its property;
assets and the appointment of such receiver is not vacated within thirty (iv30) makes a general days after such appointment, or if it shall make an assignment for the benefit of its creditors; or
(v) admits in writing its inability to generally pay its debts as such debts become due; or takes any comparable action under any foreign laws relating to insolvency;
(g) an involuntary case or other proceeding , then Landlord shall be commenced against the Guarantor or any Significant Subsidiary seeking (i) liquidation, reorganization or other relief with respect to it or its debts under Title 11 have all of the Bankruptcy Code or any bankruptcy, insolvency or other similar law now or hereafter rights provided for in effect, or (ii) the appointment event of a trustee, receiver, liquidator, custodian or other similar official with respect to it or any substantial part of its property or (iii) the winding-up or liquidation nonpayment of the Guarantor or such Significant Subsidiary; and such involuntary case or other proceeding shall remain undismissed and unstayed for a period of 60 days;
(h) any representation or warranty made by Rent Tenant hereby stipulates to the Guarantor herein shall prove to have been incorrect in any material respect when made or misleading in any material respect when made because lifting of the omission to state automatic stay in effect and relief from such stay in the event Tenant files a material fact and such incorrect or misleading representation is and continues to be material and unremedied for a period of 30 days after receipt by petition under the Guarantor of written notice thereof; provided, however, that if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 60 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 60-day period. The grace periods set forth in Section 7.1(a) and (b) above shall not affect in any way the right hereunder of any Beneficiary entitled to a payment of any amount payable to it, or performance of any obligation, by the RockGen Lessee under any Operative Document to demand prompt payment thereof, or performance thereof, by the Guarantor immediately upon any failure of the RockGen Lessee to pay or perform the same when it has become due (andBankruptcy Code, for the avoidance purpose of doubtLandlord pursuing its rights and remedies against Tenant and/or a guarantor under this Lease. If any alleged default on the part of Landlord hereunder occurs, without regard Tenant shall give written notice to Landlord in the manner herein set forth and shall afford Landlord a reasonable opportunity to cure any such default. In addition, Tenant shall send notice of such default by certified or registered mail, postage prepaid, to the existence holder of any Mortgage whose address Tenant has been provided in writing, and shall afford such Mortgage holder a reasonable opportunity to cure any alleged default on Landlord’s behalf. In no event will Landlord be responsible for any lost profits or grace period before such failure interruption of business as a result of any alleged default by Landlord hereunder. All defaults by Tenant of any covenant or condition of this Lease shall be deemed by the RockGen Lessee becomes a Lease Event of Default); provided, however, notwithstanding the foregoing, no Lease Event of Default under Section 16(m) and no remedies under the Facility Lease may parties hereto to be exercised until a Calpine Guaranty Event of Default has occurred and is continuingmaterial.
Appears in 1 contract
Sources: Office Lease (Medivation, Inc.)
Defaults. The following events shall constitute an "With respect to any Default or Event of Default" hereunder (whether any such event shall be voluntary , the words “exists”, “is continuing” or involuntary or come about or be effected by operation of law or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any Governmental Entity):
(a) the Guarantor or the RockGen Lessee under the Facility Lease shall fail to make any payment similar expressions with respect to Periodic Rent thereto shall mean that the Default or the Termination Value (including the Equity Portion of Termination Value and Debt Portion of Termination Value) when due and payable under such Facility Lease or this Guaranty within five (5) days after the same shall become due thereunder; or
(b) the Guarantor or the RockGen Lessee shall fail to make any other amount payable under any Operative Document after the same shall become due thereunder and such failure shall have continued from a period of ten (10) Business Days after receipt by the RockGen Lessee and the Guarantor of written notice of such failure by the RockGen Lessee and/or the Guarantor, as applicable;
(c) The Guarantor shall fail to comply with its covenants set forth in Section 3.3 (transfer of RockGen Lessee ownership), 3.6 (Guarantor merger) or 8.4 (assignment of Guaranty) of this Guaranty.
(d) the Guarantor shall fail to perform or observe any covenant, obligation or agreement to be performed or observed by it under any Calpine Document (other than any covenant, obligation or agreement referred to in clauses (a) or (b) of this Section 7.1) in any material respect, which shall continue unremedied for (1) with respect to the Guarantor's guaranty of, and agreement with respect to, any nonmonetary obligation, covenant or agreement of the RockGen Lessee under any of the Operative Documents, 30 days after receipt by the Guarantor of written notice thereof from the Owner Participant, the Owner Lessor, the Indenture Trustee or the Pass Through Trustee; provided, however, if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 180 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 180-day period, and (2) with respect to any other obligation, covenant or agreement hereunder, 30 days after receipt by the Guarantor of written notice thereof;
(e) there shall have occurred either (i) a default by the Guarantor or any Restricted Subsidiary under any instrument or instruments under which there is or may be secured or evidenced any Indebtedness of the Guarantor or any Restricted Subsidiary of the Guarantor (other than the Obligations) having an outstanding principal amount of $50,000,000 (or its foreign currency equivalent) or more individually or in the aggregate that has caused the holders thereof to declare such Indebtedness to be due and payable prior to its Stated Maturity, unless such declaration has been rescinded within 30 days or (ii) a default by the Guarantor or any Restricted Subsidiary in the payment when due of any portion of the principal under any such instrument or instruments, and such unpaid portion exceeds $50,000,000 (or its foreign currency equivalent) individually or in the aggregate and is not paid, or such default is not cured or waived, within any grace period applicable thereto, unless such Indebtedness is discharged within 30 days of the Guarantor or a Restricted Subsidiary becoming aware of such default;
(f) the Guarantor or any Significant Subsidiary pursuant to or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case;
(ii) consents to the entry of an order for relief against it in an involuntary case;
(iii) consents to the appointment of a Custodian of it or for all or substantially all of its property;
(iv) makes a general assignment for the benefit of its creditors; or
(v) admits in writing its inability to generally pay its debts as such debts become due; or takes any comparable action under any foreign laws relating to insolvency;
(g) an involuntary case or other proceeding shall be commenced against the Guarantor or any Significant Subsidiary seeking (i) liquidation, reorganization or other relief with respect to it or its debts under Title 11 of the Bankruptcy Code or any bankruptcy, insolvency or other similar law now or hereafter in effect, or (ii) the appointment of a trustee, receiver, liquidator, custodian or other similar official with respect to it or any substantial part of its property or (iii) the winding-up or liquidation of the Guarantor or such Significant Subsidiary; and such involuntary case or other proceeding shall remain undismissed and unstayed for a period of 60 days;
(h) any representation or warranty made by the Guarantor herein shall prove to have been incorrect in any material respect when made or misleading in any material respect when made because of the omission to state a material fact and such incorrect or misleading representation is and continues to be material and unremedied for a period of 30 days after receipt by the Guarantor of written notice thereof; provided, however, that if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 60 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 60-day period. The grace periods set forth in Section 7.1(a) and (b) above shall not affect in any way the right hereunder of any Beneficiary entitled to a payment of any amount payable to it, or performance of any obligation, by the RockGen Lessee under any Operative Document to demand prompt payment thereof, or performance thereof, by the Guarantor immediately upon any failure of the RockGen Lessee to pay or perform the same when it has become due (and, for the avoidance of doubt, without regard to the existence of any cure or grace period before such failure by the RockGen Lessee becomes a Lease Event of Default); provided, however, notwithstanding the foregoing, no Lease Event of Default under Section 16(m) and no remedies under the Facility Lease may be exercised until a Calpine Guaranty Event of Default has occurred and has not yet been cured or waived. If, prior to the taking of any action under Section 7.02 (or the occurrence of any Event of Default under Section 7.01(h) or 7.01(i)), any Default or Event of Default occurs due to (a) the failure by any Loan Party to take any action by a specified time, such Default or Event of Default shall be deemed to have been cured at the time, if any, that the applicable Loan Party takes such action or (b) the taking of any action by any Loan Party that is continuing.not then permitted by the terms of this Agreement or any other Loan Document, such Default or Event of Default shall be deemed to be cured on the earlier to occur of (x) the date on which such action would be permitted at such time to be taken under this Agreement and the other Loan Documents pursuant to an applicable amendment or waiver permitting such action and (y) the date on which such action is unwound or otherwise modified to the extent necessary for such revised action to be permitted at such time by this Agreement and the other Loan Documents; provided that, an Event of Default resulting from the failure to deliver a notice pursuant to Section 5.05(a) shall cease to exist and be cured in all respects if the Default or Event of Default giving rise to such notice requirement shall have ceased to exist and/or be cured. Notwithstanding anything to the contrary in this Section 1.09, an Event of Default (the “Initial Default”) may not be cured pursuant to this Section 1.09: 80 Doc#: US1:15347125v11
Appears in 1 contract
Defaults. The Upon the occurrence of any of the following events shall constitute (each an "Event of Default" hereunder (whether any such event shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any Governmental Entity"):
(a) the Guarantor or the RockGen Lessee under the Facility Lease Borrower shall fail to make any payment with respect to Periodic Rent required under any of the Loan Documents on or before the Termination Value (including the Equity Portion of Termination Value and Debt Portion of Termination Value) when due and payable under date such Facility Lease or this Guaranty within five (5) days after the same shall become due thereunder; orpayment is due.
(b) the Guarantor or the RockGen Lessee shall fail to make any other amount payable under any Operative Document after the same shall become due thereunder and such failure shall have continued from a period of ten (10) Business Days after receipt by the RockGen Lessee and the Guarantor of written notice of such failure by the RockGen Lessee and/or the Guarantor, as applicable;
(c) The Guarantor shall fail to comply with its covenants set forth in Section 3.3 (transfer of RockGen Lessee ownership), 3.6 (Guarantor merger) or 8.4 (assignment of Guaranty) of this Guaranty.
(d) the Guarantor shall fail to perform or observe any covenant, obligation or agreement to be performed or observed by it under any Calpine Document (other than any covenant, obligation or agreement referred to in clauses (a) or (b) of this Section 7.1) in any material respect, which shall continue unremedied for (1) with respect to the Guarantor's guaranty of, and agreement with respect to, any nonmonetary obligation, covenant or agreement of the RockGen Lessee under any of the Operative Documents, 30 days after receipt by the Guarantor of written notice thereof from the Owner Participant, the Owner Lessor, the Indenture Trustee or the Pass Through Trustee; provided, however, if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 180 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 180-day period, and (2) with respect to any other obligation, covenant or agreement hereunder, 30 days after receipt by the Guarantor of written notice thereof;
(e) there shall have occurred either (i) a default by the Guarantor or any Restricted Subsidiary under any instrument or instruments under which there is or may be secured or evidenced any Indebtedness of the Guarantor or any Restricted Subsidiary of the Guarantor (other than the Obligations) having an outstanding principal amount of $50,000,000 (or its foreign currency equivalent) or more individually or in the aggregate that has caused the holders thereof to declare such Indebtedness to be due and payable prior to its Stated Maturity, unless such declaration has been rescinded within 30 days or (ii) a default by the Guarantor or any Restricted Subsidiary in the payment when due of any portion of the principal under any such instrument or instruments, and such unpaid portion exceeds $50,000,000 (or its foreign currency equivalent) individually or in the aggregate and is not paid, or such default is not cured or waived, within any grace period applicable thereto, unless such Indebtedness is discharged within 30 days of the Guarantor or a Restricted Subsidiary becoming aware of such default;
(f) the Guarantor or any Significant Subsidiary pursuant to or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case;
(ii) consents to the entry of an order for relief against it in an involuntary case;
(iii) consents to the appointment of a Custodian of it or for all or substantially all of its property;
(iv) makes a general assignment for the benefit of its creditors; or
(v) admits in writing its inability to generally pay its debts as such debts become due; or takes any comparable action under any foreign laws relating to insolvency;
(g) an involuntary case or other proceeding shall be commenced against the Guarantor or any Significant Subsidiary seeking (i) liquidation, reorganization or other relief with respect to it or its debts under Title 11 of the Bankruptcy Code or any bankruptcy, insolvency or other similar law now or hereafter in effect, or (ii) the appointment of a trustee, receiver, liquidator, custodian or other similar official with respect to it or any substantial part of its property or (iii) the winding-up or liquidation of the Guarantor or such Significant Subsidiary; and such involuntary case or other proceeding shall remain undismissed and unstayed for a period of 60 days;
(h) any Any representation or warranty made by Borrower in any of the Guarantor herein Loan Documents or which is contained in any certificate, document, financial or other written statement furnished at any time pursuant thereto shall prove to have been untrue, incorrect in any material respect when made or misleading in any material respect when made because made.
(c) Borrower shall fail duly to observe or perform any covenant or agreement contained in the Loan Documents.
(d) Borrower commences or proposes to commence any bankruptcy, reorganization or insolvency proceeding, or other proceeding under any federal, state or other law for the relief of debtors.
(e) Borrower fails to obtain the dismissal, within thirty (30) days after the commencement thereof, of any bankruptcy, reorganization or insolvency proceeding, or other proceeding under any law for the relief of debtors, instituted by one or more third parties, fails actively to oppose any such proceeding, or, in any such proceeding, defaults or files an answer admitting the material allegations upon which the proceeding was based or alleges its willingness to have an order for relief entered or its desire to seek liquidation, reorganization or adjustment of its debts.
(f) Any receiver, trustee or custodian is appointed to take possession of all or any substantial portion of the omission to state a material fact and such incorrect or misleading representation is and continues to be material and unremedied for a period assets of 30 days after receipt by the Guarantor of written notice thereof; provided, however, that if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 60 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 60-day period. The grace periods set forth in Section 7.1(a) and (b) above shall not affect in any way the right hereunder of any Beneficiary entitled to a payment of any amount payable to itBorrower, or performance any committee of Borrower's creditors, or any obligation, by the RockGen Lessee under any Operative Document to demand prompt payment class thereof, or performance thereof, by the Guarantor immediately upon any failure of the RockGen Lessee to pay or perform the same when it has become due (and, is formed for the avoidance purpose of doubtmonitoring or investigating the financial affairs of Borrower or enforcing such creditors' rights. then, without regard on notice of acceleration by Lender to Borrower in the existence case of any cure or grace period before such failure by the RockGen Lessee becomes a Lease Event of Default); provided, however, notwithstanding the foregoing, no Lease an Event of Default under Section 16(mspecified in subsections (a) through (c) above, and no remedies under the Facility Lease may be exercised until a Calpine Guaranty Borrower's failure to cure such Event of Default has occurred within a reasonable period of time after notification thereof (or automatically and is continuingimmediately without demand, notice, protest or other action of any kind by Lender, which Borrower hereby expressly waives, in the case of an Event of Default specified in subsections (d) through (f) above), all amounts outstanding hereunder and under each of the Loan Documents shall be immediately due and payable in full.
Appears in 1 contract
Sources: Loan Agreement (National Media Corp)
Defaults. The Each of the following events shall constitute an "Event of Default" hereunder (whether any such event shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any Governmental Entity):the Manager under this Agreement:
(ai) the Guarantor or the RockGen Lessee under the Facility Lease shall fail to make any payment with respect to Periodic Rent or the Termination Value (including the Equity Portion of Termination Value and Debt Portion of Termination Value) when due and payable under such Facility Lease or this Guaranty within five (5) days after the same shall become due thereunder; or
(b) the Guarantor or the RockGen Lessee shall fail to make any other amount payable under any Operative Document after the same shall become due thereunder and such failure shall have continued from a period of ten (10) Business Days after receipt by the RockGen Lessee and the Guarantor of written notice of such The failure by the RockGen Lessee and/or the Guarantor, as applicable;
(c) The Guarantor shall fail Manager to comply with its covenants set forth in Section 3.3 (transfer of RockGen Lessee ownership), 3.6 (Guarantor merger) perform any material duty or 8.4 (assignment of Guaranty) obligation imposed upon it under this Agreement or any other material breach of this Guaranty.
(d) the Guarantor shall fail to perform or observe any covenant, obligation or agreement to be performed or observed by it under any Calpine Document (other than any covenant, obligation or agreement referred to in clauses (a) or (b) of this Section 7.1) in any material respect, which shall continue unremedied for (1) with respect to the Guarantor's guaranty of, and agreement with respect to, any nonmonetary obligation, covenant or agreement of the RockGen Lessee under any of the Operative Documents, 30 days after receipt Agreement by the Guarantor of written notice thereof from the Owner Participant, the Owner Lessor, the Indenture Trustee or the Pass Through TrusteeManager; provided, however, that no such failure or breach shall be deemed to constitute an Event of Default unless such failure or breach continues for a period of thirty (30) days after the Manager's receipt of written notice from the Trust of such failure or breach or, if such condition canfailure or breach is not be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 180 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied cured within such additional 180-day said thirty (30)-day period, and (2) with respect to any other obligation, covenant or agreement hereunder, 30 days after receipt by the Guarantor of written notice thereof;
(e) there Manager shall have occurred either failed diligently and in good faith to commence to cure the same within said thirty (i) a default by 30)-day period and to have diligently continued to prosecute the Guarantor or any Restricted Subsidiary under any instrument or instruments under which there is or may be secured or evidenced any Indebtedness of the Guarantor or any Restricted Subsidiary of the Guarantor (other than the Obligations) having an outstanding principal amount of $50,000,000 (or its foreign currency equivalent) or more individually or in the aggregate that has caused the holders thereof to declare such Indebtedness to be due and payable prior to its Stated Maturity, unless such declaration has been rescinded within 30 days or (ii) a default by the Guarantor or any Restricted Subsidiary in the payment when due of any portion of the principal under any such instrument or instruments, and such unpaid portion exceeds $50,000,000 (or its foreign currency equivalent) individually or in the aggregate and is not paid, or such default is not cured or waived, within any grace period applicable thereto, unless such Indebtedness is discharged within 30 days of the Guarantor or a Restricted Subsidiary becoming aware of such default;
(f) the Guarantor or any Significant Subsidiary pursuant to or within the meaning of any Bankruptcy Law:
(i) commences a voluntary casesame;
(ii) consents to the entry of an order for relief against it in an involuntary case;The Manager's liquidation, bankruptcy or insolvency, including:
(iiiA) consents to the appointment filing of a Custodian of it or for all or substantially all of its property;
(iv) makes a general assignment for the benefit of its creditors; or
(v) admits in writing its inability to generally pay its debts as such debts become due; or takes any comparable action under any foreign laws relating to insolvency;
(g) an involuntary case or other proceeding shall be commenced against the Guarantor or any Significant Subsidiary voluntary petition seeking (i) liquidation, reorganization reorganization, arrangement or other relief with respect to it or readjustment, in any form, of its debts under Title 11 of the Bankruptcy United States Code or any bankruptcy, other federal or state insolvency or other similar law now or hereafter in effectlaw, or its filing an answer consenting to or acquiescing in any such petition; or
(iiB) the appointment expiration of a trusteeninety (90) days after the filing of an involuntary petition under the Title 11 of the United States Code, receiver, liquidator, custodian or other similar official with respect to it or any substantial part involuntary petition seeking liquidation, reorganization, rearrangement or readjustment of its property debts under the federal or state insolvency law, provided that the same shall not have been vacated, set aside or stayed within such 90-day period; or
(iii) the winding-up or liquidation of the Guarantor or such Significant Subsidiary; and such involuntary case or other proceeding shall remain undismissed and unstayed for a period of 60 days;
(h) any representation or warranty made The commitment by the Guarantor herein shall prove to have been incorrect in any material respect when made or misleading in any material respect when made because of the omission to state a material fact and such incorrect or misleading representation is and continues to be material and unremedied for a period of 30 days after receipt by the Guarantor of written notice thereof; provided, however, that if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 60 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 60-day period. The grace periods set forth in Section 7.1(a) and (b) above shall not affect in any way the right hereunder Manager of any Beneficiary entitled to a payment act of any amount payable to itfraud, willful misconduct or gross negligence in connection with the performance of any obligation, by the RockGen Lessee under any Operative Document to demand prompt payment thereof, or performance thereof, by the Guarantor immediately upon any failure of the RockGen Lessee to pay or perform the same when it has become due (and, for the avoidance of doubt, without regard to the existence of any cure or grace period before such failure by the RockGen Lessee becomes a Lease Event of Default); provided, however, notwithstanding the foregoing, no Lease Event of Default under Section 16(m) and no remedies under the Facility Lease may be exercised until a Calpine Guaranty Event of Default has occurred and is continuingits duties hereunder.
Appears in 1 contract
Sources: Asset Management Agreement (First Union Real Estate Equity & Mortgage Investments)
Defaults. The In case of the happening of any of the following events shall constitute an "Event (herein called “Events of Default" hereunder ”):
SECTION 9.1.1. Any payment, whether for principal, interest, fees, charges, or otherwise, due with respect to any Advance shall not be paid (whether i) (other than pursuant to Section 2.1.2) on the date when due and payable (including the payment of the full principal balance of all Advances on the Facility Termination Date); or (ii) with respect to any such event shall be voluntary payments required under Section 2.1.2 within the two (2) Business Day period referenced in Section 2.1.2; or
SECTION 9.1.2. Any representation or involuntary warranty made by the Borrowers (or come about any of its officers) herein, or be effected in any certificate, agreement, instrument or statement contemplated by operation of law or made or delivered pursuant to or in compliance with connection herewith or therewith shall prove to have been incorrect when made in any judgment, decree or order of any court or any order, rule or regulation of any Governmental Entity):
(a) the Guarantor or the RockGen Lessee under the Facility Lease shall fail to make any payment with respect to Periodic Rent or the Termination Value (including the Equity Portion of Termination Value and Debt Portion of Termination Value) when due and payable under such Facility Lease or this Guaranty within five (5) days after the same shall become due thereundermaterial respect; or
(b) the Guarantor or the RockGen Lessee shall fail to make any other amount payable under any Operative Document after the same shall become due thereunder and such failure shall have continued from a period of ten (10) Business Days after receipt by the RockGen Lessee and the Guarantor of written notice of such failure by the RockGen Lessee and/or the Guarantor, as applicable;
(c) SECTION 9.1.3. The Guarantor shall fail to comply with its covenants set forth in Section 3.3 (transfer of RockGen Lessee ownership), 3.6 (Guarantor merger) or 8.4 (assignment of Guaranty) of this Guaranty.
(d) the Guarantor Borrowers shall fail to perform or observe any covenantother term, obligation covenant or agreement contained herein or in any agreement or document executed or delivered in conjunction herewith or with the Advances, or any other Loan Document, on its part to be performed or observed by it under and any Calpine Document (other than any covenant, obligation or agreement referred to in clauses (a) or (b) of this Section 7.1) in any material respect, which shall continue such failure remains unremedied for thirty (130) days after written notice thereof shall have been given to the Borrowers specifying such failure by the Lender, except with respect to Sections 5.4, 7.6, 7.12 and all subsections of Section 8 (except with respect to Section 8.7 as to involuntary Liens) with respect to which no notice and cure period shall be required; or
SECTION 9.1.4. This Agreement shall, at any time after its execution and delivery, for any reason cease to be in full force and effect (unless such occurrence is in accordance with its terms or after payment thereof or except as a result of the Guarantor's guaranty ofLender’s default hereunder) or shall be declared to be null and void, or the validity or enforceability thereof shall be contested by the Borrowers or the Borrowers shall deny that it has any further liability or obligation hereunder; or
SECTION 9.1.5. Any judgment, writ, warrant of attachment or execution or similar process shall be issued or levied in respect of the Operating Account or any other account maintained by the Borrowers at the Lender, other than an Excepted Accounts, and agreement with respect to, any nonmonetary obligation, covenant shall not be discharged or agreement released within thirty (30) days; or
SECTION 9.1.6. Any of the RockGen Lessee under any of the Operative DocumentsBorrowers, 30 days after receipt by the Guarantor of written notice thereof from the Owner Participant, the Owner Lessor, the Indenture Trustee CCG or the Pass Through Trustee; provided, however, if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition CHC shall be extended up to an additional 180 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 180-day period, and (2) with respect to any other obligation, covenant adjudicated bankrupt or agreement hereunder, 30 days after receipt by the Guarantor of written notice thereof;
(e) there shall have occurred either (i) a default by the Guarantor or any Restricted Subsidiary under any instrument or instruments under which there is or may be secured or evidenced any Indebtedness of the Guarantor or any Restricted Subsidiary of the Guarantor (other than the Obligations) having an outstanding principal amount of $50,000,000 (or its foreign currency equivalent) or more individually or in the aggregate that has caused the holders thereof to declare such Indebtedness to be due and payable prior to its Stated Maturity, unless such declaration has been rescinded within 30 days or (ii) a default by the Guarantor or any Restricted Subsidiary in the payment when due of any portion of the principal under any such instrument or instruments, and such unpaid portion exceeds $50,000,000 (or its foreign currency equivalent) individually or in the aggregate and is not paidinsolvent, or such default is not cured admit in writing its inability to pay its debts as they mature, or waived, within any grace period applicable thereto, unless such Indebtedness is discharged within 30 days of the Guarantor or a Restricted Subsidiary becoming aware of such default;
(f) the Guarantor or any Significant Subsidiary pursuant to or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case;
(ii) consents to the entry of make an order for relief against it in an involuntary case;
(iii) consents to the appointment of a Custodian of it or for all or substantially all of its property;
(iv) makes a general assignment for the benefit of its creditors; or
(v) admits in writing its inability or any such Person shall fail generally to generally pay its debts as such debts become duedue and payable; or takes any comparable action under any foreign laws relating such Person shall apply for or consent to insolvency;
(g) an involuntary case or other proceeding shall be commenced against the Guarantor or any Significant Subsidiary seeking (i) liquidation, reorganization or other relief with respect to it or its debts under Title 11 of the Bankruptcy Code or any bankruptcy, insolvency or other similar law now or hereafter in effect, or (ii) the appointment of a trustee, any receiver, liquidatortrustee, custodian or other similar official with respect to officer for it or for all or any substantial part of its property or (iii) the winding-up or liquidation of the Guarantor property; or such Significant Subsidiary; receiver, trustee, custodian or similar officer shall be appointed without the application or consent of such Person, as the case may be, and such involuntary case or other proceeding appointment shall remain undismissed and unstayed continue undischarged for a period of 60 sixty (60) days;
; or any such Person shall institute (hby petition, application, answer, consent or otherwise) any representation bankruptcy, insolvency, reorganization, arrangement, readjustment of debt, dissolution, liquidation or warranty made similar proceeding relating to it under the laws of any jurisdiction; or any such proceeding shall be instituted (by the Guarantor herein petition, application or otherwise) against any such Person and shall prove to have been incorrect in any material respect when made or misleading in any material respect when made because of the omission to state a material fact and such incorrect or misleading representation is and continues to be material and unremedied remain undismissed for a period of 30 sixty (60) days; or any judgment, writ, warrant of attachment or execution or similar process shall be issued or levied in respect of an obligation (alleged or otherwise) of any such Person against any property or asset of such Person with a value in excess of $1,000,000 and such judgment, writ or similar process shall not be released, vacated, stayed or fully bonded within sixty (60) days after receipt by its issue or levy; or
SECTION 9.1.7. The Borrowers shall receive a notice or declaration of default with respect to the Guarantor payment when due of written any principal of or interest on any of their other Debts in an amount in excess of $1,000,000 (except for Debts being contested in good faith for which adequate reserves have been established) or the Borrowers shall receive a notice thereofor declaration of default with respect to any event specified in any note, agreement, indenture or other document evidencing or relating to any such Debt, if the effect of such event is to cause, or (with the giving of any notice or the lapse of time or both) to permit the holder or holders of such Debt (or a trustee or agent on behalf of such holder or holders) to cause, such Debt to become due, or to be prepaid in full, prior to its stated maturity; providedor
SECTION 9.1.8. An event or condition occurs or exists with respect to any Plan concerning which the Borrowers are under an obligation to furnish a report to the Lender in accordance with Section 7.7.9 and as a result of such event or condition, howevertogether with all other such events or conditions, that if such condition cannot be remedied within such 30-day periodthe Borrowers, then or any ERISA Affiliate has incurred or in the period within which to remedy such condition shall be extended up to an additional 60 days, so long as opinion of the Guarantor diligently pursues such remedy and such condition Lender is reasonably capable of being remedied within such additional 60-day period. The grace periods set forth in Section 7.1(a) and (b) above shall not affect in any way the right hereunder of any Beneficiary entitled likely to incur a liability to a payment Plan or the PBGC (or any combination of the foregoing) which is material in relation to the financial position of the Borrowers; or
SECTION 9.1.9. Any of the Borrowers shall terminate its existence or suspend or discontinue its business; or
SECTION 9.1.10. There shall occur a default beyond applicable notice and cure periods under the BofA Warehouse Facility (or replacement warehouse lines of credit that constitute Warehousing Debt under this Agreement); or
SECTION 9.1.11. There shall occur an event of default under any amount payable to itother agreement, understanding or credit accommodation between or among the Lender, on one hand, and one or more of a Borrower, or performance any Subsidiary of such Borrower, on the other hand. then, and in every such event and at any obligationtime thereafter during the continuance of such event, by the RockGen Lessee under any Operative Document to demand prompt payment thereof, or performance thereof, by Lender shall have the Guarantor immediately upon any failure rights described in the following subsections of the RockGen Lessee to pay or perform the same when it has become due (and, for the avoidance of doubt, without regard to the existence of any cure or grace period before such failure by the RockGen Lessee becomes a Lease Event of Default); provided, however, notwithstanding the foregoing, no Lease Event of Default under this Section 16(m) and no remedies under the Facility Lease may be exercised until a Calpine Guaranty Event of Default has occurred and is continuing9.
Appears in 1 contract
Sources: Mortgage Warehouse Loan and Security Agreement (Centerline Holding Co)
Defaults. The occurrence of any of the following events shall constitute an Event of Default hereunder:
(a) Any representation, warranty or statement of the Seller, the Indenture Trustee, the Servicer, the Issuer or the Depositor made in this Insurance Agreement or in any other Transaction Document or any certificate, report or other writing delivered pursuant hereto shall prove to be incorrect in any material respect as of the time when the same shall have been made, and the incorrectness of such representation, warranty or statement has a material adverse effect on the Trust Estate or the interest of the Insurer and such representation, warranty or statement shall not have been eliminated or otherwise cured within 45 days of the earlier of (i) the date on which the Indenture Trustee, the Issuer, the Servicer, the Seller or the Depositor gives notice of such failure to the Indenture Trustee or the Insurer and (ii) the date on which written notice thereof shall have been given to the Indenture Trustee, the Issuer, the Servicer, the Seller or the Depositor by the Trustee or the Insurer;
(i) The Servicer, the Indenture Trustee, the Seller, the Issuer or the Depositor shall fail to pay when due any amount payable by the Servicer, the Indenture Trustee, the Seller or the Depositor hereunder or (ii) a legislative body has enacted any law that declares or a court of competent jurisdiction shall find or rule that this Insurance Agreement or any of the Transaction Documents are not valid and binding on the Servicer, the Indenture Trustee, the Seller, the Issuer or the Depositor;
(c) The occurrence and continuance of an "Event of Default" hereunder (whether any such event shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any Governmental Entity):
(a) the Guarantor or the RockGen Lessee under the Facility Lease shall fail to make any payment with respect to Periodic Rent or the Termination Value Indenture (including the Equity Portion of Termination Value and Debt Portion of Termination Value) when due and payable under such Facility Lease or this Guaranty within five (5) days after the same shall become due thereunder; or
(b) the Guarantor or the RockGen Lessee shall fail to make any other amount payable under any Operative Document after the same shall become due thereunder and such failure shall have continued from a period of ten (10) Business Days after receipt by the RockGen Lessee and the Guarantor of written notice of such failure by the RockGen Lessee and/or the Guarantor, as applicabledefined therein);
(c) The Guarantor shall fail to comply with its covenants set forth in Section 3.3 (transfer of RockGen Lessee ownership), 3.6 (Guarantor merger) or 8.4 (assignment of Guaranty) of this Guaranty.
(d) Any failure on the Guarantor shall fail part of the Servicer, the Indenture Trustee, the Seller, the Issuer or the Depositor duly to observe or perform or observe any covenant, obligation or agreement to be performed or observed by it under any Calpine Document (other than any covenant, obligation or agreement referred to in clauses (a) or (b) of this Section 7.1) in any material respectrespect any other of the covenants or agreements on the part of the Servicer, the Indenture Trustee, the Seller, the Issuer or the Depositor contained in this Insurance Agreement or in any other Transaction Document which shall continue continues unremedied for (1) a period of 45 days with respect to the Guarantor's guaranty ofthis Insurance Agreement, and agreement with respect toor, any nonmonetary obligation, covenant or agreement of the RockGen Lessee under any of the Operative Documents, 30 days after receipt by the Guarantor of written notice thereof from the Owner Participant, the Owner Lessor, the Indenture Trustee or the Pass Through Trustee; provided, however, if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 180 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 180-day period, and (2) with respect to any other obligationTransaction Document, covenant beyond any cure period provided for therein, after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer, the Seller, the Issuer, or agreement hereunderthe Depositor, 30 days after receipt as applicable, by the Guarantor of written notice thereofInsurer (with a copy to the Indenture Trustee) or by the Indenture Trustee (with a copy to the Insurer);
(e) there shall have occurred either (i) A decree or order of a default by the Guarantor court or any Restricted Subsidiary under any instrument agency or instruments under which there is or may be secured or evidenced any Indebtedness of the Guarantor or any Restricted Subsidiary of the Guarantor (other than the Obligations) supervisory authority having an outstanding principal amount of $50,000,000 (or its foreign currency equivalent) or more individually or jurisdiction in the aggregate that has caused the holders thereof to declare such Indebtedness to be due and payable prior to its Stated Maturity, unless such declaration has been rescinded within 30 days or (ii) a default by the Guarantor or any Restricted Subsidiary in the payment when due of any portion of the principal under any such instrument or instruments, and such unpaid portion exceeds $50,000,000 (or its foreign currency equivalent) individually or in the aggregate and is not paid, or such default is not cured or waived, within any grace period applicable thereto, unless such Indebtedness is discharged within 30 days of the Guarantor or a Restricted Subsidiary becoming aware of such default;
(f) the Guarantor or any Significant Subsidiary pursuant to or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case;
(ii) consents to the entry of an order for relief against it premises in an involuntary case;
(iii) consents to case under any present or future federal or state bankruptcy, insolvency or similar law or the appointment of a Custodian of it conservator or for all receiver or substantially all of its property;
(iv) makes a general assignment for the benefit of its creditors; or
(v) admits in writing its inability to generally pay its debts as such debts become due; or takes any comparable action under any foreign laws relating to insolvency;
(g) an involuntary case or other proceeding shall be commenced against the Guarantor or any Significant Subsidiary seeking (i) liquidation, reorganization or other relief with respect to it or its debts under Title 11 of the Bankruptcy Code or any bankruptcy, insolvency or other similar law now or hereafter in effect, or (ii) the appointment of a trustee, receiver, liquidator, custodian liquidator or other similar official with respect to it in any insolvency, readjustment of debt, marshalling of assets and liabilities or any substantial part of its property similar proceedings, or (iii) for the winding-up or liquidation of its affairs, shall have been entered against the Guarantor Servicer, the Seller, the Issuer or such Significant Subsidiary; the Depositor and such involuntary case decree or other proceeding order shall remain undismissed and have remained in force undischarged or unstayed for a period of 60 90 consecutive days;
(h) any representation or warranty made by the Guarantor herein shall prove to have been incorrect in any material respect when made or misleading in any material respect when made because of the omission to state a material fact and such incorrect or misleading representation is and continues to be material and unremedied for a period of 30 days after receipt by the Guarantor of written notice thereof; provided, however, that if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 60 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 60-day period. The grace periods set forth in Section 7.1(a) and (b) above shall not affect in any way the right hereunder of any Beneficiary entitled to a payment of any amount payable to it, or performance of any obligation, by the RockGen Lessee under any Operative Document to demand prompt payment thereof, or performance thereof, by the Guarantor immediately upon any failure of the RockGen Lessee to pay or perform the same when it has become due (and, for the avoidance of doubt, without regard to the existence of any cure or grace period before such failure by the RockGen Lessee becomes a Lease Event of Default); provided, however, notwithstanding the foregoing, no Lease Event of Default under Section 16(m) and no remedies under the Facility Lease may be exercised until a Calpine Guaranty Event of Default has occurred and is continuing.
Appears in 1 contract
Sources: Insurance Agreement (Ace Securities Corp Home Loan Trust 1999 a Asset Backed Note)
Defaults. The 17.01. Each of the following events shall constitute an "Event of Default" hereunder (whether any such event shall be voluntary deemed a “default” by Lessee:
A. Lessee’s failure to pay any installment of rent or involuntary to pay any additional rent, which failure persists after the expiration of thirty (30) days from the date Lessor gives notice to Lessee of the existence of such failure;
B. Lessee’s failure to observe or come about perform any of its other obligations under the other terms, covenants, or conditions of this Lease, which failure persists after the expiration of thirty (30) days from the date Lessor gives notice to Lessee of the existence of that failure, but, if the matter that is the subject of the notice is of such a nature that it cannot be effected by operation reasonably corrected within thirty (30) days, then no default shall be deemed to have occurred if Lessee commences the curing of law or pursuant the default within such thirty (30) day period and diligently prosecutes the same to or in compliance with any judgmentcompletion; however, decree or order of any court or any orderif the default is one relating to a matter that exposes space, rule or regulation of any Governmental Entity):
(a) the Guarantor occupants or the RockGen public to a danger to safety or health of which the public authorities have given due notice to Lessee, then such shorter notice to Lessee, whether written or otherwise, shall be sufficient as the circumstances demand with the responsibility of Lessee under the Facility Lease shall fail to make any payment with respect to Periodic Rent or the Termination Value (including the Equity Portion of Termination Value and Debt Portion of Termination Value) when due and payable under such Facility Lease or this Guaranty within five (5) days take corrective measures forthwith;
C. Lessee’s failure, after the same shall become due thereunder; or
(b) the Guarantor or the RockGen Lessee shall fail to make any other amount payable under any Operative Document after the same shall become due thereunder and such failure shall have continued from a period of ten (10) Business Days after receipt days’ notice thereof by Lessor, to pay or cause to be paid, before any fine, penalty, interest or cost may be added thereto, any Imposition or insurance premium payable by Lessor.
D. The commencement of a proceeding against Lessee seeking reorganization, liquidation, dissolution or similar relief in an involuntary case under any applicable bankruptcy, insolvency or other similar law or code now or hereafter in effect which proceeding remains undismissed for a period of sixty (60) days, or the RockGen Lessee and the Guarantor entry of written notice a decree of such failure by the RockGen Lessee and/or the Guarantororder in any court appointing a receiver, as applicable;
liquidator, assignee, custodian, trustee, sequestrator (c) The Guarantor shall fail to comply with its covenants set forth in Section 3.3 (transfer of RockGen Lessee ownership), 3.6 (Guarantor merger) or 8.4 (assignment of Guarantysimilar official) of this GuarantyLessee or of any substantial part of its property, or ordering the winding-up or liquidation of its affairs, which decree or order shall remain unstayed and in effect for a period of sixty (60) days.
(d) the Guarantor shall fail to perform or observe any covenant, obligation or agreement to be performed or observed E. Commencement by it Lessee of a voluntary case under any Calpine Document (applicable bankruptcy, insolvency or other than any covenant, obligation similar law or agreement referred to code now or hereafter in clauses (a) or (b) of this Section 7.1) in any material respect, which shall continue unremedied for (1) with respect to the Guarantor's guaranty of, and agreement with respect to, any nonmonetary obligation, covenant or agreement of the RockGen Lessee under any of the Operative Documents, 30 days after receipt by the Guarantor of written notice thereof from the Owner Participant, the Owner Lessor, the Indenture Trustee or the Pass Through Trustee; provided, however, if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 180 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 180-day period, and (2) with respect to any other obligation, covenant or agreement hereunder, 30 days after receipt by the Guarantor of written notice thereof;
(e) there shall have occurred either (i) a default by the Guarantor or any Restricted Subsidiary under any instrument or instruments under which there is or may be secured or evidenced any Indebtedness of the Guarantor or any Restricted Subsidiary of the Guarantor (other than the Obligations) having an outstanding principal amount of $50,000,000 (or its foreign currency equivalent) or more individually or in the aggregate that has caused the holders thereof to declare such Indebtedness to be due and payable prior to its Stated Maturity, unless such declaration has been rescinded within 30 days or (ii) a default by the Guarantor or any Restricted Subsidiary in the payment when due of any portion of the principal under any such instrument or instruments, and such unpaid portion exceeds $50,000,000 (or its foreign currency equivalent) individually or in the aggregate and is not paideffect, or such default is not cured or waived, within any grace period applicable thereto, unless such Indebtedness is discharged within 30 days of the Guarantor or a Restricted Subsidiary becoming aware of such default;
(f) the Guarantor or any Significant Subsidiary pursuant to or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case;
(ii) consents Lessee’s consent to the entry of an order for relief against it in an involuntary case;
(iii) consents case under any such law or code, or consent to the appointment of or taking possession by a Custodian receiver, liquidator, assignee, trustee, custodian, sequestrator (or other similar official) of it Lessee or for all or substantially all of any substantial part of its property;
(iv) makes a , or the making by Lessee of any general assignment for the benefit of its creditors; or
(v) admits in writing its inability , or failure generally to generally pay its debts as such debts they become due; , or takes the taking by Lessee of any comparable corporate or partnership action under in furtherance of any foreign laws relating to insolvency;
(g) an involuntary case or other proceeding shall be commenced against the Guarantor or any Significant Subsidiary seeking (i) liquidation, reorganization or other relief with respect to it or its debts under Title 11 of the Bankruptcy Code or any bankruptcy, insolvency or other similar law now or hereafter in effect, or (ii) the appointment of a trustee, receiver, liquidator, custodian or other similar official with respect to it or any substantial part of its property or (iii) the winding-up or liquidation of the Guarantor or such Significant Subsidiary; and such involuntary case or other proceeding shall remain undismissed and unstayed for a period of 60 days;
(h) any representation or warranty made by the Guarantor herein shall prove to have been incorrect in any material respect when made or misleading in any material respect when made because of the omission to state a material fact and such incorrect or misleading representation is and continues to be material and unremedied for a period of 30 days after receipt by the Guarantor of written notice thereof; provided, however, that if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 60 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 60-day period. The grace periods set forth in Section 7.1(a) and (b) above shall not affect in any way the right hereunder of any Beneficiary entitled to a payment of any amount payable to it, or performance of any obligation, by the RockGen Lessee under any Operative Document to demand prompt payment thereof, or performance thereof, by the Guarantor immediately upon any failure of the RockGen Lessee to pay or perform the same when it has become due (and, for the avoidance of doubt, without regard to the existence of any cure or grace period before such failure by the RockGen Lessee becomes a Lease Event of Default); provided, however, notwithstanding the foregoing, no Lease Event of Default under Section 16(m) and no remedies under the Facility Lease may be exercised until a Calpine Guaranty Event of Default has occurred and is continuing.
Appears in 1 contract
Sources: Lease (Morgans Hotel Group Co.)
Defaults. The occurrence of any one or more of the following events shall constitute an a "Event of Default" hereunder hereunder:
(A) Borrower fails to pay (i) any of its Liabilities (other than interest or fees) when such Liabilities are due or are declared due (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise) or (ii) any of its Liabilities constituting interest or fees within two days of the date such event Liabilities are due or declared due (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise);
(B) Borrower or any Subsidiary fails or neglects to perform, keep or observe any of its covenants, conditions or agreements contained in any of the other Financing Agreements or Borrower fails or neglects to perform, keep or observe any of its covenants, conditions or agreements contained in:
(i) Subsection 7.2 above and such failure shall continue for more than 24 hours after notice of such failure by Agent to Borrower;
(ii) Subsection 3.1 above and such failure shall continue for three (3) Business Days; provided that such grace period shall not apply, and a Default shall be voluntary deemed to have occurred promptly upon such breach, if such breach may not, in Agent's reasonable determination, be cured during such grace period;
(iii) Subsections 7.1 (other than clause (E) thereof), 7.3 (other than clause (c) thereof), or involuntary 7.8 above and such failure shall continue for five (5) days; provided that such grace period shall not apply, and a Default shall be deemed to have occurred promptly upon such breach, if such breach may not, in Agent's reasonable determination, be cured during such grace period;
(iv) Subsection 7.6 above and such failure shall continue for 14 days after Borrower knew or come about should have known thereof; provided that such grace period shall not apply, and a Default shall be deemed to have occurred promptly upon such breach, if such breach may not, in Agent's reasonable determination, be cured during such grace period;
(v) Subsections 7.4, 7.5, 7.10 or 7.12 and such failure shall continue for thirty (30) days (such 30 days to begin solely for the purposes of a failure to comply with Subsection 7.4, when Borrower knew or should have known of such failure); provided that such grace period shall not apply, and a Default shall be effected deemed to have occurred promptly upon such breach, if such breach may not, in Agent's reasonable determination, be cured during such grace period; and
(vi) any other covenant, condition or agreement contained in this Agreement;
(C) any warranty or representation now or hereafter made by operation Borrower or any Subsidiary is untrue or incorrect in any material respect when made, or any schedule, certificate, statement, report, financial data, notice, or writing furnished at any time by Borrower or any Subsidiary to Agent or any Lender is untrue or incorrect in any material respect on the date as of which the facts set forth therein are stated or certified or any of the foregoing omits to state a fact necessary to make the statements therein contained not misleading in any material respect;
(D) one or more judgment or order requiring a payment or payments in excess of $250,000 in the aggregate (except for judgments which are not a lien on personal property and which are being contested by Borrower and its Subsidiaries in good faith) shall be rendered against Borrower or any Subsidiary and such judgment or order shall remain unsatisfied or undischarged and in effect for thirty (30) consecutive days without a stay of enforcement or execution, provided that this Subsection 9.1(D) shall not apply to any judgment for which Borrower and its Subsidiaries is fully insured (except for normal deductibles in connection therewith not to exceed $500,000 per occurrence in the case of casualty and property insurance) and with respect to which the insurer has assumed the defense and is not defending under reservation of right and with respect to which Agent reasonably believes the insurer will pay the full amount thereof (except for normal deductibles in connection therewith not to exceed $500,000 per occurrence in the case of casualty and property insurance);
(E) a notice of lien, levy or assessment is filed or recorded with respect to all or a substantial part of the assets of Borrower or any Subsidiary by the U.S., or any department, agency or instrumentality thereof, or by any state, county, municipality or other governmental agency or any taxes or debts owing at any time or times hereafter to any one or more of them become a lien upon all or a substantial part of the Collateral or any Subsidiary's assets, and (i) such lien, levy or assessment is not discharged or released or the enforcement thereof is not stayed within thirty (30) days of the notice or attachment thereof, or (ii) if the enforcement thereof is stayed, such stay shall cease to be in effect, provided that this Subsection 9.1(E) shall not apply to any liens, levies or assessments which relate to current taxes not yet due and payable;
(F) there shall occur any loss, theft, substantial damage or destruction of any item or items of the Collateral for which Borrower is not fully insured as required by this Agreement, the other Financing Agreements or any guarantee (a "Loss"), if the amount of such Loss not fully covered by insurance (including any deductible in connection therewith), together with the amount of all other Losses not fully covered by insurance (including any deductibles in connection therewith) occurring in the same Fiscal Year, exceeds $500,000;
(G) all or any part of the Collateral is attached, seized, subjected to a writ or distress warrant, or is levied upon, or comes within the possession of any receiver, trustee, custodian or assignee for the benefit of creditors and on or before the thirtieth (30th) day thereafter such assets are not returned to Borrower and/or such writ, distress warrant or levy is not dismissed, stayed or lifted if the amount of such Collateral or assets or collateral, together with any other such Collateral, assets and collateral that is so attached, seized, subjected to writ or distress warrant or levied upon, exceeds $250,000 at any time;
(H) a proceeding under any bankruptcy, reorganization, arrangement of debt, insolvency, readjustment of debt or receivership law or pursuant statute is filed (i) against Borrower or any of its Subsidiaries and an adjudication or appointment is made or order for relief is entered, or such proceeding remains undismissed for a period in excess of sixty (60) days, or (ii) by Borrower or any of its Subsidiaries or Borrower or any of its Subsidiaries makes an assignment for the benefit of creditors or Borrower or any of its Subsidiaries takes any corporate action to authorize any of the foregoing;
(I) Borrower or any of its Subsidiaries voluntarily or involuntarily dissolves or is dissolved, terminates or is terminated;
(J) Borrower or any of its Subsidiaries becomes insolvent or fails generally to pay its debts as they become due;
(K) Borrower or any of its Subsidiaries is enjoined, restrained, or in compliance with any judgment, decree or way prevented by the order of any court or any orderadministrative or regulatory agency from conducting all or any part of its business affairs;
(L) a breach by Borrower or any Subsidiary shall occur under any material agreement, rule document or regulation instrument (other than an agreement, document or instrument evidencing the lending of money), whether heretofore, now or hereafter existing between Borrower or any Governmental Entity):Subsidiary and any other Person, and such breach continues unwaived for more than thirty (30) days after such breach first occurs, provided that such grace period shall not apply, and a Default shall be deemed to have occurred promptly upon such breach, if such breach may not, in Agent's reasonable determination, be cured by Borrower or such Subsidiary, as the case may be, during such thirty (30) day grace period;
(i) a default, breach, or Event of Default shall occur under any Related Document (as defined in the Participation Agreement) or (ii), as to more than $250,000 in Indebtedness in the aggregate at any time (a) the Guarantor Borrower or the RockGen Lessee under the Facility Lease any Subsidiary shall fail to make any payment with respect to Periodic Rent due (whether by scheduled maturity, required prepayment, acceleration, demand or the Termination Value (including the Equity Portion of Termination Value and Debt Portion of Termination Valueotherwise) when due and payable under such Facility Lease or this Guaranty within five (5) days after the same shall become due thereunder; or
(b) the Guarantor or the RockGen Lessee shall fail to make on any other amount payable under any Operative Document after the same shall become due thereunder obligation for borrowed money and such failure shall have continued from a period of ten (10) Business Days continue after receipt by the RockGen Lessee and applicable grace period, if any, specified in the Guarantor of written notice of agreement or instrument relating to such failure by the RockGen Lessee and/or the Guarantor, as applicable;
(c) The Guarantor shall fail to comply with its covenants set forth in Section 3.3 (transfer of RockGen Lessee ownership), 3.6 (Guarantor merger) or 8.4 (assignment of Guaranty) of this Guaranty.
(d) the Guarantor shall fail to perform or observe any covenant, obligation or agreement to be performed or observed by it under any Calpine Document (other than any covenant, obligation or agreement referred to in clauses (a) Indebtedness; or (b) of this Section 7.1) in any material respect, which shall continue unremedied for (1) with respect to the Guarantor's guaranty of, and agreement with respect to, any nonmonetary obligation, covenant or agreement of the RockGen Lessee under any of the Operative Documents, 30 days after receipt by the Guarantor of written notice thereof from the Owner Participant, the Owner Lessor, the Indenture Trustee or the Pass Through Trustee; provided, however, if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition Indebtedness shall be extended up to an additional 180 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 180-day period, and (2) with respect to any other obligation, covenant or agreement hereunder, 30 days after receipt by the Guarantor of written notice thereof;
(e) there shall have occurred either (i) a default by the Guarantor or any Restricted Subsidiary under any instrument or instruments under which there is or may be secured or evidenced any Indebtedness of the Guarantor or any Restricted Subsidiary of the Guarantor (other than the Obligations) having an outstanding principal amount of $50,000,000 (or its foreign currency equivalent) or more individually or in the aggregate that has caused the holders thereof to declare such Indebtedness declared to be due and payable or required to be prepaid (other than by a regularly scheduled required prepayment) or accelerated prior to its Stated Maturity, unless such declaration has been rescinded within 30 days or the stated maturity thereof;
(iiN) a default by the Guarantor or any Restricted Subsidiary material and adverse change shall occur (i) in the payment when due present or reasonably foreseeable prospective operations or financial condition of Borrower or in the value of any material portion of the principal under any such instrument or instruments, and such unpaid portion exceeds $50,000,000 (or its foreign currency equivalent) individually or in the aggregate and is not paid, or such default is not cured or waived, within any grace period applicable thereto, unless such Indebtedness is discharged within 30 days of the Guarantor or a Restricted Subsidiary becoming aware of such default;
(f) the Guarantor or any Significant Subsidiary pursuant to or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case;
(ii) consents to the entry of an order for relief against it in an involuntary case;
(iii) consents to the appointment of a Custodian of it or for all or substantially all of its property;
(iv) makes a general assignment for the benefit of its creditors; or
(v) admits in writing its inability to generally pay its debts as such debts become due; or takes any comparable action under any foreign laws relating to insolvency;
(g) an involuntary case or other proceeding shall be commenced against the Guarantor or any Significant Subsidiary seeking (i) liquidation, reorganization or other relief with respect to it or its debts under Title 11 of the Bankruptcy Code or any bankruptcy, insolvency or other similar law now or hereafter in effectCollateral, or (ii) which materially impairs the appointment ability of a trusteeBorrower to perform Borrower's obligations under this Agreement and the other Financing Agreements, receiver, liquidator, custodian or other similar official with respect to it or any substantial part of its property or (iii) the winding-up or liquidation of the Guarantor or such Significant Subsidiary; and such involuntary in each case or other proceeding shall remain undismissed and unstayed for a period of 60 days;
(h) any representation or warranty made as determined by the Guarantor herein shall prove to have been incorrect Required Lenders in any material respect when made or misleading its sole discretion exercised in any material respect when made because of the omission to state a material fact and such incorrect or misleading representation is and continues to be material and unremedied for a period of 30 days after receipt by the Guarantor of written notice thereof; provided, however, that if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 60 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 60-day period. The grace periods set forth in Section 7.1(a) and (b) above shall not affect in any way the right hereunder of any Beneficiary entitled to a payment of any amount payable to it, or performance of any obligation, by the RockGen Lessee under any Operative Document to demand prompt payment thereof, or performance thereof, by the Guarantor immediately upon any failure of the RockGen Lessee to pay or perform the same when it has become due (and, for the avoidance of doubt, without regard to the existence of any cure or grace period before such failure by the RockGen Lessee becomes a Lease Event of Default); provided, however, notwithstanding the foregoing, no Lease Event of Default under Section 16(m) and no remedies under the Facility Lease may be exercised until a Calpine Guaranty Event of Default has occurred and is continuing.Good Faith;
Appears in 1 contract
Defaults. The Tenant agrees that any one or more of the following events shall constitute an "Event be considered events of Default" hereunder (whether any such event shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any Governmental Entity):default as said term is used herein:
(a) The filing of a petition by or against Tenant for adjudication as bankrupt or insolvent, for its reorganization or for the Guarantor appointment of a receiver or trustee of Tenant's property; an assignment by Tenant for the benefit of creditors; or the RockGen Lessee under taking of possession of the Facility Lease property of Tenant by any governmental officer or agency pursuant to statutory authority for the dissolution or liquidation of Tenant;
(b) The Leased Premises are levied upon by any revenue officer or similar officer; or
(c) Tenant shall vacate the Leased Premises or abandon the same during the term hereof; or
(d) Tenant shall fail to make contest the validity of any lien or claimed lien and give security to Landlord to insure payment thereof, or having commenced to contest the same and having given such security, shall fail to prosecute such contest with respect diligence, or shall fail to Periodic Rent or have the Termination Value same released and satisfy any judgment rendered thereon, and such default continues for fifteen (including the Equity Portion 15) days after notice thereof in writing to Tenant; or
(e) Tenant shall default in any monthly payments of Termination Value and Debt Portion of Termination Value) rent required to be made by Tenant hereunder when due as herein provided; or
(f) Tenant's failure to perform any other covenant or condition of this Lease within fifteen (15) days after written notice and payable demand, unless the failure is of such a character as to require more than fifteen (15) days to cure, in which event Tenant's failure to proceed diligently to cure such failure shall constitute an event of default.
(g) In the event Landlord has given Tenant two or more notices under such Facility subparagraph (f) and Tenant again defaults in any of the other covenants and agreements of this Lease or this Guaranty within one (1) year of giving of a notice under subparagraph (f), Landlord may proceed as listed below after giving five (5) days after the same shall become due thereunder; or
(b) the Guarantor or the RockGen Lessee shall fail to make any other amount payable under any Operative Document after the same shall become due thereunder and such failure shall have continued from a period of ten (10) Business Days after receipt by the RockGen Lessee and the Guarantor of written notice of such failure by the RockGen Lessee and/or the Guarantor, as applicable;
(c) The Guarantor shall fail to comply with its covenants set forth in Section 3.3 (transfer of RockGen Lessee ownership), 3.6 (Guarantor merger) default whether or 8.4 (assignment of Guaranty) of this Guaranty.
(d) the Guarantor shall fail to perform or observe any covenant, obligation or agreement to be performed or observed by it under any Calpine Document (other than any covenant, obligation or agreement referred to in clauses (a) or (b) of this Section 7.1) in any material respect, which shall continue unremedied for (1) with respect to the Guarantor's guaranty of, and agreement with respect to, any nonmonetary obligation, covenant or agreement of the RockGen Lessee under any of the Operative Documents, 30 days after receipt by the Guarantor of written notice thereof from the Owner Participant, the Owner Lessor, the Indenture Trustee or the Pass Through Trustee; provided, however, if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 180 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 180-day period, and (2) with respect to any other obligation, covenant or agreement hereunder, 30 days after receipt by the Guarantor of written notice thereof;
(e) there shall have occurred either (i) a default by the Guarantor or any Restricted Subsidiary under any instrument or instruments under which there is or may be secured or evidenced any Indebtedness of the Guarantor or any Restricted Subsidiary of the Guarantor (other than the Obligations) having an outstanding principal amount of $50,000,000 (or its foreign currency equivalent) or more individually or in the aggregate that has caused the holders thereof to declare such Indebtedness to be due and payable prior to its Stated Maturity, unless such declaration has been rescinded within 30 days or (ii) a default by the Guarantor or any Restricted Subsidiary in the payment when due of any portion of the principal under any such instrument or instruments, and such unpaid portion exceeds $50,000,000 (or its foreign currency equivalent) individually or in the aggregate and is not paid, or such default is not cured or waived, within any grace period applicable thereto, unless such Indebtedness is discharged within 30 days of the Guarantor or a Restricted Subsidiary becoming aware of such default;
(f) the Guarantor or any Significant Subsidiary pursuant to or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case;
(ii) consents to the entry of an order for relief against it in an involuntary case;
(iii) consents to the appointment of a Custodian of it or for all or substantially all of its property;
(iv) makes a general assignment for the benefit of its creditors; or
(v) admits in writing its inability to generally pay its debts as such debts become due; or takes any comparable action under any foreign laws relating to insolvency;
(g) an involuntary case or other proceeding shall be commenced against the Guarantor or any Significant Subsidiary seeking (i) liquidation, reorganization or other relief with respect to it or its debts under Title 11 of the Bankruptcy Code or any bankruptcy, insolvency or other similar law now or hereafter in effect, or (ii) the appointment of a trustee, receiver, liquidator, custodian or other similar official with respect to it or any substantial part of its property or (iii) the winding-up or liquidation of the Guarantor or such Significant Subsidiary; and such involuntary case or other proceeding shall remain undismissed and unstayed for a period of 60 days;
(h) any representation or warranty made by the Guarantor herein shall prove to have been incorrect in any material respect when made or misleading in any material respect when made because of the omission to state a material fact and such incorrect or misleading representation is and continues to be material and unremedied for a period of 30 days after receipt by the Guarantor of written notice thereof; provided, however, that if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 60 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 60-day period. The grace periods set forth in Section 7.1(a) and (b) above shall not affect in any way the right hereunder of any Beneficiary entitled to a payment of any amount payable to it, or performance of any obligation, by the RockGen Lessee under any Operative Document to demand prompt payment thereof, or performance thereof, by the Guarantor immediately upon any failure of the RockGen Lessee to pay or perform the same when it has become due (and, for the avoidance of doubt, without regard to the existence of any cure or grace period before such failure by the RockGen Lessee becomes a Lease Event of Default); provided, however, notwithstanding the foregoing, no Lease Event of Default under Section 16(m) and no remedies under the Facility Lease may be exercised until a Calpine Guaranty Event of Default has occurred and is continuingsaid notice.
Appears in 1 contract
Sources: Lease (Ventures National Inc)
Defaults. The following shall be events shall constitute of default by Tenant (an "Event event of Defaultdefault" hereunder (whether any such event shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any Governmental Entity):"default") hereunder:
(a) the Guarantor or the RockGen Lessee under the Facility Lease Tenant shall fail to make any payment with respect to Periodic pay Rent or the Termination Value (including the Equity Portion of Termination Value and Debt Portion of Termination Value) when due and payable under this Lease and such Facility Lease or this Guaranty within failure continues for five (5) days after from the same shall become due thereunder; ordate Tenant receives from Landlord written notice that such payment was due;
(b) the Guarantor Any representation or the RockGen Lessee warranty made by Tenant in this Lease shall fail to make be false or misleading in any other amount payable under any Operative Document after the same shall become due thereunder and such failure shall have continued from a period of ten (10) Business Days after receipt by the RockGen Lessee and the Guarantor of written notice of such failure by the RockGen Lessee and/or the Guarantor, as applicablematerial respect;
(c) The Guarantor Tenant shall abandon the Premises or any substantial part thereof and fail to comply with its covenants set forth maintain the Premises in Section 3.3 (transfer of RockGen Lessee ownership), 3.6 (Guarantor merger) or 8.4 (assignment of Guaranty) of this Guaranty.the condition required herein;
(d) the Guarantor shall fail to perform Tenant or observe any covenant, obligation or agreement to be performed or observed by it under any Calpine Document (other than any covenant, obligation or agreement referred to in clauses (a) or (b) guarantor of this Section 7.1) in any material respect, which Lease shall continue unremedied for (1) with respect to the Guarantor's guaranty of, and agreement with respect to, any nonmonetary obligation, covenant or agreement of the RockGen Lessee under any of the Operative Documents, 30 days after receipt by the Guarantor of written notice thereof from the Owner Participant, the Owner Lessor, the Indenture Trustee or the Pass Through Trustee; provided, however, if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 180 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 180-day period, and (2) with respect to any other obligation, covenant or agreement hereunder, 30 days after receipt by the Guarantor of written notice thereof;
(e) there shall have occurred either (i) a default by the Guarantor or any Restricted Subsidiary under any instrument or instruments under which there is or may be secured or evidenced any Indebtedness of the Guarantor or any Restricted Subsidiary of the Guarantor (other than the Obligations) having an outstanding principal amount of $50,000,000 (or its foreign currency equivalent) or more individually or in the aggregate that has caused the holders thereof to declare such Indebtedness to be due and payable prior to its Stated Maturity, unless such declaration has been rescinded within 30 days or become insolvent; (ii) a default by the Guarantor or any Restricted Subsidiary admit in the payment when due of any portion of the principal under any such instrument or instruments, and such unpaid portion exceeds $50,000,000 (or writing its foreign currency equivalent) individually or in the aggregate and is not paid, or such default is not cured or waived, within any grace period applicable thereto, unless such Indebtedness is discharged within 30 days of the Guarantor or a Restricted Subsidiary becoming aware of such default;
(f) the Guarantor or any Significant Subsidiary pursuant inability to or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case;
(ii) consents to the entry of an order for relief against it in an involuntary case;
pay its debts; (iii) consents to the appointment of a Custodian of it or for all or substantially all of its property;
(iv) makes make a general assignment for the benefit of its creditors; or
(iv) file a voluntary petition or be the subject of an involuntary petition for arrangement or reorganization that is not dismissed within sixty (60) days or seeking the appointment of a receiver or other relief under bankruptcy laws; or (v) admits take any action to authorize or in writing its inability contemplation of any of the actions set forth above in this paragraph;
(e) There shall be an attachment, execution or other seizure of all or substantially all of Tenant's or any guarantor's assets or this leasehold;
(f) Tenant shall fail to generally pay its debts as discharge any mechanic's lien or other lien or encumbrances placed upon the Premises within thirty (30) days after any such debts become due; lien or takes any comparable action under any foreign laws relating to insolvencyencumbrance is filed against the Premises;
(g) an involuntary case Tenant shall fail to maintain or other proceeding shall cause to be commenced against the Guarantor maintained any insurance coverage required to be maintained by Tenant or any Significant Subsidiary seeking (i) liquidation, reorganization or other relief with respect to it or its debts Tenant's contractors under Title 11 of the Bankruptcy Code or any bankruptcy, insolvency or other similar law now or hereafter in effect, or (ii) the appointment of a trustee, receiver, liquidator, custodian or other similar official with respect to it or any substantial part of its property or (iii) the winding-up or liquidation of the Guarantor or such Significant Subsidiary; and such involuntary case or other proceeding shall remain undismissed and unstayed for a period of 60 daysthis Lease;
(h) any representation or warranty made by the Guarantor herein Tenant shall prove fail to have been incorrect in any material respect when made or misleading in any material respect when made because comply with Section 13 of the omission Lease;
21 22 (i) Tenant fails to state a material fact comply with any covenant, agreement or obligation hereunder (other than those listed above in this Section), and such incorrect or misleading representation is and failure continues to be material and unremedied for a period of 30 thirty (30) days after receipt by the Guarantor of written notice thereofthereof to Tenant; provided, however, that if such condition failure is of a nature that cannot reasonably be remedied cured within such thirty (30-day period, then the period within which to remedy such condition shall be extended up to an additional 60 ) days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 60-day period. The grace periods set forth in Section 7.1(a) and (b) above Tenant shall not affect be in any way the right hereunder of any Beneficiary entitled default if within said thirty (30) day period Tenant shall have commenced to a payment of any amount payable to it, or performance of any obligation, by the RockGen Lessee under any Operative Document to demand prompt payment thereof, or performance thereof, by the Guarantor immediately upon any failure of the RockGen Lessee to pay or perform the same when it has become due (and, for the avoidance of doubt, without regard to the existence of any cure or grace period before such failure by the RockGen Lessee becomes a Lease Event of Default); provided, however, notwithstanding the foregoing, no Lease Event of Default under Section 16(m) and no remedies under the Facility Lease may be exercised until a Calpine Guaranty Event of Default has occurred and is continuingshall diligently prosecute such cure to completion.
Appears in 1 contract
Defaults. The following events shall constitute an "a Restructuring Event of Default" hereunder (whether any such event shall be voluntary or involuntary or come about or be effected by operation Default under this Amendment and an Event of law or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any Governmental Entity):
(a) the Guarantor or the RockGen Lessee Default under the Facility Lease Loan Documents:
a. Any Loan Party shall fail to make comply with, perform or observe any payment with respect to Periodic Rent term, condition, covenant or the Termination Value (including the Equity Portion of Termination Value and Debt Portion of Termination Value) when due and payable under such Facility Lease or agreement set forth in this Guaranty within five (5) days after the same shall become due thereunder; or
(b) the Guarantor or the RockGen Lessee shall fail to make any other amount payable under any Operative Document after the same shall become due thereunder Amendment, and such failure shall have continued from a period of ten (10) Business Days after receipt by the RockGen Lessee and the Guarantor of written notice of such failure by the RockGen Lessee and/or the Guarantor, as applicable;
(c) The Guarantor shall fail to comply with its covenants set forth in Section 3.3 (transfer of RockGen Lessee ownership), 3.6 (Guarantor merger) or 8.4 (assignment of Guaranty) of this Guaranty.
(d) the Guarantor shall fail to perform or observe any covenant, obligation or agreement to be performed or observed by it under any Calpine Document (other than any covenant, obligation or agreement referred to in clauses (a) or (b) of this Section 7.1) in any material respect, which shall continue unremedied for (1) two days with respect to the Guarantor's guaranty of, and agreement with respect to, any nonmonetary obligation, covenant or agreement of the RockGen Lessee under any of the Operative Documents, 30 days after receipt by the Guarantor of written notice thereof from the Owner Participant, the Owner Lessor, the Indenture Trustee or the Pass Through Trustee; provided, however, if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 180 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 180-day period, and (2) with respect to any other obligation, covenant or agreement hereunder, 30 days after receipt by the Guarantor of written notice thereof;
(e) there shall have occurred either (i) a default by the Guarantor or any Restricted Subsidiary under any instrument or instruments under which there is or may be secured or evidenced any Indebtedness of the Guarantor or any Restricted Subsidiary of the Guarantor (other than the Obligations) having an outstanding principal amount of $50,000,000 (or its foreign currency equivalent) or more individually or in the aggregate that has caused the holders thereof to declare such Indebtedness to be due and payable prior to its Stated Maturity, unless such declaration has been rescinded within 30 days or (ii) a default by the Guarantor or any Restricted Subsidiary in the payment when due of any portion amount of the principal under any such instrument or instrumentsmoney hereunder, and such unpaid portion exceeds $50,000,000 (or its foreign currency equivalent) individually or in the aggregate and is not paid, or such default is not cured or waived, within any grace period applicable thereto, unless such Indebtedness is discharged within 30 five days of the Guarantor or a Restricted Subsidiary becoming aware of such default;
(f) the Guarantor or any Significant Subsidiary pursuant to or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case;
(ii) consents to the entry of an order for relief against it in an involuntary case;
(iii) consents to the appointment of a Custodian of it or for all or substantially all of its property;
(iv) makes a general assignment for the benefit of its creditors; or
(v) admits in writing its inability to generally pay its debts as such debts become due; or takes any comparable action under any foreign laws relating to insolvency;
(g) an involuntary case or other proceeding shall be commenced against the Guarantor or any Significant Subsidiary seeking (i) liquidation, reorganization or other relief with respect to it or its debts under Title 11 of the Bankruptcy Code or any bankruptcyother matter, insolvency or other similar law now or hereafter in effect, or (ii) the appointment of a trustee, receiver, liquidator, custodian or other similar official with respect to it or any substantial part of its property or (iii) the winding-up or liquidation of the Guarantor or such Significant Subsidiary; and such involuntary case or other proceeding shall remain undismissed and unstayed for a period of 60 days;
(h) any representation or warranty made by the Guarantor herein shall prove to have been incorrect in any material respect when made or misleading in any material respect when made because of the omission to state a material fact and such incorrect or misleading representation is and continues to be material and unremedied for a period of 30 days after receipt by the Guarantor of written notice thereof; provided, however, that if such condition can(i) any payment by the Loan Parties on account of the Electrolux Subordinated Debt not be remedied within such made in strict compliance with the provisions of Section 1.2(iii) of this Amendment shall constitute an immediate Restructuring Event of Default hereunder without any grace period or opportunity to cure, (ii) the Loan Parties' failure to comply with the Tangible Net Worth covenant contained in Section 10.6.3 of the Credit Agreement, solely as of April 30-day period, then 2002, shall not constitute a Restructuring Event of Default hereunder, and (iii) the period within which Loan Parties' failure to remedy such condition pay the Electrolux Subordinated Debt when due on May 1, 2002, shall not constitute a Restructuring Event of Default hereunder.
b. Any representation or warranty of the Loan Parties contained in this Amendment shall be extended up to an additional 60 daysuntrue when made or shall, so long as during the Guarantor diligently pursues such remedy and such condition is reasonably capable term of being remedied within such additional 60-day period. this Amendment, become impaired, untrue or misleading.
c. The grace periods set forth in Section 7.1(a) and (b) above shall not affect in any way the right hereunder occurrence of any Beneficiary entitled to a payment of any amount payable to it, or performance of any obligation, by the RockGen Lessee under any Operative Document to demand prompt payment thereof, or performance thereof, by the Guarantor immediately upon any failure of the RockGen Lessee to pay or perform the same when it has become due (and, for the avoidance of doubt, without regard to the existence of any cure or grace period before such failure by the RockGen Lessee becomes a Lease Event of Default); provided, however, notwithstanding the foregoing, no Lease Event of Default under Section 16(m) and no remedies under the Facility Lease may be exercised until a Calpine Guaranty Event Credit Agreement other than the Existing Defaults.
d. The entry of Default has occurred and is continuingany judgment, order, decree, injunction or finding by any court, arbitrator or similar tribunal that materially threatens the ability of the Loan Parties to implement or continue the implementation of their business improvement plan during the Restructuring Period.
Appears in 1 contract
Defaults. The occurrence of any one or more of the following events shall constitute an "“Event of Default" hereunder (whether any such event shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any Governmental Entity):
(a) the Guarantor or the RockGen Lessee under the Facility Lease ”: The Borrower shall fail to make pay (i) any interest due on the Note, or any other amount payable hereunder (other than a principal payment with on the Note) within five days after the same becomes due; or (ii) any principal amount due on the Note when due; The Borrower shall default in the performance or observance of any agreement, covenant, condition, provision or term contained in Article III of this Agreement; The Borrower shall default in the performance or observance of any of the other agreements, covenants, conditions, provisions or terms in this Agreement continuing for a period of thirty days after written notice thereof is given to the Borrower by the Foundation; Any representation or warranty made by the Borrower herein or any certificate delivered pursuant hereto, or any financial statement delivered to the Foundation hereunder, shall prove to have been false in any material respect as of the time when made or given; The Borrower shall fail to Periodic Rent or the Termination Value (including the Equity Portion of Termination Value pay as and Debt Portion of Termination Value) when due and payable (whether at maturity, by acceleration or otherwise) all or any part of the principal of or interest on any indebtedness of or assumed by it, or of the rentals due under such Facility Lease any lease or this Guaranty within five (5) days after the same shall become due thereunder; or
(b) the Guarantor sublease, or the RockGen Lessee shall fail to make of any other amount payable obligation for the payment of money, and such default shall not be cured within the period or periods of grace, if any, specified in the instruments governing such obligations; or default shall occur under any Operative Document after the same shall become due thereunder evidence of, or any indenture, lease, sublease, agreement or other instrument governing such obligations, and such failure default shall have continued from continue for a period of ten (10) Business Days after receipt by time sufficient to permit the RockGen Lessee and acceleration of the Guarantor maturity of written notice any such indebtedness or other obligation or the termination of such failure by lease or sublease; A final judgment which, together with other outstanding final judgments against the RockGen Lessee and/or Borrower exceeds an aggregate of $50,000 shall be entered against the GuarantorBorrower and shall remain outstanding and unsatisfied, as applicable;
(c) The Guarantor shall fail to comply with its covenants set forth in Section 3.3 (transfer of RockGen Lessee ownership)unbonded, 3.6 (Guarantor merger) unstayed or 8.4 (assignment of Guaranty) of this Guaranty.
(d) the Guarantor shall fail to perform or observe any covenant, obligation or agreement to be performed or observed by it under any Calpine Document (other than any covenant, obligation or agreement referred to in clauses (a) or (b) of this Section 7.1) in any material respect, which shall continue unremedied for (1) with respect to the Guarantor's guaranty of, and agreement with respect to, any nonmonetary obligation, covenant or agreement of the RockGen Lessee under any of the Operative Documents, 30 uninsured after 60 days after receipt by the Guarantor of written notice thereof from the Owner Participant, the Owner Lessor, the Indenture Trustee date of entry thereof; or the Pass Through Trustee; provided, however, if such condition cannot be remedied within such 30-day period, then the period within any judgment which to remedy such condition exceeds $25,000 shall be extended up to an additional 180 days, so long as entered against the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 180-day period, and (2) with respect to any other obligation, covenant or agreement hereunder, 30 days after receipt by the Guarantor of written notice thereof;
(e) there shall have occurred either Borrower; The Borrower shall: (i) a default by the Guarantor or any Restricted Subsidiary under any instrument or instruments under which there is or may be secured or evidenced any Indebtedness of the Guarantor or any Restricted Subsidiary of the Guarantor (other than the Obligations) having an outstanding principal amount of $50,000,000 (or its foreign currency equivalent) or more individually or in the aggregate that has caused the holders thereof to declare such Indebtedness to be due and payable prior to its Stated Maturity, unless such declaration has been rescinded within 30 days become insolvent; or (ii) a default by the Guarantor or any Restricted Subsidiary in the payment when due of any portion of the principal under any such instrument or instruments, and such unpaid portion exceeds $50,000,000 (or its foreign currency equivalent) individually or in the aggregate and is not paidbe unable, or such default is not cured admit in writing its inability to pay its debts as they mature; or waived, within any grace period applicable thereto, unless such Indebtedness is discharged within 30 days of the Guarantor or a Restricted Subsidiary becoming aware of such default;
(f) the Guarantor or any Significant Subsidiary pursuant to or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case;
(ii) consents to the entry of an order for relief against it in an involuntary case;
(iii) consents to the appointment of a Custodian of it or for all or substantially all of its property;
(iv) makes make a general assignment for the benefit of creditors or to an agent authorized to liquidate any substantial amount of its creditorsproperty; or
or (iv) become the subject of an “order for relief” within the meaning of the United States Bankruptcy Code; or (v) admits in writing its inability to generally pay its debts as such debts become due; or takes any comparable action under any foreign laws relating to insolvency;
(g) an involuntary case or other proceeding shall be commenced against the Guarantor or any Significant Subsidiary seeking (i) subject of a creditor’s petition for liquidation, reorganization or other relief with respect to it or its debts under Title 11 of the Bankruptcy Code or any bankruptcy, insolvency effect a plan or other similar law now or hereafter in effect, arrangement with creditors; or (iivi) apply to a court for the appointment of a trustee, receiver, liquidator, custodian or other similar official receiver for any of its assets; or (vii) have a custodian or receiver appointed for any of its assets (with respect or without its consent); or (viii) have any of its assets garnished, seized or forfeited, or threatened with garnishment, seizure or forfeiture; or (ix) otherwise become the subject of any insolvency proceedings or propose or enter into any formal or informal composition or arrangement with its creditors. This Agreement or the Note shall, at any time after their respective execution and delivery, and for any reason, cease to it be in full force and effect or be declared null and void, or be revoked or terminated, or the validity or enforceability thereof or hereof shall be contested by the Borrower or any substantial part of its property or (iii) the winding-up or liquidation shareholder of the Guarantor Borrower, or such Significant Subsidiarythe Borrower shall deny that it has any or further liability or obligation thereunder or hereunder, as the case may be; and such involuntary case or other proceeding The Internal Revenue Service shall remain undismissed and unstayed for revoke the Borrower’s status as a period of 60 days;
(htax-exempt organization under Section 501(c)(3) any representation or warranty made by the Guarantor herein shall prove to have been incorrect in any material respect when made or misleading in any material respect when made because of the omission to state a material fact and such incorrect or misleading representation is and continues to be material and unremedied for a period of 30 days after receipt by the Guarantor of written notice thereof; provided, however, that if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 60 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 60-day period. The grace periods set forth in Section 7.1(a) and (b) above shall not affect in any way the right hereunder of any Beneficiary entitled to a payment of any amount payable to it, or performance of any obligation, by the RockGen Lessee under any Operative Document to demand prompt payment thereof, or performance thereof, by the Guarantor immediately upon any failure of the RockGen Lessee to pay or perform the same when it has become due (and, for the avoidance of doubt, without regard to the existence of any cure or grace period before such failure by the RockGen Lessee becomes a Lease Event of Default); provided, however, notwithstanding the foregoing, no Lease Event of Default under Section 16(m) and no remedies under the Facility Lease may be exercised until a Calpine Guaranty Event of Default has occurred and is continuingInternal Revenue Code.
Appears in 1 contract
Sources: Term Loan Agreement
Defaults. The following events Licensee's default : If Licensee shall constitute an "Event of Default" hereunder (whether any such event shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or default in compliance with any judgment, decree or order the payment of any court sums payable in accordance with the terms of this Agreement, or any orderfails to respect a credit or copyright obligation, rule or regulation and such default shall continue for a period of any Governmental Entity):
fifteen (a15) the Guarantor or the RockGen Lessee under the Facility Lease shall fail to make any payment with respect to Periodic Rent or the Termination Value (including the Equity Portion of Termination Value and Debt Portion of Termination Value) when due and payable under such Facility Lease or this Guaranty within five (5) working days after the same shall become due thereunder; or
(b) the Guarantor or the RockGen Lessee shall fail to make any other amount payable under any Operative Document after the same shall become due thereunder and such failure shall have continued from Licensee's receipt of a period of ten (10) Business Days after receipt by the RockGen Lessee and the Guarantor of written notice from the Licensor of such failure by the RockGen Lessee and/or the Guarantordefault, as applicable;
(c) The Guarantor or If Licensee shall fail fall to comply with its covenants set forth in Section 3.3 (transfer of RockGen Lessee ownership), 3.6 (Guarantor merger) or 8.4 (assignment of Guaranty) of this Guaranty.
(d) the Guarantor shall fail to duly perform or observe any covenant, obligation or agreement to be performed or observed by it under any Calpine Document (other than any covenant, obligation or agreement referred to in clauses (a) or (b) of this Section 7.1) in any material respect, which shall continue unremedied for (1) with respect to the Guarantor's guaranty of, and agreement with respect to, any nonmonetary obligationterm, covenant or agreement condition of this Agreement and of the RockGen Lessee under any Licensee has not remedied the situation for a period of the Operative Documents, 30 fifteen (15) working days after the Licensee's receipt by the Guarantor of written notice thereof from the Owner ParticipantLicensor of such failure, the Owner Lessor, the Indenture Trustee or the Pass Through Trustee; provided, however, if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition Licensee shall be extended up to an additional 180 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 180-day period, and (2) with respect to any other obligation, covenant or agreement hereunder, 30 days after receipt by the Guarantor of written notice thereof;
(e) there shall have occurred either (i) adjudicated a default by the Guarantor or any Restricted Subsidiary under any instrument or instruments under which there is or may be secured or evidenced any Indebtedness of the Guarantor or any Restricted Subsidiary of the Guarantor (other than the Obligations) having an outstanding principal amount of $50,000,000 (or its foreign currency equivalent) or more individually or in the aggregate that has caused the holders thereof to declare such Indebtedness to be due and payable prior to its Stated Maturity, unless such declaration has been rescinded within 30 days or (ii) a default by the Guarantor or any Restricted Subsidiary in the payment when due of any portion of the principal under any such instrument or instruments, and such unpaid portion exceeds $50,000,000 (or its foreign currency equivalent) individually or in the aggregate and is not paidbankrupt, or such default is not cured shall file a petition in bankruptcy, or waived, within any grace period applicable thereto, unless such Indebtedness is discharged within 30 days of the Guarantor or a Restricted Subsidiary becoming aware of such default;
(f) the Guarantor or any Significant Subsidiary pursuant to or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case;
(ii) consents to the entry of shall make an order for relief against it in an involuntary case;
(iii) consents to the appointment of a Custodian of it or for all or substantially all of its property;
(iv) makes a general assignment for the benefit of creditors, or shall take advantage of the provisions of any bankruptcy or debtor's relief act, or if any involuntary petition In bankruptcy is filed against Licensee and Is not vacated or discharged within thirty (30) days, or if a receiver is appointed for a substantial portion of its creditors; or
property and is not discharged in thirty (v30) admits days, or if Licensee voluntarily or by operation of law shall lose control of the above named television station or its interest therein, or the license to operate the same, then and upon the occurrence of any one or more of such events, any and all installments or sums payable under this Agreement remaining unpaid shall immediately become due and payable to Licensor, regardless of the due date thereof and, in writing addition, and without prejudice to any other right or remedy which may be available to Licensor at law or in equity, and without in any way releasing or discharging Licensee of or from any of its inability to generally pay its debts as such debts become due; or takes any comparable action obligations under any foreign laws relating to insolvency;
(g) an involuntary case or other proceeding this Agreement, Licensor shall be commenced against have the Guarantor or any Significant Subsidiary seeking right, either (i) liquidation, reorganization or other relief with respect to it or its debts under Title 11 terminate each and all of the Bankruptcy Code or any bankruptcy, insolvency or other similar law now or hereafter in effectrights of Licensee under this Agreement, or (ii) to suspend the appointment further delivery of a trusteetransmission materials until such defaults shall have ceased and shall have been remedied. Licensor shall notify Licensee of either suspension or termination by registered letter, receiver, liquidator, custodian return receipt requested in which event such termination or other similar official suspension shall be automatically and immediately valid with respect to it or any substantial no further action necessary on the part of its property or (iii) the winding-up or liquidation of the Guarantor or such Significant Subsidiary; and such involuntary case or other proceeding shall remain undismissed and unstayed for a period of 60 days;
(h) any representation or warranty made by the Guarantor herein shall prove to have been incorrect in Licensor. Licensor's default: Licensor will default if Licensor breaches any material respect when made or misleading in any material respect when made because of the omission to state a material fact and such incorrect or misleading representation is and continues to be material and unremedied for a period of 30 days after receipt by the Guarantor of written notice thereof; providedterm, however, that if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 60 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 60-day period. The grace periods set forth in Section 7.1(a) and (b) above shall not affect in any way the right hereunder of any Beneficiary entitled to a payment of any amount payable to itcovenant, or performance condition of any obligation, by the RockGen Lessee under any Operative Document to demand prompt payment thereof, or performance thereof, by the Guarantor immediately upon any failure of the RockGen Lessee to pay or perform the same when it has become due (and, for the avoidance of doubt, without regard to the existence of any cure or grace period before such failure by the RockGen Lessee becomes a Lease Event of Default); provided, however, notwithstanding the foregoing, no Lease Event of Default under Section 16(m) and no remedies under the Facility Lease may be exercised until a Calpine Guaranty Event of Default has occurred and is continuing.this Agreement. Any default
Appears in 1 contract
Sources: Programme Licence Agreement
Defaults. The following events shall constitute an "Event of Default" hereunder (whether any such event shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any Governmental Entity):
(a) It shall be a default ("Default") under this Note and each of the Guarantor ------- other Loan Documents if (i) any principal, interest or the RockGen Lessee other amount of money due under this Note is not paid in full when due, regardless of how such amount may have become due; (ii) any covenant, agreement, condition, representation or warranty herein or in any other Loan Document is not fully and timely performed, observed or kept; or (iii) there shall occur any default or event of default under the Facility Lease Deed or any other Loan Document that extends beyond any applicable cure or grace period. Upon the occurrence of a Default, subject to the terms of Section 4.2 of the Deed, Administrative Agent on behalf of the Lenders shall fail have the rights to make any payment with respect to Periodic Rent or declare the Termination Value (including unpaid principal balance and accrued but unpaid interest on this Note, and all other amounts due hereunder and under the Equity Portion of Termination Value and Debt Portion of Termination Value) when other Loan Documents, at once due and payable under (and upon such Facility Lease or this Guaranty within five (5) days after declaration, the same shall become be at once due thereunder; orand payable), to foreclose any liens and security interests securing payment hereof and to exercise any of its other rights, powers and remedies under this Note, under any other Loan Document, or at law or in equity.
(b) All of the Guarantor or rights, remedies, powers and privileges (together, "Rights") of Administrative Agent on behalf of the RockGen Lessee shall fail to make Lenders provided for in this ------ Note and in any other amount Loan Document are cumulative of each other and of any and all other Rights at law or in equity. The resort to any Right shall not prevent the concurrent or subsequent employment of any other appropriate Right. No single or partial exercise of any Right shall exhaust it, or preclude any other or further exercise thereof, and every Right may be exercised at any time and from time to time. No failure by Administrative Agent or any Lender to exercise, nor delay in exercising any Right, including but not limited to the right to accelerate the maturity of this Note, shall be construed as a waiver of any Default or as a waiver of any Right. Without limiting the generality of the foregoing provisions, the acceptance by Lender from time to time of any payment under this Note which is past due or which is less than the payment in full of all amounts due and payable under any Operative Document after at the same shall become due thereunder and such failure shall have continued from a period of ten (10) Business Days after receipt by the RockGen Lessee and the Guarantor of written notice time of such failure by the RockGen Lessee and/or the Guarantorpayment, as applicable;
(c) The Guarantor shall fail to comply with its covenants set forth in Section 3.3 (transfer of RockGen Lessee ownership), 3.6 (Guarantor merger) or 8.4 (assignment of Guaranty) of this Guaranty.
(d) the Guarantor shall fail to perform or observe any covenant, obligation or agreement to be performed or observed by it under any Calpine Document (other than any covenant, obligation or agreement referred to in clauses (a) or (b) of this Section 7.1) in any material respect, which shall continue unremedied for (1) with respect to the Guarantor's guaranty of, and agreement with respect to, any nonmonetary obligation, covenant or agreement of the RockGen Lessee under any of the Operative Documents, 30 days after receipt by the Guarantor of written notice thereof from the Owner Participant, the Owner Lessor, the Indenture Trustee or the Pass Through Trustee; provided, however, if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 180 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 180-day period, and (2) with respect to any other obligation, covenant or agreement hereunder, 30 days after receipt by the Guarantor of written notice thereof;
(e) there shall have occurred either (i) constitute a default by waiver of or impair or extinguish the Guarantor right of Administrative Agent or any Restricted Subsidiary under Lender to accelerate the maturity of this Note or to exercise any instrument other Right at the time or instruments under which there is at any subsequent time, or may be secured or evidenced nullify any Indebtedness of the Guarantor or any Restricted Subsidiary of the Guarantor (other than the Obligations) having an outstanding principal amount of $50,000,000 (or its foreign currency equivalent) or more individually or in the aggregate that has caused the holders thereof to declare such Indebtedness to be due and payable prior to its Stated Maturity, unless such declaration has been rescinded within 30 days or (ii) a default by the Guarantor or any Restricted Subsidiary in the payment when due exercise of any portion of the principal under any such instrument or instruments, and such unpaid portion exceeds $50,000,000 (or its foreign currency equivalent) individually or in the aggregate and is not paid, or such default is not cured or waived, within any grace period applicable thereto, unless such Indebtedness is discharged within 30 days of the Guarantor or a Restricted Subsidiary becoming aware of such default;
(f) the Guarantor or any Significant Subsidiary pursuant to or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case;
(ii) consents to the entry of an order for relief against it in an involuntary case;
(iii) consents to the appointment of a Custodian of it or for all or substantially all of its property;
(iv) makes a general assignment for the benefit of its creditors; or
(v) admits in writing its inability to generally pay its debts as such debts become due; or takes any comparable action under any foreign laws relating to insolvency;
(g) an involuntary case or other proceeding shall be commenced against the Guarantor or any Significant Subsidiary seeking (i) liquidation, reorganization or other relief with respect to it or its debts under Title 11 of the Bankruptcy Code or any bankruptcy, insolvency or other similar law now or hereafter in effectRight, or (ii) constitute a waiver of the appointment requirement of punctual payment and performance or a trusteenovation in any respect.
(c) If Lender retains an attorney in connection with any Default or at maturity or to collect, receiverenforce or defend this Note or any other Loan Document in any lawsuit or in any probate, liquidatorreorganization, custodian bankruptcy, arbitration or other similar official proceeding, or if Borrower sues Lender in connection with respect to it this Note or any substantial part of its property other Loan Document and does not prevail, then Borrower agrees to pay to Lender, in addition to principal, interest and any other sums owing to Lender hereunder and under the other Loan Documents, all costs and expenses incurred by Lender in trying to collect this Note or (iii) the winding-up or liquidation of the Guarantor or such Significant Subsidiary; and such involuntary case or other proceeding shall remain undismissed and unstayed for a period of 60 days;
(h) any representation or warranty made by the Guarantor herein shall prove to have been incorrect in any material respect when made such suit or misleading in any material respect when made because of proceeding, including, without limitation, reasonable attorneys' fees and expenses actually incurred by Lender, investigation costs and all court costs, whether or not suit is filed hereon, whether before or after the omission to state a material fact and such incorrect or misleading representation is and continues to be material and unremedied for a period of 30 days after receipt by the Guarantor of written notice thereof; provided, however, that if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 60 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 60-day period. The grace periods set forth in Section 7.1(a) and (b) above shall not affect in any way the right hereunder of any Beneficiary entitled to a payment of any amount payable to itMaturity Date, or performance of any obligationwhether in connection with bankruptcy, by the RockGen Lessee under any Operative Document to demand prompt payment thereofinsolvency or appeal, or performance thereof, by the Guarantor immediately upon whether collection is made against Borrower or any failure of the RockGen Lessee to pay guarantor or perform the same when it has become due (and, for the avoidance of doubt, without regard to the existence of endorser or any cure other person primarily or grace period before such failure by the RockGen Lessee becomes a Lease Event of Default); provided, however, notwithstanding the foregoing, no Lease Event of Default under Section 16(m) and no remedies under the Facility Lease may be exercised until a Calpine Guaranty Event of Default has occurred and is continuingsecondarily liable hereunder.
Appears in 1 contract
Sources: Construction Loan Agreement (Wells Real Estate Investment Trust Inc)
Defaults. The Each of the following events shall constitute an a default under this Note (a "Event of Default" hereunder (whether any such event shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any Governmental Entity"):
(a) the Guarantor or the RockGen Lessee under the Facility Lease shall fail Failure by Borrower to make any payment due under this Note; any representation or warranty by Borrower under this Note or any other agreement with Lender shall be false or inaccurate in any material respect when made; or failure by Borrower to Periodic Rent comply with the provisions of any other covenant, obligation or term of this Note or any other agreement with the Termination Value (including the Equity Portion of Termination Value and Debt Portion of Termination Value) when due and payable under such Facility Lease or this Guaranty within five (5) days after the same shall become due thereunder; orLender;
(b) the Guarantor or the RockGen Lessee shall fail Failure by Borrower to make pay when due any other amount payable under any Operative Document indebtedness or obligations in excess of fifty thousand dollars ($50,000) which shall continue after the same applicable grace period, if any, specified in the agreement relating to such indebtedness or obligation; failure by Borrower to comply with the provisions of any other covenant, obligation or term of any agreement relating to such indebtedness or obligation which shall become due thereunder and continue after the applicable grace period, if any, specified in such failure shall have continued from a period of ten (10) Business Days after receipt by agreement if the RockGen Lessee and the Guarantor of written notice effect of such failure by is to accelerate, or permit the RockGen Lessee and/or acceleration of, the Guarantordue date of such indebtedness or obligation; or any such indebtedness or obligation shall be declared to be due and payable, or required to be prepaid, prior to the stated maturity date thereof; provided, however, that the existing defaults listed in the Schedule of Exceptions attached hereto shall not constitute a Default so long as applicableany creditor involved in such defaults takes no further actions and exercises no further remedies to collect on the obligations involved and the Company otherwise remains in compliance with all other provisions of this Note and all other agreements with Lender;
(c) The Guarantor shall fail to comply with its covenants set forth in Section 3.3 (transfer of RockGen Lessee ownership), 3.6 (Guarantor merger) or 8.4 (assignment of Guaranty) of this Guaranty.
(d) the Guarantor shall fail to perform or observe any covenant, obligation or agreement to be performed or observed by it under any Calpine Document (other than any covenant, obligation or agreement referred to in clauses (a) or (b) of this Section 7.1) in any material respect, which shall continue unremedied for (1) with respect to the Guarantor's guaranty of, and agreement with respect to, any nonmonetary obligation, covenant or agreement of the RockGen Lessee under any of the Operative Documents, 30 days after receipt by the Guarantor of written notice thereof from the Owner Participant, the Owner Lessor, the Indenture Trustee or the Pass Through Trustee; provided, however, if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 180 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 180-day period, and (2) with respect to any other obligation, covenant or agreement hereunder, 30 days after receipt by the Guarantor of written notice thereof;
(e) there shall have occurred either (i) a default by the Guarantor or any Restricted Subsidiary under any instrument or instruments under which there is or may be secured or evidenced any Indebtedness of the Guarantor or any Restricted Subsidiary of the Guarantor (other than the Obligations) having an outstanding principal amount of $50,000,000 (or its foreign currency equivalent) or more individually or in the aggregate that has caused the holders thereof to declare such Indebtedness to be due and payable prior to its Stated Maturity, unless such declaration has been rescinded within 30 days or (ii) a default by the Guarantor or any Restricted Subsidiary in the payment when due of any portion of the principal under any such instrument or instruments, and such unpaid portion exceeds $50,000,000 (or its foreign currency equivalent) individually or in the aggregate and is not paid, or such default is not cured or waived, within any grace period applicable thereto, unless such Indebtedness is discharged within 30 days of the Guarantor or a Restricted Subsidiary becoming aware of such default;
(f) the Guarantor or any Significant Subsidiary pursuant to or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case;
(ii) consents to the entry of an order for relief against it in an involuntary case;
(iii) consents to the appointment of a Custodian of it or for all or substantially all of its property;
(iv) Borrower makes a general assignment for the benefit of its creditors; or
(v) admits , files a petition in writing its inability to generally pay its debts as such debts become due; or takes any comparable action under any foreign laws relating to insolvency;
(g) an involuntary case or other proceeding shall be commenced against the Guarantor or any Significant Subsidiary seeking (i) liquidation, reorganization or other relief with respect to it or its debts under Title 11 of the Bankruptcy Code or any bankruptcy, insolvency is adjudicated insolvent or other similar law now bankrupt, petitions to any court for a receiver or hereafter in effect, or (ii) the appointment of a trustee, receiver, liquidator, custodian or other similar official with respect to it trustee for Borrower or any substantial part of its property or (iii) property, commences any proceeding relating to the winding-up arrangement, readjustment, reorganization or liquidation of the Guarantor under any bankruptcy or similar laws; there is commenced against Borrower any such Significant Subsidiary; and such involuntary case or other proceeding shall proceedings which remain undismissed and unstayed for a period of 60 sixty (60) days;; or Borrower by any act indicates its consent or acquiescence in any such proceeding or the appointment of any such trustee or receiver; or
(hd) Lender shall fail to have a valid perfected security interest in any representation or warranty made of the collateral covered by the Guarantor herein shall prove to have been incorrect Security Agreement , a valid security interest in the any of the collateral covered by the Stock Pledge Agreement or a perfected security interest in any material respect when made or misleading in any material respect when made because of the omission to state a material fact and such incorrect or misleading representation is and continues to be material and unremedied for a period of 30 days after receipt collateral covered by the Guarantor of written notice thereof; provided, however, that if such condition cannot be remedied within such 30-day period, then the period within which Stock Pledge Agreement after delivery thereof to remedy such condition shall be extended up to an additional 60 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 60-day period. The grace periods set forth in Section 7.1(a) and (b) above shall not affect in any way the right hereunder of any Beneficiary entitled to a payment of any amount payable to it, Lender or performance of any obligation, by the RockGen Lessee under any Operative Document to demand prompt payment thereof, its agent or performance thereof, by the Guarantor immediately upon any failure of the RockGen Lessee to pay or perform the same when it has become due (and, for the avoidance of doubt, without regard to the existence of any cure or grace period before such failure by the RockGen Lessee becomes a Lease Event of Default); provided, however, notwithstanding the foregoing, no Lease Event of Default under Section 16(m) and no remedies under the Facility Lease may be exercised until a Calpine Guaranty Event of Default has occurred and is continuingdesignee.
Appears in 1 contract
Defaults. The If any of the following events ("Events of Default") shall constitute occur, then Lender may at its option and without demand or notice of any kind declare the Loans or any of them immediately due and payable.
(a) Borrowers or any of them fail to pay the principal or any interest or other fee due under the Loans, the Notes, the Debentures or Investment Agreement;
(b) Borrowers or any of them fail or neglect to perform, keep or observe any of their covenants, conditions or agreements contained in any of the subsections of this Agreement, the Debentures, the Investment Agreement or Registration Rights Agreement by and between Lender and CityXpress dated as of November 1, 2000 (the "Registration Rights Agreement") or become materially unable to provide support of the Collateral to licensees thereof;
(c) Any warranty or representation now or hereafter made by Borrowers or any of them in connection with this Agreement, the Debentures or the Investment Agreement is untrue or incorrect at any material respect when made or any schedule, certificate, statement, report, financial data, notice or writing furnished at any time by Borrowers or any of them to Lender is untrue or incorrect in any material respect, on the date as of which the facts set forth herein are stated or certified;
(d) A judgement and order requiring payment in excess of $50,000 shall be rendered against Borrowers or any of them and such judgment or order shall remain unsatisfied or undischarged and in effect for ninety (90) consecutive days without judicial enforcement or execution, provided that this subsection (d) shall not apply to any judgment for which Borrowers or any of them are fully insured and with respect to which the insurer has admitted in writing its liability for a full payment thereof;
(e) A notice of lev▇, ▇▇▇▇ ▇▇ assessment is filed or recorded with respect to all or substantial parts of the assets of Borrowers or any of them by any governmental authority, or any taxes or debts owing at any time or times hereafter to any one or more of them become a lien on all or a substantial part of any Borrower's property, and such lien, levy or assessment is not discharged or released within ten (10) days of a notice or attachment thereof;
(f) All or any part of any Borrower's property is attached, seized, subjected to a writ or distress warrant, or is levied upon, or comes within the possession of any receiver, trustee, custodian, or assignee for the benefit of creditors and on or before the 60th day thereafter such assets are not returned to Borrowers or any of them and/or such writ, distress warrant or levy is not dismissed, stayed or lifted;
(g) Any proceeding under the United States bankruptcy laws or the laws of the Canada pertaining to insolvency or receivership is filed by or against Borrowers or any of them;
(h) Any proceeding under a bankruptcy, reorganization, arrangement of debt, insolvency, readjustment of debt or receivership law or statute is filed by or against Borrowers or any of them or any Borrower makes an assignment for the benefit of creditors or Borrowers or any of them takes any corporate action to authorize any of the foregoing;
(i) Borrowers or any of them cease to conduct a material part of their business affairs in the ordinary course;
(j) Borrowers or any of them default in the performance of or compliance with any term, condition or covenant deemed an "Event of Default" hereunder (whether or words of similar import under this Agreement, the Notes, the Debentures, the Investment Agreement, or Registration Rights Agreement any such event shall be voluntary credit or involuntary loan agreement or come about or be effected by operation of law or pursuant to or in compliance facility with any judgmentthird-party lender, decree or order and Lender, after receipt of any court notice thereof from Borrowers, deems itself insecure as a result thereof;
(k) Borrowers or any orderof them fail to comply with the filing requirements of the Securities Exchange Act of 1934, rule or regulation of any Governmental Entity):as amended;
(al) Borrowers or any of them experience a change in or disagreement with Ernst & Young, L.L.P., including but not limited to a change in accountants, an adverse opinion, the Guarantor receipt of an opinion qualified or the RockGen Lessee under the Facility Lease modified as to uncertainty, audit scope or procedures, accounting principles or financial statement disclosure,, unless such change or disagreement shall fail not represent or pertain to make any payment with respect a material adverse change to Periodic Rent or the Termination Value (including the Equity Portion of Termination Value and Debt Portion of Termination Value) when due and payable under such Facility Lease or this Guaranty within five (5) days after the same shall become due thereunderBorrowers' financial statements; or
(bm) the Guarantor or the RockGen Lessee CityXpress shall fail to make any other amount payable under any Operative Document after secure the same shall become due thereunder following "Qualifying Customer Agreements" between August 1, 2001 and such failure shall have continued from October 31, 2001: (i) agreement(s) with one or more new customers to launch CityXpress' products in a period minimum of ten four newspapers within eight weeks of the customer's signature of the agreement; (10ii) Business Days after receipt by agreements with customers of CityXpress prior to August 1, 2001, to launch CityXpress' products in a minimum of four newspapers; and (iii) agreements resulting in two new E-Team assisted launches per month in each of the RockGen Lessee months of August, September and October with newspapers, with CityXpress' E-Team providing training services for the Guarantor of written notice of such failure by the RockGen Lessee and/or the Guarantor, as applicable;
newspaper's sales force. The agreements referred to in items (ci) The Guarantor shall fail to comply with its covenants set forth in Section 3.3 and (transfer of RockGen Lessee ownership), 3.6 (Guarantor merger) or 8.4 (assignment of Guarantyiii) of this Guaranty.
(d) the Guarantor shall fail to perform or observe any covenant, obligation or agreement to be performed or observed by it under any Calpine Document (other than any covenant, obligation or agreement referred to in clauses (a) or (b) of this Section 7.1) in any material respect, which shall continue unremedied for (1) with respect to the Guarantor's guaranty of, and agreement with respect to, any nonmonetary obligation, covenant or agreement of the RockGen Lessee under any of the Operative Documents, 30 days after receipt by the Guarantor of written notice thereof from the Owner Participant, the Owner Lessor, the Indenture Trustee or the Pass Through Trustee; provided, however, if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 180 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 180-day period, and (2) with respect to any other obligation, covenant or agreement hereunder, 30 days after receipt by the Guarantor of written notice thereof;
(e) there shall have occurred either (i) a default by the Guarantor or any Restricted Subsidiary under any instrument or instruments under which there is or may be secured or evidenced any Indebtedness of the Guarantor or any Restricted Subsidiary of the Guarantor (other than the Obligations) having an outstanding principal amount of $50,000,000 (or its foreign currency equivalent) or more individually or in the aggregate that has caused the holders thereof to declare such Indebtedness to be due and payable prior to its Stated Maturity, unless such declaration has been rescinded within 30 days or (ii) a default by the Guarantor or any Restricted Subsidiary in the payment when due of any portion of the principal under any such instrument or instruments, and such unpaid portion exceeds $50,000,000 (or its foreign currency equivalent) individually or in the aggregate and is not paid, or such default is not cured or waived, within any grace period applicable thereto, unless such Indebtedness is discharged within 30 days of the Guarantor or a Restricted Subsidiary becoming aware of such default;
(f) the Guarantor or any Significant Subsidiary pursuant to or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case;
(ii) consents to the entry of an order for relief against it in an involuntary case;
(iii) consents to the appointment of a Custodian of it or for all or substantially all of its property;
(iv) makes a general assignment for the benefit of its creditors; or
(v) admits in writing its inability to generally pay its debts as such debts become due; or takes any comparable action under any foreign laws relating to insolvency;
(g) an involuntary case or other proceeding shall be commenced against the Guarantor or any Significant Subsidiary seeking (i) liquidation, reorganization or other relief with respect to it or its debts under Title 11 of the Bankruptcy Code or any bankruptcy, insolvency or other similar law now or hereafter in effect, or (ii) the appointment of a trustee, receiver, liquidator, custodian or other similar official with respect to it or any substantial part of its property or (iii) the winding-up or liquidation of the Guarantor or such Significant Subsidiary; and such involuntary case or other proceeding shall remain undismissed and unstayed for a period of 60 days;
(h) any representation or warranty made by the Guarantor herein shall prove to have been incorrect in any material respect when made or misleading in any material respect when made because of the omission to state a material fact and such incorrect or misleading representation is and continues to be material and unremedied for a period of 30 days after receipt by the Guarantor of written notice thereof; provided, however, that if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 60 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 60-day period. The grace periods set forth in Section 7.1(a) and (b) above shall not affect in any way the right hereunder of any Beneficiary entitled to a payment of any amount payable to it, or performance of any obligation, by the RockGen Lessee under any Operative Document to demand prompt payment thereof, or performance thereof, by the Guarantor immediately upon any failure of the RockGen Lessee to pay or perform the same when it has become due (and, for the avoidance of doubt, without regard to the existence of any cure or grace period before such failure by the RockGen Lessee becomes a Lease Event of Default); provided, however, notwithstanding the foregoing, no Lease Event of Default under Section 16(m) and no remedies under the Facility Lease may be exercised until a Calpine Guaranty Event of Default has occurred and is continuing.subsection 9.1.1
Appears in 1 contract
Defaults. The Any one or more of the following events shall constitute an "Event of Default" hereunder Default by Borrower under this Agreement:
(a) If Borrower fails to pay when due and payable or when declared due and payabl, any portion of the Obligations (whether of principal, interest (including any interest which, but for the provisions of the United States Bankruptcy Code, would have accrued on such accounts), fees and charges due FINOVA, taxes, reimbursement of FINOVA Expenses, or otherwise);
(b) If Borrower fails or neglects to perform, keep, or observe any term, provision, condition, covenant, or agreement contained in this Agreement, in any of the Loan Documents, or in any other present or future agreement between Borrower and FINOVA;
(c) If there is a material impairment of the prospect of repayment of any portion of the Obligations owing to FINOVA or a material impairment of the value or priority of FINOVA's security interests in the Collateral;
(d) If any material portion of Borrower's assets is attached, seized, subjected to a writ or distress warrant, or is levied upon, or comes into the possession of any judicial officer or assignee;
(e) If an Insolvency Proceeding is commenced by Borrower;
(f) If an Insolvency Proceeding is commenced against Borrower;
(g) If Borrower is enjoined, restrained, or in any way prevented by court order from continuing to conduct all or any material part of its business affairs;
(h) If a notice of lien, levy, or assessment is filed or recorded with respect to any of Borrower's assets by the United States Government, or any department, agency, or instrumentality thereof, or by any state, county, municipal, or other governmental agency, or if any taxes or debts owing at any time hereafter to any one or more of such entities becomes a lien, whether ▇▇▇▇▇▇ or otherwise, upon any of Borrower's assets and the same is not paid on the payment date thereof;
(i) If a judgment or other claim becomes a lien or encumbrance upon any material portion of Borrower's assets;
(j) If there is default in any material agreement to which Borrower is a party with third parties resulting in a right by such third parties, whether or not exercised, to accelerate the maturity of Borrower's indebtedness;
(k) If Borrower makes any payment on account of indebtedness which has been subordinated to the Obligations except to the extent such payment is allowed under any subordination agreement entered into with FINOVA;
(l) If any misstatement or misrepresentation exists now or hereafter in any warranty, representation, statement, or report made to FINOVA by Borrower or any officer, employee, agent, or director of Borrower, or if any such event shall be voluntary warranty or involuntary representation is withdrawn by any officer or come about director;
(m) If any guaranty of the Obligations is limited or be effected terminated by operation of law or pursuant by the guarantor thereunder, or any guarantor becomes the subject of an Insolvency Proceeding;
(n) If a Prohibited Transaction or Reportable Event shall occur with respect to or a Plan which could have a material adverse effect on the financial condition of Borrower; if any lien upon the assets of Borrower in compliance connection with any judgment, decree or order of any court plan shall arise; if Borrower or any orderERISA Affiliate shall completely or partially withdraw from a Multiemployer Plan or a Multiple Employer Plan of which Borrower or such ERISA Affiliate was a substantial employer, rule and such withdrawal could, in the opinion of FINOVA, have a material adverse effect on the financial condition of Borrower; if Borrower or regulation any of any Governmental Entity):
(a) the Guarantor or the RockGen Lessee under the Facility Lease its ERISA Affiliates shall fail to make any full payment with respect to Periodic Rent or the Termination Value (including the Equity Portion of Termination Value and Debt Portion of Termination Value) when due of all amounts which Borrower or any of its ERISA Affiliates may be required to pay to any Plan or any Multiemployer plan as one or more contributions thereto; if Borrower or any of its ERISA Affiliates creates or permits the creation of any accumulated funding deficiency, whether or not waived; or upon the voluntary or involuntary termination of any Plan which termination could, in the opinion of FINOVA, have a material adverse effect on the financial condition of Borrower, or Borrower shall fail to notify FINOVA promptly and payable under such Facility Lease or this Guaranty in any event within five ten (510) days after of the same shall become due thereunderoccurrence of any event which constitutes an Event of Default under this clause or would constitute such an Event of Default upon exercise of FINOVA's judgment; or
(bo) If any writing, document, aging, certificate or other evidence of the Guarantor Accounts or Inventory shall be materially incomplete, incorrect, or misleading at the RockGen Lessee shall fail to make any other amount payable under any Operative Document after time the same shall become due thereunder and such failure shall have continued from a period of ten (10) Business Days after receipt by the RockGen Lessee and the Guarantor of written notice of such failure by the RockGen Lessee and/or the Guarantor, as applicable;
(c) The Guarantor shall fail is furnished to comply with its covenants set forth in Section 3.3 (transfer of RockGen Lessee ownership), 3.6 (Guarantor merger) or 8.4 (assignment of Guaranty) of this GuarantyFINOVA.
(d) the Guarantor shall fail to perform or observe any covenant, obligation or agreement to be performed or observed by it under any Calpine Document (other than any covenant, obligation or agreement referred to in clauses (a) or (b) of this Section 7.1) in any material respect, which shall continue unremedied for (1) with respect to the Guarantor's guaranty of, and agreement with respect to, any nonmonetary obligation, covenant or agreement of the RockGen Lessee under any of the Operative Documents, 30 days after receipt by the Guarantor of written notice thereof from the Owner Participant, the Owner Lessor, the Indenture Trustee or the Pass Through Trustee; provided, however, if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 180 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 180-day period, and (2) with respect to any other obligation, covenant or agreement hereunder, 30 days after receipt by the Guarantor of written notice thereof;
(e) there shall have occurred either (i) a default by the Guarantor or any Restricted Subsidiary under any instrument or instruments under which there is or may be secured or evidenced any Indebtedness of the Guarantor or any Restricted Subsidiary of the Guarantor (other than the Obligations) having an outstanding principal amount of $50,000,000 (or its foreign currency equivalent) or more individually or in the aggregate that has caused the holders thereof to declare such Indebtedness to be due and payable prior to its Stated Maturity, unless such declaration has been rescinded within 30 days or (ii) a default by the Guarantor or any Restricted Subsidiary in the payment when due of any portion of the principal under any such instrument or instruments, and such unpaid portion exceeds $50,000,000 (or its foreign currency equivalent) individually or in the aggregate and is not paid, or such default is not cured or waived, within any grace period applicable thereto, unless such Indebtedness is discharged within 30 days of the Guarantor or a Restricted Subsidiary becoming aware of such default;
(f) the Guarantor or any Significant Subsidiary pursuant to or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case;
(ii) consents to the entry of an order for relief against it in an involuntary case;
(iii) consents to the appointment of a Custodian of it or for all or substantially all of its property;
(iv) makes a general assignment for the benefit of its creditors; or
(v) admits in writing its inability to generally pay its debts as such debts become due; or takes any comparable action under any foreign laws relating to insolvency;
(g) an involuntary case or other proceeding shall be commenced against the Guarantor or any Significant Subsidiary seeking (i) liquidation, reorganization or other relief with respect to it or its debts under Title 11 of the Bankruptcy Code or any bankruptcy, insolvency or other similar law now or hereafter in effect, or (ii) the appointment of a trustee, receiver, liquidator, custodian or other similar official with respect to it or any substantial part of its property or (iii) the winding-up or liquidation of the Guarantor or such Significant Subsidiary; and such involuntary case or other proceeding shall remain undismissed and unstayed for a period of 60 days;
(h) any representation or warranty made by the Guarantor herein shall prove to have been incorrect in any material respect when made or misleading in any material respect when made because of the omission to state a material fact and such incorrect or misleading representation is and continues to be material and unremedied for a period of 30 days after receipt by the Guarantor of written notice thereof; provided, however, that if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 60 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 60-day period. The grace periods set forth in Section 7.1(a) and (b) above shall not affect in any way the right hereunder of any Beneficiary entitled to a payment of any amount payable to it, or performance of any obligation, by the RockGen Lessee under any Operative Document to demand prompt payment thereof, or performance thereof, by the Guarantor immediately upon any failure of the RockGen Lessee to pay or perform the same when it has become due (and, for the avoidance of doubt, without regard to the existence of any cure or grace period before such failure by the RockGen Lessee becomes a Lease Event of Default); provided, however, notwithstanding the foregoing, no Lease Event of Default under Section 16(m) and no remedies under the Facility Lease may be exercised until a Calpine Guaranty Event of Default has occurred and is continuing.
Appears in 1 contract
Defaults. The Upon the happening of any of the following events shall constitute an (collectively, "Event Events of Default" hereunder (whether any such event shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any Governmental Entity"):
(a) the Guarantor or the RockGen Lessee under the Facility Lease if Borrower shall fail to make any payment with respect to Periodic Rent or the Termination Value (including the Equity Portion of Termination Value and Debt Portion of Termination Value) when due of any Obligation under this Agreement or any Loan Document, provided, however, that, for purposes of Borrower's obligation to make payment of any Obligations to Lender comprised of Obligations to reimburse Lender for or to pay field examination expenses and payable under such Facility Lease or this Guaranty within five legal fees and expenses incurred by Lender after the date hereof, no Event of Default shall be deemed to have occurred, unless sixty (560) days after have elapsed from the same date of demand therefor by Lender; provided that, Lender's right hereunder to charge such fees and expenses to Borrower shall become due thereundernot be effected by the foregoing and in the event Lender so charges Borrower for such fees and expenses any such incipient Event of Default shall be deemed cured thereby; or
(b) the Guarantor or the RockGen Lessee shall fail to make any other amount payable under any Operative Document after the same shall become due thereunder and such failure shall have continued from a period of ten (10) Business Days after receipt by the RockGen Lessee and the Guarantor of written notice of such failure by the RockGen Lessee and/or the Guarantor, as applicable;
(c) The Guarantor if Borrower shall fail to comply with its covenants set forth any terms, conditions, covenant, warranty or representation contained in Section 3.3 (transfer of RockGen Lessee ownership), 3.6 (Guarantor merger) Articles 11 or 8.4 (assignment of Guaranty) 15 of this Guaranty.Agreement; or
(c) if Borrower shall fail to comply with any term, condition, covenant or warranty of or in this Agreement, any other Loan Document or any other agreement between Lender and Borrower, other than in Articles 11 or 15 of this Agreement, and such failure continues for a period in excess of twenty (20) days after notice thereof is given by Lender to Borrower; or
(d) the Guarantor if Borrower shall fail to perform or observe any covenant, obligation or agreement cease to be performed or observed by it under any Calpine Document (other than any covenantSolvent, obligation or agreement referred to in clauses (a) or (b) of this Section 7.1) in any material respect, which shall continue unremedied for (1) with respect to the Guarantor's guaranty of, and agreement with respect to, any nonmonetary obligation, covenant or agreement of the RockGen Lessee under any of the Operative Documents, 30 days after receipt by the Guarantor of written notice thereof from the Owner Participant, the Owner Lessor, the Indenture Trustee or the Pass Through Trustee; provided, however, if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to make an additional 180 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 180-day period, and (2) with respect to any other obligation, covenant or agreement hereunder, 30 days after receipt by the Guarantor of written notice thereof;
(e) there shall have occurred either (i) a default by the Guarantor or any Restricted Subsidiary under any instrument or instruments under which there is or may be secured or evidenced any Indebtedness of the Guarantor or any Restricted Subsidiary of the Guarantor (other than the Obligations) having an outstanding principal amount of $50,000,000 (or its foreign currency equivalent) or more individually or in the aggregate that has caused the holders thereof to declare such Indebtedness to be due and payable prior to its Stated Maturity, unless such declaration has been rescinded within 30 days or (ii) a default by the Guarantor or any Restricted Subsidiary in the payment when due of any portion of the principal under any such instrument or instruments, and such unpaid portion exceeds $50,000,000 (or its foreign currency equivalent) individually or in the aggregate and is not paid, or such default is not cured or waived, within any grace period applicable thereto, unless such Indebtedness is discharged within 30 days of the Guarantor or a Restricted Subsidiary becoming aware of such default;
(f) the Guarantor or any Significant Subsidiary pursuant to or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case;
(ii) consents to the entry of an order for relief against it in an involuntary case;
(iii) consents to the appointment of a Custodian of it or for all or substantially all of its property;
(iv) makes a general assignment for the benefit of its creditors, call a meeting of its creditors to obtain any general financial accommodation, suspend business or if any case under any provision of the Bankruptcy Code, including provisions for reorganizations, shall be commenced by or against Borrower; or
(ve) admits if any statement or representation contained in writing its inability any financial statement or certificate delivered by Borrower to generally pay its debts as such debts become dueLender shall be false, in any material respect, when made; or
(f) if any federal tax lien is filed of record against any Borrower or takes any comparable action under any foreign laws relating to insolvency;Guarantor and is not bonded or discharged within ten (10) days; or
(g) an involuntary case or other proceeding if Borrower's independent public accountants shall be commenced against the Guarantor or refuse to deliver any Significant Subsidiary seeking financial statement required by this Agreement within ten (i10) liquidation, reorganization or other relief with respect to it or its debts under Title 11 days after written demand by Lender for delivery of the Bankruptcy Code or any bankruptcy, insolvency or other similar law now or hereafter in effect, or (ii) the appointment of a trustee, receiver, liquidator, custodian or other similar official with respect to it or any substantial part of its property or (iii) the winding-up or liquidation of the Guarantor or such Significant Subsidiaryfinancial statements; and such involuntary case or other proceeding shall remain undismissed and unstayed for a period of 60 days;or
(h) if a receiver, trustee or equivalent officer shall be appointed for all or any representation or warranty made by of the Guarantor herein assets of Borrower; or
(i) if a judgment for more than One Hundred Thousand Dollars ($100,000) shall prove to have been incorrect be entered against Borrower in any material respect when made action or misleading proceeding and shall not be stayed, vacated, bonded, paid, discharged or applied in any material respect when made because good faith within twenty (20) days, or in the case of a judgment against the omission Borrower relating to state a material fact and such incorrect the T3 Permitted Indebtedness (as defined below) in which case five (5) days shall be allowed to stay, vacate, bond, pay, discharge or misleading representation is and continues to be material and unremedied for a period of 30 days after receipt by the Guarantor of written notice thereofapply in good faith; provided, howeverthat, that no Event of Default shall be deemed to have occurred in the case of any judgment where the claim is covered by insurance and the insurance company has accepted liability therefor; or
(j) if any obligation of Borrower in respect of Indebtedness shall be declared to be or shall become due and payable prior to the stated maturity thereof or such condition canobligation shall not be remedied within paid as and when the same becomes due and payable; or there shall occur any event or condition which constitutes an event of default under any mortgage, indenture, instrument, agreement or evidence of indebtedness relating to any obligation of Borrower in respect of any such 30-day periodIndebtedness the effect of which is to permit the holder or the holders of such mortgage, then indenture, instrument, agreement or evidence of Indebtedness, or a trustee, agent or other representative on behalf of such holder or holders, to cause the period within which Indebtedness evidenced thereby to remedy such condition become due prior to its stated maturity; provided, that, the foregoing shall be extended not include (a) Indebtedness to Lender; (b) Indebtedness aggregating up to an additional 60 days$800,000.00 owing by T3 Media, Inc. and guarantied by Borrower ("T3 Permitted Indebtedness"), so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 60-day period. The grace periods set forth in Section 7.1(a) and (b) above shall not affect in any way the right hereunder of any Beneficiary entitled to a payment of any amount payable to itas, or performance of any obligation, by the RockGen Lessee under any Operative Document to demand Borrower gives Lender prompt payment thereof, or performance thereof, by the Guarantor immediately upon any failure notice of the RockGen Lessee to pay or perform the same when it has become due (and, for the avoidance of doubt, without regard to the existence of any cure or grace period before such failure by the RockGen Lessee becomes a Lease Event of Default)acceleration thereof; provided, however, notwithstanding the foregoing, no Lease Event of Default under Section 16(m) and no remedies under the Facility Lease may be exercised until a Calpine Guaranty Event of Default has occurred and is continuing.or
Appears in 1 contract
Sources: Loan and Security Agreement (A Consulting Team Inc)
Defaults. The following events Failure by Tenant to comply with any of its obligations -------- under Paragraph 7 of this Exhibit D shall constitute an "Event of Default" hereunder (whether Default --------- under the terms of the Lease, and Landlord shall then be entitled to the benefit of all of the remedies provided for in the Lease. ▇▇▇▇▇▇▇ ▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ RULES AND REGULATIONS
1. Tenant shall not place anything, or allow anything to be placed near the glass of any such event window, door, partition or wall which may, in Landlord's judgment, appear unsightly from outside of the Building.
2. All signs or notices visible in or from public corridors or from outside the Premises shall be voluntary or involuntary or come about or subject to Landlord's prior written approval.
3. The Building directory, located in the Building lobby as provided by Landlord, shall be effected by operation of law or pursuant available to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any Governmental Entity):
(a) the Guarantor or the RockGen Lessee under the Facility Lease shall fail Tenant solely to make any payment with respect to Periodic Rent or the Termination Value (including the Equity Portion of Termination Value and Debt Portion of Termination Value) when due and payable under such Facility Lease or this Guaranty within five (5) days after the same shall become due thereunder; or
(b) the Guarantor or the RockGen Lessee shall fail to make any other amount payable under any Operative Document after the same shall become due thereunder and such failure shall have continued from a period of display ten (10) Business Days after receipt lines/names and its location in the Building, which display shall be as directed by Landlord.
4. The sidewalks, halls, passages, exits, entrances, elevators and stairways shall not be obstructed by Tenant or used by Tenant for any purposes other than for ingress to and egress from the RockGen Lessee Premises. The halls, passages, exits, entrances, elevators, stairways and roof are not for the Guarantor use of written notice the general public and Landlord shall, in all cases, retain the right to control and prevent access thereto by all persons whose presence in the judgment of such failure Landlord, reasonably exercised, shall be prejudicial to the safety, character, reputation and interests of the Building. Neither Tenant nor any employees or invitees of any tenant shall go upon the roof the Building.
5. The toilet rooms, urinals, wash bowls and other apparatus shall not be used for any purposes other than that for which they were constructed, and no foreign substance of any kind whatsoever shall be thrown therein, and to the extent caused by Tenant or its employees or invitees, the RockGen Lessee and/or expense of any breakage, stoppage, or damage resulting from the Guarantorviolation of this rule shall be borne by Tenant.
6. Tenant shall not cause any unusual janitorial labor or services.
7. No cooking, except for microwave cooking, shall be done or permitted by Tenant in the Premises, nor shall the Premises be used for lodging.
8. Tenant shall not bring upon, use or keep in the Premises or the Complex any kerosene, gasoline, turpentine, naphtha, benzine, or inflammable or combustible fluid or material, or use any method of heating or air conditioning other than that supplied by Landlord, except for supplemental air conditioning for its computer room facilities, as applicable;
(c) The Guarantor shall fail to comply have been approved by Landlord in connection with its covenants set forth approval of Tenant's Space Plan and Tenant's Working Drawings.
9. Landlord shall have sole power to direct electricians to where and how telephone and other wires are to be introduced. No boring or cutting for wires is to be allowed without the consent of Landlord. The location of telephones, call boxes and other office equipment affixed to the Premises shall be subject to the approval of Landlord.
10. Upon the termination of the tenancy, Tenant shall deliver to Landlord all keys, cards and passes for offices, rooms, parking areas and toilet rooms which shall have been furnished to Tenant. In the event of the loss of any keys, cards, or passes so furnished, Tenant shall pay Landlord therefor. Except as permitted in Section 3.3 22 (transfer of RockGen Lessee ownership), 3.6 (Guarantor merger) or 8.4 (assignment of Guaranty4) of this Guarantythe Lease, Tenant shall not make, or cause to be made, any such keys and shall order all such keys solely from Landlord and shall pay Landlord for any additional such keys over and above the two sets of keys furnished by Landlord.
(d) 11. Tenant shall not install linoleum, tile, carpet or other floor covering so that the Guarantor same shall fail be affixed to perform or observe any covenant, obligation or agreement to be performed or observed by it under any Calpine Document (other than any covenant, obligation or agreement referred to in clauses (a) or (b) the floor of this Section 7.1) the Premises in any material respectmanner except as approved by Landlord.
12. No furniture, which shall continue unremedied for (1) with respect to packages, supplies, equipment or merchandise will be received in the Guarantor's guaranty ofComplex or carried up or down in the freight elevator, except between such hours and agreement with respect to, any nonmonetary obligation, covenant or agreement of the RockGen Lessee under any of the Operative Documents, 30 days after receipt by the Guarantor of written notice thereof from the Owner Participant, the Owner Lessor, the Indenture Trustee or the Pass Through Trustee; provided, however, if in such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition freight elevator as shall be extended up to an additional 180 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 180-day period, and (2) with respect to any other obligation, covenant or agreement hereunder, 30 days after receipt designated by the Guarantor of written notice thereof;
(e) there shall have occurred either (i) a default by the Guarantor or any Restricted Subsidiary under any instrument or instruments under which there is or may be secured or evidenced any Indebtedness of the Guarantor or any Restricted Subsidiary of the Guarantor (other than the Obligations) having an outstanding principal amount of $50,000,000 (or its foreign currency equivalent) or more individually or in the aggregate that has caused the holders thereof to declare such Indebtedness to be due and payable prior to its Stated Maturity, unless such declaration has been rescinded within 30 days or (ii) a default by the Guarantor or any Restricted Subsidiary in the payment when due of any portion of the principal under any such instrument or instruments, and such unpaid portion exceeds $50,000,000 (or its foreign currency equivalent) individually or in the aggregate and is not paid, or such default is not cured or waived, within any grace period applicable thereto, unless such Indebtedness is discharged within 30 days of the Guarantor or a Restricted Subsidiary becoming aware of such default;
(f) the Guarantor or any Significant Subsidiary pursuant to or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case;
(ii) consents to the entry of an order for relief against it in an involuntary case;
(iii) consents to the appointment of a Custodian of it or for all or substantially all of its property;
(iv) makes a general assignment for the benefit of its creditors; or
(v) admits in writing its inability to generally pay its debts as such debts become due; or takes any comparable action under any foreign laws relating to insolvency;
(g) an involuntary case or other proceeding shall be commenced against the Guarantor or any Significant Subsidiary seeking (i) liquidation, reorganization or other relief with respect to it or its debts under Title 11 of the Bankruptcy Code or any bankruptcy, insolvency or other similar law now or hereafter in effect, or (ii) the appointment of a trustee, receiver, liquidator, custodian or other similar official with respect to it or any substantial part of its property or (iii) the winding-up or liquidation of the Guarantor or such Significant Subsidiary; and such involuntary case or other proceeding shall remain undismissed and unstayed for a period of 60 days;
(h) any representation or warranty made by the Guarantor herein shall prove to have been incorrect in any material respect when made or misleading in any material respect when made because of the omission to state a material fact and such incorrect or misleading representation is and continues to be material and unremedied for a period of 30 days after receipt by the Guarantor of written notice thereof; provided, however, that if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 60 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 60-day period. The grace periods set forth in Section 7.1(a) and (b) above shall not affect in any way the right hereunder of any Beneficiary entitled to a payment of any amount payable to it, or performance of any obligation, by the RockGen Lessee under any Operative Document to demand prompt payment thereof, or performance thereof, by the Guarantor immediately upon any failure of the RockGen Lessee to pay or perform the same when it has become due (and, for the avoidance of doubt, without regard to the existence of any cure or grace period before such failure by the RockGen Lessee becomes a Lease Event of Default); provided, however, notwithstanding the foregoing, no Lease Event of Default under Section 16(m) and no remedies under the Facility Lease may be exercised until a Calpine Guaranty Event of Default has occurred and is continuingLandlord.
Appears in 1 contract
Defaults. The following events shall constitute an "“Event of Default" hereunder ” of the Lease Agreement:
(whether i) With respect to any such event shall be voluntary or involuntary or come about or be effected by operation non-monetary obligations of law or pursuant to or in compliance with any judgment, decree or order of any court either Party under the Lease Agreement or any order, rule or regulation monetary obligation of any Governmental Entity):
(a) the Guarantor or the RockGen Lessee a Party under the Facility Lease Agreement that is not a sum certain, a Party shall fail have failed to make perform or comply in any payment material respect with respect to Periodic Rent or the Termination Value (including the Equity Portion of Termination Value and Debt Portion of Termination Value) when due and payable under such Facility Lease or this Guaranty within five (5) days after the same shall become due thereunder; or
(b) the Guarantor or the RockGen Lessee shall fail to make any other amount payable under any Operative Document after the same shall become due thereunder obligation and such failure shall have continued from a period of ten for thirty (1030) Business Days after receipt by the RockGen Lessee and the Guarantor of written notice of such failure by the RockGen Lessee and/or the Guarantor, as applicable;
(c) The Guarantor shall fail to comply with its covenants set forth in Section 3.3 (transfer of RockGen Lessee ownership), 3.6 (Guarantor merger) or 8.4 (assignment of Guaranty) of this Guaranty.
(d) the Guarantor shall fail to perform or observe any covenant, obligation or agreement to be performed or observed by it under any Calpine Document (other than any covenant, obligation or agreement referred to in clauses (a) or (b) of this Section 7.1) in any material respect, which shall continue unremedied for (1) with respect to the Guarantor's guaranty of, and agreement with respect to, any nonmonetary obligation, covenant or agreement of the RockGen Lessee under any of the Operative Documents, 30 days after receipt by the Guarantor of written notice thereof from the Owner Participantnon-defaulting Party, or if the Owner Lessorcuring of such non-monetary default is reasonably feasible by the defaulting Party, the Indenture Trustee or the Pass Through Trustee; provided, however, if such condition canbut not be remedied within such 30-day period, then the period within which to remedy defaulting Party shall not have commenced the curing of such condition shall be extended up to an additional 180 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied failure within such additional 180-thirty (30) day period, or having so commenced, shall thereafter have failed or neglected to prosecute or DRAFcT omplete the curing of such Event of Default with diligence and dispatch within ninety (290) with respect to any other obligation, covenant or agreement hereunder, 30 days after receipt by the Guarantor of written original notice thereof;
(e) there shall have occurred either (i) a default by the Guarantor or any Restricted Subsidiary under any instrument or instruments under which there is or may be secured or evidenced any Indebtedness of the Guarantor or any Restricted Subsidiary of the Guarantor (other than the Obligations) having an outstanding principal amount of $50,000,000 (or its foreign currency equivalent) or more individually or in the aggregate that has caused the holders thereof to declare such Indebtedness to be due and payable prior to its Stated Maturity, unless such declaration has been rescinded within 30 days or (ii) a default by the Guarantor or any Restricted Subsidiary in the payment when due of any portion of the principal under any such instrument or instruments, and such unpaid portion exceeds $50,000,000 (or its foreign currency equivalent) individually or in the aggregate and is not paid, or such default is not cured or waived, within any grace period applicable thereto, unless such Indebtedness is discharged within 30 days of the Guarantor or a Restricted Subsidiary becoming aware of such default;
(f) the Guarantor or any Significant Subsidiary pursuant to or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case;; or
(ii) consents to the entry of an order for relief against it in an involuntary case;
(iii) consents to the appointment of Either a Custodian of it or for all or substantially all of its property;
(iv) makes Party shall have made a general assignment for the benefit of its creditors; or
(v) admits , or shall have admitted in writing its inability to generally pay its debts as such debts they become due; due or takes shall have filed a petition in bankruptcy, or shall have been adjudicated bankrupt or insolvent, or shall have filed a petition seeking any comparable action reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar relief under any foreign laws relating present or future statute, law or regulation, or shall have filed an answer admitting, or shall have failed reasonably to insolvency;contest, the material allegations of a petition filed against it in any such proceeding, or shall have sought or consented to or acquiesced in the appointment of any trustee, receiver or liquidator for such Party; or
(giii) an involuntary case or other proceeding shall be commenced against the Guarantor or any Significant Subsidiary seeking Either (i) within ninety (90) days after the commencement of any proceeding against a Party or any trustee, receiver or liquidator of such Party seeking any reorganization, arrangement, composition, readjustment, liquidation, reorganization dissolution or other similar relief with respect to it under any present or its debts under Title 11 of the Bankruptcy Code future statute, law, rule or any bankruptcyregulation, insolvency or other similar law now or hereafter in effectsuch proceeding shall not have been dismissed, or (ii) if, within ninety (90) days after the appointment without the consent or acquiescence of either a Party or any trustee, receiver, liquidator, custodian receiver or other similar official with respect to it liquidator of such party or of any substantial material part of its property or (iii) the winding-up or liquidation of the Guarantor or properties, such Significant Subsidiaryappointment shall not have been vacated; and such involuntary case or other proceeding shall remain undismissed and unstayed for a period of 60 days;or
(hiv) With respect to any representation or warranty made by monetary obligation of a Party under the Guarantor herein Lease Agreement that is a sum certain, such Party shall prove have failed to have been incorrect in any material respect when made or misleading in any material respect when made because of the omission to state a material fact and pay such incorrect or misleading representation is and continues to be material and unremedied for a period of 30 amount within ten (10) business days after receipt by the Guarantor of written notice thereof; provided, however, that if such condition cannot be remedied within such 30-day period, then thereof from the period within which to remedy such condition shall be extended up to an additional 60 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 60-day period. The grace periods set forth in Section 7.1(a) and (b) above shall not affect in any way the right hereunder of any Beneficiary entitled to a payment of any amount payable to it, or performance of any obligation, by the RockGen Lessee under any Operative Document to demand prompt payment thereof, or performance thereof, by the Guarantor immediately upon any failure of the RockGen Lessee to pay or perform the same when it has become due (and, for the avoidance of doubt, without regard to the existence of any cure or grace period before such failure by the RockGen Lessee becomes a Lease Event of Default); provided, however, notwithstanding the foregoing, no Lease Event of Default under Section 16(m) and no remedies under the Facility Lease may be exercised until a Calpine Guaranty Event of Default has occurred and is continuingother Party.
Appears in 1 contract
Sources: Memorandum of Understanding
Defaults. The following events shall constitute an "Event of Default" hereunder (whether any such event shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any Governmental Entity):a Default under this Agreement:
(a) The Borrower fails to pay the Guarantor principal amount of the Loan and interest thereon according to the terms of the Note or any other payment required by any of the RockGen Lessee under the Facility Lease shall fail to make any payment with respect to Periodic Rent or the Termination Value (Financing Documents, including the Equity Portion of Termination Value and Debt Portion of Termination Value) when due and payable under such Facility Lease or this Guaranty within five (5) days after the same shall become due thereunder; orObligations;
(b) The Borrower ceases to use Building 1, or an alternate facility located within the Guarantor jurisdiction of the Local Government and within a Priority Funding Area and acceptable to the Lender, for the research, development, or manufacturing of vaccines, as contemplated in this Agreement, the RockGen Lessee shall fail to make any other amount payable under any Operative Document after the same shall become due thereunder and such failure shall have continued from a period of ten (10) Business Days after receipt by the RockGen Lessee Application, and the Guarantor of written notice of such failure by the RockGen Lessee and/or the Guarantor, as applicableCommitment Letter;
(c) The Guarantor shall fail to comply with its covenants set forth in Section 3.3 (transfer of RockGen Lessee ownership), 3.6 (Guarantor merger) or 8.4 (assignment of Guaranty) of this Guaranty.Any Loan proceeds are used for any purpose other than Eligible Project Costs;
(d) the Guarantor shall fail to perform or observe The Borrower breaches any covenant, obligation representation, warranty, or agreement to be performed or observed by it under any Calpine Document (other than any covenant, obligation or agreement referred to in clauses (a) or (b) provision of this Section 7.1) in any material respectAgreement, which shall continue unremedied for breach is not cured within 30 calendar days from the date the Borrower receives (1as provided in Section 5.01 below) with respect to the Guarantor's guaranty of, and agreement with respect to, any nonmonetary obligation, covenant or agreement written notice of the RockGen Lessee under any of the Operative Documents, 30 days after receipt by the Guarantor of written notice thereof breach from the Owner Participant, the Owner Lessor, the Indenture Trustee or the Pass Through TrusteeLender; provided, however, if such condition canhowever that the Borrower shall not be remedied within such 30-receive a 30 calendar day period, then the cure period within under this subsection for any breach for which to remedy such condition shall be extended up to an additional 180 days, so long as the Guarantor diligently pursues such remedy and such condition there is reasonably capable of being remedied within such additional 180-day period, and (2) with respect to any other obligation, covenant or agreement hereunder, 30 days after receipt by the Guarantor of written notice thereofa specific Default set forth in this Section;
(e) there shall have occurred either The Borrower breaches (i) a default by the Guarantor or any Restricted Subsidiary under any instrument or instruments under which there is or may be secured or evidenced any Indebtedness of the Guarantor or any Restricted Subsidiary of the Guarantor (other than the Obligations) having an outstanding principal amount of $50,000,000 (or its foreign currency equivalent) or more individually or in the aggregate that has caused the holders thereof to declare such Indebtedness to be due and payable prior to its Stated Maturitycovenant, unless such declaration has been rescinded within 30 days or (ii) a default by the Guarantor or any Restricted Subsidiary in the payment when due of any portion of the principal under any such instrument or instrumentsrepresentation, and such unpaid portion exceeds $50,000,000 (or its foreign currency equivalent) individually or in the aggregate and is not paidwarranty, or such default is not cured other provision in any other Financing Document, which breach continues beyond any applicable grace or waived, within any grace period applicable thereto, unless such Indebtedness is discharged within 30 days of the Guarantor or a Restricted Subsidiary becoming aware of such default;
(f) the Guarantor or any Significant Subsidiary pursuant to or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case;
(ii) consents to the entry of an order for relief against it in an involuntary case;
(iii) consents to the appointment of a Custodian of it or for all or substantially all of its property;
(iv) makes a general assignment for the benefit of its creditors; or
(v) admits in writing its inability to generally pay its debts as such debts become due; or takes any comparable action under any foreign laws relating to insolvency;
(g) an involuntary case or other proceeding shall be commenced against the Guarantor or any Significant Subsidiary seeking (i) liquidation, reorganization or other relief with respect to it or its debts under Title 11 of the Bankruptcy Code or any bankruptcy, insolvency or other similar law now or hereafter in effectcure period, or (ii) the appointment provisions of a trusteeSection 3.02(a), receiver(b), liquidator(f), custodian or other similar official with respect to it or any substantial part of its property (j), (n), or (iiiu) the winding-up or liquidation of the Guarantor or such Significant Subsidiary; and such involuntary case or other proceeding shall remain undismissed and unstayed for a period of 60 daysthis Agreement;
(hf) Any statement made in any representation certificate, report or warranty made by opinion (including legal opinions), financial statement, or other document furnished in connection with the Guarantor herein shall prove to have been Loan was incorrect in any material respect when made or misleading made;
(g) Any change in any material respect when zoning ordinance or any other public restriction is enacted which limits or defines the uses that may be made because on any part of the omission to state a material fact Facility, so that the use of the Facility would be in violation of the restriction or zoning change and such incorrect or misleading representation is and continues to the Facility would not be material and unremedied useable for a period purpose consistent with the Act, except during the pendency of 30 days after receipt by any good faith contest thereof;
(h) Any portion of, or interest in, Building 1 is sold, leased, subleased, transferred, encumbered, or otherwise conveyed, without the Guarantor prior written consent of written notice thereofthe Lender; provided, however, that if such condition cannot be remedied within such 30-day period, then a transfer or lease between members of the period within which to remedy such condition Corporate Group shall be extended up to an additional 60 days, permitted without the prior written consent of the Lender (which transfer or lease must be in compliance with the terms of the Deed of Trust for so long as the Guarantor diligently pursues such remedy and such condition Deed of Trust is reasonably capable of being remedied within such additional 60-day period. The grace periods set forth in Section 7.1(a) and (b) above shall not affect in any way the right hereunder of any Beneficiary entitled to a payment of any amount payable to it, or performance of any obligation, by the RockGen Lessee under any Operative Document to demand prompt payment thereof, or performance thereof, by the Guarantor immediately upon any failure of the RockGen Lessee to pay or perform the same when it has become due (and, for the avoidance of doubt, without regard to the existence of any cure or grace period before such failure by the RockGen Lessee becomes a Lease Event of Defaulteffect); provided, however, notwithstanding the foregoing, no Lease Event of Default under Section 16(m) and no remedies under the Facility Lease may be exercised until a Calpine Guaranty Event of Default has occurred and is continuing.;
Appears in 1 contract
Defaults. The (a) Any of the following events shall constitute an "Event of Default" hereunder ":
(whether i) The Company defaults in the payment of (A) any such event shall be voluntary or involuntary or come about or be effected by operation part of law or pursuant to or in compliance with any judgment, decree or order the principal of any court or any orderNote, rule or regulation of any Governmental Entity):
(a) the Guarantor or the RockGen Lessee under the Facility Lease shall fail to make any payment with respect to Periodic Rent or the Termination Value (including the Equity Portion of Termination Value and Debt Portion of Termination Value) when due and payable under such Facility Lease or this Guaranty within five (5) days after the same shall become due thereunder; or
and payable, whether at maturity or at a date fixed for prepayment or by acceleration or otherwise, or (bB) the Guarantor or the RockGen Lessee shall fail to make interest on any other amount payable under any Operative Document after Note, when the same shall become due thereunder and payable, and such failure default in the payment of interest shall have continued from a period of ten for five (105) Business Days after receipt by the RockGen Lessee and the Guarantor of written notice of such failure by the RockGen Lessee and/or the Guarantor, as applicable;
(c) The Guarantor shall fail to comply with its covenants set forth in Section 3.3 (transfer of RockGen Lessee ownership), 3.6 (Guarantor merger) or 8.4 (assignment of Guaranty) of this Guaranty.
(d) the Guarantor shall fail to perform or observe any covenant, obligation or agreement to be performed or observed by it under any Calpine Document (other than any covenant, obligation or agreement referred to in clauses (a) or (b) of this Section 7.1) in any material respect, which shall continue unremedied for (1) with respect to the Guarantor's guaranty of, and agreement with respect to, any nonmonetary obligation, covenant or agreement of the RockGen Lessee under any of the Operative Documents, 30 days after receipt by the Guarantor of written notice thereof from the Owner Participant, the Owner Lessor, the Indenture Trustee or the Pass Through TrusteeDays; provided, however, if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 180 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 180-day period, and (2) with respect to any other obligation, covenant or agreement hereunder, 30 days after receipt by the Guarantor of written notice thereof;
(e) there shall have occurred either (i) a default by the Guarantor or any Restricted Subsidiary under any instrument or instruments under which there is or may be secured or evidenced any Indebtedness of the Guarantor or any Restricted Subsidiary of the Guarantor (other than the Obligations) having an outstanding principal amount of $50,000,000 (or its foreign currency equivalent) or more individually or in the aggregate that has caused the holders thereof to declare such Indebtedness to be due and payable prior to its Stated Maturity, unless such declaration has been rescinded within 30 days or (ii) a default by the Guarantor or any Restricted Subsidiary in the payment when due of any portion of the principal under any such instrument or instruments, and such unpaid portion exceeds $50,000,000 (or its foreign currency equivalent) individually or in the aggregate and is not paid, or such default is not cured or waived, within any grace period applicable thereto, unless such Indebtedness is discharged within 30 days of the Guarantor or a Restricted Subsidiary becoming aware of such default;
(f) the Guarantor or any Significant Subsidiary pursuant to or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case;or
(ii) consents the Company defaults in the performance of any other agreement or covenant contained in the Purchase Agreements, and such default shall not have been remedied within thirty (30) days after written notice thereof shall have been given to the entry Company by any holder of an order for relief against it in an involuntary case;this Note (the Company to give forthwith to all other holders of this Note at the time outstanding written notice of the receipt of such notice, specifying the default referred to therein); or
(iii) consents to the appointment of a Custodian of it or for all or substantially all of its property;
(iv) makes a general assignment for the benefit of its creditors; or
(v) admits in writing its inability to generally pay its debts as such debts become due; or takes any comparable action under any foreign laws relating to insolvency;
(g) an involuntary case or other proceeding shall be commenced against the Guarantor or any Significant Subsidiary seeking (i) liquidation, reorganization or other relief with respect to it or its debts under Title 11 of the Bankruptcy Code or any bankruptcy, insolvency or other similar law now or hereafter in effect, or (ii) the appointment of a trustee, receiver, liquidator, custodian or other similar official with respect to it or any substantial part of its property or (iii) the winding-up or liquidation of the Guarantor or such Significant Subsidiary; and such involuntary case or other proceeding shall remain undismissed and unstayed for a period of 60 days;
(h) any material representation or warranty made by the Guarantor herein shall prove Company herein, in the Purchase Agreements or in any certificate delivered by the Company pursuant hereto proves to have been incorrect in any material respect when made made; or
(iv) the Company or misleading any Subsidiary shall make an assignment for the benefit of creditors, or shall admit in writing its inability to pay its debts; or a receiver or trustee is appointed for the Company or any material respect when made because Subsidiary or for substantially all of its assets and, if appointed without its consent, such appointment is not discharged or stayed within sixty (60) days; or proceedings under any law relating to bankruptcy, insolvency or the reorganization or relief of debtors are instituted by or against the Company or any Subsidiary, and, if contested by it, are not dismissed or stayed within sixty (60) days; or any writ of attachment or execution or any similar process is issued or levied against the Company or any Subsidiary or any of its property and is not released, stayed, bonded or vacated within sixty (60) days after its issue or levy; or the Company or any Subsidiary takes corporate or limited liability company action in furtherance of any of the omission foregoing.
(b) If an Event of Default occurs pursuant to state a material fact any of clauses (i) through (iii) of Section 5(a) of this Note then and in each such incorrect event and with the concurrence of holders of 67% of the Notes any holder of this Note (unless all Events of Default shall theretofore have been waived or misleading representation is and continues remedied) at its option, by written notice or notices to the Company, may declare this Note to be material due and unremedied payable. If an Event of Default occurs pursuant to clause (iv) of Section 5(a) of this Note, this Note shall automatically and without further action become due and payable. Upon any such declaration (or as to such clause (iv) upon its occurrence) this Note shall forthwith immediately mature and become due and payable. However, the foregoing acceleration rights are subject to the following:
(i) if, at any time after the principal of this Note shall so become due and payable and prior to the date of maturity stated in this Note, all interest on this Note (with interest at the rate specified in this Note on any overdue principal and, if applicable, on 5 any overdue interest) shall be paid to the holder of this Note by or for a period the account of 30 days after receipt by the Guarantor of written notice thereof; provided, however, that if such condition cannot be remedied within such 30-day periodCompany, then the period Note holder, by written notice or notices to the Company, may waive such Event of Default and its consequences and rescind or annul any such declaration, but no such waiver shall extend to or affect any subsequent Event of Default or impair any right or remedy resulting therefrom;
(ii) if any holder or holders of Notes which, at the time, holds or hold at least sixty-seven percent (67%) in aggregate principal amount of the Notes then outstanding exercises the above rights of acceleration, then the Company shall notify each other holder of Notes of the fact of such acceleration and each other holder shall, without limiting any other rights hereunder, (A) have the right for thirty (30) days after such notice from the Company to accelerate its own Notes based on the Event or Events of Default on which such acceleration was based (regardless of whether such Event or Events of Default are then continuing), unless at the time there are no outstanding Events of Default and any acceleration of any Notes has been rescinded or (B) be deemed automatically (without any action by such holder) to have accelerated its Notes if such holder has not received such notice of an acceleration from the Company within ten (10) business days after such acceleration; provided that any such automatic acceleration may take place regardless of whether the Event or Events of Default on which the initial acceleration was based are then continuing but such automatic acceleration shall not take place if at the time any and all accelerations of any Notes have been rescinded or annulled pursuant to remedy such condition shall be extended up to an additional 60 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 60-day period. The grace periods set forth in Section 7.1(a) and subparagraph (bi) above or otherwise;
(iii) any holder may at any time rescind and annul any acceleration with respect to its own Notes; and
(iv) if any holder of a Note shall not affect in give any way the right hereunder of notice or take any Beneficiary entitled other action with respect to a payment of any amount payable to it, or performance of any obligation, by the RockGen Lessee under any Operative Document to demand prompt payment thereof, or performance thereof, by the Guarantor immediately upon any failure of the RockGen Lessee to pay or perform the same when it has become due (and, for the avoidance of doubt, without regard to the existence of any cure or grace period before such failure by the RockGen Lessee becomes a Lease claimed Event of Default); provided, howeverthe Company, notwithstanding forthwith upon receipt of such notice or obtaining knowledge of such other action, will give written notice thereof to all other holders of the foregoingNotes then outstanding, no Lease describing such notice or other action and the nature of the claimed Event of Default under Section 16(m) and no remedies under the Facility Lease may be exercised until a Calpine Guaranty Event of Default has occurred and is continuingDefault.
Appears in 1 contract
Sources: Note (Halpern Denny Iii Lp)
Defaults. The occurrence of any of the following events shall constitute an "Event of Default" hereunder (whether any such event shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any Governmental Entity):Default hereunder:
(a) Any representation or warranty made by the Guarantor Servicer, the Originator, the Seller, the Issuer or the RockGen Lessee Indenture Trustee hereunder or under the Facility Lease Transaction Documents, or in any certificate furnished hereunder or under the Transaction Documents, shall prove to be untrue or incomplete in any material respect;
(i) The Servicer, the Originator, the Seller, the Issuer or the Indenture Trustee shall fail to make pay when due any payment with respect to Periodic Rent amount payable by the Servicer, the Originator, the Seller, the Issuer or the Termination Value Indenture Trustee hereunder or (including ii) a legislative body has enacted any law that declares or a court of competent jurisdiction shall find or rule that any Transaction Document is not valid and binding on the Equity Portion of Termination Value and Debt Portion of Termination Value) when due and payable under such Facility Lease or this Guaranty within five (5) days after Servicer, the same shall become due thereunder; or
(b) Originator, the Guarantor Seller, the Issuer or the RockGen Lessee shall fail to make any other amount payable under any Operative Document after the same shall become due thereunder and such failure shall have continued from a period of ten (10) Business Days after receipt by the RockGen Lessee and the Guarantor of written notice of such failure by the RockGen Lessee and/or the Guarantor, as applicableIndenture Trustee;
(c) The Guarantor shall fail to comply with its covenants set forth in Section 3.3 occurrence and continuance of an “Event of Default” under the Indenture (transfer of RockGen Lessee ownershipas defined therein), 3.6 (Guarantor merger) or 8.4 (assignment of Guaranty) of this Guaranty.;
(d) Any failure on the Guarantor shall fail part of the Servicer, the Originator, the Seller, the Issuer or the Indenture Trustee duly to observe or perform or observe any covenant, obligation or agreement to be performed or observed by it under any Calpine Document (other than any covenant, obligation or agreement referred to in clauses (a) or (b) of this Section 7.1) in any material respectrespect any other of the covenants or agreements on the part of the Servicer, the Originator, the Seller, the Issuer or the Indenture Trustee contained in this Insurance Agreement or in any other Transaction Document which shall continue continues unremedied for (1) a period of 30 days with respect to the Guarantor's guaranty ofthis Insurance Agreement, and agreement or, with respect toto any other Transaction Document, beyond any nonmonetary obligationcure period provided for therein, covenant or agreement of after the RockGen Lessee under any of the Operative Documents, 30 days after receipt by the Guarantor of date on which written notice thereof from of such failure, requiring the Owner Participantsame to be remedied, shall have been given to the Servicer, the Owner LessorOriginator, the Seller, the Indenture Trustee or the Pass Through Trustee; providedIssuer, howeveras applicable, if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 180 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 180-day period, and (2) with respect to any other obligation, covenant or agreement hereunder, 30 days after receipt by the Guarantor of written notice thereofInsurer (with a copy to the Indenture Trustee) or by the Indenture Trustee (with a copy to the Insurer);
(e) there shall have occurred either (i) A decree or order of a default by the Guarantor court or any Restricted Subsidiary under any instrument agency or instruments under which there is or may be secured or evidenced any Indebtedness of the Guarantor or any Restricted Subsidiary of the Guarantor (other than the Obligations) supervisory authority having an outstanding principal amount of $50,000,000 (or its foreign currency equivalent) or more individually or jurisdiction in the aggregate that has caused the holders thereof to declare such Indebtedness to be due and payable prior to its Stated Maturity, unless such declaration has been rescinded within 30 days or (ii) a default by the Guarantor or any Restricted Subsidiary in the payment when due of any portion of the principal under any such instrument or instruments, and such unpaid portion exceeds $50,000,000 (or its foreign currency equivalent) individually or in the aggregate and is not paid, or such default is not cured or waived, within any grace period applicable thereto, unless such Indebtedness is discharged within 30 days of the Guarantor or a Restricted Subsidiary becoming aware of such default;
(f) the Guarantor or any Significant Subsidiary pursuant to or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case;
(ii) consents to the entry of an order for relief against it premises in an involuntary case;
(iii) consents to case under any present or fixture federal or state bankruptcy, insolvency or similar law or the appointment of a Custodian of it conservator or for all receiver or substantially all of its property;
(iv) makes a general assignment for the benefit of its creditors; or
(v) admits in writing its inability to generally pay its debts as such debts become due; or takes any comparable action under any foreign laws relating to insolvency;
(g) an involuntary case or other proceeding shall be commenced against the Guarantor or any Significant Subsidiary seeking (i) liquidation, reorganization or other relief with respect to it or its debts under Title 11 of the Bankruptcy Code or any bankruptcy, insolvency or other similar law now or hereafter in effect, or (ii) the appointment of a trustee, receiver, liquidator, custodian liquidator or other similar official with respect to it in any insolvency, readjustment of debt, marshalling of assets and liabilities or any substantial part of its property similar proceedings, or (iii) for the winding-up or liquidation of its affairs, shall have been entered against the Guarantor Servicer, the Originator, the Seller or such Significant Subsidiary; the Issuer and such involuntary case decree or other proceeding order shall remain undismissed and have remained in force undischarged or unstayed for a period of 60 90 consecutive days;
(hf) any representation The Servicer, the Originator, the Seller or warranty made by the Guarantor herein Issuer shall prove consent to have been incorrect the appointment of a conservator or receiver or liquidator or other similar official in any material respect when made insolvency, readjustment of debt, marshalling of assets and liabilities or misleading in any material respect when made because similar proceedings of or relating to the Servicer, the Originator, the Seller or the Issuer or of or relating to all or substantially all of the omission property of such Person; or
(g) The Servicer, the Originator, the Seller or the Issuer shall admit in writing its inability to state pay its debts generally as they become due, file a material fact and such incorrect petition to take advantage of or misleading representation is and continues to be material and unremedied otherwise voluntarily commence a case or proceeding under any applicable bankruptcy, insolvency, reorganization or other similar statute, make an assignment for a period the benefit of 30 days after receipt by the Guarantor of written notice thereof; provided, however, that if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 60 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 60-day period. The grace periods set forth in Section 7.1(a) and (b) above shall not affect in any way the right hereunder of any Beneficiary entitled to a its creditors or voluntarily suspend payment of any amount payable to it, or performance of any obligation, by the RockGen Lessee under any Operative Document to demand prompt payment thereof, or performance thereof, by the Guarantor immediately upon any failure of the RockGen Lessee to pay or perform the same when it has become due (and, for the avoidance of doubt, without regard to the existence of any cure or grace period before such failure by the RockGen Lessee becomes a Lease Event of Default); provided, however, notwithstanding the foregoing, no Lease Event of Default under Section 16(m) and no remedies under the Facility Lease may be exercised until a Calpine Guaranty Event of Default has occurred and is continuingits obligations.
Appears in 1 contract
Sources: Insurance Agreement (Santander Drive Auto Receivables Trust 2007-3)
Defaults. The occurrence of any one or more of the following events shall constitute an "Event of Default" hereunder (whether any such event shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any Governmental Entity):Default under this Lease:
(a) the Guarantor or the RockGen Lessee under the Facility Lease shall fail to make any rent or other payment with respect to Periodic Rent or the Termination Value (including the Equity Portion of Termination Value and Debt Portion of Termination Value) when due and payable under such Facility Lease or this Guaranty within five (5) days after the same shall become due thereunderdue; or
(b) the Guarantor or the RockGen Lessee shall fail to make any other amount payable under any Operative Document after the same shall become due thereunder and such failure shall have continued from a period of ten (10) Business Days after receipt by the RockGen Lessee and the Guarantor of written notice of such failure by the RockGen Lessee and/or the Guarantor, as applicable;
(c) The Guarantor shall fail to comply with its covenants set forth in Section 3.3 (transfer of RockGen Lessee ownership), 3.6 (Guarantor merger) or 8.4 (assignment of Guaranty) of this Guaranty.
(d) the Guarantor shall fail to perform or observe any other covenant, obligation condition or agreement to be performed or observed by it under any Calpine Document (other than any covenant, obligation or agreement referred to in clauses (a) or (b) of this Section 7.1) in any material respect, which Lease and such failure shall continue unremedied for a period of ten (110) with respect to the Guarantor's guaranty of, and agreement with respect to, any nonmonetary obligation, covenant or agreement of the RockGen Lessee under any of the Operative Documents, 30 days after receipt by the Guarantor of written notice thereof from the Owner Participant, the Owner is delivered to Lessee by Lessor, the Indenture Trustee or the Pass Through Trustee; provided, however, if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 180 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 180-day period, and (2) with respect to any other obligation, covenant or agreement hereunder, 30 days after receipt by the Guarantor of written notice thereof;
(e) there shall have occurred either (i) a default by the Guarantor or any Restricted Subsidiary under any instrument or instruments under which there is or may be secured or evidenced any Indebtedness of the Guarantor or any Restricted Subsidiary of the Guarantor (other than the Obligations) having an outstanding principal amount of $50,000,000 (or its foreign currency equivalent) or more individually or in the aggregate that has caused the holders thereof to declare such Indebtedness to be due and payable prior to its Stated Maturity, unless such declaration has been rescinded within 30 days or (ii) a default by the Guarantor or any Restricted Subsidiary in the payment when due of any portion of the principal under any such instrument or instruments, and such unpaid portion exceeds $50,000,000 (or its foreign currency equivalent) individually or in the aggregate and is not paid, or such default is not cured or waived, within any grace period applicable thereto, unless such Indebtedness is discharged within 30 days of the Guarantor or a Restricted Subsidiary becoming aware of such default;
(f) the Guarantor or any Significant Subsidiary pursuant to or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case;
(ii) consents to the entry of an order for relief against it in an involuntary case;
(iii) consents to the appointment of a Custodian of it or for all or substantially all of its property;
(iv) makes a general assignment for the benefit of its creditors; or
(vc) admits in writing its inability to generally pay its debts as such debts become due; or takes any comparable action under any foreign laws relating to insolvency;
(g) an involuntary case or other proceeding shall be commenced against the Guarantor or any Significant Subsidiary seeking (i) liquidation, reorganization or other relief with respect to it or its debts under Title 11 of the Bankruptcy Code or any bankruptcy, insolvency or other similar law now or hereafter in effect, or (ii) the appointment of a trustee, receiver, liquidator, custodian or other similar official with respect to it or any substantial part of its property or (iii) the winding-up or liquidation of the Guarantor or such Significant Subsidiary; and such involuntary case or other proceeding shall remain undismissed and unstayed for a period of 60 days;
(h) any Any representation or warranty made by the Guarantor herein Lessee in this Lease or in any document or certificate furnished to Lessor in connection with or pursuant to this Lease (including but not limited to financial statements) shall prove to have been incorrect false in any material respect when made or misleading in any material respect when made because furnished; or
(d) Lessee shall become insolvent or bankrupt or make an assignment for the benefit of creditors or consent to the omission to state appointment of a material fact trustee or receiver, or a trustee or receiver shall be appointed for Lessee or for a substantial part of its property without its consent and such incorrect or misleading representation is and continues to shall not be material and unremedied dismissed for a period of 30 days after receipt thirty (30) days, or bankruptcy, reorganization or insolvency proceedings shall be instituted by or against Lessee and, if instituted against Lessee, shall not be dismissed for a period of thirty (30) days, or Lessee dies, is dissolved, terminates its existence or its business is discontinued; or
(e) Lessee removes, sells, transfers, encumbers, parts with possession of or sublets, or attempts to remove, sell, transfer, encumber, part with possession of or sublet all or any item of the Equipment; or
(f) Lessee is liquidated or dissolved, or commences any acts relative thereto, or, without the prior written consent of Lessor, (i) Lessee sells or otherwise disposes of all or substantially all of the assets of Lessee, (ii) Lessee merges or consolidates with any other person, or (iii) if Lessee is a corporation, ownership, control, or power to vote fifty percent (50%) or more of the outstanding shares of any class of voting securities of Lessee is transferred by the Guarantor current holders, in one or more transactions; or
(g) Any indebtedness of written notice thereof; providedLessee (including but not limited to indebtedness to Lessor or any of its affiliates) is not paid when due, howeveror Lessee defaults under any bond, that if debenture, note or other evidence of indebtedness of Lessee or under any indenture or other instrument under which any such condition cannot be remedied within such 30-day period, then the period within evidence of indebtedness has been issued or by which to remedy such condition shall be extended up to an additional 60 days, so long as the Guarantor diligently pursues such remedy it is governed and such condition is reasonably capable of being remedied within such additional 60-day period. The grace periods set forth in Section 7.1(a) and (b) above shall not affect in any way the right hereunder of any Beneficiary entitled to a payment of any amount payable to it, or performance of any obligation, by the RockGen Lessee under any Operative Document to demand prompt payment thereof, or performance thereof, by the Guarantor immediately upon any failure of the RockGen Lessee to pay or perform the same when it has become due (and, for the avoidance of doubt, without regard to the existence of any cure or grace period before such failure by the RockGen Lessee becomes a Lease Event of Default); provided, however, notwithstanding the foregoing, no Lease Event of Default under Section 16(m) and no remedies under the Facility Lease may be exercised until a Calpine Guaranty Event of Default has occurred and indebtedness is continuingaccelerated.
Appears in 1 contract
Defaults. The (a) Each of the following events shall constitute an "“Event of Default" ” hereunder (whether any whatever the reason for such event of default and whether it shall be voluntary or involuntary involuntary, or come about or be effected by operation of law law, or be pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any Governmental Entityadministrative or governmental body):
(a1) the Guarantor or the RockGen if Lessee under the Facility Lease shall fail to make any payment with respect to Periodic Rent or the Termination Value (including the Equity Portion of Termination Value and Debt Portion of Termination Value) pay when due any sum under this Agreement and payable under such Facility Lease failure shall continue for a period of three business days after oral, facsimile, or written notice has been given by Lessor to Lessee; (2) if Lessee shall fail to perform any covenant or agreement contained herein, and such failure shall continue for a period of fifteen (15) days after notice thereof shall have been given in writing; (3) if any representation or warranty made by Lessee in this Guaranty within five Agreement or any agreement, document or certificate delivered by the Lessee in connection herewith is or shall become incorrect in any material respect; (4) if Lessee shall operate the Aircraft in violation of any applicable law, regulation, rule or order of any governmental authority having jurisdiction thereof or shall operate the Aircraft when the insurance required hereunder shall not be in effect; (5) if any proceedings shall be commenced under any bankruptcy, insolvency, reorganization, readjustment of debt, receivership or liquidation law or statute of any jurisdiction; or (6) if any such proceedings shall be instituted against either Party and shall not be withdrawn or terminated within thirty (30) days after the same shall become due thereunder; ortheir commencement.
(b) Upon the Guarantor occurrence of any Event of Default Lessor may, at its option, exercise any or all remedies available at law or in equity, including, without limitation, any or all of the RockGen following remedies, as Lessor in its sole discretion shall elect: (1) by notice in writing to terminate this Agreement immediately, whereupon all rights of the Lessee to the use or possession of the Aircraft or any part thereof shall absolutely cease and terminate but Lessee shall fail to make any other amount payable under any Operative Document after remain liable as hereinafter provided; and thereupon Lessee, if so requested by Lessor, shall at its expense promptly return the Aircraft and Aircraft Documentation as required by this Agreement or Lessor, at its option, may enter upon the premises where the Aircraft or Aircraft Documentation are located and take immediate possession of and remove the same shall become due thereunder by summary proceedings or otherwise. Lessee specifically authorizes Lessor’s entry upon any premises where 113CS LLC - BLACKSTONE DRY LEASE - PAGE 6 OF 11 the Aircraft or Aircraft Documentation may be located for the purpose of, and such failure shall waives any cause of action it may have continued from arising from, a period peaceful retaking of ten the Aircraft or Aircraft Documentation; or (102) Business Days after receipt by the RockGen Lessee and the Guarantor of written notice of such failure by the RockGen Lessee and/or the Guarantor, as applicable;
(c) The Guarantor shall fail to comply with its covenants set forth in Section 3.3 (transfer of RockGen Lessee ownership), 3.6 (Guarantor merger) or 8.4 (assignment of Guaranty) of this Guaranty.
(d) the Guarantor shall fail to perform or observe any covenant, obligation or agreement cause to be performed or observed by it under any Calpine Document (other than any covenant, obligation or agreement referred to in clauses (a) or (b) of this Section 7.1) in any material respect, which shall continue unremedied for (1) with respect to the Guarantor's guaranty of, and agreement with respect to, any nonmonetary obligation, covenant or agreement of the RockGen Lessee under any hereunder. Lessee agrees to pay all costs and expenses incurred by Lessor for such performance and acknowledges that such performance by Lessor shall not be deemed to cure said Event of Default.
(c) Lessee shall be liable for all costs, charges and expenses, including reasonable legal fees and disbursements, incurred by Lessor by reason of the Operative Documents, 30 days after receipt by the Guarantor occurrence of written notice thereof from the Owner Participant, the Owner Lessor, the Indenture Trustee any Event of Default or the Pass Through Trustee; providedexercise of Lessor’s remedies with respect thereto. No remedy referred to herein is intended to be exclusive, however, if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition but each shall be extended up to an additional 180 days, so long as the Guarantor diligently pursues such remedy cumulative and such condition is reasonably capable of being remedied within such additional 180-day period, and (2) with respect in addition to any other obligation, covenant remedy referred to above or agreement hereunder, 30 days after receipt by the Guarantor of written notice thereof;
(e) there shall have occurred either (i) a default by the Guarantor or any Restricted Subsidiary under any instrument or instruments under which there is or may be secured or evidenced any Indebtedness of the Guarantor or any Restricted Subsidiary of the Guarantor (other than the Obligations) having an outstanding principal amount of $50,000,000 (or its foreign currency equivalent) or more individually otherwise available to Lessor at law or in equity. Lessor shall not be deemed to have waived any default, Event of Default or right hereunder unless the aggregate that has caused the holders thereof to declare such Indebtedness to be due and payable prior to its Stated Maturity, unless such declaration has been rescinded within 30 days or (ii) a default same is acknowledged in writing by the Guarantor or any Restricted Subsidiary in the payment when due duly authorized representative of Lessor. No waiver by Lessor of any portion default or Event of the principal under any such instrument or instruments, and such unpaid portion exceeds $50,000,000 (or its foreign currency equivalent) individually or in the aggregate and is not paid, or such default is not cured or waived, within any grace period applicable thereto, unless such Indebtedness is discharged within 30 days of the Guarantor or a Restricted Subsidiary becoming aware of such default;
(f) the Guarantor or any Significant Subsidiary pursuant to or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case;
(ii) consents to the entry of an order for relief against it in an involuntary case;
(iii) consents to the appointment of a Custodian of it or for all or substantially all of its property;
(iv) makes a general assignment for the benefit of its creditors; or
(v) admits in writing its inability to generally pay its debts as such debts become due; or takes any comparable action under any foreign laws relating to insolvency;
(g) an involuntary case or other proceeding Default hereunder shall be commenced against the Guarantor or any Significant Subsidiary seeking (i) liquidation, reorganization or other relief with respect to it or its debts under Title 11 of the Bankruptcy Code or any bankruptcy, insolvency or other similar law now or hereafter in effect, or (ii) the appointment of a trustee, receiver, liquidator, custodian or other similar official with respect to it or any substantial part of its property or (iii) the winding-up or liquidation of the Guarantor or such Significant Subsidiary; and such involuntary case or other proceeding shall remain undismissed and unstayed for a period of 60 days;
(h) any representation or warranty made by the Guarantor herein shall prove to have been incorrect in any material respect when made or misleading in any material respect when made because of the omission to state a material fact and such incorrect or misleading representation is and continues to be material and unremedied for a period of 30 days after receipt by the Guarantor of written notice thereof; provided, however, that if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 60 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 60-day period. The grace periods set forth in Section 7.1(a) and (b) above shall not affect in any way the right hereunder be, or be construed to be, a waiver of any Beneficiary entitled to a payment of any amount payable to it, future or performance of any obligation, by the RockGen Lessee under any Operative Document to demand prompt payment thereof, subsequent default or performance thereof, by the Guarantor immediately upon any failure of the RockGen Lessee to pay or perform the same when it has become due (and, for the avoidance of doubt, without regard to the existence of any cure or grace period before such failure by the RockGen Lessee becomes a Lease Event of Default); provided. The failure or delay of Lessor in exercising any rights granted it hereunder upon any occurrence of any such right upon the continuation or recurrence of any such contingencies or similar contingencies, however, notwithstanding and any single or partial exercise of any particular right by Lessor shall not exhaust the foregoing, no Lease Event same or constitute a waiver of Default under Section 16(m) and no remedies under the Facility Lease may be exercised until a Calpine Guaranty Event of Default has occurred and is continuingany other right provided herein.
Appears in 1 contract
Sources: Aircraft Dry Lease Agreement (Blackstone Group L.P.)
Defaults. The (a) Each of the following events shall constitute an "“Event of Default" ” hereunder (whether any whatever the reason for such event of default and whether it shall be voluntary or involuntary involuntary, or come about or be effected by operation of law law, or be pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any Governmental Entityadministrative or governmental body):
(a1) the Guarantor or the RockGen if Lessee under the Facility Lease shall fail to make any payment with respect to Periodic Rent or the Termination Value (including the Equity Portion of Termination Value and Debt Portion of Termination Value) pay when due any sum under this Agreement and payable under such Facility Lease failure shall continue for a period of three business days after oral, facsimile, electronic mail or written notice has been given by Lessor to Lessee; (2) if Lessee shall fail to perform any covenant or agreement contained herein, and such failure shall continue for a period of fifteen (15) calendar days after notice thereof shall have been given in writing; (3) if any representation or warranty made by Lessee in this Guaranty within five Agreement or any agreement, document or certificate delivered by the Lessee in connection herewith is or shall become incorrect in any material respect; (4) if Lessee shall operate the Aircraft in violation of any applicable law, regulation, rule or order of any governmental authority having jurisdiction thereof or shall operate the Aircraft when the insurance required hereunder shall not be in effect; (5) if any proceedings shall be commenced under any bankruptcy, insolvency, reorganization, readjustment of debt, receivership or liquidation law or statute of any jurisdiction; or (6) if any such proceedings shall be instituted against either Party and shall not be withdrawn or terminated within thirty (30) calendar days after the same shall become due thereunder; ortheir commencement. BLACKSTONE DRY LEASE AGREEMENT (GLOBAL 7500) - PAGE 6 OF 9
(b) Upon the Guarantor occurrence of any Event of Default Lessor may, at its option, exercise any or all remedies available at law or in equity, including, without limitation, any or all of the RockGen following remedies, as Lessor in its sole discretion shall elect: (1) by notice in writing to terminate this Agreement immediately, whereupon all rights of the Lessee to the use or possession of the Aircraft or any part thereof shall absolutely cease and terminate but Lessee shall fail to make any other amount payable under any Operative Document after remain liable as hereinafter provided; and thereupon Lessee, if so requested by Lessor, shall at its expense promptly return the Aircraft and Aircraft Documentation as required by this Agreement or Lessor, at its option, may enter upon the premises where the Aircraft or Aircraft Documentation are located and take immediate possession of and remove the same shall become due thereunder by summary proceedings or otherwise. Lessee specifically authorizes ▇▇▇▇▇▇’s entry upon any premises where the Aircraft or Aircraft Documentation may be located for the purpose of, and such failure shall waives any cause of action it may have continued from arising from, a period peaceful retaking of ten the Aircraft or Aircraft Documentation; or (102) Business Days after receipt by the RockGen Lessee and the Guarantor of written notice of such failure by the RockGen Lessee and/or the Guarantor, as applicable;
(c) The Guarantor shall fail to comply with its covenants set forth in Section 3.3 (transfer of RockGen Lessee ownership), 3.6 (Guarantor merger) or 8.4 (assignment of Guaranty) of this Guaranty.
(d) the Guarantor shall fail to perform or observe any covenant, obligation or agreement cause to be performed or observed by it under any Calpine Document (other than any covenant, obligation or agreement referred to in clauses (a) or (b) of this Section 7.1) in any material respect, which shall continue unremedied for (1) with respect to the Guarantor's guaranty of, and agreement with respect to, any nonmonetary obligation, covenant or agreement of the RockGen Lessee under any hereunder. ▇▇▇▇▇▇ agrees to pay all costs and expenses incurred by ▇▇▇▇▇▇ for such performance and acknowledges that such performance by ▇▇▇▇▇▇ shall not be deemed to cure said Event of Default.
(c) Lessee shall be liable for all costs, charges and expenses, including reasonable legal fees and disbursements, incurred by Lessor by reason of the Operative Documents, 30 days after receipt by the Guarantor occurrence of written notice thereof from the Owner Participant, the Owner Lessor, the Indenture Trustee any Event of Default or the Pass Through Trustee; providedexercise of ▇▇▇▇▇▇’s remedies with respect thereto. No remedy referred to herein is intended to be exclusive, however, if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition but each shall be extended up to an additional 180 days, so long as the Guarantor diligently pursues such remedy cumulative and such condition is reasonably capable of being remedied within such additional 180-day period, and (2) with respect in addition to any other obligation, covenant remedy referred to above or agreement hereunder, 30 days after receipt by the Guarantor of written notice thereof;
(e) there shall have occurred either (i) a default by the Guarantor or any Restricted Subsidiary under any instrument or instruments under which there is or may be secured or evidenced any Indebtedness of the Guarantor or any Restricted Subsidiary of the Guarantor (other than the Obligations) having an outstanding principal amount of $50,000,000 (or its foreign currency equivalent) or more individually otherwise available to Lessor at law or in equity. Lessor shall not be deemed to have waived any default, Event of Default or right hereunder unless the aggregate that has caused the holders thereof to declare such Indebtedness to be due and payable prior to its Stated Maturity, unless such declaration has been rescinded within 30 days or (ii) a default same is acknowledged in writing by the Guarantor or any Restricted Subsidiary in the payment when due duly authorized representative of Lessor. No waiver by Lessor of any portion default or Event of the principal under any such instrument or instruments, and such unpaid portion exceeds $50,000,000 (or its foreign currency equivalent) individually or in the aggregate and is not paid, or such default is not cured or waived, within any grace period applicable thereto, unless such Indebtedness is discharged within 30 days of the Guarantor or a Restricted Subsidiary becoming aware of such default;
(f) the Guarantor or any Significant Subsidiary pursuant to or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case;
(ii) consents to the entry of an order for relief against it in an involuntary case;
(iii) consents to the appointment of a Custodian of it or for all or substantially all of its property;
(iv) makes a general assignment for the benefit of its creditors; or
(v) admits in writing its inability to generally pay its debts as such debts become due; or takes any comparable action under any foreign laws relating to insolvency;
(g) an involuntary case or other proceeding Default hereunder shall be commenced against the Guarantor or any Significant Subsidiary seeking (i) liquidation, reorganization or other relief with respect to it or its debts under Title 11 of the Bankruptcy Code or any bankruptcy, insolvency or other similar law now or hereafter in effect, or (ii) the appointment of a trustee, receiver, liquidator, custodian or other similar official with respect to it or any substantial part of its property or (iii) the winding-up or liquidation of the Guarantor or such Significant Subsidiary; and such involuntary case or other proceeding shall remain undismissed and unstayed for a period of 60 days;
(h) any representation or warranty made by the Guarantor herein shall prove to have been incorrect in any material respect when made or misleading in any material respect when made because of the omission to state a material fact and such incorrect or misleading representation is and continues to be material and unremedied for a period of 30 days after receipt by the Guarantor of written notice thereof; provided, however, that if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 60 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 60-day period. The grace periods set forth in Section 7.1(a) and (b) above shall not affect in any way the right hereunder be, or be construed to be, a waiver of any Beneficiary entitled to a payment of any amount payable to it, future or performance of any obligation, by the RockGen Lessee under any Operative Document to demand prompt payment thereof, subsequent default or performance thereof, by the Guarantor immediately upon any failure of the RockGen Lessee to pay or perform the same when it has become due (and, for the avoidance of doubt, without regard to the existence of any cure or grace period before such failure by the RockGen Lessee becomes a Lease Event of Default); provided. The failure or delay of Lessor in exercising any rights granted it hereunder upon any occurrence of any such right upon the continuation or recurrence of any such contingencies or similar contingencies, however, notwithstanding and any single or partial exercise of any particular right by Lessor shall not exhaust the foregoing, no Lease Event same or constitute a waiver of Default under Section 16(m) and no remedies under the Facility Lease may be exercised until a Calpine Guaranty Event of Default has occurred and is continuingany other right provided herein.
Appears in 1 contract
Defaults. The If any of the following events ("Defaults") shall constitute an "Event occur:
(A) Borrower fails to pay (i) any of Default" hereunder its Liabilities (other than interest or fees) when such Liabilities are due or are declared due (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise) or (ii) any of its Liabilities constituting interest or fees within two days of the date such event Liabilities are due or declared due (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise);
(B) Borrower or any Subsidiary fails or neglects to perform, keep or observe any of its covenants, conditions or agreements contained in any of the other Financing Agreements or Borrower fails or neglects to perform, keep or observe any of its covenants, conditions or agreements contained in:
(i) Subsection 7.2 above and such failure shall continue for more than 24 hours after notice of such failure by Agent to Borrower;
(ii) Subsection 3.1 above and such failure shall continue for three (3) Business Days; provided that such grace period shall not apply, and a Default shall be voluntary deemed to have occurred promptly upon such breach, if such breach may not, in Agent's reasonable determination, be cured during such grace period;
(iii) Subsections 7.1 (other than clause (E) thereof), 7.3 (other than clause (c) thereof), or involuntary 7.8 above and such failure shall continue for five (5) days; provided that such grace period shall not apply, and a Default shall be deemed to have occurred promptly upon such breach, if such breach may not, in Agent's reasonable determination, be cured during such grace period;
(iv) Subsection 7.6 above and such failure shall continue for 14 days after Borrower knew or come about should have known thereof; provided that such grace period shall not apply, and a Default shall be deemed to have occurred promptly upon such breach, if such breach may not, in Agent's reasonable determination, be cured during such grace period;
(v) Subsections 7.4, 7.5, 7.10 or 7.12 and such failure shall continue for thirty (30) days (such 30 days to begin solely for the purposes of a failure to comply with Subsection 7.4, when Borrower knew or should have known of such failure); provided that such grace period shall not apply, and a Default shall be effected deemed to have occurred promptly upon such breach, if such breach may not, in Agent's reasonable determination, be cured during such grace period; and
(vi) any other covenant, condition or agreement contained in this Agreement;
(C) any warranty or representation now or hereafter made by operation Borrower or any Subsidiary is untrue or incorrect in any material respect when made, or any schedule, certificate, statement, report, financial data, notice, or writing furnished at any time by Borrower or any Subsidiary to Agent or any Lender is untrue or incorrect in any material respect on the date as of 76 which the facts set forth therein are stated or certified or any of the foregoing omits to state a fact necessary to make the statements therein contained not misleading in any material respect;
(D) one or more judgment or order requiring a payment or payments in excess of $250,000 in the aggregate (except for judgments which are not a lien on personal property and which are being contested by Borrower and its Subsidiaries in good faith) shall be rendered against Borrower or any Subsidiary and such judgment or order shall remain unsatisfied or undischarged and in effect for thirty (30) consecutive days without a stay of enforcement or execution, provided that this Subsection 9.1(D) shall not apply to any judgment for which Borrower and its Subsidiaries is fully insured (except for normal deductibles in connection therewith) and with respect to which the insurer has assumed the defense and is not defending under reservation of right and with respect to which Agent reasonably believes the insurer will pay the full amount thereof (except for normal deductibles in connection therewith);
(E) a notice of lien, levy or assessment is filed or recorded with respect to all or a substantial part of the assets of Borrower or any Subsidiary by the United States, or any department, agency or instrumentality thereof, or by any state, county, municipality or other governmental agency or any taxes or debts owing at any time or times hereafter to any one or more of them become a lien upon all or a substantial part of Borrower's Collateral or any Subsidiary's assets, and (i) such lien, levy or assessment is not discharged or released or the enforcement thereof is not stayed within thirty (30) days of the notice or attachment thereof, or (ii) if the enforcement thereof is stayed, such stay shall cease to be in effect, provided that this Subsection 9.1(E) shall not apply to any liens, levies or assessments which relate to current taxes not yet due and payable;
(F) there shall occur any loss, theft, substantial damage or destruction of any item or items of Borrower's Collateral for which Borrower is not fully insured as required by this Agreement, the other Financing Agreements or any guarantee (a "Loss"), if the amount of such Loss not fully covered by insurance (including any deductible in connection therewith), together with the amount of all other Losses not fully covered by insurance (including any deductibles in connection therewith) occurring in the same Fiscal Year, exceeds $500,000;
(G) all or any part of Borrower's Collateral is attached, seized, subjected to a writ or distress warrant, or is levied upon, or comes within the possession of any receiver, trustee, custodian or assignee for the benefit of creditors and on or before the thirtieth (30th) day thereafter such assets are not returned to Borrower and/or such writ, distress warrant or levy is not dismissed, stayed or lifted if the amount of such Collateral or assets or collateral, together with any other such Collateral, assets and collateral that is so attached, seized, subjected to writ or distress warrant or levied upon, exceeds $250,000 at any time;
(H) a proceeding under any bankruptcy, reorganization, arrangement of debt, insolvency, readjustment of debt or receivership law or pursuant statute is filed (i) against Borrower or any of its Subsidiaries and an adjudication or appointment is made or order for relief is entered, or such proceeding remains undismissed for a period in excess of sixty (60) days, or (ii) by Borrower or any of its Subsidiaries or Borrower or any of its Subsidiaries makes an assignment for the benefit of creditors or Borrower or any of its Subsidiaries takes any corporate action to authorize any of the foregoing;
(I) Borrower or any of its Subsidiaries voluntarily or involuntarily dissolves or is dissolved, terminates or is terminated;
(J) Borrower or any of its Subsidiaries becomes insolvent or fails generally to pay its debts as they become due;
(K) Borrower or any of its Subsidiaries is enjoined, restrained, or in compliance with any judgment, decree or way prevented by the order of any court or any orderadministrative or regulatory agency from conducting all or any part of its business affairs;
(L) a breach by Borrower or any Subsidiary shall occur under any material agreement, rule document or regulation instrument (other than an agreement, document or instrument evidencing the lending of money), whether heretofore, now or hereafter existing between Borrower or any Governmental Entity):Subsidiary and any other Person, and such breach continues unwaived for more than thirty (30) days after such breach first occurs, provided that such grace period shall not apply, and a Default shall be deemed to have occurred promptly upon such breach, if such breach may not, in Agent's reasonable determination, be cured by Borrower or such Subsidiary, as the case may be, during such thirty (30) day grace period;
(i) a default, breach, or Event of Default shall occur under any Related Document or (ii), as to more than $250,000 in Indebtedness in the aggregate at any time
(a) the Guarantor Borrower or the RockGen Lessee under the Facility Lease any Subsidiary shall fail to make any payment with respect to Periodic Rent due (whether by scheduled maturity, required prepayment, acceleration, demand or the Termination Value (including the Equity Portion of Termination Value and Debt Portion of Termination Valueotherwise) when due and payable under such Facility Lease or this Guaranty within five (5) days after the same shall become due thereunder; or
(b) the Guarantor or the RockGen Lessee shall fail to make on any other amount payable under any Operative Document after the same shall become due thereunder obligation for borrowed money and such failure shall have continued from a period of ten (10) Business Days continue after receipt by the RockGen Lessee and applicable grace period, if any, specified in the Guarantor of written notice of agreement or instrument relating to such failure by the RockGen Lessee and/or the Guarantor, as applicable;
(c) The Guarantor shall fail to comply with its covenants set forth in Section 3.3 (transfer of RockGen Lessee ownership), 3.6 (Guarantor merger) or 8.4 (assignment of Guaranty) of this Guaranty.
(d) the Guarantor shall fail to perform or observe any covenant, obligation or agreement to be performed or observed by it under any Calpine Document (other than any covenant, obligation or agreement referred to in clauses (a) Indebtedness; or (b) of this Section 7.1) in any material respect, which shall continue unremedied for (1) with respect to the Guarantor's guaranty of, and agreement with respect to, any nonmonetary obligation, covenant or agreement of the RockGen Lessee under any of the Operative Documents, 30 days after receipt by the Guarantor of written notice thereof from the Owner Participant, the Owner Lessor, the Indenture Trustee or the Pass Through Trustee; provided, however, if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition Indebtedness shall be extended up to an additional 180 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 180-day period, and (2) with respect to any other obligation, covenant or agreement hereunder, 30 days after receipt by the Guarantor of written notice thereof;
(e) there shall have occurred either (i) a default by the Guarantor or any Restricted Subsidiary under any instrument or instruments under which there is or may be secured or evidenced any Indebtedness of the Guarantor or any Restricted Subsidiary of the Guarantor (other than the Obligations) having an outstanding principal amount of $50,000,000 (or its foreign currency equivalent) or more individually or in the aggregate that has caused the holders thereof to declare such Indebtedness declared to be due and payable or required to be prepaid (other than by a regularly scheduled required prepayment) or accelerated prior to its Stated Maturity, unless such declaration has been rescinded within 30 days or the stated maturity thereof;
(iiN) a default by the Guarantor or any Restricted Subsidiary material and adverse change shall occur (i) in the payment when due present or reasonably foreseeable prospective operations or financial condition of Borrower or in the value of any material portion of the principal under any such instrument or instruments, and such unpaid portion exceeds $50,000,000 (or its foreign currency equivalent) individually or in the aggregate and is not paid, or such default is not cured or waived, within any grace period applicable thereto, unless such Indebtedness is discharged within 30 days of the Guarantor or a Restricted Subsidiary becoming aware of such default;
(f) the Guarantor or any Significant Subsidiary pursuant to or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case;
(ii) consents to the entry of an order for relief against it in an involuntary case;
(iii) consents to the appointment of a Custodian of it or for all or substantially all of its property;
(iv) makes a general assignment for the benefit of its creditors; or
(v) admits in writing its inability to generally pay its debts as such debts become due; or takes any comparable action under any foreign laws relating to insolvency;
(g) an involuntary case or other proceeding shall be commenced against the Guarantor or any Significant Subsidiary seeking (i) liquidation, reorganization or other relief with respect to it or its debts under Title 11 of the Bankruptcy Code or any bankruptcy, insolvency or other similar law now or hereafter in effectCollateral, or (ii) which materially impairs the appointment ability of a trusteeBorrower to perform Borrower's obligations under this Agreement and the other Financing Agreements, receiver, liquidator, custodian or other similar official with respect to it or any substantial part of its property or (iii) the winding-up or liquidation of the Guarantor or such Significant Subsidiary; and such involuntary in each case or other proceeding shall remain undismissed and unstayed for a period of 60 days;
(h) any representation or warranty made as determined by the Guarantor herein shall prove to have been incorrect Required Lenders in any material respect when made or misleading its sole discretion exercised in any material respect when made because of the omission to state a material fact and such incorrect or misleading representation is and continues to be material and unremedied for a period of 30 days after receipt by the Guarantor of written notice thereof; provided, however, that if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 60 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 60-day period. The grace periods set forth in Section 7.1(a) and (b) above shall not affect in any way the right hereunder of any Beneficiary entitled to a payment of any amount payable to it, or performance of any obligation, by the RockGen Lessee under any Operative Document to demand prompt payment thereof, or performance thereof, by the Guarantor immediately upon any failure of the RockGen Lessee to pay or perform the same when it has become due (and, for the avoidance of doubt, without regard to the existence of any cure or grace period before such failure by the RockGen Lessee becomes a Lease Event of Default); provided, however, notwithstanding the foregoing, no Lease Event of Default under Section 16(m) and no remedies under the Facility Lease may be exercised until a Calpine Guaranty Event of Default has occurred and is continuing.Good Faith;
Appears in 1 contract
Defaults. The following events shall constitute an "“Event of Default" hereunder ” of the Lease Agreement:
(whether i) With respect to any such event shall be voluntary or involuntary or come about or be effected by operation nDRAFTon-monetary obligations of law or pursuant to or in compliance with any judgment, decree or order of any court either Party under the Lease Agreement or any order, rule or regulation monetary obligation of any Governmental Entity):
(a) the Guarantor or the RockGen Lessee a Party under the Facility Lease Agreement that is not a sum certain, a Party shall fail have failed to make perform or comply in any payment material respect with respect to Periodic Rent or the Termination Value (including the Equity Portion of Termination Value and Debt Portion of Termination Value) when due and payable under such Facility Lease or this Guaranty within five (5) days after the same shall become due thereunder; or
(b) the Guarantor or the RockGen Lessee shall fail to make any other amount payable under any Operative Document after the same shall become due thereunder obligation and such failure shall have continued from a period of ten for thirty (1030) Business Days after receipt by the RockGen Lessee and the Guarantor of written notice of such failure by the RockGen Lessee and/or the Guarantor, as applicable;
(c) The Guarantor shall fail to comply with its covenants set forth in Section 3.3 (transfer of RockGen Lessee ownership), 3.6 (Guarantor merger) or 8.4 (assignment of Guaranty) of this Guaranty.
(d) the Guarantor shall fail to perform or observe any covenant, obligation or agreement to be performed or observed by it under any Calpine Document (other than any covenant, obligation or agreement referred to in clauses (a) or (b) of this Section 7.1) in any material respect, which shall continue unremedied for (1) with respect to the Guarantor's guaranty of, and agreement with respect to, any nonmonetary obligation, covenant or agreement of the RockGen Lessee under any of the Operative Documents, 30 days after receipt by the Guarantor of written notice thereof from the Owner Participantnon-defaulting Party, or if the Owner Lessorcuring of such non-monetary default is reasonably feasible by the defaulting Party, the Indenture Trustee or the Pass Through Trustee; provided, however, if such condition canbut not be remedied within such 30-day period, then the period within which to remedy defaulting Party shall not have commenced the curing of such condition shall be extended up to an additional 180 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied failure within such additional 180-thirty (30) day period, or having so commenced, shall thereafter have failed or neglected to prosecute or complete the curing of such Event of Default with diligence and dispatch within ninety (290) with respect to any other obligation, covenant or agreement hereunder, 30 days after receipt by the Guarantor of written original notice thereof;
(e) there shall have occurred either (i) a default by the Guarantor or any Restricted Subsidiary under any instrument or instruments under which there is or may be secured or evidenced any Indebtedness of the Guarantor or any Restricted Subsidiary of the Guarantor (other than the Obligations) having an outstanding principal amount of $50,000,000 (or its foreign currency equivalent) or more individually or in the aggregate that has caused the holders thereof to declare such Indebtedness to be due and payable prior to its Stated Maturity, unless such declaration has been rescinded within 30 days or (ii) a default by the Guarantor or any Restricted Subsidiary in the payment when due of any portion of the principal under any such instrument or instruments, and such unpaid portion exceeds $50,000,000 (or its foreign currency equivalent) individually or in the aggregate and is not paid, or such default is not cured or waived, within any grace period applicable thereto, unless such Indebtedness is discharged within 30 days of the Guarantor or a Restricted Subsidiary becoming aware of such default;
(f) the Guarantor or any Significant Subsidiary pursuant to or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case;; or
(ii) consents to the entry of an order for relief against it in an involuntary case;
(iii) consents to the appointment of Either a Custodian of it or for all or substantially all of its property;
(iv) makes Party shall have made a general assignment for the benefit of its creditors; or
(v) admits , or shall have admitted in writing its inability to generally pay its debts as such debts they become due; due or takes shall have filed a petition in bankruptcy, or shall have been adjudicated bankrupt or insolvent, or shall have filed a petition seeking any comparable action reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar relief under any foreign laws relating present or future statute, law or regulation, or shall have filed an answer admitting, or shall have failed reasonably to insolvency;contest, the material allegations of a petition filed against it in any such proceeding, or shall have sought or consented to or acquiesced in the appointment of any trustee, receiver or liquidator for such Party; or
(giii) an involuntary case or other proceeding shall be commenced against the Guarantor or any Significant Subsidiary seeking Either (i) within ninety (90) days after the commencement of any proceeding against a Party or any trustee, receiver or liquidator of such Party seeking any reorganization, arrangement, composition, readjustment, liquidation, reorganization dissolution or other similar relief with respect to it under any present or its debts under Title 11 of the Bankruptcy Code future statute, law, rule or any bankruptcyregulation, insolvency or other similar law now or hereafter in effectsuch proceeding shall not have been dismissed, or (ii) if, within ninety (90) days after the appointment without the consent or acquiescence of either a Party or any trustee, receiver, liquidator, custodian receiver or other similar official with respect to it liquidator of such party or of any substantial material part of its property or (iii) the winding-up or liquidation of the Guarantor or properties, such Significant Subsidiaryappointment shall not have been vacated; and such involuntary case or other proceeding shall remain undismissed and unstayed for a period of 60 days;or
(hiv) With respect to any representation or warranty made by monetary obligation of a Party under the Guarantor herein Lease Agreement that is a sum certain, such Party shall prove have failed to have been incorrect in any material respect when made or misleading in any material respect when made because of the omission to state a material fact and pay such incorrect or misleading representation is and continues to be material and unremedied for a period of 30 amount within ten (10) business days after receipt by the Guarantor of written notice thereof; provided, however, that if such condition cannot be remedied within such 30-day period, then thereof from the period within which to remedy such condition shall be extended up to an additional 60 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 60-day period. The grace periods set forth in Section 7.1(a) and (b) above shall not affect in any way the right hereunder of any Beneficiary entitled to a payment of any amount payable to it, or performance of any obligation, by the RockGen Lessee under any Operative Document to demand prompt payment thereof, or performance thereof, by the Guarantor immediately upon any failure of the RockGen Lessee to pay or perform the same when it has become due (and, for the avoidance of doubt, without regard to the existence of any cure or grace period before such failure by the RockGen Lessee becomes a Lease Event of Default); provided, however, notwithstanding the foregoing, no Lease Event of Default under Section 16(m) and no remedies under the Facility Lease may be exercised until a Calpine Guaranty Event of Default has occurred and is continuingother Party.
Appears in 1 contract
Sources: Memorandum of Understanding
Defaults. The following events shall constitute an "Event events of Defaultdefault" hereunder (whether any such event shall be voluntary or involuntary or come about or be effected by operation under this Contract:
A. The failure of law or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any Governmental Entity):
(a) either the Guarantor Management Company or the RockGen Lessee under the Facility Lease shall fail Association (but not individual Campsite Owners) to make any payment with respect to Periodic Rent or the Termination Value (including the Equity Portion of Termination Value and Debt Portion of Termination Value) when due and payable under such Facility Lease or this Guaranty within five (5) days after the same shall become due thereunder; or
(b) the Guarantor or the RockGen Lessee shall fail to make any other amount payable under any Operative Document after the same shall become due thereunder and such failure shall have continued from a period of ten (10) Business Days after receipt by the RockGen Lessee and the Guarantor of written notice of such failure by the RockGen Lessee and/or the Guarantor, as applicable;
(c) The Guarantor shall fail to comply with its covenants set forth in Section 3.3 (transfer of RockGen Lessee ownership), 3.6 (Guarantor merger) or 8.4 (assignment of Guaranty) of this Guaranty.
(d) the Guarantor shall fail to perform or observe any covenant, obligation or agreement required to be performed or observed by it under any Calpine Document made in accordance with the terms hereof within thirty (other than any covenant, obligation or agreement referred to in clauses (a30) or (b) of this Section 7.1) in any material respect, which shall continue unremedied for (1) with respect to the Guarantor's guaranty of, and agreement with respect to, any nonmonetary obligation, covenant or agreement of the RockGen Lessee under any of the Operative Documents, 30 days after receipt by the Guarantor such party of written notice thereof from the Owner Participant, the Owner Lessor, the Indenture Trustee or the Pass Through Trustee; provided, however, if that such condition canpayment has not be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 180 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 180-day period, and (2) with respect to any other obligation, covenant or agreement hereunder, 30 days after receipt by the Guarantor of written notice thereof;
(e) there shall have occurred either (i) a default by the Guarantor or any Restricted Subsidiary under any instrument or instruments under which there is or may be secured or evidenced any Indebtedness of the Guarantor or any Restricted Subsidiary of the Guarantor (other than the Obligations) having an outstanding principal amount of $50,000,000 (or its foreign currency equivalent) or more individually or in the aggregate that has caused the holders thereof to declare such Indebtedness to be due and payable prior to its Stated Maturity, unless such declaration has been rescinded within 30 days or (ii) a default by the Guarantor or any Restricted Subsidiary in the payment when due of any portion of the principal under any such instrument or instruments, and such unpaid portion exceeds $50,000,000 (or its foreign currency equivalent) individually or in the aggregate and is not paid, or such default is not cured or waived, within any grace period applicable thereto, unless such Indebtedness is discharged within 30 days of the Guarantor or a Restricted Subsidiary becoming aware of such default;
(f) the Guarantor or any Significant Subsidiary pursuant to or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case;
(ii) consents to the entry of an order for relief against it in an involuntary case;
(iii) consents to the appointment of a Custodian of it or for all or substantially all of its property;
(iv) makes a general assignment for the benefit of its creditorsmade; or
B. The failure of either the Management Company or the Association (vbut not, individual Campsite Owners) admits in writing its inability to generally pay its debts as such debts become due; perform, keep or takes fulfill any comparable action under any foreign laws relating to insolvency;
(g) an involuntary case or other proceeding shall be commenced against the Guarantor or any Significant Subsidiary seeking (i) liquidation, reorganization or other relief with respect to it or its debts under Title 11 of the Bankruptcy Code other covenants, undertakings, obligations or any bankruptcyconditions set forth in the Contract, insolvency or other similar law now or hereafter in effect, or (ii) and the appointment continuance of a trustee, receiver, liquidator, custodian or other similar official with respect to it or any substantial part of its property or (iii) the winding-up or liquidation of the Guarantor or such Significant Subsidiary; and such involuntary case or other proceeding shall remain undismissed and unstayed default for a period of 60 days;thirty (30) days after written notice of said failure.
C. Upon the occurrence of any such events of default, the non defaulting party may give to the other party (hthe "Noticed Party") any representation or warranty made by notice of such default - (the Guarantor herein "Notice") and notice that this Contract shall prove to have been incorrect in any material respect when made or misleading in any material respect when made because terminate upon the expiration of the omission to state a material fact and such incorrect or misleading representation is and continues to be material and unremedied for a period of 30 thirty (30) days from the date of such notice unless, prior to the expiration of such period, such default has been cured or, in the event of a default which is not susceptible of being cured within such thirty (30) days, unless the defaulting party shall promptly commence to cure the default and must thereafter diligently pursue such efforts to completion.
D. The Notice shall state the specific reason(s) for the default and the specific action(s) required to cure the Noticed Party's default. If the Noticed Party does not agree with all or portions of the Notice, within fifteen (15) days after receipt by thereof the Guarantor of Noticed Party shall give written notice thereofto the non-defaulting party of such disagreement, which notice shall specifically identify the areas of disagreement with the Notice and that the Noticed Party requests a determination thereof by arbitration; provided, howeveras to the portion of the non- defaulting party's notice that the Noticed Party agrees with, the Noticed Party shall proceed to cure as provided above. If the arbitrator determines that if any noticed default denied by the Noticed Party exists, the arbitrator by written opinion shall identify such condition cannot be remedied within such 30-day perioddefault, then the action(s) required to cure the default and the specific period within of time, which the Noticed Party shall have to remedy such condition shall be extended up to an additional 60 dayscure the default. If the Noticed Party complies with the decision of the arbitrator, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 60-day period. The grace periods set forth in Section 7.1(a) and (b) above this Contract shall not affect in any way the right hereunder of any Beneficiary entitled to a payment of any amount payable to it, or performance of any obligation, by the RockGen Lessee under any Operative Document to demand prompt payment thereof, or performance thereof, by the Guarantor immediately upon any failure of the RockGen Lessee to pay or perform the same when it has become due (and, for the avoidance of doubt, without regard to the existence of any cure or grace period before such failure by the RockGen Lessee becomes a Lease Event of Default); provided, however, notwithstanding the foregoing, no Lease Event of Default under Section 16(m) and no remedies under the Facility Lease may be exercised until a Calpine Guaranty Event of Default has occurred and is continuingterminate.
Appears in 1 contract
Sources: Management Contract
Defaults. The 4.1 If any one or more of the following events shall constitute (each such event being an "Event of Default" hereunder (whether any such event ") shall be voluntary or involuntary or come about or be effected by operation of law or pursuant happen, that is to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any Governmental Entity):say:
(a) the Guarantor or the RockGen Lessee under the Facility Lease 4.1.1 The Company shall fail to make any payment with in respect to Periodic Rent of principal of or interest on the Termination Value Note (including other than interest not so paid as a result of the Equity Portion applicability of Termination Value and Debt Portion of Termination Valuerestrictions contained in the Subordination Agreement) when due and payable under such Facility Lease or this Guaranty within five (5) days after as the same shall become due thereunderwhether at maturity acceleration or otherwise, and such failure shall continue uncured and unremedied for 15 business days after the Noteholder has provided notice thereof to the Company; or
4.1.2 The Company shall:
(a) commence a voluntary case concerning itself under Title 11 of the United States Code entitled `Bankruptcy" as now or hereafter in effect, or any successor thereto (the "Bankruptcy Code");
(b) have commenced against it an involuntary case under said Bankruptcy Code and the petition is dismissed within 60 days of the commencement of the case; or
(b) the Guarantor or the RockGen Lessee shall fail to make any other amount payable under any Operative Document after the same shall become due thereunder and such failure shall have continued from a period of ten (10) Business Days after receipt by the RockGen Lessee and the Guarantor of written notice of such failure by the RockGen Lessee and/or the Guarantor, as applicable;
(c) The Guarantor shall fail to comply with its covenants set forth in Section 3.3 have appointed for it a custodian (transfer of RockGen Lessee ownership), 3.6 (Guarantor merger) or 8.4 (assignment of Guaranty) of this Guaranty.
(d) the Guarantor shall fail to perform or observe any covenant, obligation or agreement to be performed or observed by it under any Calpine Document (other than any covenant, obligation or agreement referred to in clauses (a) or (b) of this Section 7.1) in any material respect, which shall continue unremedied for (1) with respect to the Guarantor's guaranty of, and agreement with respect to, any nonmonetary obligation, covenant or agreement of the RockGen Lessee under any of the Operative Documents, 30 days after receipt by the Guarantor of written notice thereof from the Owner Participant, the Owner Lessor, the Indenture Trustee or the Pass Through Trustee; provided, however, if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 180 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 180-day period, and (2) with respect to any other obligation, covenant or agreement hereunder, 30 days after receipt by the Guarantor of written notice thereof;
(e) there shall have occurred either (i) a default by the Guarantor or any Restricted Subsidiary under any instrument or instruments under which there is or may be secured or evidenced any Indebtedness of the Guarantor or any Restricted Subsidiary of the Guarantor (other than the Obligations) having an outstanding principal amount of $50,000,000 (or its foreign currency equivalent) or more individually or defined in the aggregate that has caused the holders thereof Bankruptcy Code) to declare such Indebtedness to be due and payable prior to its Stated Maturity, unless such declaration has been rescinded within 30 days or (ii) a default by the Guarantor or any Restricted Subsidiary in the payment when due take charge of any portion of the principal under any such instrument or instruments, and such unpaid portion exceeds $50,000,000 (or its foreign currency equivalent) individually or in the aggregate and is not paid, or such default is not cured or waived, within any grace period applicable thereto, unless such Indebtedness is discharged within 30 days of the Guarantor or a Restricted Subsidiary becoming aware of such default;
(f) the Guarantor or any Significant Subsidiary pursuant to or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case;
(ii) consents to the entry of an order for relief against it in an involuntary case;
(iii) consents to the appointment of a Custodian of it or for all or substantially all of its property;; or
(ivd) makes have filed against it any proceeding under any reorganization, arrangement, adjustment of debt, relief of debtors, dissolution, insolvency or liquidation or similar law of any jurisdiction whether now or hereafter in effect, which such proceeding remains undismissed for a period of 60 days or shall suffer the appointment of any receiver or custodian or the like for it or all or substantially all of its property which continues undischarged or unstayed for a period of 60 days; or
(e) make a general assignment for the benefit of its creditors; or
then and in each and every such case, subject to the provisions of the Subordination Agreement, the Noteholder may proceed to protect and enforce its rights by suit in equity, action at law and/or other appropriate proceeding, and may by notice to the Company declare (veach, an "Acceleration") admits in writing its inability to generally pay its debts as such debts become due; or takes any comparable action under any foreign laws relating to insolvency;
(g) an involuntary case or other proceeding shall be commenced against the Guarantor all or any Significant Subsidiary seeking (i) liquidationpart of the unpaid principal amount of the Note then outstanding to be forthwith due and payable, reorganization and thereupon such unpaid principal amount or part thereof, together with interest accrued thereon and all other relief with respect sums, if any, payable under the Note, shall become so due and payable without presentation, presentment, protest or further demand or notice of any kind, all of which are hereby expressly waived, and such holder or holders may proceed to enforce payment of such amount or part thereof in such manner as it or its debts under Title 11 of the Bankruptcy Code or any bankruptcy, insolvency or other similar law now or hereafter in effect, or (ii) the appointment of a trustee, receiver, liquidator, custodian or other similar official with respect to it or any substantial part of its property or (iii) the winding-up or liquidation of the Guarantor or such Significant Subsidiary; and such involuntary case or other proceeding shall remain undismissed and unstayed for a period of 60 days;
(h) any representation or warranty made by the Guarantor herein shall prove to have been incorrect in any material respect when made or misleading in any material respect when made because of the omission to state a material fact and such incorrect or misleading representation is and continues to be material and unremedied for a period of 30 days after receipt by the Guarantor of written notice thereof; provided, however, that if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 60 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 60-day period. The grace periods set forth in Section 7.1(a) and (b) above shall not affect in any way the right hereunder of any Beneficiary entitled to a payment of any amount payable to it, or performance of any obligation, by the RockGen Lessee under any Operative Document to demand prompt payment thereof, or performance thereof, by the Guarantor immediately upon any failure of the RockGen Lessee to pay or perform the same when it has become due (and, for the avoidance of doubt, without regard to the existence of any cure or grace period before such failure by the RockGen Lessee becomes a Lease Event of Default)they may elect; provided, however, notwithstanding the foregoing, no Lease in the case of an Event of Default under Section 16(m) and no remedies under 4.1.2, Acceleration shall be deemed automatic without notice to the Facility Lease may be exercised until a Calpine Guaranty Event of Default has occurred and is continuingCompany.
Appears in 1 contract
Defaults. The following events shall constitute an "Event events of Defaultdefault" hereunder (whether any such event shall be voluntary or involuntary or come about or be effected by operation under this Contract:
A. The failure of law or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any Governmental Entity):
(a) either the Guarantor Management Company or the RockGen Lessee under the Facility Lease shall fail Association (but not individual Unit Owners) to make any payment with respect to Periodic Rent or the Termination Value (including the Equity Portion of Termination Value and Debt Portion of Termination Value) when due and payable under such Facility Lease or this Guaranty within five (5) days after the same shall become due thereunder; or
(b) the Guarantor or the RockGen Lessee shall fail to make any other amount payable under any Operative Document after the same shall become due thereunder and such failure shall have continued from a period of ten (10) Business Days after receipt by the RockGen Lessee and the Guarantor of written notice of such failure by the RockGen Lessee and/or the Guarantor, as applicable;
(c) The Guarantor shall fail to comply with its covenants set forth in Section 3.3 (transfer of RockGen Lessee ownership), 3.6 (Guarantor merger) or 8.4 (assignment of Guaranty) of this Guaranty.
(d) the Guarantor shall fail to perform or observe any covenant, obligation or agreement required to be performed or observed by it under any Calpine Document made in accordance with the terms hereof within thirty (other than any covenant, obligation or agreement referred to in clauses (a30) or (b) of this Section 7.1) in any material respect, which shall continue unremedied for (1) with respect to the Guarantor's guaranty of, and agreement with respect to, any nonmonetary obligation, covenant or agreement of the RockGen Lessee under any of the Operative Documents, 30 days after receipt by the Guarantor such party of written notice thereof from the Owner Participant, the Owner Lessor, the Indenture Trustee or the Pass Through Trustee; provided, however, if that such condition canpayment has not be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 180 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 180-day period, and (2) with respect to any other obligation, covenant or agreement hereunder, 30 days after receipt by the Guarantor of written notice thereof;
(e) there shall have occurred either (i) a default by the Guarantor or any Restricted Subsidiary under any instrument or instruments under which there is or may be secured or evidenced any Indebtedness of the Guarantor or any Restricted Subsidiary of the Guarantor (other than the Obligations) having an outstanding principal amount of $50,000,000 (or its foreign currency equivalent) or more individually or in the aggregate that has caused the holders thereof to declare such Indebtedness to be due and payable prior to its Stated Maturity, unless such declaration has been rescinded within 30 days or (ii) a default by the Guarantor or any Restricted Subsidiary in the payment when due of any portion of the principal under any such instrument or instruments, and such unpaid portion exceeds $50,000,000 (or its foreign currency equivalent) individually or in the aggregate and is not paid, or such default is not cured or waived, within any grace period applicable thereto, unless such Indebtedness is discharged within 30 days of the Guarantor or a Restricted Subsidiary becoming aware of such default;
(f) the Guarantor or any Significant Subsidiary pursuant to or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case;
(ii) consents to the entry of an order for relief against it in an involuntary case;
(iii) consents to the appointment of a Custodian of it or for all or substantially all of its property;
(iv) makes a general assignment for the benefit of its creditorsmade; or
B. The failure of either the Management Company or the Association (vbut not, individual Unit Owners) admits in writing its inability to generally pay its debts as such debts become due; perform, keep or takes fulfill any comparable action under any foreign laws relating to insolvency;
(g) an involuntary case or other proceeding shall be commenced against the Guarantor or any Significant Subsidiary seeking (i) liquidation, reorganization or other relief with respect to it or its debts under Title 11 of the Bankruptcy Code other covenants, undertakings, obligations or any bankruptcyconditions set forth in the Contract, insolvency or other similar law now or hereafter in effect, or (ii) and the appointment continuance of a trustee, receiver, liquidator, custodian or other similar official with respect to it or any substantial part of its property or (iii) the winding-up or liquidation of the Guarantor or such Significant Subsidiary; and such involuntary case or other proceeding shall remain undismissed and unstayed default for a period of 60 days;thirty (30) days after written notice of said failure.
C. Upon the occurrence of any such events of default, the non defaulting party shall give to the other party (hthe "Noticed Party") any representation or warranty made by notice of such default - (the Guarantor herein "Notice") and notice that this Contract shall prove to have been incorrect in any material respect when made or misleading in any material respect when made because terminate upon the expiration of the omission to state a material fact and such incorrect or misleading representation is and continues to be material and unremedied for a period of 30 thirty (30) days from the date of such notice unless, prior to the expiration of such period, such default has been cured or, in the event of a default which is not susceptible of being cured within such thirty (30) days, unless the defaulting party shall promptly commence to cure the default and must thereafter diligently pursue such efforts to completion.
D. The Notice shall state the specific reason(s) for the default and the specific action(s) required to cure the Noticed Party's default. If the Noticed Party does not agree with all or portions of the Notice, within fifteen (15) days after receipt by thereof the Guarantor of Noticed Party shall give written notice thereofto the non-defaulting party of such disagreement, which notice shall specifically identify the areas of disagreement with the Notice and that the Noticed Party requests a determination thereof by arbitration; provided, howeveras to the portion of the non defaulting party's notice that the Noticed Party agrees with, the Noticed Party shall proceed to cure as provided above. If the arbitrator determines that if any noticed default denied by the Noticed Party exists, the arbitrator by written opinion shall identify such condition cannot be remedied within such 30-day perioddefault, then the action(s) required to cure the default and the specific period within of time, which the Noticed Party shall have to remedy such condition shall be extended up to an additional 60 dayscure the default. If the Noticed Party complies with the decision of the arbitrator, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 60-day period. The grace periods set forth in Section 7.1(a) and (b) above this Contract shall not affect in any way the right hereunder of any Beneficiary entitled to a payment of any amount payable to it, or performance of any obligation, by the RockGen Lessee under any Operative Document to demand prompt payment thereof, or performance thereof, by the Guarantor immediately upon any failure of the RockGen Lessee to pay or perform the same when it has become due (and, for the avoidance of doubt, without regard to the existence of any cure or grace period before such failure by the RockGen Lessee becomes a Lease Event of Default); provided, however, notwithstanding the foregoing, no Lease Event of Default under Section 16(m) and no remedies under the Facility Lease may be exercised until a Calpine Guaranty Event of Default has occurred and is continuingterminate.
Appears in 1 contract
Sources: Management Contract
Defaults. The Upon the happening of any of the following events shall constitute an (collectively, "Event Events of Default" hereunder (whether any such event shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any Governmental Entity"):
(a) the Guarantor or the RockGen Lessee under the Facility Lease if either Borrower shall fail to make any payment with respect to Periodic Rent or the Termination Value (including the Equity Portion of Termination Value and Debt Portion of Termination Value) when due of any Obligation under this Agreement or any Loan Document, provided, however, that, for purposes of each Borrower's obligation to make payment of any Obligations to Lender comprised of Obligations to reimburse Lender for or to pay field examination expenses and payable under such Facility Lease or this Guaranty within five legal fees and expenses incurred by Lender after the date hereof, no Event of Default shall be deemed to have occurred, unless sixty (560) days after have elapsed from the same date of demand therefor by Lender; provided that, Lender's right hereunder to charge such fees and expenses to Borrowers shall become due thereundernot be effected by the foregoing and in the event Lender so charges Borrowers for such fees and expenses any such incipient Event of Default shall be deemed cured thereby; or
(b) the Guarantor or the RockGen Lessee shall fail to make any other amount payable under any Operative Document after the same shall become due thereunder and such failure shall have continued from a period of ten (10) Business Days after receipt by the RockGen Lessee and the Guarantor of written notice of such failure by the RockGen Lessee and/or the Guarantor, as applicable;
(c) The Guarantor if either Borrower shall fail to comply with its covenants set forth any terms, conditions, covenant, warranty or representation contained in Section 3.3 (transfer of RockGen Lessee ownership), 3.6 (Guarantor merger) Article 11 or 8.4 (assignment of Guaranty) Article 15 of this Guaranty.Agreement; or
(c) if either Borrower shall fail to comply with any term, condition, covenant or warranty of or in this Agreement, any other Loan Document or any other agreement between Lender and either Borrower, other than in Article 11 or Article 15 of this Agreement, and such failure continues for a period in excess of twenty (20) days after notice thereof is given by Lender to Borrowers; or
(d) the Guarantor if either Borrower shall fail to perform or observe any covenant, obligation or agreement cease to be performed or observed by it under any Calpine Document (other than any covenantSolvent, obligation or agreement referred to in clauses (a) or (b) of this Section 7.1) in any material respect, which shall continue unremedied for (1) with respect to the Guarantor's guaranty of, and agreement with respect to, any nonmonetary obligation, covenant or agreement of the RockGen Lessee under any of the Operative Documents, 30 days after receipt by the Guarantor of written notice thereof from the Owner Participant, the Owner Lessor, the Indenture Trustee or the Pass Through Trustee; provided, however, if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to make an additional 180 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 180-day period, and (2) with respect to any other obligation, covenant or agreement hereunder, 30 days after receipt by the Guarantor of written notice thereof;
(e) there shall have occurred either (i) a default by the Guarantor or any Restricted Subsidiary under any instrument or instruments under which there is or may be secured or evidenced any Indebtedness of the Guarantor or any Restricted Subsidiary of the Guarantor (other than the Obligations) having an outstanding principal amount of $50,000,000 (or its foreign currency equivalent) or more individually or in the aggregate that has caused the holders thereof to declare such Indebtedness to be due and payable prior to its Stated Maturity, unless such declaration has been rescinded within 30 days or (ii) a default by the Guarantor or any Restricted Subsidiary in the payment when due of any portion of the principal under any such instrument or instruments, and such unpaid portion exceeds $50,000,000 (or its foreign currency equivalent) individually or in the aggregate and is not paid, or such default is not cured or waived, within any grace period applicable thereto, unless such Indebtedness is discharged within 30 days of the Guarantor or a Restricted Subsidiary becoming aware of such default;
(f) the Guarantor or any Significant Subsidiary pursuant to or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case;
(ii) consents to the entry of an order for relief against it in an involuntary case;
(iii) consents to the appointment of a Custodian of it or for all or substantially all of its property;
(iv) makes a general assignment for the benefit of its creditors, call a meeting of its creditors to obtain any general financial accommodation, suspend business or if any case under any provision of the Bankruptcy Code, including provisions for reorganizations, shall be commenced by or against either Borrower; or
(ve) admits if any statement or representation contained in writing its inability any financial statement or certificate delivered by either Borrower to generally pay its debts as such debts become dueLender shall be false, in any material respect, when made; or
(f) if any federal tax lien is filed of record against either Borrower or takes any comparable action under any foreign laws relating to insolvency;Guarantor and is not bonded or discharged within ten (10) days; or
(g) an involuntary case or other proceeding if either Borrower's independent public accountants shall be commenced against the Guarantor or refuse to deliver any Significant Subsidiary seeking financial statement required by this Agreement within ten (i10) liquidation, reorganization or other relief with respect to it or its debts under Title 11 days after written demand by Lender for delivery of the Bankruptcy Code or any bankruptcy, insolvency or other similar law now or hereafter in effect, or (ii) the appointment of a trustee, receiver, liquidator, custodian or other similar official with respect to it or any substantial part of its property or (iii) the winding-up or liquidation of the Guarantor or such Significant Subsidiaryfinancial statements; and such involuntary case or other proceeding shall remain undismissed and unstayed for a period of 60 days;or
(h) if a receiver, trustee or equivalent officer shall be appointed for all or any representation or warranty made by of the Guarantor herein assets of either Borrower; or
(i) if a judgment for more than One Hundred Thousand Dollars ($100,000) shall prove to have been incorrect be entered against either Borrower in any material respect when made action or misleading proceeding and shall not be stayed, vacated, bonded, paid, discharged or applied in any material respect when made because good faith within twenty (20) days, or in the case of a judgment against Borrower TACT relating to the omission T3 Permitted Indebtedness (as defined below) in which case five (5) days shall be allowed to state a material fact and such incorrect stay, vacate, bond, pay, discharge or misleading representation is and continues to be material and unremedied for a period of 30 days after receipt by the Guarantor of written notice thereofapply in good faith; provided, howeverthat, that no Event of Default shall be deemed to have occurred in the case of any judgment where the claim is covered by insurance and the insurance company has accepted liability therefor; or
(j) if any obligation of either Borrower in respect of Indebtedness shall be declared to be or shall become due and payable prior to the stated maturity thereof or such condition canobligation shall not be remedied within paid as and when the same becomes due and payable; or there shall occur any event or condition which constitutes an event of default under any mortgage, indenture, instrument, agreement or evidence of indebtedness relating to any obligation of either Borrower in respect of any such 30-day periodIndebtedness the effect of which is to permit the holder or the holders of such mortgage, then indenture, instrument, agreement or evidence of Indebtedness, or a trustee, agent or other representative on behalf of such holder or holders, to cause the period within which Indebtedness evidenced thereby to remedy such condition become due prior to its stated maturity; provided, that, the foregoing shall be extended not include (a) Indebtedness to Lender; (b) Indebtedness aggregating up to an additional 60 days$800,000.00 owing by T3 Media, Inc. and guaranteed by Borrower TACT ("T3 Permitted Indebtedness"), so long as, Borrower TACT gives Lender prompt notice of the acceleration thereof; or (c) Indebtedness arising in connection with any real property lease obligations up to $50,000.00, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable no judgments are entered against either Borrower as a result of being remedied within such additional 60-day period. The grace periods set forth in Section 7.1(a) and (b) above shall not affect in any way the right hereunder of any Beneficiary entitled to a payment of any amount payable to it, or performance of any obligation, by the RockGen Lessee under any Operative Document to demand prompt payment thereof, or performance thereof, by the Guarantor immediately upon any either Borrower's failure of the RockGen Lessee to pay or perform the same when it has become due (and, for the avoidance of doubt, without regard to the existence of any cure or grace period before such failure by the RockGen Lessee becomes a Lease Event of Default)Indebtedness; provided, howeverthat, notwithstanding subsection c (except for real property lease obligations for real property located in New York) ; or
(k) upon the foregoinghappening of any Reportable Event which Lender in its discretion determines could reasonably be expected to constitute grounds for the termination of any Plan, no Lease Event or if a trustee shall be appointed by an appropriate United States District Court or other court of Default under Section 16(madministrative tribunal to administer any Plan, or if the Pension Benefit Guaranty Corporation shall institute proceedings to terminate any Plan or to appoint a trustee to administer any Plan; or
(l) upon the occurrence and no remedies continuance of any Material Adverse Effect, which in the sole and absolute opinion of Lender, impairs Lender's security or increases its risks; or
(m) if ▇▇▇▇▇▇ ▇▇▇▇▇▇ ceases to own at least ten percent (10%) of the shares of voting stock of or other ownership interests in Borrower TACT; or
(n) if Borrowers make any payment under the Facility Lease Stock Purchase Agreement which violates or would cause a violation of Section 15.26.
(o) if Borrowers make any payment under the Permitted Zielczynski Debt which violates or would cause a violation of Section 15.27.
(p) if Borrower TACT ceases to own 100% of the issued and outstanding shares of voting stock of or other ownership interests in Borrower IOT without the prior written consent of Lender; or
(q) upon the happening of any of the events described in Section 19.1(d), Section 19.1(e), Section 19.1(g), Section 19.1(h), Section 19.1(i) or Section 19.1(j) or if any Guarantor purports to terminate its guaranty or if any Validity/Support Guarantor purports to terminate his/its Validity/Support Guaranty or upon the death of any Guarantor or Validity/Support Guarantor that is a natural person; then and in any such event, Lender may terminate this Agreement without prior notice or demand to either Borrower or may demand payment of all Obligations (whether otherwise then payable on demand or not) without terminating this Agreement and shall, in any event, be exercised until a Calpine Guaranty Event of Default has occurred and is continuingunder no further responsibility to extend any credit or afford any financial accommodation to either Borrower, whether under this Agreement or otherwise.
Appears in 1 contract
Sources: Loan and Security Agreement (A Consulting Team Inc)
Defaults. The following events shall constitute an "Event of Default" hereunder (whether any such event shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any Governmental Entity):
(a) The occurrence of any one or more of the Guarantor or the RockGen Lessee under the Facility following events (hereinafter referred to as “Events of Default”) shall constitute a breach of this Lease by Tenant: (i) if Tenant shall fail to make pay the Basic Rental or any payment with respect to Periodic Rent or other sum when and as the Termination Value (including the Equity Portion of Termination Value and Debt Portion of Termination Value) when same becomes due and payable under such Facility Lease or this Guaranty within five (5) days after the same shall become due thereunder; or
(b) the Guarantor or the RockGen Lessee shall fail to make any other amount payable under any Operative Document after the same shall become due thereunder and such failure shall have continued from a period of continue for more than ten (10) Business Days days after receipt by the RockGen Lessee and the Guarantor of written notice of such failure by the RockGen Lessee and/or the Guarantor, as applicable;
to Tenant; or (cii) The Guarantor shall fail to comply with its covenants set forth in Section 3.3 (transfer of RockGen Lessee ownership), 3.6 (Guarantor merger) or 8.4 (assignment of Guaranty) of this Guaranty.
(d) the Guarantor if Tenant shall fail to perform or observe any covenant, obligation or agreement other term hereof to be performed or observed by it under any Calpine Document (other than any covenantTenant, obligation or agreement referred to in clauses (a) or (b) of this Section 7.1) in any material respect, which such failure shall continue unremedied for more than thirty (130) with respect to the Guarantor's guaranty of, and agreement with respect to, any nonmonetary obligation, covenant or agreement of the RockGen Lessee under any of the Operative Documents, 30 days after receipt by the Guarantor of written notice thereof from Landlord, and Tenant shall not within such thirty (30) day period commence with due diligence and dispatch the Owner Participantcuring of such default, or, having so commenced, shall thereafter fail or neglect to prosecute or complete with due diligence and dispatch the Owner Lessor, the Indenture Trustee curing of such default; or the Pass Through Trustee; provided, however, (iii) if such condition canthere shall be any default by Tenant (or any person or entity which is affiliated with Tenant) under any lease with Landlord (or any person or entity which is affiliated with Landlord) which shall not be remedied within such 30-day the applicable grace period, then the period within which to remedy if any, provided therefor under such condition shall be extended up to an additional 180 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 180-day period, and (2) with respect to any other obligation, covenant lease; or agreement hereunder, 30 days after receipt by the Guarantor of written notice thereof;
(e) there shall have occurred either (i) a default by the Guarantor or any Restricted Subsidiary under any instrument or instruments under which there is or may be secured or evidenced any Indebtedness of the Guarantor or any Restricted Subsidiary of the Guarantor (other than the Obligations) having an outstanding principal amount of $50,000,000 (or its foreign currency equivalent) or more individually or in the aggregate that has caused the holders thereof to declare such Indebtedness to be due and payable prior to its Stated Maturity, unless such declaration has been rescinded within 30 days or (ii) a default by the Guarantor or any Restricted Subsidiary in the payment when due of any portion of the principal under any such instrument or instruments, and such unpaid portion exceeds $50,000,000 (or its foreign currency equivalent) individually or in the aggregate and is not paid, or such default is not cured or waived, within any grace period applicable thereto, unless such Indebtedness is discharged within 30 days of the Guarantor or a Restricted Subsidiary becoming aware of such default;
(f) the Guarantor or any Significant Subsidiary pursuant to or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case;
(ii) consents to the entry of an order for relief against it in an involuntary case;
(iii) consents to the appointment of a Custodian of it or for all or substantially all of its property;
(iv) makes if Tenant or any of its affiliates shall make a general assignment for the benefit of its creditors; or
(v) admits , or shall admit in writing its inability to generally pay its debts as such debts they become duedue or shall file a petition in bankruptcy, or shall be adjudicated as insolvent or shall file a petition in any proceeding seeking any reorganization, arrangements, composition, readjustment, liquidation, dissolution or similar relief under any present or future statute, law or regulation, or shall file an answer admitting or fail timely to contest or acquiesce in the appointment of any trustee, receiver or liquidator of Tenant or any material part of its properties; or takes (v) if within ninety (90) days after the commencement of any comparable action proceeding against Tenant seeking any reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar relief under any foreign laws relating to insolvency;present or future statute, law or regulation, such proceeding shall not have been dismissed, or if, within ninety (90) days after the appointment without the consent of acquiescence of Tenant, of any trustee, receiver or liquidator of Tenant or of any material part of its properties, such appointment shall not have been vacated : or (vi) if this Lease or any estate of Tenant hereunder shall be levied upon under any attachment or execution and such attachment or execution is not vacated within ten (10) days.
(gb) an involuntary case or other proceeding shall be commenced against If, as a matter of law, Landlord has no right on the Guarantor or any Significant Subsidiary seeking (i) liquidationbankruptcy of Tenant to terminate this Lease, reorganization or other relief with respect to it then, if Tenant, as debtor, or its debts trustee wishes to assume or assign this Lease, in addition to curing or adequately assuring the cure of all defaults existing under Title this Lease on Tenant’s part on the date of filing of the proceeding (such assurances being defined below). Tenant, as debtor, or the trustee or assignee must also furnish adequate assurances of future performance under this Lease (as defined below). Adequate assurance of curing defaults means the posting with Landlord of a sum in cash sufficient to defray the cost of such a cure. Adequate assurance of future performance under this Lease means posting a deposit equal to three (3) months’ rent, including all other charges payable by Tenant hereunder, and, in the case of an assignee, assuring Landlord that the assignee is financially capable of assuming this Lease, and that its use of the Demised Premises will not be detrimental to Landlord. In a reorganization under Chapter 11 of the Bankruptcy Code Code, the debtor or any bankruptcy, insolvency trustee must assume this Lease or other similar law now or hereafter in effectassign it within one hundred twenty (120) days from the filing of the proceeding, or he shall be deemed to have rejected and terminated this Lease.
(iic) the appointment All amounts payable by Tenant to Landlord hereunder, if not paid when due, shall be subject to an administrative late charge of a trustee, receiver, liquidator, custodian or other similar official with respect to it or any substantial part of its property or five percent (iii5%) the winding-up or liquidation of the Guarantor or such Significant Subsidiary; and such involuntary case or other proceeding amount due and, in addition, shall remain undismissed and unstayed for a period of 60 days;
bear interest from the due date until paid at the rate equal to two percent (h2%) any representation or warranty made by the Guarantor herein shall prove to have been incorrect in any material respect when made or misleading in any material respect when made because excess of the omission to state a material fact and such incorrect or misleading representation is and continues to be material and unremedied for a period of 30 days after receipt by the Guarantor of written notice thereof; providedthen current “prime rate” published in The Wall Street Journal, however, that if such condition canbut not be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 60 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 60-day period. The grace periods set forth in Section 7.1(a) and (b) above shall not affect in any way the right hereunder of any Beneficiary entitled to a payment of any amount payable to it, or performance of any obligation, by the RockGen Lessee under any Operative Document to demand prompt payment thereof, or performance thereof, by the Guarantor immediately upon any failure excess of the RockGen Lessee to pay or perform the same when it has become due (and, for the avoidance of doubt, without regard to the existence of any cure or grace period before such failure by the RockGen Lessee becomes a Lease Event of Default); provided, however, notwithstanding the foregoing, no Lease Event of Default under Section 16(m) and no remedies under the Facility Lease may be exercised until a Calpine Guaranty Event of Default has occurred and is continuinglegal rate.
Appears in 1 contract
Defaults. The following events shall constitute an "Event of Default" hereunder (whether any such event shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any Governmental Entity):
(a) It shall be a default (“Default”) under this Note and each of the Guarantor other Loan Documents if after the expiration of any applicable notice and grace period (including that set forth in Section 4.1(a) of the Loan Agreement, (i) any principal, interest or the RockGen Lessee other amount of money due under this Note is not paid in full when due, regardless of how such amount may have become due; (ii) any covenant, agreement, condition, representation or warranty herein or in any other Loan Documents is not fully and timely performed, observed or kept; or (iii) there shall occur any Default under the Facility Lease Deed of Trust or any other Loan Document. Upon the occurrence of a Default, Administrative Agent on behalf of the Lenders shall fail have the rights to make any payment with respect to Periodic Rent or declare the Termination Value (including unpaid principal balance and accrued but unpaid interest on this Note, and all other amounts due hereunder and under the Equity Portion of Termination Value and Debt Portion of Termination Value) when other Loan Documents, at once due and payable under (and upon such Facility Lease or this Guaranty within five (5) days after declaration, the same shall become be at once due thereunderand payable), to foreclose any liens and security interests securing payment hereof; orand subject to any limitations contained in the Loan Documents, to exercise any of its other rights, powers and remedies under this Note, under any other Loan Document, or at Law or in equity.
(b) All of the Guarantor or rights, remedies, powers and privileges (together, “Rights”) of Administrative Agent on behalf of the RockGen Lessee shall fail to make Lenders provided for in this Note and in any other amount Loan Document are cumulative of each other and, subject to any limitations contained in the Loan Documents, of any and all other Rights at Law or in equity. The resort to any Right shall not prevent the concurrent or subsequent employment of any other appropriate Right. No single or partial exercise of any Right shall exhaust it, or preclude any other or further exercise thereof, and every Right may be exercised at any time and from time to time. No failure by Administrative Agent or Lenders to exercise, nor delay in exercising any Right, including but not limited to the right to accelerate the maturity of this Note, shall be construed as a waiver of any Default or as a waiver of any Right. Without limiting the generality of the foregoing provisions, the acceptance by Named Lender from time to time of any payment under this Note which is past due or which is less than the payment in full of all amounts due and payable under any Operative Document after at the same shall become due thereunder and such failure shall have continued from a period of ten (10) Business Days after receipt by the RockGen Lessee and the Guarantor of written notice time of such failure by the RockGen Lessee and/or the Guarantorpayment, as applicable;
(c) The Guarantor shall fail to comply with its covenants set forth in Section 3.3 (transfer of RockGen Lessee ownership), 3.6 (Guarantor merger) or 8.4 (assignment of Guaranty) of this Guaranty.
(d) the Guarantor shall fail to perform or observe any covenant, obligation or agreement to be performed or observed by it under any Calpine Document (other than any covenant, obligation or agreement referred to in clauses (a) or (b) of this Section 7.1) in any material respect, which shall continue unremedied for (1) with respect to the Guarantor's guaranty of, and agreement with respect to, any nonmonetary obligation, covenant or agreement of the RockGen Lessee under any of the Operative Documents, 30 days after receipt by the Guarantor of written notice thereof from the Owner Participant, the Owner Lessor, the Indenture Trustee or the Pass Through Trustee; provided, however, if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 180 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 180-day period, and (2) with respect to any other obligation, covenant or agreement hereunder, 30 days after receipt by the Guarantor of written notice thereof;
(e) there shall have occurred either (i) constitute a default by waiver of or impair or extinguish the Guarantor right of Administrative Agent on behalf of Lenders to accelerate the maturity of this Note or to exercise any Restricted Subsidiary under other Right at the time or at any instrument subsequent time, or instruments under which there is or may be secured or evidenced nullify any Indebtedness of the Guarantor or any Restricted Subsidiary of the Guarantor (other than the Obligations) having an outstanding principal amount of $50,000,000 (or its foreign currency equivalent) or more individually or in the aggregate that has caused the holders thereof to declare such Indebtedness to be due and payable prior to its Stated Maturity, unless such declaration has been rescinded within 30 days or (ii) a default by the Guarantor or any Restricted Subsidiary in the payment when due exercise of any portion of the principal under any such instrument or instruments, and such unpaid portion exceeds $50,000,000 (or its foreign currency equivalent) individually or in the aggregate and is not paid, or such default is not cured or waived, within any grace period applicable thereto, unless such Indebtedness is discharged within 30 days of the Guarantor or a Restricted Subsidiary becoming aware of such default;
(f) the Guarantor or any Significant Subsidiary pursuant to or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case;
(ii) consents to the entry of an order for relief against it in an involuntary case;
(iii) consents to the appointment of a Custodian of it or for all or substantially all of its property;
(iv) makes a general assignment for the benefit of its creditors; or
(v) admits in writing its inability to generally pay its debts as such debts become due; or takes any comparable action under any foreign laws relating to insolvency;
(g) an involuntary case or other proceeding shall be commenced against the Guarantor or any Significant Subsidiary seeking (i) liquidation, reorganization or other relief with respect to it or its debts under Title 11 of the Bankruptcy Code or any bankruptcy, insolvency or other similar law now or hereafter in effectRight, or (ii) constitute a waiver of the appointment requirement of punctual payment and performance or a trusteenovation in any respect.
(c) If any holder of this Note retains an attorney in connection with any Default or at maturity or to collect, receiverenforce or defend this Note or any other Loan Document in any lawsuit or in any probate, liquidatorreorganization, custodian bankruptcy, arbitration or other similar official proceeding, then, subject to the limitations in the Loan Agreement, B▇▇▇▇▇▇▇ agrees to pay to each such holder, in addition to principal, interest and any other sums owing to Lenders hereunder and under the other Loan Documents, all costs and expenses incurred by such holder in trying to collect this Note or in any such suit or proceeding, including, without limitation, reasonable attorneys’ fees and expenses, investigation costs and all court costs, whether or not suit is filed hereon, whether before or after the Maturity Date, or whether in connection with respect to it bankruptcy, insolvency or appeal, or whether collection is made against Borrower or any substantial part of its property or (iii) the winding-up or liquidation of the Guarantor or such Significant Subsidiary; and such involuntary case endorser or any other proceeding shall remain undismissed and unstayed for a period of 60 days;
(h) any representation person primarily or warranty made by the Guarantor herein shall prove to have been incorrect in any material respect when made or misleading in any material respect when made because of the omission to state a material fact and such incorrect or misleading representation is and continues to be material and unremedied for a period of 30 days after receipt by the Guarantor of written notice thereof; provided, however, that if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 60 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 60-day period. The grace periods set forth in Section 7.1(a) and (b) above shall not affect in any way the right hereunder of any Beneficiary entitled to a payment of any amount payable to it, or performance of any obligation, by the RockGen Lessee under any Operative Document to demand prompt payment thereof, or performance thereof, by the Guarantor immediately upon any failure of the RockGen Lessee to pay or perform the same when it has become due (and, for the avoidance of doubt, without regard to the existence of any cure or grace period before such failure by the RockGen Lessee becomes a Lease Event of Default); provided, however, notwithstanding the foregoing, no Lease Event of Default under Section 16(m) and no remedies under the Facility Lease may be exercised until a Calpine Guaranty Event of Default has occurred and is continuingsecondarily liable hereunder.
Appears in 1 contract
Sources: Deed of Trust Note (Bluerock Residential Growth REIT, Inc.)
Defaults. The Tenant further agrees that any one or more of the following events shall constitute an "Event be considered events of Default" hereunder (whether any such event shall be voluntary or involuntary or come about or be effected by operation of law or pursuant default as said term is used herein, that is to or in compliance with any judgmentsay, decree or order of any court or any order, rule or regulation of any Governmental Entity):if:
(a) the Guarantor Tenant shall be adjudged an involuntary bankrupt, or the RockGen Lessee a decree or order approving, as properly filed, a petition or answer filed against Tenant asking reorganization of Tenant under the Facility Lease Federal bankruptcy laws as now or hereafter amended, or under the laws of any State, shall fail to make be entered, and any payment with respect to Periodic Rent such decree or judgment or order shall not have been vacated or stayed or set aside within 30 days from the Termination Value (including date o the Equity Portion of Termination Value and Debt Portion of Termination Value) when due and payable under such Facility Lease entry or this Guaranty within five (5) days after the same shall become due thereundergranting thereof; or
(b) Tenant shall file or admit the Guarantor jurisdiction of the court and the material allegations contained in any petition in bankruptcy or any petition pursuant or purporting to be pursuant to the RockGen Lessee Federal bankruptcy laws now or hereafter amended, or Tenant shall fail institute any proceedings or shall give its consent to make the institution of any other amount payable proceedings for any relief of Tenant under any Operative Document after bankruptcy or insolvency laws or any laws relating to the same shall become due thereunder and such failure shall have continued from a period relief of ten (10) Business Days after receipt by the RockGen Lessee and the Guarantor of written notice of such failure by the RockGen Lessee and/or the Guarantordebtors, as applicable;readjustment or indebtedness, reorganization, arrangements, composition or extension; or
(c) The Guarantor Tenant shall fail to comply with its covenants set forth in Section 3.3 (transfer make any assignment for the benefit of RockGen Lessee ownership), 3.6 (Guarantor merger) creditors or 8.4 (assignment of Guaranty) of this Guaranty.
(d) the Guarantor shall fail to perform apply for or observe any covenant, obligation or agreement to be performed or observed by it under any Calpine Document (other than any covenant, obligation or agreement referred to in clauses (a) or (b) of this Section 7.1) in any material respect, which shall continue unremedied for (1) with respect to the Guarantor's guaranty of, and agreement with respect to, any nonmonetary obligation, covenant or agreement of the RockGen Lessee under any of the Operative Documents, 30 days after receipt by the Guarantor of written notice thereof from the Owner Participant, the Owner Lessor, the Indenture Trustee or the Pass Through Trustee; provided, however, if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 180 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 180-day period, and (2) with respect to any other obligation, covenant or agreement hereunder, 30 days after receipt by the Guarantor of written notice thereof;
(e) there shall have occurred either (i) a default by the Guarantor or any Restricted Subsidiary under any instrument or instruments under which there is or may be secured or evidenced any Indebtedness of the Guarantor or any Restricted Subsidiary of the Guarantor (other than the Obligations) having an outstanding principal amount of $50,000,000 (or its foreign currency equivalent) or more individually or in the aggregate that has caused the holders thereof to declare such Indebtedness to be due and payable prior to its Stated Maturity, unless such declaration has been rescinded within 30 days or (ii) a default by the Guarantor or any Restricted Subsidiary in the payment when due of any portion of the principal under any such instrument or instruments, and such unpaid portion exceeds $50,000,000 (or its foreign currency equivalent) individually or in the aggregate and is not paid, or such default is not cured or waived, within any grace period applicable thereto, unless such Indebtedness is discharged within 30 days of the Guarantor or a Restricted Subsidiary becoming aware of such default;
(f) the Guarantor or any Significant Subsidiary pursuant to or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case;
(ii) consents to the entry of an order for relief against it in an involuntary case;
(iii) consents consent to the appointment of a Custodian receiver for Tenant or any of it or for all or substantially all the property of its property;
(iv) makes a general assignment for the benefit of its creditorsTenant; or
(vd) admits in writing its inability to generally pay its debts as The Leased Premises are levied upon or attached by any revenue officer, Sheriff, or similar officer; or
(e) A decree or order appointing a receiver of the property of Tenant shall be made and such debts become duedecree or order shall not have been vacated, stayed or set aside within 30 days from the date of entry or granting thereof; or
(f) Tenant shall vacate the Leased Premises or takes any comparable action under any foreign laws relating to insolvency;abandon the same during the term hereof; or
(g) an involuntary case Tenant shall default in any payment of rent or other proceeding shall charge required to be commenced against the Guarantor or any Significant Subsidiary seeking (i) liquidation, reorganization or other relief with respect to it or its debts under Title 11 of the Bankruptcy Code or any bankruptcy, insolvency or other similar law now or hereafter in effect, or (ii) the appointment of a trustee, receiver, liquidator, custodian or other similar official with respect to it or any substantial part of its property or (iii) the winding-up or liquidation of the Guarantor or such Significant Subsidiary; paid by Tenant hereunder when due as herein provided and such involuntary case or other proceeding default shall remain undismissed and unstayed continue for a period of 60 days;5 days after notice thereof in writing to Tenant; or
(h) If Tenant shall fail to contest the validity of any representation lien or warranty made by claimed lien and give security to Landlord to insure payment thereof, or having commenced to contest the Guarantor herein same and having given such security, shall prove fail to prosecute such contest with diligence, or shall fail to have the same released and satisfy any judgment rendered thereon, and such default continues for ten (10) days after notice thereof in writing to Tenant; or
(i) Tenant shall default in keeping, observing or performing any of the other covenants or agreements herein contained to be kept, observed and performed by Tenant, and such default shall continue for thirty (30) days after notice thereof in writing to Tenant; or
(j) Tenant shall repeatedly be late in the payment of rent or other charges required to be paid hereunder or shall repeatedly default in the keeping, observing, or performing of any other covenants or agreements herein contained to be kept, observed, or performed by Tenant (provided notice of such payment or other defaults shall have been incorrect given to Tenant, but whether or not Tenant shall have timely cured any such payment or other defaults of which notice was given). Upon the occurrence of any one or more of such events of default, Landlord may terminate this Lease. Upon termination of this Lease, Landlord may re-enter the Leased Premises with or without process of law using such force as may be necessary, and remove all persons, fixtures and chattel therefrom, and Landlord shall not be liable to prosecution for any damages resulting therefrom. Such re-entry and repossession shall not work a forfeiture of the rents or other charges to be paid and covenants to be performed by Tenant during the full term of this Lease. Upon such repossession of the Leased Premises, Landlord shall be entitled to recover as liquidated damages and not as a penalty a sum of money equal to the value of the rent and other sums provided herein to be paid by Tenant to Landlord for the remainder of the Lease term, less the fair rental value of the Leased Premises for said period. Upon the happening of any one or more of the above-mentioned events Landlord may repossess the leased Premises by forcible entry or detainer suit, or otherwise, without demand or notice of any kind to Tenant (except as herein about provided for) and without terminating this Lease, in which Landlord may but shall be under no obligation so to do, relet all or any part of the Leased Premises for such rent and upon such terms as shall be satisfactory to Landlord (including the right to relet the Leased Premises for a term greater or lesser than that remaining, under the Lease term, and the right to relet the Leased Premises as a part of a larger area, and the right to charge the character or use made of the Leased Premises). For the purpose of such reletting, Landlord may decorate or make any repairs, changes, alterations or additions in or to the Leased Premises that may be necessary or convenient. If Landlord does not relet the Leased Premise, Tenant shall pay to Landlord on demand as liquidated damages and not as a penalty a sum equal to the amount of the rent, and other sums provided herein to be paid by Tenant for the remainder of the Lease term. If the leased Premises are relet and a sufficient sum shall not be realized from such reletting after paying all of the expenses of such decorations, repairs, changes, alterations, additions, the expenses of such decorations, repairs, changes, alterations, additions, the expenses of such reletting and the collection of the rent accruing therefrom (including, but not by way of limitation, attorneys’ fees, and broker’s Commissions), to satisfy the rent and other charges herein provided to be paid for the remainder of the Lease term, Tenant shall pay to Landlord on demand any deficiency and Tenant agrees that Landlord may file suit to recover any sums falling due under the terms of this Section from time to time. If default shall he made in any material respect when made covenant, agreement, condition or misleading in any material respect when made because of the omission to state a material fact and such incorrect or misleading representation is and continues undertaking herein contained to be material kept, observed and unremedied for performed by Tenant, other than the making of any payments as herein provided, which cannot with due diligence be cured within a period of 30 thirty (30) days, and if notice thereof in writing shall have been given to Tenant, and if Tenant, prior to the expiration of thirty (30) days from and after receipt the giving of such Notice, commences to eliminate the cause of such default and proceeds diligently and with reasonable dispatch to take all steps and do all work required to cure such default and does so cure such default, then Landlord shall not have the right to declare the said term ended by reason of such default or to repossess without terminating the Guarantor of written notice thereof; Lease, provided, however, that if the curing of any default in such condition canmanner shall not be remedied within such 30-day period, then the period within which construed to remedy such condition shall be extended up to an additional 60 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 60-day period. The grace periods set forth in Section 7.1(a) and (b) above shall not affect in any way limit or restrict the right hereunder of any Beneficiary entitled Landlord to a payment declare the said term ended or to repossess without terminating the Lease, and to enforce all of any amount payable to it, or performance of any obligation, by the RockGen Lessee under any Operative Document to demand prompt payment thereof, or performance thereof, by the Guarantor immediately upon any failure of the RockGen Lessee to pay or perform the same when it has become due (andits rights and remedies hereunder, for the avoidance of doubt, without regard to the existence of any cure or grace period before such failure by the RockGen Lessee becomes a Lease Event of Default); provided, however, notwithstanding the foregoing, no Lease Event of Default under Section 16(m) and no remedies under the Facility Lease may be exercised until a Calpine Guaranty Event of Default has occurred and is continuingother default not so cured.
Appears in 1 contract
Sources: Industrial Space Lease (Power Solutions International, Inc.)
Defaults. The occurrence of any of the following events shall constitute an "Event of Default" hereunder (whether any such event shall be voluntary or involuntary or come about or be effected Default by operation of law or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any Governmental Entity):Subtenant:
(a) the Guarantor or the RockGen Lessee under the Facility Lease shall fail to make If any payment with respect to Periodic Rent or the Termination Value default of either party continues uncorrected for thirty (including the Equity Portion of Termination Value and Debt Portion of Termination Value30) when due and payable under such Facility Lease or this Guaranty within days (five (5) days after in the same shall become due thereunder; or
(b) case of a default in the Guarantor payment of Rent or the RockGen Lessee shall fail to make any other amount payable under any Operative Document after the same shall become due thereunder and such failure shall have continued from a period of ten (10hereunder) Business Days after receipt by the RockGen Lessee and the Guarantor of written notice of such failure by from the RockGen Lessee and/or other party, stating with particularity the Guarantor, as applicable;
(c) The Guarantor shall fail to comply with its covenants set forth in Section 3.3 (transfer of RockGen Lessee ownership), 3.6 (Guarantor merger) or 8.4 (assignment of Guaranty) of this Guaranty.
(d) the Guarantor shall fail to perform or observe any covenant, obligation or agreement to be performed or observed by it under any Calpine Document (other than any covenant, obligation or agreement referred to in clauses (a) or (b) of this Section 7.1) in any material respect, which shall continue unremedied for (1) with respect to the Guarantor's guaranty of, nature and agreement with respect to, any nonmonetary obligation, covenant or agreement extent of the RockGen Lessee under any of default, the Operative Documents, 30 days after receipt party giving such notice may terminate this Sublease by the Guarantor of written notice thereof from (the Owner Participant, the Owner Lessor, the Indenture Trustee or the Pass Through Trustee; provided, however, if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 180 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 180-day period, and (2) with respect to any other obligation, covenant or agreement hereunder, 30 days after receipt by the Guarantor of written notice thereof;
(e) there shall have occurred either (i) a default by the Guarantor or any Restricted Subsidiary under any instrument or instruments under which there is or may be secured or evidenced any Indebtedness of the Guarantor or any Restricted Subsidiary of the Guarantor (other than the Obligations) having an outstanding principal amount of $50,000,000 (or its foreign currency equivalent) or more individually or in the aggregate that has caused the holders thereof to declare such Indebtedness to be due and payable prior to its Stated Maturity, unless such declaration has been rescinded within 30 days or (ii) a default by the Guarantor or any Restricted Subsidiary in the payment when due of any portion of the principal under any such instrument or instruments, and such unpaid portion exceeds $50,000,000 (or its foreign currency equivalent) individually or in the aggregate and is not paid, or such default is not cured or waived, within any grace period applicable thereto, unless such Indebtedness is discharged within 30 days of the Guarantor or a Restricted Subsidiary becoming aware of such default;
(f) the Guarantor or any Significant Subsidiary pursuant to or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case;
(ii) consents to the entry of an order for relief against it in an involuntary case;
(iii) consents to the appointment of a Custodian of it or for all or substantially all of its property;
(iv) makes a general assignment for the benefit of its creditors; or
(v) admits in writing its inability to generally pay its debts as such debts become due; or takes any comparable action under any foreign laws relating to insolvency;
(g) an involuntary case or other proceeding shall be commenced against the Guarantor or any Significant Subsidiary seeking (i) liquidation, reorganization or other relief with respect to it or its debts under Title 11 of the Bankruptcy Code or any bankruptcy, insolvency or other similar law now or hereafter in effect, or (ii) the appointment of a trustee, receiver, liquidator, custodian or other similar official with respect to it or any substantial part of its property or (iii) the winding-up or liquidation of the Guarantor or such Significant Subsidiary; and such involuntary case or other proceeding shall remain undismissed and unstayed for a period of 60 days;
(h) any representation or warranty made by the Guarantor herein shall prove to have been incorrect in any material respect when made or misleading in any material respect when made because of the omission to state a material fact and such incorrect or misleading representation is and continues to be material and unremedied for a period of 30 days after receipt by the Guarantor of written notice thereof“Termination Notice”); provided, however, that if such condition canTermination Notice shall not be remedied effective if within thirty (30) days (five (5) days in the case of a default in the payment of Rent or any other amount due hereunder) after its receipt the party in default either (i) in the event of a payment default, pays the full amount due, (ii) undertakes to correct such default and diligently pursues the cure of such default to completion or (iii) commences an alternate dispute resolution proceeding or contests the existence of the default in a court of competent jurisdiction and complies with the final order of any court in which the case is tried or the final order of any court to which an appeal is taken within thirty (30-day period) days after entry of final judgment. No delay or omission of either party in exercising any right accruing upon any default of the other party shall impair any such right or be construed to be a waiver thereof, and every such right may be exercised at any time during the continuance of such default. A waiver by either of the parties of a breach or a default under any of the terms and conditions of this Sublease by the other party shall not be construed to be a waiver of any subsequent breach or default or of any other term or condition of this Sublease. No remedy provided in this Sublease shall be exclusive, but each shall be cumulative with all other remedies provided in this Sublease, the Master Lease and at law or equity.
(b) Should either of the parties at any time fail or omit to do any act or thing provided under this Sublease to be done by such party, then the period within which other party may, in its sole discretion, itself do or cause to remedy be done such condition shall be extended up to an additional 60 days, so long as act or thing after expiration of the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 60-day applicable notice and/or grace period. The grace periods set forth Any monies paid in Section 7.1(a) and (b) above shall not affect in any way connection with the right hereunder of any Beneficiary entitled to a payment of any amount payable to it, or performance of any obligationsuch act or thing shall, if paid by Sublandlord, constitute Additional Rent to be due and payable within fifteen (15) days of notice given by Sublandlord of the RockGen Lessee under any Operative Document to demand prompt payment nature and amount thereof, or performance and if paid by Subtenant, shall constitute advance Rent and shall, upon notice given by Subtenant of the nature and amount thereof, by be credited against the Guarantor immediately upon any failure next monthly installment of the RockGen Lessee to pay or perform the same when it has become due (and, for the avoidance of doubt, without regard to the existence of any cure or grace period before such failure by the RockGen Lessee becomes a Lease Event of Default); provided, however, notwithstanding the foregoing, no Lease Event of Default under Section 16(m) Rent and no remedies under the Facility Lease may be exercised subsequent installments until a Calpine Guaranty Event of Default has occurred and is continuingcredited in full.
Appears in 1 contract
Sources: Sublease Agreement (Finwise Bancorp)
Defaults. The following events shall constitute an "Event of Default" hereunder (whether any such event It shall be voluntary a default ("Default") under the Loan Document if (i) any principal, interest or involuntary other amount of money due under this Note is not paid in full when due, in accordance with the terms and conditions of the Loan Agreement, regardless of how such amount may have become due; (ii) any covenant, agreement, condition, representation or come about warranty herein is not fully and timely performed, observed or be effected by operation kept; or (iii) there shall occur any default or event of law or default under the Loan Document, which is not cured pursuant to or the terms and provisions therein. Upon the occurrence of a Default, Lender shall have any and all rights and remedies set forth in compliance the Loan Agreement, including without limitation the right (A) to declare in accordance with any judgmentthe Loan Agreement the unpaid principal balance and accrued but unpaid interest on this Note, decree or order of any court or any order, rule or regulation of any Governmental Entity):
(a) the Guarantor or the RockGen Lessee and all other amounts due hereunder and under the Facility Lease shall fail to make any payment with respect to Periodic Rent or the Termination Value (including the Equity Portion of Termination Value and Debt Portion of Termination Value) when Loan Document, at once due and payable under (upon such Facility Lease or this Guaranty within five (5) days after declaration, the same shall become be at once due thereunder; or
and payable), (bB) to foreclose any liens and security interests securing payment thereof and (C) to exercise any of its other rights, powers and remedies under the Guarantor Loan Document, or at law or in equity. All of Rights of Lender provided for in the RockGen Lessee Loan Document are cumulative of each other and of any and all other Rights at law or in equity. The resort to any Right shall fail to make not prevent the concurrent or subsequent employment of any other amount appropriate Right. No single or partial exercise of any Right shall exhaust it, or preclude any other or further exercise thereof, and every Right may be exercised, subject to the terms of the Subordination Agreement, at any time and from time to time. No failure by Lender to exercise, nor delay in exercising any Right, including but not limited to the right to accelerate the maturity of this Note, shall be construed as a waiver of any Default or as a waiver of any Right. Without limiting the generality of the foregoing provisions, the acceptance by Lender from time to time of any payment under this Note which is past due or which is less than the payment in full of all amounts due and payable under any Operative Document after at the same shall become due thereunder and such failure shall have continued from a period of ten (10) Business Days after receipt by the RockGen Lessee and the Guarantor of written notice time of such failure by the RockGen Lessee and/or the Guarantorpayment, as applicable;
(c) The Guarantor shall fail to comply with its covenants set forth in Section 3.3 (transfer of RockGen Lessee ownership), 3.6 (Guarantor merger) or 8.4 (assignment of Guaranty) of this Guaranty.
(d) the Guarantor shall fail to perform or observe any covenant, obligation or agreement to be performed or observed by it under any Calpine Document (other than any covenant, obligation or agreement referred to in clauses (a) or (b) of this Section 7.1) in any material respect, which shall continue unremedied for (1) with respect to the Guarantor's guaranty of, and agreement with respect to, any nonmonetary obligation, covenant or agreement of the RockGen Lessee under any of the Operative Documents, 30 days after receipt by the Guarantor of written notice thereof from the Owner Participant, the Owner Lessor, the Indenture Trustee or the Pass Through Trustee; provided, however, if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 180 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 180-day period, and (2) with respect to any other obligation, covenant or agreement hereunder, 30 days after receipt by the Guarantor of written notice thereof;
(e) there shall have occurred either (i) constitute a default by waiver of or impair or extinguish the Guarantor right of Lender to accelerate the maturity of this Note or, to exercise any other Right at the time or at any Restricted Subsidiary under subsequent time, or nullify any instrument or instruments under which there is or may be secured or evidenced any Indebtedness of the Guarantor or any Restricted Subsidiary of the Guarantor (other than the Obligations) having an outstanding principal amount of $50,000,000 (or its foreign currency equivalent) or more individually or in the aggregate that has caused the holders thereof to declare such Indebtedness to be due and payable prior to its Stated Maturity, unless such declaration has been rescinded within 30 days or (ii) a default by the Guarantor or any Restricted Subsidiary in the payment when due exercise of any portion of the principal under any such instrument or instruments, and such unpaid portion exceeds $50,000,000 (or its foreign currency equivalent) individually or in the aggregate and is not paid, or such default is not cured or waived, within any grace period applicable thereto, unless such Indebtedness is discharged within 30 days of the Guarantor or a Restricted Subsidiary becoming aware of such default;
(f) the Guarantor or any Significant Subsidiary pursuant to or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case;
(ii) consents to the entry of an order for relief against it in an involuntary case;
(iii) consents to the appointment of a Custodian of it or for all or substantially all of its property;
(iv) makes a general assignment for the benefit of its creditors; or
(v) admits in writing its inability to generally pay its debts as such debts become due; or takes any comparable action under any foreign laws relating to insolvency;
(g) an involuntary case or other proceeding shall be commenced against the Guarantor or any Significant Subsidiary seeking (i) liquidation, reorganization or other relief with respect to it or its debts under Title 11 of the Bankruptcy Code or any bankruptcy, insolvency or other similar law now or hereafter in effectRight, or (ii) constitute a waiver of the appointment requirement of punctual payment and performance or a trusteenovation in any respect. If any holder of this Note retains an attorney in connection with any Default or at maturity of this Note or to collect, receiverenforce or defend the Loan Document in any lawsuit or in any probate, liquidatorreorganization, custodian bankruptcy, arbitration or other similar official proceeding, or if Borrower sues any holder in connection with respect the Loan Document and does not prevail, then Borrower agrees to it pay to each such holder, in addition to principal, interest and any other sums owing to Lender hereunder and under the Loan Document, all costs and expenses incurred by such holder in trying to collect this Note or in any such suit or proceeding, including, without limitation, attorneys' fees and expenses, investigation cost and all court costs, whether or not suit is filed hereon, whether before or after the payment due dates as provided in Section 1, or whether in connection with bankruptcy, insolvency or appeal, or whether collection is made against Borrower or any substantial part of its property guarantor or (iii) the winding-up endorser or liquidation of the Guarantor any other person primarily or such Significant Subsidiary; and such involuntary case or other proceeding shall remain undismissed and unstayed for a period of 60 days;
(h) any representation or warranty made by the Guarantor herein shall prove to have been incorrect in any material respect when made or misleading in any material respect when made because of the omission to state a material fact and such incorrect or misleading representation is and continues to be material and unremedied for a period of 30 days after receipt by the Guarantor of written notice thereof; provided, however, that if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 60 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 60-day period. The grace periods set forth in Section 7.1(a) and (b) above shall not affect in any way the right hereunder of any Beneficiary entitled to a payment of any amount payable to it, or performance of any obligation, by the RockGen Lessee under any Operative Document to demand prompt payment thereof, or performance thereof, by the Guarantor immediately upon any failure of the RockGen Lessee to pay or perform the same when it has become due (and, for the avoidance of doubt, without regard to the existence of any cure or grace period before such failure by the RockGen Lessee becomes a Lease Event of Default); provided, however, notwithstanding the foregoing, no Lease Event of Default under Section 16(m) and no remedies under the Facility Lease may be exercised until a Calpine Guaranty Event of Default has occurred and is continuingsecondarily liable hereunder.
Appears in 1 contract
Defaults. The occurrence of any of the following events shall constitute an Event of Default:
(a) Any representation or warranty made by the Company, the Transferor or the Servicer hereunder or under the Transaction Documents, or in any certificate furnished hereunder or under the Transaction Documents, shall prove to be untrue or incomplete in any material respect;
(i) The Company or the Transferor shall fail to pay when due any amount payable by the Company or the Transferor hereunder or (ii) a legislative body has enacted any law that declares or a court of competent jurisdiction shall find or rule that any of the Transaction Documents are not valid and binding on the Company, the Servicer or the Transferor to which it is a party;
(c) The occurrence and continuance of a "Servicer Event of Default" under the Servicing Agreement (as defined therein) or of an "Event of Default" hereunder under the Trust and Security Agreement (whether as defined therein);
(d) Any failure on the part of the Company, the Transferor or the Servicer duly to observe or perform in any such event shall be voluntary material respect any other of the covenants or involuntary agreements on the part of the Company, the Transferor or come about or be effected by operation of law or pursuant to the Servicer contained in this Agreement or in compliance with any judgment, decree or order other Transaction Document which continues unremedied for a period of any court or any order, rule or regulation of any Governmental Entity):
(a) the Guarantor or the RockGen Lessee under the Facility Lease shall fail to make any payment with respect to Periodic Rent or the Termination Value (including the Equity Portion of Termination Value and Debt Portion of Termination Value) when due and payable under such Facility Lease or this Guaranty within five (5) 45 days after the same shall become due thereunder; or
(b) the Guarantor or the RockGen Lessee shall fail to make any other amount payable under any Operative Document after the same shall become due thereunder and such failure shall have continued from a period of ten (10) Business Days after receipt by the RockGen Lessee and the Guarantor of date on which written notice of such failure failure, requiring the same to be remedied, shall have been given to the Company, the Transferor or the Servicer, as the case may be, by the RockGen Lessee and/or Insurer (with a copy to Trustee) or by the Guarantor, as applicableTrustee (with a copy to the Insurer);
(ce) The Guarantor Any material party thereto shall breach any material representation or warranty or fail to comply with its covenants set forth in Section 3.3 (transfer of RockGen Lessee ownership), 3.6 (Guarantor merger) or 8.4 (assignment of Guaranty) of this Guaranty.
(d) the Guarantor shall fail to perform or observe any covenant, obligation material covenant or agreement to be performed or observed by it under contained in any Calpine Transaction Document (other than any covenant, obligation or agreement referred to in clauses except for the obligations described under paragraph (a) or (bc) of this Section 7.1) in any material respectabove), which and such failure shall continue unremedied for (1) with respect a period of 45 days after written notice given to the Guarantor's guaranty ofCompany or such other party, and agreement with respect to, any nonmonetary obligation, covenant or agreement of the RockGen Lessee under any of the Operative Documents, 30 days after receipt by the Guarantor of written notice thereof from the Owner Participant, the Owner Lessor, the Indenture Trustee or the Pass Through Trustee; provided, howeverprovided that, if such condition failure shall be of a nature that it cannot be remedied cured within 45 days, such failure shall not constitute an Event of Default hereunder if within such 3045-day periodperiod the Company or such other party shall have given notice to the Insurer of corrective action it proposes to take, then the period within which to remedy such condition shall be extended up to an additional 180 days, so long as the Guarantor diligently pursues such remedy and such condition corrective action is reasonably capable of being remedied within such additional 180-day period, and (2) with respect to any other obligation, covenant or agreement hereunder, 30 days after receipt agreed in writing by the Guarantor of written notice thereof;
(e) there shall have occurred either (i) a default by the Guarantor or any Restricted Subsidiary under any instrument or instruments under which there is or may be secured or evidenced any Indebtedness of the Guarantor or any Restricted Subsidiary of the Guarantor (other than the Obligations) having an outstanding principal amount of $50,000,000 (or its foreign currency equivalent) or more individually or in the aggregate that has caused the holders thereof to declare such Indebtedness Insurer to be due satisfactory and payable prior to its Stated Maturity, unless the Company or such declaration has been rescinded within 30 days or (ii) a default by the Guarantor or any Restricted Subsidiary in the payment when due of any portion of the principal under any other party shall thereafter pursue such instrument or instruments, and such unpaid portion exceeds $50,000,000 (or its foreign currency equivalent) individually or in the aggregate and is not paid, or corrective action diligently until such default is not cured or waived, within any grace period applicable thereto, unless such Indebtedness is discharged within 30 days of the Guarantor or a Restricted Subsidiary becoming aware of such defaultcured;
(f) A decree or order of a court or agency or supervisory authority having jurisdiction in the Guarantor or any Significant Subsidiary pursuant to or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case;
(ii) consents to the entry of an order for relief against it premises in an involuntary case;
(iii) consents to case under any present or future federal or state bankruptcy, insolvency or similar law or the appointment of a Custodian of it conservator or for all receiver or substantially all of its property;
(iv) makes a general assignment for the benefit of its creditors; or
(v) admits in writing its inability to generally pay its debts as such debts become due; or takes any comparable action under any foreign laws relating to insolvency;
(g) an involuntary case or other proceeding shall be commenced against the Guarantor or any Significant Subsidiary seeking (i) liquidation, reorganization or other relief with respect to it or its debts under Title 11 of the Bankruptcy Code or any bankruptcy, insolvency or other similar law now or hereafter in effect, or (ii) the appointment of a trustee, receiver, liquidator, custodian liquidator or other similar official with respect to it in any insolvency, readjustment of debt, marshaling of assets and liabilities or any substantial part of its property similar proceedings, or (iii) for the winding-up or liquidation of its affairs, shall have been entered against the Guarantor Company, the Transferor or such Significant Subsidiary; the Servicer and such involuntary case decree or other proceeding order shall remain undismissed and have remained in force undischarged or unstayed for a period of 60 90 consecutive days;
(g) The Company, the Transferor or the Servicer shall consent to the appointment of a conservator or receiver or liquidator or other similar official in any insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings of or relating to the Company, the Transferor or the Servicer or of or relating to all or substantially all of the property of either; or
(h) The Company, the Transferor or the Servicer shall admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of or otherwise voluntarily commence a case or proceeding under any representation applicable bankruptcy, insolvency, reorganization or warranty made by other similar statute, make an assignment for the Guarantor herein shall prove to have been incorrect in any material respect when made benefit of its creditors or misleading in any material respect when made because of the omission to state a material fact and such incorrect or misleading representation is and continues to be material and unremedied for a period of 30 days after receipt by the Guarantor of written notice thereof; provided, however, that if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 60 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 60-day period. The grace periods set forth in Section 7.1(a) and (b) above shall not affect in any way the right hereunder of any Beneficiary entitled to a voluntarily suspend payment of any amount payable to it, or performance of any obligation, by the RockGen Lessee under any Operative Document to demand prompt payment thereof, or performance thereof, by the Guarantor immediately upon any failure of the RockGen Lessee to pay or perform the same when it has become due (and, for the avoidance of doubt, without regard to the existence of any cure or grace period before such failure by the RockGen Lessee becomes a Lease Event of Default); provided, however, notwithstanding the foregoing, no Lease Event of Default under Section 16(m) and no remedies under the Facility Lease may be exercised until a Calpine Guaranty Event of Default has occurred and is continuingits obligations.
Appears in 1 contract
Defaults. The (a) Any of the following events shall constitute an "Event of Default" hereunder ":
(whether i) The Company defaults in the payment of (A) any such event shall be voluntary or involuntary or come about or be effected by operation part of law or pursuant to or in compliance with any judgment, decree or order the principal of any court or any orderNote, rule or regulation of any Governmental Entity):
(a) the Guarantor or the RockGen Lessee under the Facility Lease shall fail to make any payment with respect to Periodic Rent or the Termination Value (including the Equity Portion of Termination Value and Debt Portion of Termination Value) when due and payable under such Facility Lease or this Guaranty within five (5) days after the same shall become due thereunder; or
and payable, whether at maturity or at a date fixed for prepayment or by acceleration or otherwise, or (bB) the Guarantor or the RockGen Lessee shall fail to make interest on any other amount payable under any Operative Document after Note, when the same shall become due thereunder and payable, and such failure default in the payment of interest shall have continued from a period of ten for five (105) Business Days after receipt by the RockGen Lessee and the Guarantor of written notice of such failure by the RockGen Lessee and/or the Guarantor, as applicable;
(c) The Guarantor shall fail to comply with its covenants set forth in Section 3.3 (transfer of RockGen Lessee ownership), 3.6 (Guarantor merger) or 8.4 (assignment of Guaranty) of this Guaranty.
(d) the Guarantor shall fail to perform or observe any covenant, obligation or agreement to be performed or observed by it under any Calpine Document (other than any covenant, obligation or agreement referred to in clauses (a) or (b) of this Section 7.1) in any material respect, which shall continue unremedied for (1) with respect to the Guarantor's guaranty of, and agreement with respect to, any nonmonetary obligation, covenant or agreement of the RockGen Lessee under any of the Operative Documents, 30 days after receipt by the Guarantor of written notice thereof from the Owner Participant, the Owner Lessor, the Indenture Trustee or the Pass Through TrusteeDays; provided, however, if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 180 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 180-day period, and (2) with respect to any other obligation, covenant or agreement hereunder, 30 days after receipt by the Guarantor of written notice thereof;
(e) there shall have occurred either (i) a default by the Guarantor or any Restricted Subsidiary under any instrument or instruments under which there is or may be secured or evidenced any Indebtedness of the Guarantor or any Restricted Subsidiary of the Guarantor (other than the Obligations) having an outstanding principal amount of $50,000,000 (or its foreign currency equivalent) or more individually or in the aggregate that has caused the holders thereof to declare such Indebtedness to be due and payable prior to its Stated Maturity, unless such declaration has been rescinded within 30 days or (ii) a default by the Guarantor or any Restricted Subsidiary in the payment when due of any portion of the principal under any such instrument or instruments, and such unpaid portion exceeds $50,000,000 (or its foreign currency equivalent) individually or in the aggregate and is not paid, or such default is not cured or waived, within any grace period applicable thereto, unless such Indebtedness is discharged within 30 days of the Guarantor or a Restricted Subsidiary becoming aware of such default;
(f) the Guarantor or any Significant Subsidiary pursuant to or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case;or
(ii) consents the Company defaults in the performance of any other agreement or covenant contained in the Purchase Agreement or Exchange Agreement, and such default shall not have been remedied within thirty (30) days after written notice thereof shall have been given to the entry Company by any holder of an order for relief against it in an involuntary case;this Note (the Company to give forthwith to all other holders of this Note at the time outstanding written notice of the receipt of such notice, specifying the default referred to therein); or
(iii) consents to the appointment of a Custodian of it or for all or substantially all of its property;
(iv) makes a general assignment for the benefit of its creditors; or
(v) admits in writing its inability to generally pay its debts as such debts become due; or takes any comparable action under any foreign laws relating to insolvency;
(g) an involuntary case or other proceeding shall be commenced against the Guarantor or any Significant Subsidiary seeking (i) liquidation, reorganization or other relief with respect to it or its debts under Title 11 of the Bankruptcy Code or any bankruptcy, insolvency or other similar law now or hereafter in effect, or (ii) the appointment of a trustee, receiver, liquidator, custodian or other similar official with respect to it or any substantial part of its property or (iii) the winding-up or liquidation of the Guarantor or such Significant Subsidiary; and such involuntary case or other proceeding shall remain undismissed and unstayed for a period of 60 days;
(h) any material representation or warranty made by the Guarantor herein shall prove Company herein, in the Purchase Agreement, the Exchange Agreement or in any certificate delivered by the Company pursuant hereto proves to have been incorrect in any material respect when made made; or
(iv) the Company or misleading any Subsidiary shall make an assignment for the benefit of creditors, or shall admit in writing its inability to pay its debts; or a receiver or trustee is appointed for the Company or any material respect when made because Subsidiary or for substantially all of its assets and, if appointed without its consent, such appointment is not discharged or stayed within sixty (60) days; or proceedings under any law relating to bankruptcy, insolvency or the reorganization or relief of debtors are instituted by or against the Company or any Subsidiary, and, if contested by it, are not dismissed or stayed within sixty (60) days; or any writ of attachment or execution or any similar process is issued or levied against the Company or any Subsidiary or any of its property and is not released, stayed, bonded or vacated within sixty (60) days after its issue or levy; or the Company or any Subsidiary takes corporate or limited liability company action in furtherance of any of the omission foregoing.
(b) If an Event of Default occurs pursuant to state a material fact any of clauses (i) through (iii) of Section 5(a) of this Note then and in each such incorrect event and with the concurrence of holders of 67% of the Notes any holder of this Note (unless all Events of Default shall theretofore have been waived or misleading representation is and continues remedied) at its option, by written notice or notices to the Company, may declare this Note to be material due and unremedied payable. If an Event of Default occurs pursuant to clause (iv) of Section 5(a) of this Note, this Note shall automatically and without further action become due and payable. Upon any such declaration (or as to such clause (v) upon its occurrence) this Note shall forthwith immediately mature and become due and payable. However, the foregoing acceleration rights are subject to the following:
(i) if, at any time after the principal of this Note shall so become due and payable and prior to the date of maturity stated in this Note, all interest on this Note (with interest at the rate specified in this Note on any overdue principal and, if applicable, on any overdue interest) shall be paid to the holder of this Note by or for a period the account of 30 days after receipt by the Guarantor of written notice thereof; provided, however, that if such condition cannot be remedied within such 30-day periodCompany, then the period Note holder, by written notice or notices to the Company, may waive such Event of Default and its consequences and rescind or annul any such declaration, but no such waiver shall extend to or affect any subsequent Event of Default or impair any right or remedy resulting therefrom;
(ii) if any holder or holders of Notes which, at the time, holds or hold at least sixty-seven percent (67%) in aggregate principal amount of the Notes then outstanding exercises the above rights of acceleration, then the Company shall notify each other holder of Notes of the fact of such acceleration and each other holder shall, without limiting any other rights hereunder, (A) have the right for thirty (30) days after such notice from the Company to accelerate its own Notes based on the Event or Events of Default on which such acceleration was based (regardless of whether such Event or Events of Default are then continuing), unless at the time there are no outstanding Events of Default and any acceleration of any Notes has been rescinded or (B) be deemed automatically (without any action by such holder) to have accelerated its Notes if such holder has not received such notice of an acceleration from the Company within ten (10) business days after such acceleration; provided that any such automatic acceleration may take place regardless of whether the Event or Events of Default on which the initial acceleration was based are then continuing but such automatic acceleration shall not take place if at the time any and all accelerations of any Notes have been rescinded or annulled pursuant to remedy such condition shall be extended up to an additional 60 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 60-day period. The grace periods set forth in Section 7.1(a) and subparagraph (bi) above or otherwise;
(iii) any holder may at any time rescind and annul any acceleration with respect to its own Notes; and
(iv) if any holder of a Note shall not affect in give any way the right hereunder of notice or take any Beneficiary entitled other action with respect to a payment of any amount payable to it, or performance of any obligation, by the RockGen Lessee under any Operative Document to demand prompt payment thereof, or performance thereof, by the Guarantor immediately upon any failure of the RockGen Lessee to pay or perform the same when it has become due (and, for the avoidance of doubt, without regard to the existence of any cure or grace period before such failure by the RockGen Lessee becomes a Lease claimed Event of Default); provided, howeverthe Company, notwithstanding forthwith upon receipt of such notice or obtaining knowledge of such other action, will give written notice thereof to all other holders of the foregoingNotes then outstanding, no Lease describing such notice or other action and the nature of the claimed Event of Default under Section 16(m) and no remedies under the Facility Lease may be exercised until a Calpine Guaranty Event of Default has occurred and is continuingDefault.
Appears in 1 contract
Defaults. The occurrence of any of the following events shall constitute an "Event of DefaultEVENT OF DEFAULT" hereunder (whether any such event shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any Governmental Entity):under this Note:
(a) the Guarantor or the RockGen Lessee under the Facility Lease The Company shall fail to make any payment with respect to Periodic Rent or the Termination Value (including the Equity Portion of Termination Value and Debt Portion of Termination Value) pay when due (i) any principal or interest payment hereof or (ii) any other payment required under the terms of this Note, and payable under such Facility Lease or this Guaranty payment shall not have been made within five (5) days after written notice thereof is delivered to the same shall become due thereunderCompany; or
(b) The Company shall fail to observe or perform any other covenant, obligation, condition or agreement contained in this Note (other than those specified in Section 3(a)) and such failure shall continue for twenty (20) business days after written notice thereof is delivered to the Guarantor Company; or
(c) Any representation or the RockGen Lessee warranty contained in this Note shall be false, incorrect, incomplete or misleading in any material respect when made or furnished; or
(d) Either Baywood International or Baywood Acquisition shall (i) fail to make any payment when due under the terms of any bond, debenture, note, other amount payable under evidence of indebtedness or preferred security to be paid by it(excluding this Note, which default is addressed by Section 3(a) above, but including any Operative Document after other evidence of indebtedness of Baywood International and Baywood Acquisition to the same shall become due thereunder Investor) and such failure shall have continued from a continue beyond any period of ten grace provided with respect thereto, or (10ii) Business Days after receipt by default in the RockGen Lessee observance or performance of any other agreement, term or condition contained in any such bond, debenture, note, other evidence of indebtedness or preferred security, and the Guarantor of written notice effect of such failure by the RockGen Lessee and/or the Guarantor, as applicable;
(c) The Guarantor shall fail to comply with its covenants or default set forth in Section 3.3 (transfer of RockGen Lessee ownership), 3.6 (Guarantor merger) or 8.4 (assignment of Guaranty) of this Guaranty.
(d) the Guarantor shall fail to perform or observe any covenant, obligation or agreement to be performed or observed by it under any Calpine Document (other than any covenant, obligation or agreement referred to in clauses (ai) or (bii) above is to cause, or permit the holder thereof to cause, amounts in an aggregate amount of this Section 7.1One Hundred Thousand Dollars ($100,000) in any material respect, which shall continue unremedied for (1) with respect or more to the Guarantor's guaranty of, and agreement with respect to, any nonmonetary obligation, covenant or agreement of the RockGen Lessee under any of the Operative Documents, 30 days after receipt by the Guarantor of written notice thereof from the Owner Participant, the Owner Lessor, the Indenture Trustee or the Pass Through Trusteebecome due prior to its stated due date; provided, however, if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 180 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 180-day period, and (2) with respect to any other obligation, covenant or agreement hereunder, 30 days after receipt by the Guarantor of written notice thereof;or
(e) there Either Baywood International or Baywood Acquisition shall have occurred either (i) a default by the Guarantor apply for or any Restricted Subsidiary under any instrument or instruments under which there is or may be secured or evidenced any Indebtedness of the Guarantor or any Restricted Subsidiary of the Guarantor (other than the Obligations) having an outstanding principal amount of $50,000,000 (or its foreign currency equivalent) or more individually or in the aggregate that has caused the holders thereof to declare such Indebtedness to be due and payable prior to its Stated Maturity, unless such declaration has been rescinded within 30 days or (ii) a default by the Guarantor or any Restricted Subsidiary in the payment when due of any portion of the principal under any such instrument or instruments, and such unpaid portion exceeds $50,000,000 (or its foreign currency equivalent) individually or in the aggregate and is not paid, or such default is not cured or waived, within any grace period applicable thereto, unless such Indebtedness is discharged within 30 days of the Guarantor or a Restricted Subsidiary becoming aware of such default;
(f) the Guarantor or any Significant Subsidiary pursuant to or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case;
(ii) consents to the entry of an order for relief against it in an involuntary case;
(iii) consents consent to the appointment of a Custodian receiver, trustee, liquidator or custodian of it itself or for of all or substantially all a substantial part of its property;
, (ivii) makes be unable, or admit in writing its inability, to pay its debts generally as they mature, (iii) make a general assignment for the benefit of its or any of its creditors; or
, (iv) be dissolved or liquidated in full or in part, (v) admits in writing its inability to generally pay its debts as such debts become due; or takes any comparable action under any foreign laws relating to insolvency;
(g) an involuntary commence a voluntary case or other proceeding shall be commenced against the Guarantor or any Significant Subsidiary seeking (i) liquidation, reorganization or other relief with respect to it itself or its debts under Title 11 of the Bankruptcy Code or any bankruptcy, insolvency or other similar law now or hereafter in effect, effect or (ii) consent to any such relief or to the appointment of a trustee, receiver, liquidator, custodian or other similar official with respect to it or any substantial part taking possession of its property or (iii) the winding-up or liquidation of the Guarantor or such Significant Subsidiary; and such by any official in an involuntary case or other proceeding commenced against it, or (vi) take any action for the purpose of effecting any of the foregoing; or
(f) Proceedings for the appointment of a receiver, trustee, liquidator or custodian of Baywood International or Baywood Acquisition or of all or a substantial part of the property thereof, or an involuntary case or other proceedings seeking liquidation, reorganization or other relief with respect to Baywood International or Baywood Acquisition or the debts thereof under any bankruptcy, insolvency or other similar law now or hereafter in effect shall be commenced and an order for relief entered or such proceeding shall not be dismissed or discharged within forty-five (45) days of commencement; or
(g) One or more judgments for the payment of money in an amount in excess of One Hundred Thousand Dollars ($100,000) in the aggregate, outstanding at any one time, shall be rendered against Baywood International or Baywood Acquisition and the same shall remain undismissed and unstayed undischarged for a period of 60 days;
thirty (h30) days during which execution shall not be effectively stayed, or any representation judgment, writ, assessment, warrant of attachment, or warranty made by the Guarantor herein execution or similar process shall prove to have been incorrect in any material respect when made be issued or misleading in any material respect when made because levied against a substantial part of the omission to state a material fact property of Baywood International or Baywood Acquisition and such incorrect judgment, writ, or misleading representation is and continues to similar process shall not be material and unremedied for a period of 30 released, stayed, vacated or otherwise dismissed within thirty (30) days after receipt by the Guarantor of written notice thereof; provided, however, that if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 60 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 60-day period. The grace periods set forth in Section 7.1(a) and (b) above shall not affect in any way the right hereunder of any Beneficiary entitled to a payment of any amount payable to it, issue or performance of any obligation, by the RockGen Lessee under any Operative Document to demand prompt payment thereof, or performance thereof, by the Guarantor immediately upon any failure of the RockGen Lessee to pay or perform the same when it has become due (and, for the avoidance of doubt, without regard to the existence of any cure or grace period before such failure by the RockGen Lessee becomes a Lease Event of Default); provided, however, notwithstanding the foregoing, no Lease Event of Default under Section 16(m) and no remedies under the Facility Lease may be exercised until a Calpine Guaranty Event of Default has occurred and is continuinglevy.
Appears in 1 contract
Defaults. The occurrence of any one or more of the following events shall constitute be considered an "Event of Default" hereunder (whether any such event shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any Governmental Entity)::
(a) Failure by the Guarantor Borrower to observe or perform any term, condition or covenant in this Agreement and to rectify the RockGen Lessee under the Facility Lease shall fail to make any payment with respect to Periodic Rent or the Termination Value (including the Equity Portion of Termination Value and Debt Portion of Termination Value) when due and payable under such Facility Lease or this Guaranty same within five (5) 30 days after written notice to Borrower, or, if, in DHCD's determination, such failure cannot be rectified within 30 days, to begin to rectify such matter within said 30 days, in DHCD's determination, and thereafter diligently and continuously pursue the same shall become due thereunderremedy, in DHCD's determination; or
(b) the Guarantor or the RockGen Lessee shall fail to make A default under any other amount payable under any Operative Loan Document after which default is not cured within the same shall become due thereunder and such failure shall have continued from a applicable grace period of ten (10) Business Days after receipt by the RockGen Lessee and the Guarantor of written notice of such failure by the RockGen Lessee and/or the Guarantor, as applicableprovided therein;
(c) The Guarantor shall fail to comply with its covenants set forth in Section 3.3 (transfer of RockGen Lessee ownership), 3.6 (Guarantor merger) or 8.4 (assignment of Guaranty) of this Guaranty.
(d) the Guarantor shall fail to perform or observe At any covenant, obligation or agreement to be performed or observed by it under any Calpine Document (other than any covenant, obligation or agreement referred to in clauses (a) or (b) of this Section 7.1) in any material respect, which shall continue unremedied for (1) with respect to the Guarantor's guaranty of, and agreement with respect to, any nonmonetary obligation, covenant or agreement of the RockGen Lessee under any of the Operative Documents, 30 days after receipt by the Guarantor of written notice thereof from the Owner Participant, the Owner Lessor, the Indenture Trustee or the Pass Through Trustee; provided, however, if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 180 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 180-day period, and (2) with respect to any other obligation, covenant or agreement hereunder, 30 days after receipt by the Guarantor of written notice thereof;
(e) there shall have occurred either (i) a default by the Guarantor or any Restricted Subsidiary under any instrument or instruments under which there is or may be secured or evidenced any Indebtedness of the Guarantor or any Restricted Subsidiary of the Guarantor (other than the Obligations) having an outstanding principal amount of $50,000,000 (or its foreign currency equivalent) or more individually or in the aggregate that has caused the holders thereof to declare such Indebtedness to be due and payable prior to its Stated Maturity, unless such declaration has been rescinded within 30 days or (ii) a default by the Guarantor or any Restricted Subsidiary in the payment when due of any portion of the principal under any such instrument or instruments, and such unpaid portion exceeds $50,000,000 (or its foreign currency equivalent) individually or in the aggregate and is not paid, or such default is not cured or waived, within any grace period applicable thereto, unless such Indebtedness is discharged within 30 days of the Guarantor or a Restricted Subsidiary becoming aware of such default;
(f) the Guarantor or any Significant Subsidiary pursuant to or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case;
(ii) consents to the entry of an order for relief against it in an involuntary case;
(iii) consents to the appointment of a Custodian of it or for all or substantially all of its property;
(iv) makes a general assignment for the benefit of its creditors; or
(v) admits in writing its inability to generally pay its debts as such debts become due; or takes any comparable action under any foreign laws relating to insolvency;
(g) an involuntary case or other proceeding shall be commenced against the Guarantor or any Significant Subsidiary seeking (i) liquidation, reorganization or other relief with respect to it or its debts under Title 11 of the Bankruptcy Code or any bankruptcy, insolvency or other similar law now or hereafter in effect, or (ii) the appointment of a trustee, receiver, liquidator, custodian or other similar official with respect to it or any substantial part of its property or (iii) the winding-up or liquidation of the Guarantor or such Significant Subsidiary; and such involuntary case or other proceeding shall remain undismissed and unstayed for a period of 60 days;
(h) time any representation or warranty made by Borrower or on behalf of Borrower in connection with the Guarantor herein shall prove Loan is or becomes materially incorrect or incomplete;
(d) Failure by the Borrower to have been incorrect in any material respect when made or misleading in any material respect when made because commence construction of the omission Project within the period specified in Section 4.1(a);
(e) The Project is damaged or destroyed by fire or otherwise and DHCD has determined that it cannot be restored so that the Project can be completed on or before the Completion Date and within the other terms and conditions hereof;
(f) Failure by the Borrower to state a material fact construct the Project according to the Contract Documents and such incorrect according to all applicable Legal Requirements now existing or misleading representation hereafter enacted, adopted or promulgated;
(g) For any cause whatsoever, except for strikes, acts of God and other causes which in the determination of DHCD are beyond the control of Borrower:
(1) the construction of the Project is and continues to be material and unremedied at any time discontinued for a period of 30 days after receipt 20 consecutive calendar days, or
(2) construction is not carried on so as to permit completion of the work on or before the Completion Date, as determined by DHCD, or
(3) such construction, as determined by DHCD, has not been completed or is not progressing in accordance with the Contract Documents (unless DHCD shall determine that such discontinuance shall not jeopardize the security for the Loan);
(h) Failure by the Guarantor Borrower to pay any sums due and owing to the General Contractor, or any subcontractor, mechanic, materialman or supplier, upon the demand of written notice such party or upon the demand of DHCD, for work done on or in connection with the Project, except for good faith disputes or delays approved by DHCD subject to such conditions as DHCD may impose;
(i) Except as otherwise provided in subsection (j) below, if the Land, Project, or any part thereof; provided, howeverincluding any equipment, that if such condition cannot be remedied within such 30-day periodbuilding materials or any personalty relating thereto, then the period within which to remedy such condition shall be extended up to an additional 60 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 60-day period. The grace periods set forth in Section 7.1(a) and (b) above shall not affect in any way the right hereunder of any Beneficiary entitled subject to a payment lien or security agreement other than the Deed of Trust and any amount payable to it, or performance of any obligation, liens permitted thereunder;
(j) Failure by the RockGen Lessee under Borrower to discharge, bond or obtain title insurance against any Operative Document mechanics' lien pursuant to demand prompt payment thereof, Section 10.6 hereof; or
(k) If the General Contractor or performance thereof, by Borrower shall become insolvent or be adjudicated bankrupt or shall make an assignment for the Guarantor immediately upon any failure benefit of the RockGen Lessee to pay a creditor or perform the same when file or have filed against it has become due (a petition for bankruptcy or reorganization or arrangement and, for in the avoidance case of doubtsuch involuntary petition filed against the General Contractor or Borrower, without regard to the existence such petition is not discharged or dismissed within 60 days of any cure or grace period before such failure by the RockGen Lessee becomes a Lease Event of Default); provided, however, notwithstanding the foregoing, no Lease Event of Default under Section 16(m) and no remedies under the Facility Lease may be exercised until a Calpine Guaranty Event of Default has occurred and is continuingits filing.
Appears in 1 contract
Sources: Building Loan Agreement
Defaults. The following events shall constitute an "Event Events of Default" hereunder (whether any such event shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any Governmental Entity):":
(a) the Guarantor or the RockGen Lessee Any Event of Default under the Facility Lease shall fail to make any payment with respect to Periodic Rent or the Termination Value (including the Equity Portion of Termination Value and Debt Portion of Termination Value) when due and payable under such Facility Lease or this Guaranty within five (5) days after the same shall become due thereunderother Debenture; or
(b) The suspension from trading or failure of the Guarantor Common Stock to be listed on NASDAQ or the RockGen Lessee NYSE for more than an aggregate of ten (10) trading days in any 365-day period; or
(c) Any money judgment (including any arbitration award, but only if reduced to a judgment), writ or warrant of attachment, or similar process in excess of Two Hundred and Fifty Thousand Dollars ($250,000) in the aggregate, net of any applicable insurance coverage, shall fail to make be entered or filed against the Company, its subsidiaries or any of their properties or other amount payable under any Operative Document assets and which shall remain unpaid, unvacated, unbonded and unstayed for a period of seventy-five (75) days; or
(d) The Company shall default in the payment when due of (i) interest on this Debenture, and such default shall continue for thirty (30) calendar days after the same due date thereof, or (ii) the Outstanding Principal Amount of this Debenture; or
(e) Any of the representations or warranties made by the Company herein, in the Securities Purchase Agreement, the Warrants or the Registration Rights Agreement shall become due thereunder be untrue in any material respect at the time made and such failure condition (to the extent capable of being cured) shall have continued from continue uncured for a period of ten (10) Business Days after receipt by notice from the RockGen Lessee and the Guarantor of written notice Holder of such failure by condition; and such breach of representations and warranties, singly or in the RockGen Lessee and/or aggregate, would have a Material Adverse Effect or materially impair the Guarantor, as applicable;ability of the Company to perform or satisfy its obligations to the Holder pursuant to the Transaction Documents; or
(cf) The Guarantor shall fail to comply with its covenants set forth in Section 3.3 (transfer of RockGen Lessee ownership), 3.6 (Guarantor merger) or 8.4 (assignment of Guaranty) of this Guaranty.
(d) the Guarantor Company shall fail to perform or observe any covenant, obligation or agreement to be performed or observed by it under any Calpine Document (other than any covenant, obligation or agreement referred to in clauses (a) or (b) of this Section 7.1) in any material respect, which shall continue unremedied for (1) with respect to the Guarantor's guaranty of, and agreement with respect to, any nonmonetary obligation, material covenant or agreement of in the RockGen Lessee under Securities Purchase Agreement, the Warrants, the Registration Rights Agreement or this Debenture (as any of the Operative Documentsforegoing may be amended), 30 days after receipt by the Guarantor of written notice thereof from the Owner Participantincluding, without limitation, the Owner Lessor, the Indenture Trustee or the Pass Through Trustee; provided, however, if such condition cannot be remedied within such 30-day period, then the period within which failure to remedy such condition shall be extended up to an additional 180 days, so long as the Guarantor diligently pursues such remedy honor any Conversion Notice and such condition is reasonably capable of being remedied within such additional 180-day period, and (2) with respect to any other obligation, covenant or agreement hereunder, 30 days after receipt by the Guarantor of written notice thereof;
(e) there shall have occurred either (i) a default by the Guarantor or any Restricted Subsidiary under any instrument or instruments under which there is or may be secured or evidenced any Indebtedness of the Guarantor or any Restricted Subsidiary of the Guarantor (other than the Obligations) having an outstanding principal amount of $50,000,000 (or its foreign currency equivalent) or more individually or in the aggregate that has caused the holders thereof to declare such Indebtedness to be due and payable prior to its Stated Maturity, unless such declaration has been rescinded within 30 days or (ii) a default by the Guarantor or any Restricted Subsidiary in the payment when due of any portion of the principal under any such instrument or instrumentsdeliver shares pursuant thereto, and such unpaid portion exceeds $50,000,000 failure shall continue uncured for a period of ten (or its foreign currency equivalent10) individually or in Business Days after notice from the aggregate and is not paid, or such default is not cured or waived, within any grace period applicable thereto, unless such Indebtedness is discharged within 30 days of the Guarantor or a Restricted Subsidiary becoming aware Holder of such default;
(f) the Guarantor or any Significant Subsidiary pursuant to or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case;
(ii) consents to the entry of an order for relief against it in an involuntary case;
(iii) consents to the appointment of a Custodian of it or for all or substantially all of its property;
(iv) makes a general assignment for the benefit of its creditorsfailure; or
(vg) admits The Company shall (i) become insolvent; (ii) admit in writing its inability to generally pay its debts generally as such debts become duethey mature; or takes any comparable action under any foreign laws relating to insolvency;
(g) an involuntary case or other proceeding shall be commenced against the Guarantor or any Significant Subsidiary seeking (i) liquidation, reorganization or other relief with respect to it or its debts under Title 11 of the Bankruptcy Code or any bankruptcy, insolvency or other similar law now or hereafter in effect, or (ii) the appointment of a trustee, receiver, liquidator, custodian or other similar official with respect to it or any substantial part of its property or (iii) the winding-up or liquidation of the Guarantor or such Significant Subsidiary; and such involuntary case or other proceeding shall remain undismissed and unstayed for a period of 60 days;
(h) any representation or warranty made by the Guarantor herein shall prove to have been incorrect in any material respect when made or misleading in any material respect when made because of the omission to state a material fact and such incorrect or misleading representation is and continues to be material and unremedied for a period of 30 days after receipt by the Guarantor of written notice thereof; provided, however, that if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 60 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 60-day period. The grace periods set forth in Section 7.1(a) and (b) above shall not affect in any way the right hereunder of any Beneficiary entitled to a payment of any amount payable to it, or performance of any obligation, by the RockGen Lessee under any Operative Document to demand prompt payment thereof, or performance thereof, by the Guarantor immediately upon any failure of the RockGen Lessee to pay or perform the same when it has become due (and, for the avoidance of doubt, without regard to the existence of any cure or grace period before such failure by the RockGen Lessee becomes a Lease Event of Default); provided, however, notwithstanding the foregoing, no Lease Event of Default under Section 16(m) and no remedies under the Facility Lease may be exercised until a Calpine Guaranty Event of Default has occurred and is continuing.
Appears in 1 contract
Defaults. The Tenant agrees that any one or more of the following events -------- shall constitute an be considered events of default (sometimes herein referred to as a "Event of Default" hereunder (whether any such event shall be voluntary individually or involuntary or come about or be effected by operation of law or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any Governmental Entity):"Defaults" collectively) as said term is used herein:
(a) the Guarantor or the RockGen Lessee under the Facility Lease Tenant shall fail to make pay any payment with respect to Periodic part of the Rent or on the Termination Value due date and such failure continues for ten (including the Equity Portion of Termination Value and Debt Portion of Termination Value) when due and payable under such Facility Lease or this Guaranty within five (510) days after the same shall become due thereunderLandlord's written notice of such failure to Tenant (a "Monetary Default"); or
(b) the Guarantor or the RockGen Lessee Tenant shall fail to make keep, observe or perform any of the other amount payable under any Operative Document after the same shall become due thereunder covenants or agreements herein contained to be kept, observed and performed by Tenant (other than those of Article X and such failure shall have continued from a period of ten continue for twenty (1020) Business Days after receipt by the RockGen Lessee and the Guarantor of written notice of such failure by the RockGen Lessee and/or the Guarantor, as applicable;
(c) The Guarantor shall fail to comply with its covenants set forth in Section 3.3 (transfer of RockGen Lessee ownership), 3.6 (Guarantor merger) or 8.4 (assignment of Guaranty) of this Guaranty.
(d) the Guarantor shall fail to perform or observe any covenant, obligation or agreement to be performed or observed by it under any Calpine Document (other than any covenant, obligation or agreement referred to in clauses (a) or (b) of this Section 7.1) in any material respect, which shall continue unremedied for (1) with respect to the Guarantor's guaranty of, and agreement with respect to, any nonmonetary obligation, covenant or agreement of the RockGen Lessee under any of the Operative Documents, 30 days after receipt by the Guarantor of written notice thereof from the Owner Participant, the Owner Lessor, the Indenture Trustee or the Pass Through Trustee; provided, however, if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 180 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 180-day period, and (2) with respect to any other obligation, covenant or agreement hereunder, 30 days after receipt by the Guarantor of written notice thereof;
(e) there shall have occurred either (i) a default by the Guarantor or any Restricted Subsidiary under any instrument or instruments under which there is or may be secured or evidenced any Indebtedness of the Guarantor or any Restricted Subsidiary of the Guarantor (other than the Obligations) having an outstanding principal amount of $50,000,000 (or its foreign currency equivalent) or more individually or in the aggregate that has caused the holders thereof to declare such Indebtedness to be due and payable prior to its Stated Maturity, unless such declaration has been rescinded within 30 days or (ii) a default by the Guarantor or any Restricted Subsidiary in the payment when due of any portion of the principal under any such instrument or instruments, and such unpaid portion exceeds $50,000,000 (or its foreign currency equivalent) individually or in the aggregate and is not paid, or such default is not cured or waived, within any grace period applicable thereto, unless such Indebtedness is discharged within 30 days of the Guarantor or a Restricted Subsidiary becoming aware of such default;
(f) the Guarantor or any Significant Subsidiary pursuant to or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case;
(ii) consents to the entry of an order for relief against it in an involuntary case;
(iii) consents to the appointment of a Custodian of it or for all or substantially all of its property;
(iv) makes a general assignment for the benefit of its creditors; or
(v) admits in writing its inability to generally pay its debts as such debts become due; or takes any comparable action under any foreign laws relating to insolvency;
(g) an involuntary case or other proceeding shall be commenced against the Guarantor or any Significant Subsidiary seeking (i) liquidation, reorganization or other relief with respect to it or its debts under Title 11 of the Bankruptcy Code or any bankruptcy, insolvency or other similar law now or hereafter in effect, or (ii) the appointment of a trustee, receiver, liquidator, custodian or other similar official with respect to it or any substantial part of its property or (iii) the winding-up or liquidation of the Guarantor or such Significant Subsidiary; and such involuntary case or other proceeding shall remain undismissed and unstayed for a period of 60 days;
(h) any representation or warranty made by the Guarantor herein shall prove to have been incorrect in any material respect when made or misleading in any material respect when made because of the omission to state a material fact and such incorrect or misleading representation is and continues to be material and unremedied for a period of 30 days after receipt by the Guarantor of written notice thereofTenant; provided, however, that if such condition failure or default cannot be remedied cured by the payment of money and cannot, by its nature, reasonably be cured within such 30-twenty (20) day period, and Tenant shall, within such twenty (20) day period, commence all efforts to cure that failure or default and thereafter diligently and continuously pursues such efforts, then the period within which to remedy such condition failure or default shall not constitute an event of default hereunder; or
(c) Tenant shall be extended up adjudged an involuntary bankrupt, or a decree or order approving, as properly filed, a petition or answer filed against Tenant asking reorganization of Tenant under any state or federal bankruptcy laws as now or hereafter amended, or under the laws of any state, shall be entered, and any such decree or judgment or order shall not have been vacated or set aside within sixty (60) days from the date of entry or granting thereof; or
(d) Tenant shall file or admit the jurisdiction of the court and material allegations contained in any petition in bankruptcy or any petition pursuant to an additional 60 daysor purporting to be pursuant to any state or federal bankruptcy laws as now or hereafter amended, so long as or Tenant shall institute any proceeding or shall give its consent to the Guarantor diligently pursues such remedy institution of any proceedings for any relief of Tenant under any bankruptcy or insolvency laws or any laws relating to the relief or debtors, readjustment or indebtedness, reorganization, arrangements, composition or extension; or
(e) Tenant shall make any assignment for the benefit of creditors or shall apply for or consent to the appointment of a receiver for Tenant or any of the property of Tenant; or
(f) The Premises or Tenant's leasehold interest are levied upon under execution or attached by legal process, or a lien is filed in respect of the Premises or leasehold interest which is not released or discharged within sixty (60) days after the date of filing; or
(g) A decree or order appointing a receiver of the property of Tenant shall be made and such condition is reasonably capable of being remedied within such additional 60-day period. The grace periods set forth in Section 7.1(a) and (b) above decree or order shall not affect have been vacated or set aside within sixty (60) days from the date of entry or granting thereof; or
(h) Intentionally deleted; or
(i) Tenant fails in any way the right hereunder of manner to comply with any Beneficiary entitled to a payment of any amount payable to it, or performance of any obligation, by the RockGen Lessee under any Operative Document to demand prompt payment thereof, or performance thereof, by the Guarantor immediately upon any failure of the RockGen Lessee to pay or perform the same when it has become due (and, for the avoidance provisions of doubt, without regard to the existence of any cure or grace period before Article X and such failure by the RockGen Lessee becomes a Lease Event of Default)continues for fifteen (15) days after written notice from Landlord to Tenant; provided, however, notwithstanding if Tenant commences all efforts to cure such default within such fifteen (15) day period and thereafter diligently and continuously pursues such efforts, then such a default shall not constitute an event of default hereunder unless it is not cured within one hundred twenty (120) days from the foregoing, no Lease Event date of Default under Section 16(m) and no remedies under the Facility Lease may be exercised until a Calpine Guaranty Event of Default has occurred and is continuingLandlord's notice to Tenant.
Appears in 1 contract
Sources: Lease (Divine Interventures Inc)
Defaults. The In case of the happening of any of the following events shall constitute an (herein called "Event Events of Default" hereunder (whether any such event shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any Governmental Entity"):
(a) the Guarantor Any principal amount of any Loan made under this Agreement (other than principal payments required to be made pursuant to Section 2.14(a)) shall not be paid when due and payable; or
(b) Any principal payment required to be made pursuant to Section 2.14(a) shall not be paid when due and payable, and shall remain unpaid for one Business Day;
(c) Any interest or the RockGen Lessee Fees due under the Facility Lease this Agreement shall fail to make any payment with respect to Periodic Rent not be paid when due and payable, and shall remain unpaid for five (5) days; or
(d) Any amount, other than principal or the Termination Value (including the Equity Portion of Termination Value and Debt Portion of Termination Value) interest or Fees, payable under this Agreement shall not be paid when due and payable under such Facility Lease or this Guaranty within and shall remain unpaid for five (5) days after written notice to the same shall become due thereunderCompany of such nonpayment; or
(be) the Guarantor Any representation or the RockGen Lessee shall fail to make any other amount payable under any Operative Document after the same shall become due thereunder and such failure shall have continued from a period of ten (10) Business Days after receipt warranty made or deemed made by the RockGen Lessee Company (or any of its officers) herein (other than the representations and warranties contained in Sections 4.6 and 4.7, the Guarantor inaccuracies of written notice which shall only cause the Collateral affected thereby to cease to qualify as Eligible Collateral) in the Security Agreement or in any certificate, agreement, instrument or statement contemplated by or made or delivered pursuant to or in connection herewith or therewith shall prove to have been incorrect when made or deemed made in any material respect; provided however that if the facts resulting in the breach of any such failure by the RockGen Lessee and/or the Guarantorrepresentation or warranty are susceptible of correction, as applicable;such breach shall not constitute an Event of Default if such facts are corrected within 30 days after such inaccurate representation or warranty was made or deemed made; or
(cf) The Guarantor shall fail to comply with its covenants set forth in Section 3.3 (transfer of RockGen Lessee ownership), 3.6 (Guarantor merger) or 8.4 (assignment of Guaranty) of this Guaranty.
(d) the Guarantor Company shall fail to perform or observe any covenant, obligation or agreement to be performed or observed by it under any Calpine Document (other than any covenant, obligation or agreement referred to in clauses (a) or (b) of this Section 7.1) in any material respect, which shall continue unremedied for (1) with respect to the Guarantor's guaranty of, and agreement with respect to, any nonmonetary obligationterm, covenant or agreement of the RockGen Lessee under any of the Operative Documentscontained in Sections 7.10, 30 days after receipt by the Guarantor of written notice thereof from the Owner Participant8.1, the Owner Lessor8.3, the Indenture Trustee 8.4, 8.6, 8.7, 8.9, 8.14(a), 8.15, 8.17 or the Pass Through Trustee; provided, however, if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 180 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 180-day period, and (2) with respect to any other obligation, covenant or agreement hereunder, 30 days after receipt by the Guarantor of written notice thereof;
(e) there shall have occurred either (i) a default by the Guarantor or any Restricted Subsidiary under any instrument or instruments under which there is or may be secured or evidenced any Indebtedness of the Guarantor or any Restricted Subsidiary of the Guarantor (other than the Obligations) having an outstanding principal amount of $50,000,000 (or its foreign currency equivalent) or more individually or in the aggregate that has caused the holders thereof to declare such Indebtedness to be due and payable prior to its Stated Maturity, unless such declaration has been rescinded within 30 days or (ii) a default by the Guarantor or any Restricted Subsidiary in the payment when due of any portion of the principal under any such instrument or instruments, and such unpaid portion exceeds $50,000,000 (or its foreign currency equivalent) individually or in the aggregate and is not paid, or such default is not cured or waived, within any grace period applicable thereto, unless such Indebtedness is discharged within 30 days of the Guarantor or a Restricted Subsidiary becoming aware of such default;
(f) the Guarantor or any Significant Subsidiary pursuant to or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case;
(ii) consents to the entry of an order for relief against it in an involuntary case;
(iii) consents to the appointment of a Custodian of it or for all or substantially all of its property;
(iv) makes a general assignment for the benefit of its creditors8.18; or
(v) admits in writing its inability to generally pay its debts as such debts become due; or takes any comparable action under any foreign laws relating to insolvency;
(g) an involuntary case or other proceeding The Company shall be commenced against the Guarantor or any Significant Subsidiary seeking (i) liquidation, reorganization or other relief fail to comply with respect to it or its debts under Title 11 of the Bankruptcy Code or any bankruptcy, insolvency or other similar law now or hereafter covenant contained in effectSection 8.12 and such failure remains unremedied for one Business Day, or (ii) the appointment of a trusteefail to perform any term, receivercovenant or agreement contained in Sections 7.7(a), liquidator7.9, custodian 8.5, 8.8 or other similar official with respect to it or any substantial part of its property or (iii) the winding-up or liquidation of the Guarantor or such Significant Subsidiary; 8.16, and such involuntary case or other proceeding failure shall remain undismissed and unstayed unremedied for a period of 60 more than 30 days;
(h) The Company shall fail to perform or observe any representation other term, covenant or warranty made agreement contained herein or in the Security Agreement on its part to be performed or observed and any such failure remains unremedied for thirty (30) days after written notice thereof shall have been given to the Company by the Guarantor herein shall prove to have been incorrect in any material respect when made Agent or misleading in any material respect when made because of the omission to state a material fact and such incorrect or misleading representation is and continues to be material and unremedied for a period of 30 days after receipt by the Guarantor of written notice thereofCollateral Agent; provided, however, that if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 60 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 60-day period. The grace periods set forth in Section 7.1(a) and (b) above shall not affect in any way the right hereunder of any Beneficiary entitled to a payment of any amount payable to it, or performance of any obligation, by the RockGen Lessee under any Operative Document to demand prompt payment thereof, or performance thereof, by the Guarantor immediately upon any failure of the RockGen Lessee to pay or perform the same when it has become due (and, for the avoidance of doubt, without regard to the existence of any cure or grace period before such failure by the RockGen Lessee becomes a Lease Event of Default); provided, however, notwithstanding the foregoing, no Lease Event of Default under Section 16(m) and no remedies under the Facility Lease may be exercised until a Calpine Guaranty Event of Default has occurred and is continuing.or
Appears in 1 contract
Sources: Revolving Credit Agreement (Source One Mortgage Services Corp)
Defaults. The following events shall constitute an "Event events of Defaultdefault" hereunder (whether any such event shall be voluntary or involuntary or come about or be effected by operation under this Contract:
A. The failure of law or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any Governmental Entity):
(a) either the Guarantor Management Company or the RockGen Lessee under the Facility Lease shall fail Association, (but not individual Unit Owners), to make any payment with respect to Periodic Rent or the Termination Value (including the Equity Portion of Termination Value and Debt Portion of Termination Value) when due and payable under such Facility Lease or this Guaranty within five (5) days after the same shall become due thereunder; or
(b) the Guarantor or the RockGen Lessee shall fail to make any other amount payable under any Operative Document after the same shall become due thereunder and such failure shall have continued from a period of ten (10) Business Days after receipt by the RockGen Lessee and the Guarantor of written notice of such failure by the RockGen Lessee and/or the Guarantor, as applicable;
(c) The Guarantor shall fail to comply with its covenants set forth in Section 3.3 (transfer of RockGen Lessee ownership), 3.6 (Guarantor merger) or 8.4 (assignment of Guaranty) of this Guaranty.
(d) the Guarantor shall fail to perform or observe any covenant, obligation or agreement required to be performed or observed by it under any Calpine Document made in accordance with the terms hereof within thirty (other than any covenant, obligation or agreement referred to in clauses (a30) or (b) of this Section 7.1) in any material respect, which shall continue unremedied for (1) with respect to the Guarantor's guaranty of, and agreement with respect to, any nonmonetary obligation, covenant or agreement of the RockGen Lessee under any of the Operative Documents, 30 days after receipt by the Guarantor such party of written notice thereof from the Owner Participant, the Owner Lessor, the Indenture Trustee or the Pass Through Trustee; provided, however, if that such condition canpayment has not be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 180 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 180-day period, and (2) with respect to any other obligation, covenant or agreement hereunder, 30 days after receipt by the Guarantor of written notice thereof;
(e) there shall have occurred either (i) a default by the Guarantor or any Restricted Subsidiary under any instrument or instruments under which there is or may be secured or evidenced any Indebtedness of the Guarantor or any Restricted Subsidiary of the Guarantor (other than the Obligations) having an outstanding principal amount of $50,000,000 (or its foreign currency equivalent) or more individually or in the aggregate that has caused the holders thereof to declare such Indebtedness to be due and payable prior to its Stated Maturity, unless such declaration has been rescinded within 30 days or (ii) a default by the Guarantor or any Restricted Subsidiary in the payment when due of any portion of the principal under any such instrument or instruments, and such unpaid portion exceeds $50,000,000 (or its foreign currency equivalent) individually or in the aggregate and is not paid, or such default is not cured or waived, within any grace period applicable thereto, unless such Indebtedness is discharged within 30 days of the Guarantor or a Restricted Subsidiary becoming aware of such default;
(f) the Guarantor or any Significant Subsidiary pursuant to or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case;
(ii) consents to the entry of an order for relief against it in an involuntary case;
(iii) consents to the appointment of a Custodian of it or for all or substantially all of its property;
(iv) makes a general assignment for the benefit of its creditorsmade; or
B. The failure of either the Management Company or the Association, (v) admits in writing its inability but not individual Unit Owners), to generally pay its debts as such debts become due; perform, keep or takes fulfill any comparable action under any foreign laws relating to insolvency;
(g) an involuntary case or other proceeding shall be commenced against the Guarantor or any Significant Subsidiary seeking (i) liquidation, reorganization or other relief with respect to it or its debts under Title 11 of the Bankruptcy Code other covenants, undertakings, obligations or any bankruptcyconditions set forth in the Contract, insolvency or other similar law now or hereafter in effect, or (ii) and the appointment continuance of a trustee, receiver, liquidator, custodian or other similar official with respect to it or any substantial part of its property or (iii) the winding-up or liquidation of the Guarantor or such Significant Subsidiary; and such involuntary case or other proceeding shall remain undismissed and unstayed default for a period of 60 days;thirty (30) days after written notice of said failure.
C. Upon the occurrence of any such events of default, the non defaulting party may give to the other party (hthe "Noticed Party") any representation or warranty made by notice of such default - (the Guarantor herein "Notice") and notice that this Contract shall prove to have been incorrect in any material respect when made or misleading in any material respect when made because terminate upon the expiration of the omission to state a material fact and such incorrect or misleading representation is and continues to be material and unremedied for a period of 30 thirty (30) days from the date of such notice unless, prior to the expiration of such period, such default has been cured or, in the event of a default which is not susceptible of being cured within such thirty (30) days, unless the defaulting party shall promptly commence to cure the default and must thereafter diligently pursue such efforts to completion.
D. The Notice shall state the specific reason(s) for the default and the specific action(s) required to cure the Noticed Party's default. If the Noticed Party does not agree with all or portions of the Notice, within fifteen (15) days after receipt by thereof the Guarantor of Noticed Party shall give written notice thereofto the non-defaulting party of such disagreement, which notice shall specifically identify the areas of disagreement with the Notice and that the Noticed Party requests a determination thereof by arbitration; provided, howeveras to the portion of the non defaulting party's notice that the Noticed Party agrees with, the Noticed Party shall proceed to cure as provided above. If the arbitrator determines that if any noticed default denied by the Noticed Party exists, the arbitrator by written opinion shall identify such condition candefault, the action(s) required to cure the default and the specific period of time, which the Noticed Party shall have to cure the default. If the Noticed Party complies with the decision of the arbitrator, this Contract shall not be remedied within such 30terminate.
E. If the Management Company defaults, the Association has the right to recover prorated consequential damages of pre-day period, then paid fees in the period within which event the Management Company provides the documentation to remedy such condition shall be extended up to an additional 60 days, so long support stated expenses and are agreed upon with the BOD. NOTE: Consequential damages are defined as the Guarantor diligently pursues such remedy and such condition is reasonably capable cost of being remedied within such additional 60-day period. The grace periods set forth in Section 7.1(a) and (b) above shall services contracted, but not affect in any way the right hereunder of any Beneficiary entitled to a payment of any amount payable to it, or performance of any obligation, by the RockGen Lessee under any Operative Document to demand prompt payment thereof, or performance thereof, by the Guarantor immediately upon any failure of the RockGen Lessee to pay or perform the same when it has become due (and, for the avoidance of doubt, without regard to the existence of any cure or grace period before such failure by the RockGen Lessee becomes a Lease Event of Default); provided, however, notwithstanding the foregoing, no Lease Event of Default under Section 16(m) and no remedies under the Facility Lease may be exercised until a Calpine Guaranty Event of Default has occurred and is continuing.
Appears in 1 contract
Sources: Management Contract
Defaults. The (a) Each of the following events shall constitute an "“Event of Default" ” hereunder (whether any whatever the reason for such event of default and whether it shall be voluntary or involuntary involuntary, or come about or be effected by operation of law law, or be pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any Governmental Entityadministrative or governmental body):
(a1) the Guarantor or the RockGen if Lessee under the Facility Lease shall fail to make any payment with respect to Periodic Rent or the Termination Value (including the Equity Portion of Termination Value and Debt Portion of Termination Value) pay when due any sum under this Agreement and payable under such Facility Lease failure shall continue for a period of three business days after oral, facsimile, electronic mail or written notice has been given by Lessor to Lessee; (2) if Lessee shall fail to perform any covenant or agreement contained herein, and such failure shall continue for a period of fifteen (15) calendar days after notice thereof shall have been given in writing; (3) if any representation or warranty made by Lessee in this Guaranty within five Agreement or any agreement, document or certificate delivered by the Lessee in connection herewith is or shall become incorrect in any material respect; (4) if Lessee shall operate the Aircraft in violation of any applicable law, regulation, rule or order of any governmental authority having jurisdiction thereof or shall operate the Aircraft when the insurance required hereunder shall not be in effect; (5) if any proceedings shall be commenced under any bankruptcy, insolvency, reorganization, readjustment of debt, receivership or liquidation law or statute of any jurisdiction; or (6) if any such proceedings shall be instituted against either Party and shall not be withdrawn or terminated within thirty (30) calendar days after the same shall become due thereunder; ortheir commencement. BLACKSTONE DRY LEASE AGREEMENT (GLOBAL 6000) - PAGE 6 OF 9
(b) Upon the Guarantor occurrence of any Event of Default Lessor may, at its option, exercise any or all remedies available at law or in equity, including, without limitation, any or all of the RockGen following remedies, as Lessor in its sole discretion shall elect: (1) by notice in writing to terminate this Agreement immediately, whereupon all rights of the Lessee to the use or possession of the Aircraft or any part thereof shall absolutely cease and terminate but Lessee shall fail to make any other amount payable under any Operative Document after remain liable as hereinafter provided; and thereupon Lessee, if so requested by Lessor, shall at its expense promptly return the Aircraft and Aircraft Documentation as required by this Agreement or Lessor, at its option, may enter upon the premises where the Aircraft or Aircraft Documentation are located and take immediate possession of and remove the same shall become due thereunder by summary proceedings or otherwise. Lessee specifically authorizes ▇▇▇▇▇▇’s entry upon any premises where the Aircraft or Aircraft Documentation may be located for the purpose of, and such failure shall waives any cause of action it may have continued from arising from, a period peaceful retaking of ten the Aircraft or Aircraft Documentation; or (102) Business Days after receipt by the RockGen Lessee and the Guarantor of written notice of such failure by the RockGen Lessee and/or the Guarantor, as applicable;
(c) The Guarantor shall fail to comply with its covenants set forth in Section 3.3 (transfer of RockGen Lessee ownership), 3.6 (Guarantor merger) or 8.4 (assignment of Guaranty) of this Guaranty.
(d) the Guarantor shall fail to perform or observe any covenant, obligation or agreement cause to be performed or observed by it under any Calpine Document (other than any covenant, obligation or agreement referred to in clauses (a) or (b) of this Section 7.1) in any material respect, which shall continue unremedied for (1) with respect to the Guarantor's guaranty of, and agreement with respect to, any nonmonetary obligation, covenant or agreement of the RockGen Lessee under any hereunder. ▇▇▇▇▇▇ agrees to pay all costs and expenses incurred by ▇▇▇▇▇▇ for such performance and acknowledges that such performance by ▇▇▇▇▇▇ shall not be deemed to cure said Event of Default.
(c) Lessee shall be liable for all costs, charges and expenses, including reasonable legal fees and disbursements, incurred by Lessor by reason of the Operative Documents, 30 days after receipt by the Guarantor occurrence of written notice thereof from the Owner Participant, the Owner Lessor, the Indenture Trustee any Event of Default or the Pass Through Trustee; providedexercise of ▇▇▇▇▇▇’s remedies with respect thereto. No remedy referred to herein is intended to be exclusive, however, if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition but each shall be extended up to an additional 180 days, so long as the Guarantor diligently pursues such remedy cumulative and such condition is reasonably capable of being remedied within such additional 180-day period, and (2) with respect in addition to any other obligation, covenant remedy referred to above or agreement hereunder, 30 days after receipt by the Guarantor of written notice thereof;
(e) there shall have occurred either (i) a default by the Guarantor or any Restricted Subsidiary under any instrument or instruments under which there is or may be secured or evidenced any Indebtedness of the Guarantor or any Restricted Subsidiary of the Guarantor (other than the Obligations) having an outstanding principal amount of $50,000,000 (or its foreign currency equivalent) or more individually otherwise available to Lessor at law or in equity. Lessor shall not be deemed to have waived any default, Event of Default or right hereunder unless the aggregate that has caused the holders thereof to declare such Indebtedness to be due and payable prior to its Stated Maturity, unless such declaration has been rescinded within 30 days or (ii) a default same is acknowledged in writing by the Guarantor or any Restricted Subsidiary in the payment when due duly authorized representative of Lessor. No waiver by Lessor of any portion default or Event of the principal under any such instrument or instruments, and such unpaid portion exceeds $50,000,000 (or its foreign currency equivalent) individually or in the aggregate and is not paid, or such default is not cured or waived, within any grace period applicable thereto, unless such Indebtedness is discharged within 30 days of the Guarantor or a Restricted Subsidiary becoming aware of such default;
(f) the Guarantor or any Significant Subsidiary pursuant to or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case;
(ii) consents to the entry of an order for relief against it in an involuntary case;
(iii) consents to the appointment of a Custodian of it or for all or substantially all of its property;
(iv) makes a general assignment for the benefit of its creditors; or
(v) admits in writing its inability to generally pay its debts as such debts become due; or takes any comparable action under any foreign laws relating to insolvency;
(g) an involuntary case or other proceeding Default hereunder shall be commenced against the Guarantor or any Significant Subsidiary seeking (i) liquidation, reorganization or other relief with respect to it or its debts under Title 11 of the Bankruptcy Code or any bankruptcy, insolvency or other similar law now or hereafter in effect, or (ii) the appointment of a trustee, receiver, liquidator, custodian or other similar official with respect to it or any substantial part of its property or (iii) the winding-up or liquidation of the Guarantor or such Significant Subsidiary; and such involuntary case or other proceeding shall remain undismissed and unstayed for a period of 60 days;
(h) any representation or warranty made by the Guarantor herein shall prove to have been incorrect in any material respect when made or misleading in any material respect when made because of the omission to state a material fact and such incorrect or misleading representation is and continues to be material and unremedied for a period of 30 days after receipt by the Guarantor of written notice thereof; provided, however, that if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 60 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 60-day period. The grace periods set forth in Section 7.1(a) and (b) above shall not affect in any way the right hereunder be, or be construed to be, a waiver of any Beneficiary entitled to a payment of any amount payable to it, future or performance of any obligation, by the RockGen Lessee under any Operative Document to demand prompt payment thereof, subsequent default or performance thereof, by the Guarantor immediately upon any failure of the RockGen Lessee to pay or perform the same when it has become due (and, for the avoidance of doubt, without regard to the existence of any cure or grace period before such failure by the RockGen Lessee becomes a Lease Event of Default); provided. The failure or delay of Lessor in exercising any rights granted it hereunder upon any occurrence of any such right upon the continuation or recurrence of any such contingencies or similar contingencies, however, notwithstanding and any single or partial exercise of any particular right by Lessor shall not exhaust the foregoing, no Lease Event same or constitute a waiver of Default under Section 16(m) and no remedies under the Facility Lease may be exercised until a Calpine Guaranty Event of Default has occurred and is continuingany other right provided herein.
Appears in 1 contract
Defaults. The occurrence of any one or more of the following events shall constitute an "Event be considered events of Default" hereunder (whether any such event shall be voluntary or involuntary or come about or be effected default by operation of law or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any Governmental Entity):Tenant under this Lease:
(a) the Guarantor or the RockGen Lessee under the Facility Lease Tenant shall fail to make any payment with respect to Periodic of Rent or the Termination Value (including the Equity Portion of Termination Value any other payment required to be made by Tenant hereunder when due, and Debt Portion of Termination Value) when due and payable under such Facility Lease or this Guaranty within failure continues for five (5) days after the same shall become due thereunderwritten notice thereof; or
(b) the Guarantor or the RockGen Lessee Tenant shall fail in keeping, observing or performing any of the other covenants or agreements herein contained to make any other amount payable under any Operative Document after the same shall become due thereunder be kept, observed and performed by Tenant, and such failure shall have continued from a period of ten continue for thirty (1030) Business Days days after receipt by the RockGen Lessee and the Guarantor of written notice of such failure by the RockGen Lessee and/or the Guarantor, as applicable;thereof in writing to Tenant; or
(c) The Guarantor Tenant shall fail make any assignment for the benefit of creditors or shall apply for or consent to comply with the appointment of a receiver for itself or any of its covenants set forth property, or shall admit in Section 3.3 (transfer writing its inability to pay its debts as they come due, or shall file for bankruptcy or institute any other proceedings for relief under any bankruptcy or insolvency laws or any laws relating to the relief of RockGen Lessee ownership)debtors, 3.6 (Guarantor merger) readjustment or 8.4 (assignment of Guaranty) of this Guaranty.indebtedness, reorganization, arrangements, composition or extensions, or
(d) Any third party shall institute bankruptcy or insolvency proceedings against Tenant, and such proceedings shall not have been dismissed within thirty (30) days from the Guarantor date of entry or granting thereof; or Tenant shall fail to perform be adjudged an involuntary bankrupt, or observe a decree or order for reorganization under the Federal bankruptcy laws or under the laws of any covenantstate, obligation shall be entered against Tenant and any such decree or agreement judgment or order shall not have been vacated or set aside within thirty (30) days from the date of the entry or granting thereof, or Tenant shall admit the material allegations contained in any petition in bankruptcy or any petition pursuant to, or purporting to be performed or observed by it under any Calpine Document (other than any covenant, obligation or agreement referred to in clauses (a) or (b) of this Section 7.1) in any material respect, which shall continue unremedied for (1) with respect to the Guarantor's guaranty of, and agreement with respect pursuant to, any nonmonetary obligation, covenant or agreement of the RockGen Lessee under any of the Operative Documents, 30 days after receipt by the Guarantor of written notice thereof from the Owner Participant, the Owner Lessor, the Indenture Trustee or the Pass Through Trustee; provided, however, if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 180 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 180-day period, and (2) with respect to any other obligation, covenant or agreement hereunder, 30 days after receipt by the Guarantor of written notice thereofFederal bankruptcy laws;
(e) there In the event Tenant fails to timely submit to Landlord any statement of Gross Sales in accordance with the terms and conditions contained herein or fails to pay Percentage Rent and either such failure continues for fifteen (15) days after written notice, or if Tenant falsifies, hides or otherwise fails to report Gross Sales, or adopts or changes business operations for the primary purpose of avoiding the payment of Percentage Rent, or if any Governmental Action is brought against Landlord or its principals as a result of the payment or receipt of Percentage Rent, and is not dismissed without prejudice within 30 days after demand by Landlord, then Tenant shall have occurred either (i) be in default. Upon the occurrence of any one or more of such events, Tenant shall be in default hereunder. Upon a default by Tenant, Landlord may apply and retain all sums deposited with Landlord hereunder, and Landlord may, at its election, terminate this Lease or terminate Tenant's right to possession only, without terminating the Guarantor Lease. Upon termination of the Lease, or upon any termination of the Tenant's right to possession without termination of the Lease, the Tenant shall surrender possession and vacate the Premises immediately, and deliver possession thereof to the Landlord, and Tenant hereby grants to the Landlord the full and free right, without demand or notice of any kind to Tenant, to enter into and upon the Premises, with or without process of law, and to repossess the Premises as the Landlord's former estate and to expel or remove the Tenant and any others who may be occupying the Premises, without being deemed in any manner guilty of trespass, eviction, or forcible entry or detainer, without incurring any liability for any damage resulting therefrom and without relinquishing the Landlord's rights to Rent or any Restricted Subsidiary under any instrument other right given the Landlord hereunder or instruments under which there is or may be secured or evidenced any Indebtedness by operation of law. Tenant shall pay on demand all costs and expenses, including attorneys' fees and costs, incurred by Landlord in recovering sums due hereunder, recovering possession of the Guarantor Premises, or otherwise enforcing this Lease or pursuing Landlord's rights and remedies against Tenant or any Restricted Subsidiary of the Guarantor (other than the Obligations) having an outstanding principal amount of $50,000,000 (or its foreign currency equivalent) or more individually or in the aggregate that has caused the holders thereof to declare such Indebtedness to be due and payable prior to its Stated Maturityassignee, unless such declaration has been rescinded within 30 days or (ii) a default by the Guarantor or any Restricted Subsidiary in the payment when due of any portion of the principal under any such instrument or instruments, and such unpaid portion exceeds $50,000,000 (or its foreign currency equivalent) individually or in the aggregate and is not paid, or such default is not cured or waived, within any grace period applicable thereto, unless such Indebtedness is discharged within 30 days of the Guarantor or a Restricted Subsidiary becoming aware of such default;
(f) the Guarantor or any Significant Subsidiary pursuant to or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case;
(ii) consents to the entry of an order for relief against it in an involuntary case;
(iii) consents to the appointment of a Custodian of it or for all or substantially all of its property;
(iv) makes a general assignment for the benefit of its creditors; or
(v) admits in writing its inability to generally pay its debts as such debts become due; or takes any comparable action under any foreign laws relating to insolvency;
(g) an involuntary case sublessee or other proceeding shall be commenced against the Guarantor or any Significant Subsidiary seeking (i) liquidation, reorganization or other relief with respect to it or its debts under Title 11 of the Bankruptcy Code or any bankruptcy, insolvency or other similar law now or hereafter in effect, or (ii) the appointment of a trustee, receiver, liquidator, custodian or other similar official with respect to it or any substantial part of its property or (iii) the winding-up or liquidation of the Guarantor or such Significant Subsidiary; and such involuntary case or other proceeding shall remain undismissed and unstayed for a period of 60 days;
(h) any representation or warranty made by the Guarantor herein shall prove to have been incorrect in any material respect when made or misleading in any material respect when made because of the omission to state a material fact and such incorrect or misleading representation is and continues to be material and unremedied for a period of 30 days after receipt by the Guarantor of written notice thereof; provided, however, that if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 60 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 60-day period. The grace periods set forth in Section 7.1(a) and (b) above shall not affect in any way the right hereunder of any Beneficiary entitled to a payment of any amount payable to it, or performance of any obligation, by the RockGen Lessee under any Operative Document to demand prompt payment thereof, or performance thereof, by the Guarantor immediately upon any failure of the RockGen Lessee to pay or perform the same when it has become due (and, for the avoidance of doubt, without regard to the existence of any cure or grace period before such failure by the RockGen Lessee becomes a Lease Event of Default); provided, however, notwithstanding the foregoing, no Lease Event of Default under Section 16(m) and no remedies under the Facility Lease may be exercised until a Calpine Guaranty Event of Default has occurred and is continuingtransferee.
Appears in 1 contract
Sources: Industrial Building Lease
Defaults. The (a) Each of the following events shall constitute an "“Event of Default" ” hereunder (whether any whatever the reason for such event of default and whether it shall be voluntary or involuntary involuntary, or come about or be effected by operation of law law, or be pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any Governmental Entityadministrative or governmental body):
(a1) the Guarantor or the RockGen if Lessee under the Facility Lease shall fail to make any payment with respect to Periodic Rent or the Termination Value (including the Equity Portion of Termination Value and Debt Portion of Termination Value) pay when due any sum under this Agreement and payable under such Facility Lease failure shall continue for a period of three business days after oral, facsimile, or written notice has been given by Lessor to Lessee; (2) if Lessee shall fail to perform any covenant or agreement contained herein, and such failure shall continue for a period of fifteen (15) days after notice thereof shall have been given in writing; (3) if any representation or warranty made by Lessee in this Guaranty within five Agreement or any agreement, document or certificate delivered by the Lessee in connection herewith is or shall become incorrect in any material respect; (4) if Lessee shall operate the Aircraft in violation of any applicable law, regulation, rule or order of any governmental authority having jurisdiction thereof or shall operate the Aircraft when the insurance required hereunder shall not be in effect; (5) if any proceedings shall be commenced under any bankruptcy, insolvency, reorganization, readjustment of debt, receivership or liquidation law or statute of any jurisdiction; or (6) if any such proceedings shall be instituted against either Party and shall not be withdrawn or terminated within thirty (30) days after the same shall become due thereunder; ortheir commencement. 113CS LLC - BLACKSTONE DRY LEASE - PAGE 5 OF 10
(b) Upon the Guarantor occurrence of any Event of Default Lessor may, at its option, exercise any or all remedies available at law or in equity, including, without limitation, any or all of the RockGen following remedies, as Lessor in its sole discretion shall elect: (1) by notice in writing to terminate this Agreement immediately, whereupon all rights of the Lessee to the use or possession of the Aircraft or any part thereof shall absolutely cease and terminate but Lessee shall fail to make any other amount payable under any Operative Document after remain liable as hereinafter provided; and thereupon Lessee, if so requested by Lessor, shall at its expense promptly return the Aircraft and Aircraft Documentation as required by this Agreement or Lessor, at its option, may enter upon the premises where the Aircraft or Aircraft Documentation are located and take immediate possession of and remove the same shall become due thereunder by summary proceedings or otherwise. Lessee specifically authorizes Lessor’s entry upon any premises where the Aircraft or Aircraft Documentation may be located for the purpose of, and such failure shall waives any cause of action it may have continued from arising from, a period peaceful retaking of ten the Aircraft or Aircraft Documentation; or (102) Business Days after receipt by the RockGen Lessee and the Guarantor of written notice of such failure by the RockGen Lessee and/or the Guarantor, as applicable;
(c) The Guarantor shall fail to comply with its covenants set forth in Section 3.3 (transfer of RockGen Lessee ownership), 3.6 (Guarantor merger) or 8.4 (assignment of Guaranty) of this Guaranty.
(d) the Guarantor shall fail to perform or observe any covenant, obligation or agreement cause to be performed or observed by it under any Calpine Document (other than any covenant, obligation or agreement referred to in clauses (a) or (b) of this Section 7.1) in any material respect, which shall continue unremedied for (1) with respect to the Guarantor's guaranty of, and agreement with respect to, any nonmonetary obligation, covenant or agreement of the RockGen Lessee under any hereunder. Lessee agrees to pay all costs and expenses incurred by Lessor for such performance and acknowledges that such performance by Lessor shall not be deemed to cure said Event of Default.
(c) Lessee shall be liable for all costs, charges and expenses, including reasonable legal fees and disbursements, incurred by Lessor by reason of the Operative Documents, 30 days after receipt by the Guarantor occurrence of written notice thereof from the Owner Participant, the Owner Lessor, the Indenture Trustee any Event of Default or the Pass Through Trustee; providedexercise of Lessor’s remedies with respect thereto. No remedy referred to herein is intended to be exclusive, however, if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition but each shall be extended up to an additional 180 days, so long as the Guarantor diligently pursues such remedy cumulative and such condition is reasonably capable of being remedied within such additional 180-day period, and (2) with respect in addition to any other obligation, covenant remedy referred to above or agreement hereunder, 30 days after receipt by the Guarantor of written notice thereof;
(e) there shall have occurred either (i) a default by the Guarantor or any Restricted Subsidiary under any instrument or instruments under which there is or may be secured or evidenced any Indebtedness of the Guarantor or any Restricted Subsidiary of the Guarantor (other than the Obligations) having an outstanding principal amount of $50,000,000 (or its foreign currency equivalent) or more individually otherwise available to Lessor at law or in equity. Lessor shall not be deemed to have waived any default, Event of Default or right hereunder unless the aggregate that has caused the holders thereof to declare such Indebtedness to be due and payable prior to its Stated Maturity, unless such declaration has been rescinded within 30 days or (ii) a default same is acknowledged in writing by the Guarantor or any Restricted Subsidiary in the payment when due duly authorized representative of Lessor. No waiver by Lessor of any portion default or Event of the principal under any such instrument or instruments, and such unpaid portion exceeds $50,000,000 (or its foreign currency equivalent) individually or in the aggregate and is not paid, or such default is not cured or waived, within any grace period applicable thereto, unless such Indebtedness is discharged within 30 days of the Guarantor or a Restricted Subsidiary becoming aware of such default;
(f) the Guarantor or any Significant Subsidiary pursuant to or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case;
(ii) consents to the entry of an order for relief against it in an involuntary case;
(iii) consents to the appointment of a Custodian of it or for all or substantially all of its property;
(iv) makes a general assignment for the benefit of its creditors; or
(v) admits in writing its inability to generally pay its debts as such debts become due; or takes any comparable action under any foreign laws relating to insolvency;
(g) an involuntary case or other proceeding Default hereunder shall be commenced against the Guarantor or any Significant Subsidiary seeking (i) liquidation, reorganization or other relief with respect to it or its debts under Title 11 of the Bankruptcy Code or any bankruptcy, insolvency or other similar law now or hereafter in effect, or (ii) the appointment of a trustee, receiver, liquidator, custodian or other similar official with respect to it or any substantial part of its property or (iii) the winding-up or liquidation of the Guarantor or such Significant Subsidiary; and such involuntary case or other proceeding shall remain undismissed and unstayed for a period of 60 days;
(h) any representation or warranty made by the Guarantor herein shall prove to have been incorrect in any material respect when made or misleading in any material respect when made because of the omission to state a material fact and such incorrect or misleading representation is and continues to be material and unremedied for a period of 30 days after receipt by the Guarantor of written notice thereof; provided, however, that if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 60 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 60-day period. The grace periods set forth in Section 7.1(a) and (b) above shall not affect in any way the right hereunder be, or be construed to be, a waiver of any Beneficiary entitled to a payment of any amount payable to it, future or performance of any obligation, by the RockGen Lessee under any Operative Document to demand prompt payment thereof, subsequent default or performance thereof, by the Guarantor immediately upon any failure of the RockGen Lessee to pay or perform the same when it has become due (and, for the avoidance of doubt, without regard to the existence of any cure or grace period before such failure by the RockGen Lessee becomes a Lease Event of Default); provided. The failure or delay of Lessor in exercising any rights granted it hereunder upon any occurrence of any such right upon the continuation or recurrence of any such contingencies or similar contingencies, however, notwithstanding and any single or partial exercise of any particular right by Lessor shall not exhaust the foregoing, no Lease Event same or constitute a waiver of Default under Section 16(m) and no remedies under the Facility Lease may be exercised until a Calpine Guaranty Event of Default has occurred and is continuingany other right provided herein.
Appears in 1 contract
Defaults. The following events shall constitute an "Event of Default" hereunder (whether any such event shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any Governmental Entity):
(a) It shall be a default (“Default”) under this Note and each of the Guarantor other Loan Documents if (i) any principal, interest or the RockGen Lessee other amount of money due under the Facility Lease shall fail to make any payment with respect to Periodic Rent or the Termination Value (including the Equity Portion of Termination Value and Debt Portion of Termination Value) when due and payable under such Facility Lease or this Guaranty Note is not paid in full within five (5) days Business Days after it is due, regardless of how such amount may have become due; (ii) any covenant, agreement, condition, representation or warranty herein is not fully and timely performed, observed or kept; or (iii) there shall occur any Event of Default under the Loan Agreement. Upon the occurrence of a Default beyond any applicable cure period, Agent shall have the rights to declare the unpaid principal balance and accrued but unpaid interest on this Note, and all other amounts due hereunder and under the other Loan Documents, at once due and payable (and upon such declaration, the same shall become be at once due thereunder; orand payable), to foreclose any liens and security interests securing payment hereof and to exercise any of its other rights, powers and remedies under this Note, under any other Loan Document, or at law or in equity.
(b) All of the Guarantor or the RockGen Lessee shall fail to make rights, remedies, powers and privileges (together, “Rights”) of Agent provided for in this Note and in any other amount Loan Document are cumulative of each other and of any and all other Rights at law or in equity. The resort to any Right shall not prevent the concurrent or subsequent employment of any other appropriate Right. No single or partial exercise of any Right shall exhaust it, or preclude any other or further exercise thereof, and every Right may be exercised at any time and from time to time. No failure by Agent to exercise, nor delay in exercising any Right, including but not limited to the right to accelerate the maturity of this Note, shall be construed as a waiver of any Default or as a waiver of any Right. Without limiting the generality of the foregoing provisions, the acceptance by Agent from time to time of any payment under this Note which is past due or which is less than the payment in full of all amounts due and payable under any Operative Document after at the same shall become due thereunder and such failure shall have continued from a period of ten (10) Business Days after receipt by the RockGen Lessee and the Guarantor of written notice time of such failure by the RockGen Lessee and/or the Guarantorpayment, as applicable;
(c) The Guarantor shall fail to comply with its covenants set forth in Section 3.3 (transfer of RockGen Lessee ownership), 3.6 (Guarantor merger) or 8.4 (assignment of Guaranty) of this Guaranty.
(d) the Guarantor shall fail to perform or observe any covenant, obligation or agreement to be performed or observed by it under any Calpine Document (other than any covenant, obligation or agreement referred to in clauses (a) or (b) of this Section 7.1) in any material respect, which shall continue unremedied for (1) with respect to the Guarantor's guaranty of, and agreement with respect to, any nonmonetary obligation, covenant or agreement of the RockGen Lessee under any of the Operative Documents, 30 days after receipt by the Guarantor of written notice thereof from the Owner Participant, the Owner Lessor, the Indenture Trustee or the Pass Through Trustee; provided, however, if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 180 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 180-day period, and (2) with respect to any other obligation, covenant or agreement hereunder, 30 days after receipt by the Guarantor of written notice thereof;
(e) there shall have occurred either (i) constitute a default by waiver of or impair or extinguish the Guarantor right of Agent to accelerate the maturity of this Note or to exercise any Restricted Subsidiary under other Right at the time or at any instrument subsequent time, or instruments under which there is or may be secured or evidenced nullify any Indebtedness of the Guarantor or any Restricted Subsidiary of the Guarantor (other than the Obligations) having an outstanding principal amount of $50,000,000 (or its foreign currency equivalent) or more individually or in the aggregate that has caused the holders thereof to declare such Indebtedness to be due and payable prior to its Stated Maturity, unless such declaration has been rescinded within 30 days or (ii) a default by the Guarantor or any Restricted Subsidiary in the payment when due exercise of any portion of the principal under any such instrument or instruments, and such unpaid portion exceeds $50,000,000 (or its foreign currency equivalent) individually or in the aggregate and is not paid, or such default is not cured or waived, within any grace period applicable thereto, unless such Indebtedness is discharged within 30 days of the Guarantor or a Restricted Subsidiary becoming aware of such default;
(f) the Guarantor or any Significant Subsidiary pursuant to or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case;
(ii) consents to the entry of an order for relief against it in an involuntary case;
(iii) consents to the appointment of a Custodian of it or for all or substantially all of its property;
(iv) makes a general assignment for the benefit of its creditors; or
(v) admits in writing its inability to generally pay its debts as such debts become due; or takes any comparable action under any foreign laws relating to insolvency;
(g) an involuntary case or other proceeding shall be commenced against the Guarantor or any Significant Subsidiary seeking (i) liquidation, reorganization or other relief with respect to it or its debts under Title 11 of the Bankruptcy Code or any bankruptcy, insolvency or other similar law now or hereafter in effectRight, or (ii) constitute a waiver of the appointment requirement of punctual payment and performance or a trusteenovation in any respect.
(c) If any holder of this Note retains an attorney in connection with any Default or at maturity or to collect, receiverenforce or defend this Note or any other Loan Document in any lawsuit or in any probate, liquidatorreorganization, custodian bankruptcy, arbitration or other similar official proceeding, or if Borrower sues any holder in connection with respect to it this Note or any substantial part of its property other Loan Document and does not prevail, then Borrower agrees to pay to each such holder, in addition to principal, interest and any other sums owing to Agent hereunder and under the other Loan Documents, all costs and expenses incurred by such holder in trying to collect this Note or (iii) the winding-up or liquidation of the Guarantor or such Significant Subsidiary; and such involuntary case or other proceeding shall remain undismissed and unstayed for a period of 60 days;
(h) any representation or warranty made by the Guarantor herein shall prove to have been incorrect in any material respect when made such suit or misleading in any material respect when made because of proceeding, including, without limitation, reasonable attorneys’ fees and expenses, investigation costs and all court costs, whether or not suit is filed hereon, whether before or after the omission to state a material fact and such incorrect or misleading representation is and continues to be material and unremedied for a period of 30 days after receipt by the Guarantor of written notice thereof; provided, however, that if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 60 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 60-day period. The grace periods set forth in Section 7.1(a) and (b) above shall not affect in any way the right hereunder of any Beneficiary entitled to a payment of any amount payable to itMaturity Date, or performance of any obligationwhether in connection with bankruptcy, by the RockGen Lessee under any Operative Document to demand prompt payment thereofinsolvency or appeal, or performance thereof, by the Guarantor immediately upon whether collection is made against Borrower or any failure of the RockGen Lessee to pay guarantor or perform the same when it has become due (and, for the avoidance of doubt, without regard to the existence of endorser or any cure other person primarily or grace period before such failure by the RockGen Lessee becomes a Lease Event of Default); provided, however, notwithstanding the foregoing, no Lease Event of Default under Section 16(m) and no remedies under the Facility Lease may be exercised until a Calpine Guaranty Event of Default has occurred and is continuingsecondarily liable hereunder.
Appears in 1 contract
Defaults. The 1. If one or more of the following events (herein called "defaults") shall constitute an "Event of Default" hereunder (whether any such event shall happen and be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with any judgmentcontinuing, decree or order of any court or any order, rule or regulation of any Governmental Entity):namely:
(a) the Guarantor or the RockGen The Lessee under the Facility Lease shall fail fails to make punctual payment of any payment with respect rent herein agreed to Periodic Rent or the Termination Value (including the Equity Portion be paid, and such failure continues for a period of Termination Value and Debt Portion of Termination Value) when due and payable under such Facility Lease or this Guaranty within five (5) ten days after notice thereof by the same shall become due thereunder; orLessor to the Lessee;
(b) The Lessee makes an assignment for the Guarantor or the RockGen Lessee shall fail to make any other amount payable under any Operative Document after the same shall become due thereunder and such failure shall have continued from a period benefit of ten (10) Business Days after receipt by the RockGen Lessee and the Guarantor of written notice of such failure by the RockGen Lessee and/or the Guarantor, as applicablecreditors;
(c) The Guarantor shall fail to comply with its covenants set forth Lessee files a petition in Section 3.3 (transfer of RockGen Lessee ownership), 3.6 (Guarantor merger) bankruptcy or 8.4 (assignment of Guaranty) of this Guaranty.a petition or answer seeking reorganization under the Federal Bankruptcy Law or any other applicable statute;
(d) An attachment or execution is levied upon the Guarantor shall fail Lessee's property in or interest under this lease which is not satisfied or released or stayed within thirty days thereafter;
(e) An order is entered adjudicating the Lessee a bankrupt or approving an involuntary petition seeking a reorganization of the Lessee under the Federal Bankruptcy Law or any other applicable statute or appointing a receiver or trustee for all or any substantial part of the property of the Lessee, and such order is not vacated or stayed within sixty days after the entry thereof;
(f) The Lessee fails to perform or observe any other covenant, obligation agreement or agreement condition to be performed or observed kept by it the Lessee under any Calpine Document (other than any covenant, obligation or agreement referred to in clauses (a) or (b) the terms and provisions of this Section 7.1) in any material respect, which shall continue unremedied for (1) with respect to the Guarantor's guaranty ofLease, and agreement with respect to, any nonmonetary obligation, covenant or agreement of the RockGen Lessee under any of the Operative Documents, 30 such failure continues for sixty days after receipt by the Guarantor of written notice thereof by the Lessee from the Owner ParticipantLessor; then and in any such event the Lessor shall have the right, at its option, then or at any time thereafter and while such default shall continue, to re-enter and take complete and peaceful possession of the Owner Leased Premises and declare this Lease forfeited and the term thereof ended, and with or without process of law remove all persons therefrom. The Lessee in such event shall peacefully and quietly yield up and surrender the Leased Premises to the Lessor and execute and deliver to the Lessor such instrument or instruments as will properly evidence termination of the Lessee's rights and interest under this Lease, and as may be required by the Lessor. In the event of any such default and the forfeiture and termination of this Lease by the Lessor, the Indenture Trustee or Lessor shall be entitled to recover from the Pass Through Trustee; Lessee the worth, at the time of termination of this Lease, of an amount equal to the then value of the excess, if any, of the aggregate of rent and charges equivalent to the rent reserved in this Lease for the balance of the basic term over the then reasonable rental value of the Leased Premises for the balance of the basic term. Such recovery shall completely discharge the Lessee of all obligations hereunder, notwithstanding any other provisions of this Lease. At the option of the Lessor and in lieu of forfeiting this Lease as above provided, howeverthe Lessor may re-enter the demised premises as aforesaid and as the agent of the Lessee remove therefrom any property of the Lessee, if and may sublet and relet said premises or any part thereof from time to time for any unexpired part of the basic term, and the Lessor may collect the rents therefor, applying the same first to the payment of expenses of such condition cannot re-entry and reletting and then to the payment of the rent due to become due under this Lease, and the Lessee hereby agrees to pay any deficiency therefor. No such re-entry shall release the Lessee from its covenants to pay rentals and other charges provided for herein, and it is agreed that, except in so far as this is inconsistent with or contrary to any provision of this Lease, no right or remedy herein conferred upon or reserved to the Lessor is intended to be remedied within such 30-day periodexclusive of any other right or remedy, then the period within which to and each and every right and remedy such condition shall be extended up to an additional 180 days, so long as the Guarantor diligently pursues such remedy cumulative and such condition is reasonably capable of being remedied within such additional 180-day period, and (2) with respect in addition to any other obligation, covenant right or agreement remedy given hereunder, 30 days after receipt by the Guarantor of written notice thereof;
(e) there shall have occurred either (i) a default by the Guarantor or any Restricted Subsidiary under any instrument or instruments under which there is or may be secured or evidenced any Indebtedness of the Guarantor or any Restricted Subsidiary of the Guarantor (other than the Obligations) having an outstanding principal amount of $50,000,000 (or its foreign currency equivalent) or more individually or in the aggregate that has caused the holders thereof to declare such Indebtedness to be due and payable prior to its Stated Maturity, unless such declaration has been rescinded within 30 days or (ii) a default by the Guarantor or any Restricted Subsidiary in the payment when due of any portion of the principal under any such instrument or instruments, and such unpaid portion exceeds $50,000,000 (or its foreign currency equivalent) individually or in the aggregate and is not paid, or such default is not cured or waived, within any grace period applicable thereto, unless such Indebtedness is discharged within 30 days of the Guarantor or a Restricted Subsidiary becoming aware of such default;
(f) the Guarantor or any Significant Subsidiary pursuant to or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case;
(ii) consents to the entry of an order for relief against it in an involuntary case;
(iii) consents to the appointment of a Custodian of it or for all or substantially all of its property;
(iv) makes a general assignment for the benefit of its creditors; or
(v) admits in writing its inability to generally pay its debts as such debts become due; or takes any comparable action under any foreign laws relating to insolvency;
(g) an involuntary case or other proceeding shall be commenced against the Guarantor or any Significant Subsidiary seeking (i) liquidation, reorganization or other relief with respect to it or its debts under Title 11 of the Bankruptcy Code or any bankruptcy, insolvency or other similar law now or hereafter existing in effect, law or (ii) in equity or by statute.
2. In the appointment event of a trustee, receiver, liquidator, custodian or other similar official with respect to it or any substantial part termination of its property or (iii) this Lease and the winding-up or liquidation reentry of the Guarantor Lessor as aforesaid, the Lessee waives any and all rights to redeem the Leased Premises either given by any statute now in effect or such Significant Subsidiary; and such involuntary case or other proceeding hereafter effected, but the Lessor shall remain undismissed and unstayed for a period of 60 days;
(h) any representation or warranty made by the Guarantor herein shall prove not be deemed to have been incorrect in any material respect when made terminated this Lease or misleading in any material respect when made because the liability of the omission to state a material fact and such incorrect or misleading representation is and continues to be material and unremedied for a period of 30 days after receipt by the Guarantor of written notice thereof; provided, however, that if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 60 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 60-day period. The grace periods set forth in Section 7.1(a) and (b) above shall not affect in any way the right hereunder of any Beneficiary entitled to a payment of any amount payable to it, or performance of any obligation, by the RockGen Lessee under any Operative Document to demand prompt payment thereof, or performance thereof, by the Guarantor immediately upon any failure of the RockGen Lessee to pay rent hereunder or perform its liability for damages by any such entry or by any action in unlawful detainer or otherwise, unless the same when Lessor shall have notified the Lessee in writing that it has become due (and, for the avoidance of doubt, without regard elected to the existence of any cure or grace period before such failure by the RockGen Lessee becomes a Lease Event of Default); provided, however, notwithstanding the foregoing, no Lease Event of Default under Section 16(m) and no remedies under the Facility Lease may be exercised until a Calpine Guaranty Event of Default has occurred and is continuingterminate this Lease.
Appears in 1 contract
Defaults. The following events shall constitute an "An Event of Default" hereunder (whether any such event Default shall be voluntary or involuntary or come about or be effected by operation of law or pursuant deemed to or in compliance with any judgment, decree or order have occurred under this Agreement on the occurrence of any court one or any order, rule or regulation more of any Governmental Entity):the following events:
(a) the Guarantor or the RockGen Lessee under the Facility Lease shall fail to make any payment with respect to Periodic Rent or the Termination Value (including the Equity Portion of Termination Value and Debt Portion of Termination Value) when due and payable under such Facility Lease or this Guaranty within five (5) days after the same shall become due thereunder; or
(b) the Guarantor or the RockGen Lessee shall fail to make any other amount payable under any Operative Document after the same shall become due thereunder and such failure shall have continued from a period of ten (10) Business Days after receipt by the RockGen Lessee and the Guarantor of written notice of such failure by the RockGen Lessee and/or the Guarantor, as applicable;
(c) The Guarantor shall fail to comply with its covenants set forth in Section 3.3 (transfer of RockGen Lessee ownership), 3.6 (Guarantor merger) or 8.4 (assignment of Guaranty) of this Guaranty.
(d) the Guarantor shall fail to perform or observe any covenant, obligation or agreement to be performed or observed by it under any Calpine Document (other than any covenant, obligation or agreement referred to in clauses (a) or (b) of this Section 7.1) in any material respect, which shall continue unremedied for (1) with respect to the Guarantor's guaranty of, and agreement with respect to, any nonmonetary obligation, covenant or agreement of the RockGen Lessee under any of the Operative Documents, 30 days after receipt by the Guarantor of written notice thereof from the Owner Participant, the Owner Lessor, the Indenture Trustee or the Pass Through Trustee; provided, however, if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 180 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 180-day period, and (2) with respect to any other obligation, covenant or agreement hereunder, 30 days after receipt by the Guarantor of written notice thereof;
(e) there shall have occurred either (i) a default by the Guarantor or any Restricted Subsidiary under any instrument or instruments under which there is or may be secured or evidenced any Indebtedness of the Guarantor or any Restricted Subsidiary of the Guarantor (other than the Obligations) having an outstanding principal amount of $50,000,000 (or its foreign currency equivalent) or more individually or in the aggregate that has caused the holders thereof to declare such Indebtedness to be due and payable prior to its Stated Maturity, unless such declaration has been rescinded within 30 days or (ii) a default by the Guarantor or any Restricted Subsidiary in the payment when due of any portion of the principal under any such instrument or instruments, and such unpaid portion exceeds $50,000,000 (or its foreign currency equivalent) individually or in the aggregate and is not paid, or such default is not cured or waived, within any grace period applicable thereto, unless such Indebtedness is discharged within 30 days of the Guarantor or a Restricted Subsidiary becoming aware of such default;
(f) the Guarantor or any Significant Subsidiary pursuant to or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case;
(ii) consents to the entry of an order for relief against it in an involuntary case;
(iii) consents to the appointment of a Custodian of it or for all or substantially all of its property;
(iv) makes a general assignment for the benefit of its creditors; or
(v) admits in writing its inability to generally pay its debts as such debts become due; or takes any comparable action under any foreign laws relating to insolvency;
(g) an involuntary case or other proceeding shall be commenced against the Guarantor or any Significant Subsidiary seeking (i) liquidation, reorganization or other relief with respect to it or its debts under Title 11 of the Bankruptcy Code or any bankruptcy, insolvency or other similar law now or hereafter in effect, or (ii) the appointment of a trustee, receiver, liquidator, custodian or other similar official with respect to it or any substantial part of its property or (iii) the winding-up or liquidation of the Guarantor or such Significant Subsidiary; and such involuntary case or other proceeding shall remain undismissed and unstayed for a period of 60 days;
(h) any Any representation or warranty made by herein or any statement or representation made in any certificate, report or opinion (including legal opinions), financial statement or other instrument furnished in connection with this Agreement (including requisitions), or any of the Guarantor herein shall prove other Loan Documents, proves to have been incorrect in any material respect when made made; or
(i) Borrower fails to pay within fifteen (15) days of when due and payable any payments or misleading in any material respect other charges or sums on or under the Note (whether upon maturity, on any installment date, after acceleration, after notice of prepayment, or otherwise), or (ii) the Borrower fails to pay when made because due (subject to applicable grace period, if any) any other payment required by this Agreement or any of the omission to state a material fact and such incorrect or misleading representation is and continues other Loan Documents to be material paid by the Borrower; or,
(c) The Borrower fails to duly and promptly perform, comply with or observe any of the terms, covenants, conditions or agreements contained herein, other than pertaining to insurance requirements herein for which there shall be no such cure period, which default shall remain unremedied for a thirty (30) days (or such other cure period of 30 days as may be specified herein) after receipt by notice to the Guarantor of written notice Borrower thereof; provided, however, that if such condition default be such that it cannot be remedied corrected within thirty (30) days (or such 30-day periodother cure period as may be specified herein), then the period within which to remedy such condition shall be extended up to an additional 60 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 60-day period. The grace periods set forth in Section 7.1(a) and (b) above it shall not affect in any way the right hereunder of any Beneficiary entitled to a payment of any amount payable to it, or performance of any obligation, by the RockGen Lessee under any Operative Document to demand prompt payment thereof, or performance thereof, by the Guarantor immediately upon any failure of the RockGen Lessee to pay or perform the same when it has become due (and, for the avoidance of doubt, without regard to the existence of any cure or grace period before such failure by the RockGen Lessee becomes a Lease Event of Default); provided, however, notwithstanding the foregoing, no Lease be an Event of Default under Section 16(mif, in the opinion of the Bank reasonably exercised, the Borrower is taking appropriate corrective action to cure the default and if such default will not, in the sole judgment of the Bank, impair the security for the Loan; or
(d) and no remedies under the Facility Lease may be exercised until a Calpine Guaranty An Event of Default occurs under the Deed of Trust or under any of the other Loan Documents; or
(e) The Borrower fails to complete the construction of the Project on or before the Completion Date; or
(f) The Bank's consulting engineer reasonably determines that there is not sufficient time to complete the construction of the Project on or before the Completion Date; or
(g) Subject to conditions beyond the control of the Borrower, work on the Project (i) does not commence, with respect to the Dover Project, within sixty (60) days of the Closing Date, or with respect to the Dublin Project, within ninety (90) days of the Closing Date, or (ii) stops for a period of fifteen (15) consecutive days or (iii) is not proceeding in a manner reasonably satisfactory to the Bank; or
(h) Any interlocutory mechanics' liens are established against the Project and are not caused to be discharged or bonded against by the Borrower within thirty (30) days after it receives notice of the establishment thereof; or
(i) The Bank and its agents, including the Bank's consulting engineer, are not permitted, at all reasonable times, to enter upon the Property, to inspect the Project and all materials, fixtures and articles used or to be used in the construction or renovation of the Improvements, and to examine all detailed plans, show drawings and specifications which relate to the Improvements or the appurtenances thereto or to be used in the operation thereof; or the construction or renovation is not substantially in accordance with the Plans and Specifications, and the Borrower fails promptly upon notice thereof from the Bank to commence and diligently proceed to correct the same (the Bank to determine in its reasonable discretion whether the Borrower is acting promptly and diligently); or
(j) The Borrower does not disclose to the Bank upon demand, the names of all Major Subcontractors and material Suppliers with whom the borrower has occurred contracted for the construction of the Improvements or for the furnishing of labor or materials therefor; or
(k) The Borrower is unable to satisfy any condition of its right to receive disbursement from the Bank for a period in excess of thirty (30) days from the date the requisition therefor is received by the Bank; or
(l) Any survey required by the Bank during the period of construction shows any matters not approved by the Bank and such matters are not removed within thirty (30) days after notice thereof to the Borrower; or
(m) The Borrower fails to comply with any requirement of any governmental authority having jurisdiction within thirty (30) days after notice in writing from such authority of such requirement shall have been given to the Borrower; or if any proceeding is continuingcommenced or action taken to enforce any remedy for a violation of any requirement of a governmental authority or any restrictive covenant affecting the Property or any part thereof.
Appears in 1 contract
Sources: Construction Loan Agreement (Humphrey Hospitality Trust Inc)
Defaults. The following events shall constitute an "Event of Default" hereunder (whether any such event shall be voluntary or involuntary or come about or be effected by operation of law or pursuant This Lease and the term and estate hereby granted are subject to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any Governmental Entity):the further limitation that:
(a) the Guarantor or the RockGen Lessee under the Facility Lease shall fail if there is a failure to make pay when due any payment with respect to Periodic Base Rent, Additional Rent or other payment payable by Tenant pursuant to any provision of this Lease, and the Termination Value (including the Equity Portion of Termination Value and Debt Portion of Termination Value) when due and payable under such Facility Lease or this Guaranty payment in question is not paid in full within five (5) days Business Days after the same shall become due thereunderTenant receives written notice specifying such default; or
(b) the Guarantor if there is a failure to observe, perform or the RockGen Lessee shall fail comply with any term, covenant or condition contained in Section 7.04, Section 9.03(b), or Article 33 of this Lease on Tenant’s part to make any other amount payable under any Operative Document after the same shall become due thereunder observe, perform or comply with, whether by action or inaction, and such default continues and is not cured in full by Tenant within fifteen (15) days after Tenant receives written notice specifying such default; or
(c) if there is a failure shall have continued from a period to observe, perform or comply with any term, covenant or condition contained in Sections 13.06 of this Lease on Tenant’s part to observe, perform or comply with, whether by action or inaction, and such default continues and is not cured in full by Tenant within ten (10) Business Days days after receipt by the RockGen Lessee and the Guarantor of Tenant receives written notice of specifying such failure by the RockGen Lessee and/or the Guarantor, as applicable;
(c) The Guarantor shall fail to comply with its covenants set forth in Section 3.3 (transfer of RockGen Lessee ownership), 3.6 (Guarantor merger) or 8.4 (assignment of Guaranty) of this Guaranty.default; or
(d) the Guarantor shall fail if there is a failure to observe, perform or observe comply with any covenantterm, obligation covenant or agreement condition contained in Article 2 of this Lease on Tenant’s part to observe, perform or comply with, whether by action or inaction, and such default continues and is not cured in full by Tenant within five (5) Business Days after Tenant is given a notice specifying such default; or
(e) if Tenant fails to provide or keep in force the insurance required by this Lease, at the times and for the durations specified in this Lease; or
(f) if any event shall occur or any contingency shall arise whereby this Lease or the estate hereby granted or the unexpired balance of the Term would, by operation of law or otherwise, devolve upon or pass to any person other than Tenant, except as expressly permitted by Article 9; or
(g) if the Premises shall be performed abandoned; or
(h) (i) if there is a failure to observe, perform or observed by it under comply with any Calpine Document term, covenant or condition contained in this Lease on Tenant’s part to observe, perform or comply with (other than any covenantthose terms, obligation or agreement referred to covenants and conditions contained in clauses the provisions of this Lease set forth in subsections (a), (b), (c), (d) and (e) above, and excluding those events described in subsections (f) and (g)), whether by action or inaction, and such default continues and is not cured in full by Tenant within thirty (30) days after Tenant receives written notice specifying such default, or (b) of this Section 7.1ii) in any material respectthe case of a default which cannot with due diligence and using best efforts be cured within a period of thirty (30) days, which shall continue unremedied where the continuance of such default for more than thirty (130) with respect days will not (A) subject Landlord to the Guarantor's guaranty ofimminent or apparent (as opposed to remote) risk of civil liability or the risk of criminal liability, and agreement with respect to(B) subject the Real Property or any part thereof to being condemned or vacated, or (C) subject the Real Property or any nonmonetary obligationpart thereof to any lien or encumbrance or subject the certificate of occupancy for the Building to suspension or revocation or threatened suspension or revocation, covenant or agreement of the RockGen Lessee under any of the Operative Documents, 30 if Tenant shall not (x) within thirty (30) days after receipt by the Guarantor of Tenant is given a written notice thereof from the Owner Participantspecifying such default, the Owner Lessorgive Landlord written notice of Tenant’s intention to duly institute all steps necessary to cure such default (which notice shall include a reasonably detailed description of such steps), the Indenture Trustee or the Pass Through Trustee; provided, however, if such condition cannot be remedied (y) duly institute within such said thirty (30-day period, then the period within which to remedy such condition shall be extended up to an additional 180 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 180-) day period, and thereafter diligently prosecute to completion, using Tenant’s commercially reasonable efforts, all steps necessary to cure such default, and/or (2z) with respect complete such cure within such time after the date of the giving of such notice to Tenant as should have been necessary to complete such cure had Tenant so duly instituted such steps and thereafter diligently prosecuted to completion such cure using its best efforts and in any other obligationevent within sixty (60) days after receipt of Landlord’s written notice of default; or
(i) if there is a default under any term, covenant or agreement hereunder, 30 days after receipt by the Guarantor of written notice thereof;
(e) there shall have occurred either (i) a default by the Guarantor condition on Tenant’s or any Restricted Subsidiary Related Entity’s part to observe, perform or comply with under any instrument other lease or instruments under which there is or may be secured or evidenced any Indebtedness of the Guarantor or any Restricted Subsidiary of the Guarantor (other than the Obligations) having an outstanding principal amount of $50,000,000 (or its foreign currency equivalent) or more individually or occupancy agreement in the aggregate that has caused the holders thereof Building to declare such Indebtedness to be due and payable prior to its Stated Maturity, unless such declaration has been rescinded within 30 days which Tenant or a Related Entity is a party (ii) a default either directly or by the Guarantor or any Restricted Subsidiary in the payment when due of any portion of the principal under any such instrument or instrumentsassignment), and such unpaid portion exceeds $50,000,000 (or its foreign currency equivalent) individually or in the aggregate and is not paid, or such default is not cured or waivedin full after the giving of any required notice and after the expiration of any applicable cure period, within then in any grace period applicable theretoof said cases set forth in the foregoing subsections (a), unless such Indebtedness is discharged within 30 days of the Guarantor or a Restricted Subsidiary becoming aware of such default;
(b), (c) (d), (e), (f) the Guarantor or any Significant Subsidiary pursuant to or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case;
(ii) consents to the entry of an order for relief against it in an involuntary case;
(iii) consents to the appointment of a Custodian of it or for all or substantially all of its property;
(iv) makes a general assignment for the benefit of its creditors; or
(v) admits in writing its inability to generally pay its debts as such debts become due; or takes any comparable action under any foreign laws relating to insolvency;
), (g) an involuntary case or other proceeding shall be commenced against the Guarantor or any Significant Subsidiary seeking (i) liquidation), reorganization or other relief with respect to it or its debts under Title 11 of the Bankruptcy Code or any bankruptcy, insolvency or other similar law now or hereafter in effect, or (ii) the appointment of a trustee, receiver, liquidator, custodian or other similar official with respect to it or any substantial part of its property or (iii) the winding-up or liquidation of the Guarantor or such Significant Subsidiary; and such involuntary case or other proceeding shall remain undismissed and unstayed for a period of 60 days;
(h) any representation or warranty made by the Guarantor herein shall prove to have been incorrect in any material respect when made or misleading in any material respect when made because of the omission to state a material fact and such incorrect or misleading representation is and continues to be material and unremedied for a period of 30 days after receipt by the Guarantor of written notice thereof; provided, however, that if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 60 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 60-day period. The grace periods set forth in Section 7.1(a) and (b) above shall not affect in any way i), or upon the right hereunder occurrence of any Beneficiary entitled to a payment of any amount payable to it, or performance of any obligation, by the RockGen Lessee under any Operative Document to demand prompt payment thereof, or performance thereof, by the Guarantor immediately upon any failure of the RockGen Lessee to pay or perform the same when it has become due (and, for the avoidance of doubt, without regard to the existence of any cure or grace period before such failure by the RockGen Lessee becomes a Lease other Event of Default); provided, howeverLandlord may give to Tenant a notice of intention to end the Term, notwithstanding and on the foregoingfifth (5th) day after the date on which Tenant receives such written notice, no this Lease Event of Default under Section 16(mand the term and estate hereby granted, whether or not the Term shall theretofore have commenced, shall terminate with the same effect as if such fifth (5th) and no remedies under day were the Facility Lease may be exercised until a Calpine Guaranty Event of Default has occurred and is continuingExpiration Date, but Tenant shall remain liable for damages as provided in Article 27.
Appears in 1 contract
Sources: Lease Agreement (Yelp Inc)
Defaults. The following events This Lease and the Term and estate hereby granted are subject to the express limitation that (i) whenever Tenant shall constitute an "Event of Default" hereunder (whether any such event shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or default in compliance with any judgment, decree or order the payment of any court installment of rent, additional rent or any orderother charge payable by Tenant to Landlord or any day upon which the same is due, rule or regulation of any Governmental Entity):
(a) the Guarantor or the RockGen Lessee under the Facility Lease and such default shall fail to make any payment with respect to Periodic Rent or the Termination Value (including the Equity Portion of Termination Value and Debt Portion of Termination Value) when due and payable under such Facility Lease or this Guaranty within continue for five (5) calendar days after written notice thereof shall be given by Landlord to Tenant; or (ii) whenever Tenant shall do or permit anything to be done, whether by action or inaction, contrary to any covenant or agreement on the part of Tenant herein contained or contrary to any of the terms, provisions or conditions of this Lease on the part of Tenant to be kept or performed, or shall fail in the keeping or performance of any of the covenants, agreements, terms, provisions or conditions contained in this Lease, which on the part or behalf of Tenant are to be kept or performed, and if such situation shall continue and shall not be remedied by Tenant within fifteen (15) days after Landlord shall have given to Tenant a written notice specifying the same, or, in the case of a happening or default which for causes beyond Tenant's control cannot with due diligence be cured within a period of fifteen (15) days, if Tenant shall not duly institute and thereafter diligently prosecute to completion all steps necessary to remedy the same, or shall not remedy the same within a reasonable time; or (iii) whenever Tenant shall desert or abandon the Leased Premises or the same shall become due thereunder; or
vacant (b) whether the Guarantor keys be surrendered or nor and whether the RockGen Lessee shall fail to make rent be paid or not), then, in any other amount payable under any Operative Document after of said cases, Landlord may end the same shall become due thereunder and such failure shall have continued from a period Term of ten (10) Business Days after receipt this Lease by the RockGen Lessee and the Guarantor of giving Tenant written notice of its election to do so, and upon the service of such failure by notice, this Lease and the RockGen Lessee and/or term and estate hereby granted (whether or not the Guarantor, Term shall theretofore have commenced) shall expire and terminate with the same effect as applicable;
(c) The Guarantor shall fail to comply with its covenants if that day were the date hereinbefore set forth in Section 3.3 (transfer for the expiration of RockGen Lessee ownership), 3.6 (Guarantor merger) or 8.4 (assignment of Guaranty) the Term of this Guaranty.
(d) the Guarantor shall fail to perform or observe any covenant, obligation or agreement to be performed or observed by it under any Calpine Document (other than any covenant, obligation or agreement referred to in clauses (a) or (b) of this Section 7.1) in any material respect, which shall continue unremedied for (1) with respect to the Guarantor's guaranty of, and agreement with respect to, any nonmonetary obligation, covenant or agreement of the RockGen Lessee under any of the Operative Documents, 30 days after receipt by the Guarantor of written notice thereof from the Owner Participant, the Owner Lessor, the Indenture Trustee or the Pass Through Trustee; provided, however, if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 180 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 180-day period, and (2) with respect to any other obligation, covenant or agreement hereunder, 30 days after receipt by the Guarantor of written notice thereof;
(e) there shall have occurred either (i) a default by the Guarantor or any Restricted Subsidiary under any instrument or instruments under which there is or may be secured or evidenced any Indebtedness of the Guarantor or any Restricted Subsidiary of the Guarantor (other than the Obligations) having an outstanding principal amount of $50,000,000 (or its foreign currency equivalent) or more individually or in the aggregate that has caused the holders thereof to declare such Indebtedness to be due and payable prior to its Stated Maturity, unless such declaration has been rescinded within 30 days or (ii) a default by the Guarantor or any Restricted Subsidiary in the payment when due of any portion of the principal under any such instrument or instruments, and such unpaid portion exceeds $50,000,000 (or its foreign currency equivalent) individually or in the aggregate and is not paid, or such default is not cured or waived, within any grace period applicable thereto, unless such Indebtedness is discharged within 30 days of the Guarantor or a Restricted Subsidiary becoming aware of such default;
(f) the Guarantor or any Significant Subsidiary pursuant to or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case;
(ii) consents to the entry of an order for relief against it in an involuntary case;
(iii) consents to the appointment of a Custodian of it or for all or substantially all of its property;
(iv) makes a general assignment for the benefit of its creditors; or
(v) admits in writing its inability to generally pay its debts as such debts become due; or takes any comparable action under any foreign laws relating to insolvency;
(g) an involuntary case or other proceeding shall be commenced against the Guarantor or any Significant Subsidiary seeking (i) liquidation, reorganization or other relief with respect to it or its debts under Title 11 of the Bankruptcy Code or any bankruptcy, insolvency or other similar law now or hereafter in effect, or (ii) the appointment of a trustee, receiver, liquidator, custodian or other similar official with respect to it or any substantial part of its property or (iii) the winding-up or liquidation of the Guarantor or such Significant Subsidiary; and such involuntary case or other proceeding Lease but Tenant shall remain undismissed and unstayed liable for a period of 60 days;
(hdamages as provided in Article 25(a) any representation or warranty made by the Guarantor herein shall prove to have been incorrect in any material respect when made or misleading in any material respect when made because of the omission to state a material fact and such incorrect or misleading representation is and continues to be material and unremedied for a period of 30 days after receipt by the Guarantor of written notice thereof; provided, however, that if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 60 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 60-day period. The grace periods set forth in Section 7.1(a) and (b) above shall not affect in any way the right hereunder of any Beneficiary entitled to a payment of any amount payable to it, or performance of any obligation, by the RockGen Lessee under any Operative Document to demand prompt payment thereof, or performance thereof, by the Guarantor immediately upon any failure of the RockGen Lessee to pay or perform the same when it has become due (and, for the avoidance of doubt, without regard to the existence of any cure or grace period before such failure by the RockGen Lessee becomes a Lease Event of Default); provided, however, notwithstanding the foregoing, no Lease Event of Default under Section 16(m) and no remedies under the Facility Lease may be exercised until a Calpine Guaranty Event of Default has occurred and is continuinghereof.
Appears in 1 contract
Defaults. The (a) Any of the following events shall constitute an "Event of Default" hereunder ":
(whether i) The Company defaults in the payment of (A) any such event shall be voluntary or involuntary or come about or be effected by operation part of law or pursuant to or in compliance with any judgment, decree or order the principal of any court or any orderNote, rule or regulation of any Governmental Entity):
(a) the Guarantor or the RockGen Lessee under the Facility Lease shall fail to make any payment with respect to Periodic Rent or the Termination Value (including the Equity Portion of Termination Value and Debt Portion of Termination Value) when due and payable under such Facility Lease or this Guaranty within five (5) days after the same shall become due thereunder; or
and payable, whether at maturity or at a date fixed for prepayment or by acceleration or otherwise, or (bB) the Guarantor or the RockGen Lessee shall fail to make interest on any other amount payable under any Operative Document after Note, when the same shall become due thereunder and payable, and such failure default in the payment of interest shall have continued from a period of ten for five (105) Business Days after receipt by the RockGen Lessee and the Guarantor of written notice of such failure by the RockGen Lessee and/or the Guarantor, as applicable;
(c) The Guarantor shall fail to comply with its covenants set forth in Section 3.3 (transfer of RockGen Lessee ownership), 3.6 (Guarantor merger) or 8.4 (assignment of Guaranty) of this Guaranty.
(d) the Guarantor shall fail to perform or observe any covenant, obligation or agreement to be performed or observed by it under any Calpine Document (other than any covenant, obligation or agreement referred to in clauses (a) or (b) of this Section 7.1) in any material respect, which shall continue unremedied for (1) with respect to the Guarantor's guaranty of, and agreement with respect to, any nonmonetary obligation, covenant or agreement of the RockGen Lessee under any of the Operative Documents, 30 days after receipt by the Guarantor of written notice thereof from the Owner Participant, the Owner Lessor, the Indenture Trustee or the Pass Through TrusteeDays; provided, however, if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 180 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 180-day period, and (2) with respect to any other obligation, covenant or agreement hereunder, 30 days after receipt by the Guarantor of written notice thereof;
(e) there shall have occurred either (i) a default by the Guarantor or any Restricted Subsidiary under any instrument or instruments under which there is or may be secured or evidenced any Indebtedness of the Guarantor or any Restricted Subsidiary of the Guarantor (other than the Obligations) having an outstanding principal amount of $50,000,000 (or its foreign currency equivalent) or more individually or in the aggregate that has caused the holders thereof to declare such Indebtedness to be due and payable prior to its Stated Maturity, unless such declaration has been rescinded within 30 days or (ii) a default by the Guarantor or any Restricted Subsidiary in the payment when due of any portion of the principal under any such instrument or instruments, and such unpaid portion exceeds $50,000,000 (or its foreign currency equivalent) individually or in the aggregate and is not paid, or such default is not cured or waived, within any grace period applicable thereto, unless such Indebtedness is discharged within 30 days of the Guarantor or a Restricted Subsidiary becoming aware of such default;
(f) the Guarantor or any Significant Subsidiary pursuant to or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case;or
(ii) consents the Company defaults in the performance of any other agreement or covenant contained in the Purchase Agreements, and such default shall not have been remedied within thirty (30) days after written notice thereof shall have been given to the entry Company by any holder of an order for relief against it in an involuntary case;this Note (the Company to give forthwith to all other holders of this Note at the time outstanding written notice of the receipt of such notice, specifying the default referred to therein); or
(iii) consents to the appointment of a Custodian of it or for all or substantially all of its property;
(iv) makes a general assignment for the benefit of its creditors; or
(v) admits in writing its inability to generally pay its debts as such debts become due; or takes any comparable action under any foreign laws relating to insolvency;
(g) an involuntary case or other proceeding shall be commenced against the Guarantor or any Significant Subsidiary seeking (i) liquidation, reorganization or other relief with respect to it or its debts under Title 11 of the Bankruptcy Code or any bankruptcy, insolvency or other similar law now or hereafter in effect, or (ii) the appointment of a trustee, receiver, liquidator, custodian or other similar official with respect to it or any substantial part of its property or (iii) the winding-up or liquidation of the Guarantor or such Significant Subsidiary; and such involuntary case or other proceeding shall remain undismissed and unstayed for a period of 60 days;
(h) any material representation or warranty made by the Guarantor herein shall prove Company herein, in the Purchase Agreements or in any certificate delivered by the Company pursuant hereto proves to have been incorrect in any material respect when made made; or
(iv) the Company or misleading any Subsidiary shall make an assignment for the benefit of creditors, or shall admit in writing its inability to pay its debts; or a receiver or trustee is appointed for the Company or any material respect when made because Subsidiary or for substantially all of its assets and, if appointed without its consent, such appointment is not discharged or stayed within sixty (60) days; or proceedings under any law relating to bankruptcy, insolvency or the reorganization or relief of debtors are instituted by or against the Company or any Subsidiary, and, if contested by it, are not dismissed or stayed within sixty (60) days; or any writ of attachment or execution or any similar process is issued or levied against the Company or any Subsidiary or any of its property and is not released, stayed, bonded or vacated within sixty (60) days after its issue or levy; or the Company or any Subsidiary takes corporate or limited liability company action in furtherance of any of the omission foregoing.
(b) If an Event of Default occurs pursuant to state a material fact any of clauses (i) through (iii) of Section 5(a) of this Note then and in each such incorrect event and with the concurrence of holders of 67% of the Notes any holder of this Note (unless all Events of Default shall theretofore have been waived or misleading representation is and continues remedied) at its option, by written notice or notices to the Company, may declare this Note to be material due and unremedied payable. If an Event of Default occurs pursuant to clause (iv) of Section 5(a) of this Note, this Note shall automatically and without further action become due and payable. Upon any such declaration (or as to such clause (v) upon its occurrence) this Note shall forthwith immediately mature and become due and payable. However, the foregoing acceleration rights are subject to the following:
(i) if, at any time after the principal of this Note shall so become due and payable and prior to the date of maturity stated in this Note, all interest on this Note (with interest at the rate specified in this Note on any overdue principal and, if applicable, on any overdue interest) shall be paid to the holder of this Note by or for a period the account of 30 days after receipt by the Guarantor of written notice thereof; provided, however, that if such condition cannot be remedied within such 30-day periodCompany, then the period Note holder, by written notice or notices to the Company, may waive such Event of Default and its consequences and rescind or annul any such declaration, but no such waiver shall extend to or affect any subsequent Event of Default or impair any right or remedy resulting therefrom;
(ii) if any holder or holders of Notes which, at the time, holds or hold at least sixty-seven percent (67%) in aggregate principal amount of the Notes then outstanding exercises the above rights of acceleration, then the Company shall notify each other holder of Notes of the fact of such acceleration and each other holder shall, without limiting any other rights hereunder, (A) have the right for thirty (30) days after such notice from the Company to accelerate its own Notes based on the Event or Events of Default on which such acceleration was based (regardless of whether such Event or Events of Default are then continuing), unless at the time there are no outstanding Events of Default and any acceleration of any Notes has been rescinded or (B) be deemed automatically (without any action by such holder) to have accelerated its Notes if such holder has not received such notice of an acceleration from the Company within ten (10) business days after such acceleration; provided that any such automatic acceleration may take place regardless of whether the Event or Events of Default on which the initial acceleration was based are then continuing but such automatic acceleration shall not take place if at the time any and all accelerations of any Notes have been rescinded or annulled pursuant to remedy such condition shall be extended up to an additional 60 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 60-day period. The grace periods set forth in Section 7.1(a) and subparagraph (bi) above or otherwise;
(iii) any holder may at any time rescind and annul any acceleration with respect to its own Notes; and
(iv) if any holder of a Note shall not affect in give any way the right hereunder of notice or take any Beneficiary entitled other action with respect to a payment of any amount payable to it, or performance of any obligation, by the RockGen Lessee under any Operative Document to demand prompt payment thereof, or performance thereof, by the Guarantor immediately upon any failure of the RockGen Lessee to pay or perform the same when it has become due (and, for the avoidance of doubt, without regard to the existence of any cure or grace period before such failure by the RockGen Lessee becomes a Lease claimed Event of Default); provided, howeverthe Company, notwithstanding forthwith upon receipt of such notice or obtaining knowledge of such other action, will give written notice thereof to all other holders of the foregoingNotes then outstanding, no Lease describing such notice or other action and the nature of the claimed Event of Default under Section 16(m) and no remedies under the Facility Lease may be exercised until a Calpine Guaranty Event of Default has occurred and is continuingDefault.
Appears in 1 contract
Defaults. The following are events shall constitute of default under this Note (each, an "“Event of Default" hereunder (whether any such event shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any Governmental Entity”):
(a) the Guarantor Borrower fails to pay any principal, interest, fees, charges, or the RockGen Lessee under the Facility Lease shall fail to make any payment with respect to Periodic Rent or the Termination Value (including the Equity Portion of Termination Value and Debt Portion of Termination Value) other amount when due and payable under such Facility Lease or this Guaranty within five (5) days after the same shall become due thereunderhereunder; or
(b) Borrower fails to deliver any Lender Conversion Shares in accordance with the Guarantor or the RockGen Lessee shall fail to make any other amount payable under any Operative Document after the same shall become due thereunder and such failure shall have continued from a period of ten (10) Business Days after receipt by the RockGen Lessee and the Guarantor of written notice of such failure by the RockGen Lessee and/or the Guarantor, as applicable;
terms hereof; (c) The Guarantor shall fail Borrower fails to comply deliver any Redemption Conversion Shares (as defined below) in accordance with its covenants set forth in Section 3.3 (transfer of RockGen Lessee ownership), 3.6 (Guarantor merger) or 8.4 (assignment of Guaranty) of this Guaranty.
the terms hereof; (d) the Guarantor a receiver, trustee or other similar official shall fail to perform be appointed over Borrower or observe any covenant, obligation a material part of its assets and such appointment shall remain uncontested for twenty (20) days or agreement to be performed or observed by it under any Calpine Document (other than any covenant, obligation or agreement referred to in clauses (a) or (b) of this Section 7.1) in any material respect, which shall continue unremedied for (1) with respect to the Guarantor's guaranty of, and agreement with respect to, any nonmonetary obligation, covenant or agreement of the RockGen Lessee under any of the Operative Documents, 30 days after receipt by the Guarantor of written notice thereof from the Owner Participant, the Owner Lessor, the Indenture Trustee or the Pass Through Trustee; provided, however, if such condition cannot be remedied dismissed or discharged within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 180 sixty (60) days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 180-day period, and (2) with respect to any other obligation, covenant or agreement hereunder, 30 days after receipt by the Guarantor of written notice thereof;
; (e) there shall have occurred either (i) a default by the Guarantor Borrower becomes insolvent or any Restricted Subsidiary under any instrument or instruments under which there is or may be secured or evidenced any Indebtedness of the Guarantor or any Restricted Subsidiary of the Guarantor (other than the Obligations) having an outstanding principal amount of $50,000,000 (or its foreign currency equivalent) or more individually or in the aggregate that has caused the holders thereof generally fails to declare such Indebtedness to be due and payable prior to its Stated Maturity, unless such declaration has been rescinded within 30 days or (ii) a default by the Guarantor or any Restricted Subsidiary in the payment when due of any portion of the principal under any such instrument or instruments, and such unpaid portion exceeds $50,000,000 (or its foreign currency equivalent) individually or in the aggregate and is not paidpay, or such default is not cured admits in writing its inability to pay, its debts as they become due, subject to applicable grace periods, if any, or waived, within any grace period applicable thereto, unless such Indebtedness is discharged within 30 days of the Guarantor or a Restricted Subsidiary becoming aware of such default;
waivers; (f) the Guarantor or any Significant Subsidiary pursuant to or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case;
(ii) consents to the entry of an order for relief against it in an involuntary case;
(iii) consents to the appointment of a Custodian of it or for all or substantially all of its property;
(iv) Borrower makes a general assignment for the benefit of its creditors; or
(v) admits in writing its inability to generally pay its debts as such debts become due; or takes any comparable action under any foreign laws relating to insolvency;
(g) an involuntary case or other proceeding shall be commenced against the Guarantor or any Significant Subsidiary seeking (i) liquidation, reorganization or other Borrower files a petition for relief with respect to it or its debts under Title 11 of the Bankruptcy Code or any bankruptcy, insolvency or other similar law now (domestic or hereafter in effect, or (ii) the appointment of a trustee, receiver, liquidator, custodian or other similar official with respect to it or any substantial part of its property or (iii) the winding-up or liquidation of the Guarantor or such Significant Subsidiaryforeign); and such involuntary case or other proceeding shall remain undismissed and unstayed for a period of 60 days;
(h) an involuntary bankruptcy proceeding is commenced or filed against Borrower; (i) Borrower or any representation pledgor, trustor, or warranty made by the Guarantor guarantor of this Note defaults or otherwise fails to observe or perform (after giving effect to any grace period) any covenant, obligation, condition or agreement of Borrower or such pledgor, trustor, or guarantor contained herein shall prove to have been incorrect or in any material respect when other Transaction Document (as defined in the Purchase Agreement), other than those specifically set forth in this Section 4.1; (j) any representation, warranty or other statement made or furnished by or on behalf of Borrower or any pledgor, trustor, or guarantor of this Note to Lender herein, in any Transaction Document, or otherwise in connection with the issuance of this Note is false, incorrect, incomplete or misleading in any material respect when made because or furnished; (k) the occurrence of a Fundamental Transaction without Lender’s prior written consent unless either (1) 100% of the omission Outstanding Balance due on this Note is paid in full in connection with such Fundamental Transaction or (2) shares of the Borrower’s common stock are still traded on the NYSE, Nasdaq, OTCQX or OTCQB following consummation of the such Fundamental Transaction; (l) Borrower fails to state maintain the Share Reserve as required under the Purchase Agreement; (m) Borrower effectuates a material fact reverse split of its Common Stock without twenty (20) Trading Days prior written notice to Lender other than in connection with a Fundamental Transaction; (n) any money judgment, writ or similar process is entered or filed against Borrower or any subsidiary of Borrower or any of its property or other assets for more than $1,000,000.00, and such incorrect shall remain unvacated, unbonded or misleading representation is and continues to be material and unremedied unstayed for a period of 30 twenty (20) calendar days unless otherwise consented to by Lender; or (o) Borrower, any affiliate of Borrower, or any pledgor, trustor, or guarantor of this Note breaches any material covenant or other term or condition contained in any Other Agreements (after receipt by the Guarantor of written notice thereof; provided, however, that if such condition cannot be remedied within such 30-day period, then the period within which giving effect to remedy such condition shall be extended up to an additional 60 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 60-day period. The any grace periods set forth in Section 7.1(a) and (b) above shall not affect in therein or any way the right hereunder of any Beneficiary entitled to a payment of any amount payable to it, or performance of any obligation, by the RockGen Lessee under any Operative Document to demand prompt payment thereof, or performance thereof, by the Guarantor immediately upon any failure of the RockGen Lessee to pay or perform the same when it has become due (and, for the avoidance of doubt, without regard to the existence of any cure or grace period before such failure by the RockGen Lessee becomes a Lease Event of Defaultwaivers); provided, however, notwithstanding . Notwithstanding the foregoing, no Lease the occurrence of any event specified in Section 4.1(i) – (o) shall not be considered an Event of Default under Section 16(mhereunder if such event is cured within fifteen (15) and no remedies under days of the Facility Lease may be exercised until a Calpine Guaranty Event occurrence of Default has occurred and is continuingsuch event.
Appears in 1 contract
Defaults. The Tenant agrees that any one or more of the following events shall constitute an "Event be considered events of Default" hereunder (whether any such event shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any Governmental Entity):default as said term is used herein:
(a) the Guarantor Tenant shall be adjudged an involuntary bankrupt, or the RockGen Lessee a decree or order approving, as properly filed, a petition or answer filed against Tenant asking reorganization of Tenant under the Facility Federal bankruptcy laws as now or hereafter amended, or under the laws of any state, shall be entered, and any such decree or judgment or order shall not have been vacated or set aside within sixty (60) days from the date of the entry or granting thereof; or
(b) Tenant shall file or admit the jurisdiction of the court and the material allegations contained in any petition in bankruptcy or any petition pursuant or purporting to be pursuant to the Federal bankruptcy laws as now or hereafter amended, or Tenant shall institute any proceeding or shall give its consent to the institution of any proceedings for any relief of Tenant under any bankruptcy or insolvency laws or any laws relating to the relief of debtors, readjustment or indebtedness, reorganization, arrangements, composition or extension; or
(c) The Lease Premises are levied upon by any revenue officer or similar officer; or
(d) A decree or order appointing a receiver of the property of Tenant shall fail to make be made and such decree or order shall not have been vacated or set aside within sixty (60) days from the date of entry or granting thereof; or
(e) Tenant shall abandon the Leased Premises during the Term hereof; or
(f) Tenant shall default in any payment with respect of rent or in any other payment required to Periodic Rent or the Termination Value (including the Equity Portion of Termination Value and Debt Portion of Termination Value) be made by Tenant hereunder when due as herein provided, or shall default under Sections 6.0 or 6.1 hereof, and payable under any such Facility Lease or this Guaranty within default shall continue for five (5) days after the same shall become due thereundernotice thereof in writing to Tenant; or
(bg) the Guarantor or the RockGen Lessee Tenant shall fail to make contest the validity of any other amount payable under any Operative Document after lien or claimed lien caused by Tenant and give security to Landlord to assure payment thereof, or, having commenced to contest the same and having given such security, shall become due thereunder fail to prosecute such contest with diligence, or shall fail to have the same released and satisfy any judgment rendered thereon, and such failure shall have continued from a period of default continues for ten (10) Business Days after receipt by the RockGen Lessee and the Guarantor of written notice of such failure by the RockGen Lessee and/or the Guarantor, as applicable;
(c) The Guarantor shall fail to comply with its covenants set forth in Section 3.3 (transfer of RockGen Lessee ownership), 3.6 (Guarantor merger) or 8.4 (assignment of Guaranty) of this Guaranty.
(d) the Guarantor shall fail to perform or observe any covenant, obligation or agreement to be performed or observed by it under any Calpine Document (other than any covenant, obligation or agreement referred to in clauses (a) or (b) of this Section 7.1) in any material respect, which shall continue unremedied for (1) with respect to the Guarantor's guaranty of, and agreement with respect to, any nonmonetary obligation, covenant or agreement of the RockGen Lessee under any of the Operative Documents, 30 days after receipt by the Guarantor of written notice thereof from the Owner Participant, the Owner Lessor, the Indenture Trustee or the Pass Through Trustee; provided, however, if such condition cannot be remedied within such 30-day period, then the period within which in writing to remedy such condition shall be extended up to an additional 180 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 180-day period, and (2) with respect to any other obligation, covenant or agreement hereunder, 30 days after receipt by the Guarantor of written notice thereof;
(e) there shall have occurred either (i) a default by the Guarantor or any Restricted Subsidiary under any instrument or instruments under which there is or may be secured or evidenced any Indebtedness of the Guarantor or any Restricted Subsidiary of the Guarantor (other than the Obligations) having an outstanding principal amount of $50,000,000 (or its foreign currency equivalent) or more individually or in the aggregate that has caused the holders thereof to declare such Indebtedness to be due and payable prior to its Stated Maturity, unless such declaration has been rescinded within 30 days or (ii) a default by the Guarantor or any Restricted Subsidiary in the payment when due of any portion of the principal under any such instrument or instruments, and such unpaid portion exceeds $50,000,000 (or its foreign currency equivalent) individually or in the aggregate and is not paid, or such default is not cured or waived, within any grace period applicable thereto, unless such Indebtedness is discharged within 30 days of the Guarantor or a Restricted Subsidiary becoming aware of such default;
(f) the Guarantor or any Significant Subsidiary pursuant to or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case;
(ii) consents to the entry of an order for relief against it in an involuntary case;
(iii) consents to the appointment of a Custodian of it or for all or substantially all of its property;
(iv) makes a general assignment for the benefit of its creditorsTenant; or
(vh) admits Tenant shall default in keeping, observing or performing any of the other covenants agreements herein contained to be kept, observed and performed by Tenant, and such default shall continue for thirty (30) days after notice thereof in writing its inability to generally pay its debts as such debts become due; or takes any comparable action under any foreign laws relating to insolvency;
(g) an involuntary case or other proceeding shall be commenced against the Guarantor or any Significant Subsidiary seeking (i) liquidation, reorganization or other relief with respect to it or its debts under Title 11 of the Bankruptcy Code or any bankruptcy, insolvency or other similar law now or hereafter in effect, or (ii) the appointment of a trustee, receiver, liquidator, custodian or other similar official with respect to it or any substantial part of its property or (iii) the winding-up or liquidation of the Guarantor or such Significant Subsidiary; and such involuntary case or other proceeding shall remain undismissed and unstayed for a period of 60 days;
(h) any representation or warranty made by the Guarantor herein shall prove to have been incorrect in any material respect when made or misleading in any material respect when made because of the omission to state a material fact and such incorrect or misleading representation is and continues to be material and unremedied for a period of 30 days after receipt by the Guarantor of written notice thereof; provided, however, that if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 60 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 60-day period. The grace periods set forth in Section 7.1(a) and (b) above shall not affect in any way the right hereunder of any Beneficiary entitled to a payment of any amount payable to it, or performance of any obligation, by the RockGen Lessee under any Operative Document to demand prompt payment thereof, or performance thereof, by the Guarantor immediately upon any failure of the RockGen Lessee to pay or perform the same when it has become due (and, for the avoidance of doubt, without regard to the existence of any cure or grace period before such failure by the RockGen Lessee becomes a Lease Event of Default); provided, however, notwithstanding the foregoing, no Lease Event of Default under Section 16(m) and no remedies under the Facility Lease may be exercised until a Calpine Guaranty Event of Default has occurred and is continuingTenant.
Appears in 1 contract
Defaults. The following events shall constitute an "An Event of Default" hereunder Default shall occur if: (whether any such event i) the Company shall be voluntary or involuntary or come about or be effected by operation default in the payment of law or pursuant to or in compliance with any judgment, decree or order the principal of any court or any orderinstallment of interest on this Note, rule or regulation of any Governmental Entity):
(a) the Guarantor or the RockGen Lessee under the Facility Lease shall fail to make any payment with respect to Periodic Rent or the Termination Value (including the Equity Portion of Termination Value when and Debt Portion of Termination Value) when due and payable under such Facility Lease or this Guaranty within five (5) days after as the same shall become due thereunder; or
and payable, whether at maturity, on demand, on a date fixed for payment thereof, at a date fixed for prepayment, by acceleration or otherwise, (bii) the Guarantor or the RockGen Lessee shall fail to make any other amount payable under any Operative Document after the same shall become due thereunder and such failure shall have continued from a period of ten (10) Business Days after receipt by the RockGen Lessee and the Guarantor of written notice of such failure by the RockGen Lessee and/or the Guarantor, as applicable;
(c) The Guarantor shall fail to comply with its covenants set forth in Section 3.3 (transfer of RockGen Lessee ownership), 3.6 (Guarantor merger) or 8.4 (assignment of Guaranty) of this Guaranty.
(d) the Guarantor Company shall fail to perform or observe any covenant, obligation or agreement contained herein or in any other Transaction Document and the Company has not remedied such default within thirty (30) days after notice of default has been given by the Investor to the Company, (iii) the Company and the Holder, or either one of them, fail, for any reason, to execute, deliver or consummate the "Stock Purchase Agreement" as defined in that certain Letter of Intent among the Company, ▇▇▇▇ and the Holder, dated May 2, 2001, by July 1, 2001, (iv) an Event of Default shall occur under the Note Purchase Agreement or any other Transaction Document and the Company has not remedied such default within thirty (30) days after notice of default has been given by the Investor to the Company, (v) an involuntary proceeding shall be performed commenced or observed by it under any Calpine Document (other than any covenant, obligation or agreement referred to an involuntary petition shall be filed in clauses a court of competent jurisdiction seeking (a) relief in respect of the Company or ▇▇▇▇, or of a substantial part of its property or assets, under Title 11 of the United States Code, as now constituted or hereafter amended, or any other federal or state bankruptcy, insolvency, receivership or similar law, (b) of this Section 7.1) in any material respect, which shall continue unremedied for (1) with respect to the Guarantor's guaranty of, and agreement with respect to, any nonmonetary obligation, covenant or agreement of the RockGen Lessee under any of the Operative Documents, 30 days after receipt by the Guarantor of written notice thereof from the Owner Participant, the Owner Lessor, the Indenture Trustee or the Pass Through Trustee; provided, however, if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 180 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 180-day period, and (2) with respect to any other obligation, covenant or agreement hereunder, 30 days after receipt by the Guarantor of written notice thereof;
(e) there shall have occurred either (i) a default by the Guarantor or any Restricted Subsidiary under any instrument or instruments under which there is or may be secured or evidenced any Indebtedness of the Guarantor or any Restricted Subsidiary of the Guarantor (other than the Obligations) having an outstanding principal amount of $50,000,000 (or its foreign currency equivalent) or more individually or in the aggregate that has caused the holders thereof to declare such Indebtedness to be due and payable prior to its Stated Maturity, unless such declaration has been rescinded within 30 days or (ii) a default by the Guarantor or any Restricted Subsidiary in the payment when due of any portion of the principal under any such instrument or instruments, and such unpaid portion exceeds $50,000,000 (or its foreign currency equivalent) individually or in the aggregate and is not paid, or such default is not cured or waived, within any grace period applicable thereto, unless such Indebtedness is discharged within 30 days of the Guarantor or a Restricted Subsidiary becoming aware of such default;
(f) the Guarantor or any Significant Subsidiary pursuant to or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case;
(ii) consents to the entry of an order for relief against it in an involuntary case;
(iii) consents to the appointment of a Custodian of it receiver, trustee, custodian, sequestrator, conservator or similar official for the Company or ▇▇▇▇, or for all or substantially all a substantial part of its property;
property or assets, or (ivc) makes the winding up or liquidation of the Company or ▇▇▇▇, and such proceeding or petition shall continue undismissed for 60 days, or any order or decree approving or ordering any of the foregoing shall be entered or (vi) the Company or ▇▇▇▇ shall (a) voluntarily commence any proceeding or file any petition seeking relief under Title 11 of the United States Code, as now constituted or hereafter amended, or any other federal or state bankruptcy, insolvency, receivership or similar law, (b) consent to the institution of, or fail to contest in a timely and appropriate manner, any proceeding or the filing of any petition described herein, (c) file an answer admitting the material allegations of a petition filed against it in any such proceeding, (e) make a general assignment for the benefit of its creditors; or
, (vf) admits become unable, admit in writing its inability or fail generally to generally pay its debts as such debts they become due; or takes any comparable action under any foreign laws relating to insolvency;
, (g) an involuntary case or other proceeding shall be commenced against suspend the Guarantor or any Significant Subsidiary seeking (i) liquidation, reorganization or other relief with respect to it or its debts under Title 11 of the Bankruptcy Code or any bankruptcy, insolvency or other similar law now or hereafter in effect, or (ii) the appointment of a trustee, receiver, liquidator, custodian or other similar official with respect to it or any substantial part operation of its property business or (iii) the winding-up or liquidation of the Guarantor or such Significant Subsidiary; and such involuntary case or other proceeding shall remain undismissed and unstayed for a period of 60 days;
(h) take any representation or warranty made by action for the Guarantor herein shall prove to have been incorrect in purpose of effecting any material respect when made or misleading in any material respect when made because of the omission to state a material fact and such incorrect or misleading representation is and continues to be material and unremedied for a period of 30 days after receipt by the Guarantor of written notice thereof; provided, however, that if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 60 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 60-day period. The grace periods set forth in Section 7.1(a) and (b) above shall not affect in any way the right hereunder of any Beneficiary entitled to a payment of any amount payable to it, or performance of any obligation, by the RockGen Lessee under any Operative Document to demand prompt payment thereof, or performance thereof, by the Guarantor immediately upon any failure of the RockGen Lessee to pay or perform the same when it has become due (and, for the avoidance of doubt, without regard to the existence of any cure or grace period before such failure by the RockGen Lessee becomes a Lease Event of Default); provided, however, notwithstanding the foregoing, no Lease Event of Default under Section 16(m) and no remedies under the Facility Lease may be exercised until a Calpine Guaranty Event of Default has occurred and is continuing.
Appears in 1 contract
Sources: Note Purchase Agreement (Webb Interactive Services Inc)
Defaults. The following events shall constitute an "Event of Default" hereunder (whether any such event shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any Governmental Entity):
(a) It shall be a default (“Default”) under this Note and each of the Guarantor other Loan Documents if (after giving effect to any applicable notice, grace or the RockGen Lessee cure periods) (i) any principal, interest or other amount of money due under this Note is not paid in full when due, regardless of how such amount may have become due; (ii) any covenant, agreement, condition, representation or warranty herein or in any other Loan Documents is not fully and timely performed, observed or kept; or (iii) there shall occur any default or event of default under the Facility Lease Deed of Trust or any other Loan Document. Upon the occurrence and during the continuation of a Default, Administrative Agent on behalf of the Lenders shall fail have the rights to make any payment with respect to Periodic Rent or declare the Termination Value (including unpaid principal balance and accrued but unpaid interest on this Note, and all other amounts due hereunder and under the Equity Portion of Termination Value and Debt Portion of Termination Value) when other Loan Documents, at once due and payable under (and upon such Facility Lease or this Guaranty within five (5) days after declaration, the same shall become be at once due thereunder; orand payable), to foreclose any liens and security interests securing payment hereof and to exercise any of its other rights, powers and remedies under this Note, under any other Loan Document, or at Law or in equity.
(b) All of the Guarantor or rights, remedies, powers and privileges (together, “Rights”) of Administrative Agent on behalf of the RockGen Lessee shall fail to make Lenders provided for in this Note and in any other amount Loan Document are cumulative of each other and of any and all other Rights at Law or in equity. The resort to any Right shall not prevent the concurrent or subsequent employment of any other appropriate Right. No single or partial exercise of any Right shall exhaust it, or preclude any other or further exercise thereof, and every Right may be exercised at any time and from time to time. No failure by Administrative Agent or Lenders to exercise, nor delay in exercising any Right, including but not limited to the right to accelerate the maturity of this Note, shall be construed as a waiver of any Default or as a waiver of any Right. Without limiting the generality of the foregoing provisions, the acceptance by Lender from time to time of any payment under this Note which is past due or which is less than the payment in full of all amounts due and payable under any Operative Document after at the same shall become due thereunder and such failure shall have continued from a period of ten (10) Business Days after receipt by the RockGen Lessee and the Guarantor of written notice time of such failure by the RockGen Lessee and/or the Guarantorpayment, as applicable;
(c) The Guarantor shall fail to comply with its covenants set forth in Section 3.3 (transfer of RockGen Lessee ownership), 3.6 (Guarantor merger) or 8.4 (assignment of Guaranty) of this Guaranty.
(d) the Guarantor shall fail to perform or observe any covenant, obligation or agreement to be performed or observed by it under any Calpine Document (other than any covenant, obligation or agreement referred to in clauses (a) or (b) of this Section 7.1) in any material respect, which shall continue unremedied for (1) with respect to the Guarantor's guaranty of, and agreement with respect to, any nonmonetary obligation, covenant or agreement of the RockGen Lessee under any of the Operative Documents, 30 days after receipt by the Guarantor of written notice thereof from the Owner Participant, the Owner Lessor, the Indenture Trustee or the Pass Through Trustee; provided, however, if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 180 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 180-day period, and (2) with respect to any other obligation, covenant or agreement hereunder, 30 days after receipt by the Guarantor of written notice thereof;
(e) there shall have occurred either (i) constitute a default by waiver of or impair or extinguish the Guarantor right of Administrative Agent or Lenders to accelerate the maturity of this Note or to exercise any Restricted Subsidiary under other Right at the time or at any instrument subsequent time, or instruments under which there is or may be secured or evidenced nullify any Indebtedness of the Guarantor or any Restricted Subsidiary of the Guarantor (other than the Obligations) having an outstanding principal amount of $50,000,000 (or its foreign currency equivalent) or more individually or in the aggregate that has caused the holders thereof to declare such Indebtedness to be due and payable prior to its Stated Maturity, unless such declaration has been rescinded within 30 days or (ii) a default by the Guarantor or any Restricted Subsidiary in the payment when due exercise of any portion of the principal under any such instrument or instruments, and such unpaid portion exceeds $50,000,000 (or its foreign currency equivalent) individually or in the aggregate and is not paid, or such default is not cured or waived, within any grace period applicable thereto, unless such Indebtedness is discharged within 30 days of the Guarantor or a Restricted Subsidiary becoming aware of such default;
(f) the Guarantor or any Significant Subsidiary pursuant to or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case;
(ii) consents to the entry of an order for relief against it in an involuntary case;
(iii) consents to the appointment of a Custodian of it or for all or substantially all of its property;
(iv) makes a general assignment for the benefit of its creditors; or
(v) admits in writing its inability to generally pay its debts as such debts become due; or takes any comparable action under any foreign laws relating to insolvency;
(g) an involuntary case or other proceeding shall be commenced against the Guarantor or any Significant Subsidiary seeking (i) liquidation, reorganization or other relief with respect to it or its debts under Title 11 of the Bankruptcy Code or any bankruptcy, insolvency or other similar law now or hereafter in effectRight, or (ii) constitute a waiver of the appointment requirement of punctual payment and performance or a trusteenovation in any respect.
(c) If any holder of this Note retains an attorney in connection with any Default or at maturity or to collect, receiverenforce or defend this Note or any other Loan Document in any lawsuit or in any probate, liquidatorreorganization, custodian bankruptcy, arbitration or other similar official proceeding, or if Borrower sues any holder in connection with respect to it this Note or any substantial part of its property other Loan Document and does not prevail, then Borrower agrees to pay to each such holder, in addition to principal, interest and any other sums owing to Lenders hereunder and under the other Loan Documents, all costs and expenses incurred by such holder in trying to collect this Note or (iii) the winding-up or liquidation of the Guarantor or such Significant Subsidiary; and such involuntary case or other proceeding shall remain undismissed and unstayed for a period of 60 days;
(h) any representation or warranty made by the Guarantor herein shall prove to have been incorrect in any material respect when made such suit or misleading in any material respect when made because of proceeding, including, without limitation, attorneys’ fees and expenses, investigation costs and all court costs, whether or not suit is filed hereon, whether before or after the omission to state a material fact and such incorrect or misleading representation is and continues to be material and unremedied for a period of 30 days after receipt by the Guarantor of written notice thereof; provided, however, that if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 60 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 60-day period. The grace periods set forth in Section 7.1(a) and (b) above shall not affect in any way the right hereunder of any Beneficiary entitled to a payment of any amount payable to itMaturity Date, or performance of any obligationwhether in connection with bankruptcy, by the RockGen Lessee under any Operative Document to demand prompt payment thereofinsolvency or appeal, or performance thereof, by the Guarantor immediately upon whether collection is made against Borrower or any failure of the RockGen Lessee to pay guarantor or perform the same when it has become due (and, for the avoidance of doubt, without regard to the existence of endorser or any cure other person primarily or grace period before such failure by the RockGen Lessee becomes a Lease Event of Default); provided, however, notwithstanding the foregoing, no Lease Event of Default under Section 16(m) and no remedies under the Facility Lease may be exercised until a Calpine Guaranty Event of Default has occurred and is continuingsecondarily liable hereunder.
Appears in 1 contract
Sources: Loan Agreement (Behringer Harvard Short Term Opportunity Fund I Lp)